2009 Supreme(SC) 1231

2009(5) Supreme 416
SUPREME COURT OF INDIA
Tarun Chatterjee and H.L. Dattu, JJ.
Prakash Ratan Sinha — Appellant
versus
State of Bihar & Ors. — Respondents
Civil Appeal Nos. 4348-4349 of 2009
(Arising out of SLP(C) Nos. 3795-3796 of 2008)
Decided on : 14-07-2009

IMPORTANT POINT
Whenever an action of public body results in civil consequences for the person against whom the action is directed, the duty to act fairly can be presumed and in such a case, the administrative authority must give a proper opportunity of hearing to the affected person.

Headnote:Service Law – Appointment of appellant on daily wages – Appellants case that though he was appointed as a daily wager, he was asked to discharge the work of Accounts Clerk in view of his qualification and experience – Appellant filed an application before Circle Promotion Committee for his promotion or re-appointment to post of Accounts Clerk and his case was recommended for change of his nomenclature from daily wager to Accounts Clerk – On the recommendation so made, Electrical Superintending Engineer, Department of Energy, Electric Works Circle, Patna, issued an order changing his nomenclature from labourer to Accounts Clerk – However, subsequently, the Regular Chief Engineer on assumption of charge, having found that the order passed by the incharge Chief Electrical Engineer was contrary to the Rules and the Government Orders issued from time to time, cancelled said order –Writ petition thereagainst by appellant – Allowed by Single Judge, on ground that impugned order had been passed without affording an opportunity of hearing to appellant – Appeal – Allowed by Division bench on ground, that affording an opportunity of hearing before passing the impugned order was mere empty formality and even if an opportunity of hearing was granted, result would have been the same – Appeals – Division Bench not disputed the fact of passing of the impugned order without hearing the appellant, but condones procedural irregularity by bringing it under the “doctrine of futile exercise” – According to the Court, even if an opportunity of showing cause was afforded to the appellant, it would not have made any difference – However logic adopted by Division Bench held incomprehensible – Since case involved disputed facts , respondents without affording an opportunity of hearing, could not have taken any administrative decision unilaterally – Hence Division Bench of High Court was not justified in concluding “unless formality theory” need not have been followed by respondents – Impugned orders passed by High Court held unsustainable – Appeals allowed. (Paras 9 to 11)

       Facts of the Case :

        1. Appellant herein in the instant case was appointed on daily wages. Appellants case that though he was appointed as a daily wager, he was asked to discharge the work of Accounts Clerk in view of his qualification and experience. Appellant filed an application before Circle Promotion Committee for his promotion or re-appointment to post of Accounts Clerk and his case was recommended for change of his nomenclature from daily wager to Accounts Clerk. On the recommendation so made, Electrical Superintending Engineer, Department of Energy, Electric Works Circle, Patna, issued an order changing his nomenclature from labourer to Accounts Clerk. However, subsequently, the Regular Chief Engineer on assumption of charge, having found that the order passed by the incharge Chief Electrical Engineer was contrary to the Rules and the Government Orders issued from time to time, cancelled said order.Writ petition thereagainst by appellant was allowed by Single Judge, on ground that impugned order had been passed without affording an opportunity of hearing to appellant. Appeal thereagainst was allowed by Division bench on ground, that affording an opportunity of hearing before passing the impugned order was mere empty formality and even if an opportunity of hearing was granted, result would have been the same.

        2. Present appeals have been filed against said order of High Court.

       Findings of the Court :

       Division Bench not disputed the fact of passing of the impugned order without hearing the appellant, but condones procedural irregularity by bringing it under the “doctrine of futile exercise”. According to the Court, even if an opportunity of showing cause was afforded to the appellant, it would not have made any difference. However logic adopted by Division Bench held incomprehensible. Since case involved disputed facts, respondents without affording an opportunity of hearing, could not have taken any administrative decision unilaterally.Hence Division Bench of High Court was not justified in concluding “unless formality theory” need not have been followed by respondents. Impugned orders passed by High Court were held unsustainable.

       Result : Appeals allowed.