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High Court of Kerala
THE HONOURABLE MR. JUSTICE K. BALAKRISHNAN NAIR, THE HONOURABLE MR. JUSTICE V. GIRI & THE HONOURABLE MR. JUSTICE C.T. RAVIKUMAR
T. Sudheer
Versus
M.V. Susheela & Others
WA.No. 378 of 2009
Decided on : 09-09-2009
Rules of Business of Government of Kerala - Rules. 8, 10, 12 and 59 - Natural Justice - Whether followed - Whether hearing should be a personal hearing? Whether representation filed by a contesting party is considered and adverted to in the decision, order whether bad for not having a personal hearing? Whether violation of principles of natural justice ipso facto vitiates the order ? Whether Principle 'he who decides must hear/he who hears must decide' if applies to Governmental decisions ? Whether above principle if applies to statutory appeals and revisions before Government ? Held, Hearing the other side, (audi alteram partem), is one of the two main principles of natural justice, the other being the rule against bias. Audi alteram partem means hear the other side or listen to the other side. In other words, it means that no man should be condemned unheard or both sides must be heard before passing any order. If 'A' hears the parties and 'B' takes the decision, then B's decision is one made without hearing the other side. So, essentially when it is said, he who decided did not hear or he who heard did not decide means the decision is rendered without hearing the other side - Hearing need not always be personal hearing or hearing by words of mouth. If a representation is filed by a contesting party and a decision is given adverting to his contentions, the decision must be held to be valid, even though, there was no hearing by words of mouth - It cannot be held that an opportunity for personal hearing is always essential to satisfy the requirement of natural justice. But, when complex and difficult questions are involved, it is only appropriate that personal hearing is provided to the parties. The rules of natural justice, it is well settled, are not embodied rules and they cannot be confined within the straitjacket of a rigid formula. The requirements of natural justice will depend upon the circumstances of the case, nature of the inquiry, the law under which the Administrator is functioning, the subject-matter that is being dealt with, etc - Unless prejudice is shown, violation of the principles of natural justice, ipso facto, will not be accepted as a ground for quashing a decision. The rules of natural justice are designed to advance justice and they cannot be allowed to be used as tools of oppression. If a decision is quashed for violation of principles of natural justice, even if the party impugning the order has absolutely no case on admitted and undisputed facts, it may cause irreparable injury and hardship to the opposite party with a cast-iron case. He will be unnecessarily dragged to defend the proceedings at the instance of a person with no case at all, but only for the reason of not providing an opportunity of hearing to him - An officer, who hears a party on behalf of the Government, can never take a decision personally according to his views. The file, in some cases will have to be sent through the Minister concerned to the Chief Minister and in many cases the Finance Department and the Law Department will have to be consulted. So, in the light of the Rules of Business, it is impossible to implement the principle 'he who heard should decide', when it concerns governmental decisions. Whoever takes the decision on behalf of the Government, be it the Council of Ministers, the Minister or the Secretary concerned, the order can be issued in the name of the Secretary or even an Under Secretary, in view of R.12. In matters of statutory appeals and revisions before the Government, decisions are taken in accordance with the Rules of Business and communicated in the name of the Governor. The order may be signed by the Secretary/Additional Secretary/Joint Secretary/Deputy Secretary or Under Secretary, as the case may be. But the decision may or may not be one taken by the officer who signed it. The power of the Minister concerned to call for any file and take a decision, even though the officers under him may be competent to deal with the said matter and also the power to issue directions to the officers regarding the disposal of a specific case and in that event the officers can take decision in that case, subject to such directions only. In some cases, the files have to be sent to the Chief Minister. In certain other matters, the Council of Ministers alone can take decisions. We have quoted the Rules of Business, wherein there is mandatory consultation with Finance Department and Law Department on certain specified matters. So, a decision, as mentioned earlier, can never be taken according to the personal opinion of the Secretary, who heard the matter. Even if the Secretary who heard the matter may entertain a particular view, the Minister can call for the file and take a different decision or direct the Secretary to take decision in a different manner. Rules of natural justice will step in where the statutory provisions are silent. Where express statutory provisions exist excluding natural justice, the rules of natural justice cannot be brought in by a side wind. If we interpret that, when an Under Secretary hears the matter, he alone can decide because he happened to hear the case, then we will be cutting at the root of the Constitutional principle of Ministerial responsibility envisaged under our Constitution. If the Secretary who heard the matter can decide according to his view, even though the Minister is maintaining a different view and even though the Minister is answerable to the Legislature, by invoking the vague principles of natural justice, we cannot sustain such an interpretation, which will subvert Constitutional democracy. When the Government are conferred with the power of revision or appeal under a Statute, they can take that decision in accordance with their procedure - Court set aside the judgment of the learned Single Judge, for having quashed for violation of the principles of natural justice - The appeal is allowed. Constitution of India,1950 - Article.226.
Balakrishnan Nair, J.
The point that arises for decision in this case, is the applicability of the principle 'he who decides must hear/he who hears must decide' to Governmental decisions. This Writ Appeal was referred to the Full Bench by the Division Bench entertaining the doubt, whether the decision of the Division Bench of this Court in K.P.Subair Haji v. Secretary to Government, 2007 (4) K.H.C. 62, lays down the correct position, in the light of the decision of the Apex Court in A.Sanjeevi v. State of Madras, AIR 1970 SC 1102, which was quoted with approval in Samsher Singh v. State of Punjab, AIR 1974 SC 2192.
2. Before considering the above legal question, we will presently refer to the skeletal facts of the case. The subject matter of the case is concerning the right to manage an Aided Upper Primary School. The appellant was the fourth respondent in the Writ Petition filed by the first respondent herein. The Writ Petition was filed, challenging Ext.P8 order of the Government dated 30.8.2008 in favour of the appellant. S.V.A.U.P.School, Chelambra was owned and managed by one Mr.Appukutty. He died in 1987. He had two children, namely, Mr.Balakrishnan and Mr.Subramanian. Both of them are no more. The first respondent is the widow of Balakrishnan and the appellant is the son of Subramanian. According to the first respondent, the abovesaid Appukutty executed Ext.P1 gift deed dated 11.8.1952 in favour of his wife, Manikutty and their two children, Subramanian and Balakrishnan, transferring some of his properties. On 24.3.1983 Subramanian and Balakrishnan partitioned those properties as per Ext.P2 deed. As per the partition deed, items 1 to 6 were allotted to Subramanian and items 7 and 8 were alloted to Balakrishnan. The school building situate in item 8 of the Schedule to Ext.P2 deed. After Ext.P2, Appukutty submitted a proposal before the Assistant Educational Officer (for short, "A.E.O."), for transfer of the management of the school in favour of Mr.Balakrishnan. The A.E.O., Parappanangadi, as per Ext.P3 proceedings dated 20.9.1986, approved the transfer of management of the school from Appukutty to Mr.Balakrishnan without change of ownership or title, exercising his power under Rule 3 of Chapter V of the Kerala Education Rules (for short, "the K.E.R."). Mr.Balakrishnan continued to be the Manager of the School till his death on 9.6.2006. After his death, the first respondent applied for change of management. The Director of Public Instruction, as per Ext.P6 order dated 24.12.2007 held that change of management in favour of the first respondent could be granted subject to her getting exemption from Rule 8(1) of Chapter III of the K.E.R. as, at the relevant time, she being a teacher of the school, without getting such exemption, cannot function as Manager of the School. The said order Ext.P6, was challenged by the appellant before the Government. The Government, by Ext.P8 order dated 30.8.2008, set aside the order of the Director of Public Instruction and authorised the A.E.O. to approve the appellant as Manager of the School, without change of ownership or title of the school. The direction in Ext.P8 was to be in force till the dispute between the parties was settled by the competent civil court.
3. Ext.P4, according to the first respondent, is not a legally valid Will, as nothing concerning the school remained with Appukutty to be bequethed after the execution of Ext.P1 gift deed. According to her, as per Ext.P2 partition deed, the school and the building vested in Balakrishnan. She also had a case that Ext.P4 was a concocted document. Aggrieved by Ext.P8 order passed relying on Ext.P4, the first respondent filed the Writ Petition.
4. The appellant submitted that he claimed Managership, based on Ext.R4(e) Will dated 18.7.1983, executed by late Appukutty. Later, on 14.12.1983, Appukutty executed Ext.R4(f) Will, bequething Managership in favour of the appellant. He further contended that on 27.6.1984, Appukutty e
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