Important Point:
a) It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority.
b) The post-decisional hearing is a resort which may be allowed in exceptional cases where the compliance of natural justice in form of hearing before decision was an empty formality or giving of hearing would not have made difference or change the scenario. However where the action or order entails civil consequences and becomes complete in itself against the person concerned, post-decisional hearing would only be an eye-wash and could not be viewed as remedy to fill up the want of natural justice.

N.V. Anjaria, J.

1. By offering a post-decisional hearing, whether the order under Section 76B of the Gujarat Cooperative Societies Act, 1961, otherwise passed without affording opportunity of hearing, could be saved for its legality, is the issue surfacing in the present controversy.

2. The challenge is addressed to order dated 10th October, 2016 passed by District Registrar, Cooperative Societies, Surat-the second respondent herein. The said order passed is in exercise of powers under Section 76B of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as 'the Act'). Thereby the second respondent disqualified the petitioners from the membership of Bardoli Gram Vikas Sahakari Mandli for a period of six years under Section 76B(2) of the Act. The order was passed without hearing, however the petitioners were subsequently called upon by communication dated 04th November, 2016 to give explanation for various issues.

3. Noticing the attendant facts, the petitioners were the members of the society elected for five years in April, 2015; they also held the position of the Directors in the year 2007-08. They faced an inquiry in the nature of proceedings under Section 93 of the Act. The Inquiry Officer passed order dated 02nd July, 2016 under Section 96 of the Act fixing the liability of the petitioners as Directors of the society. The allegation against the petitioners was the conduct of investing amount wrongfully in breach of Section 71 of the Act. It appears that Special Civil Application No. 8407 of 2016 was filed before this Court in which on 24th August, 2016 this Court directed to stay of all proceedings pursuant to show-cause notice. The petition was, however, subsequently withdrawn by learned advocate for the petitioners on instructions stating that the order was received by the petitioners prior to the order passed by the Court. It further appears that petitioners filed another Special Civil Application No. 16193 of 2016 which was permitted to be withdrawn by order dated 29th September, 2016 as by the time Gujarat State Co-operative Tribunal was constituted, before which forum alternative statutory remedy was available.

3.1 The background facts did not rest there. Upon the petitioners approaching the Gujarat State Cooperative Tribunal, Tribunal issued notice making it returnable on 13th October, 2016. In the said proceedings of appeal before the Tribunal, District Registrar was a party. Notice of the Tribunal was served on the District Registrar on 09th October, 2016. Despite this, as is the case of the petitioners, with a view to overreach the process of law, impugned order dated 10th October, 2016 was passed by the District Registrar in purported exercise of powers under Section 76B of the Act. A further event occurred that the Tribunal by order dated 18th October, 2016 stayed the order dated 02nd July, 2016 passed by the Inquiry Officer.

3.2 The impugned order dated 10th October, 2016 was undeniably passed without notice to the petitioners or without affording them any hearing. It appears however that subsequent to the passing of order, a notice dated 04th November, 2016 was issued seeking to give post-decisional hearing to the petitioners in respect of order dated 10th October, 2016.

4. Learned advocate for the petitioners Mr. B.S. Patel submitted that though the provision of Section 76B contemplated to give opportunity of hearing, the order came to be passed by the District Registrar without issuing notice to the petitioner and no opportunity of hearing was given. Referring to the order of pendency of the appeal before the State Cooperative Tribunal against the order dated 02nd July, 2016 and pressing the aspect that the impugned order came to be passed even as the District Registrar was served with the notice of the Tribunal, it was submitted that it was an act of overreaching the process of law and that it smacked a mala fide action. It was further submitted that if the opportunity had been given,