PETITIONER: CHANDRAMOULESHWAR PRASAD Vs. RESPONDENT: PATNA HIGH COURT & ORS. DATE OF JUDGMENT: 07/10/1969 BENCH: <NAME>, G.K. BENCH: <NAME>, G.K. HIDAYATULLAH, M. (CJ) SIKRI, S.M. RAY, A.N. REDDY, P. JAGANMOHAN CITATION: 1970 AIR 370 1970 SCR (2) 666 1970 SCC (3) 36 CITATOR INFO : F 1971 SC1696 (20) R 1975 SC 511 (23) RF 1975 SC 613 (37) D 1976 SC 404 (15,19) RF 1977 SC 276 (11) R 1977 SC2328 (38) R 1979 SC 193 (34,38) R 1980 SC1426 (12) R 1982 SC 149 (560,563,581,582,633,657,759,8 R 1982 SC1579 (26A,27,28,30) D 1984 SC1595 (64) R 1987 SC 331 (24) RF 1992 SC1546 (17) ACT: Constitution of India, 1950, Art. 233- Appointment of District Judges-Consultation with <ORG>, what is. Gradation List of Additional District Judges prepared by <ORG>--Effect of entry therein. HEADNOTE: The petitioner as well as respondents 3 to 5 belong to <ORG>. They joined service as <NAME>, the petitioner in 1941 and the respondents 3 to 5 in 1944. They were promoted as Subordinate Judges and in 1962 the question of promoting them as Additional District and Session Judges was considered by the <ORG> and <ORG>, and although the <ORG> wanted respondents 3 and 4 to function as Additional District and Sessions Judges ahead of the petitioner and its recommendation in that behalf was accepted by the <ORG>, due to certain circumstances the petitioner started acting as such earlier than respondents 3 to 5 from January 1963. The Bihar Civil List, published in March, 1968 showed the petitioner as No. 10, and respondents 1 to 5 as No. 12 to 14 in the cadre. The respondents made a representation to <ORG>Court for a correction of their gradation in the list and the <ORG> accepted the representation in September 1968. In the same month, the District and -Sessions Judge at <NAME> retired and respondent No. 3 who was the, third Additional District and Sessions Judge was asked by the <ORG> to officiate in the vacancy. The petitioner who was also working as first Additional District and Sessions Judge at the same place considered this to be a supersession and memorialized the <ORG> and the <ORG> took action on 17th October 1968 appointing the petitioner as officiating District and Sessions Judge. Thereupon the <ORG> transferred the petitioner to another district on 25th October 1968. In a writ petition under Art. 32 for quashing the <ORG>'s order of transfer, HELD : (1) The position of a person in a Civil List gives no indication of his intrinsic quality as an officer. The. List merely shows the length of service, of the officers according to the dates of their appointment. their posting at the time when the list is published and their designation and scale of pay at that time. The gradation list of the <ORG> has no legal basis and its preparation is not sanctioned by the, Bihar Superior Judicial Service Rules. The seniority inter se of the petitioner and the three respondents would have to be determined when the question of their confirmation comes up for consideration since they are all holding only officiating posts. The order of the <ORG> could not be supported on the basis of seniority. [675 G] (2)But, the <ORG> Notification of 17th October 1968 was not in compliance of Art. 233 of the Constitution. Under Art. 233 of the Constitution the appointment of a person to be District Judge rests with the Governor but he must make the appointment in consultation with the <ORG>. The Governor should make up his 667 mind after there his been a deliberation with the <ORG>, because, the <ORG> is the body familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The consultation is not to be an empty formality. The consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. It one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer, the direction to give effect to the counter proposal, without anything more, cannot be said to have been issued after consultation [674 F-675 B] In the present case, the correspondence showed that whereas the <ORG> had definitely taken the view that respondent No. 3 as the senior Additional District arid Sessions Judge should take charge from the retiring District Judge the, <ORG> was not of that view. But the <ORG> never suggested to the <ORG> that the petitioner was senior to the 3rd respondent or that he had a better claim and as such was the person fit to be appointed temporarily :is District and Sessions Judge. Before issuing its notification dated October 17, 1968 the <ORG> never attempted to ascertain the views of the <ORG> with regard to the petitioner's claim or gave the <ORG> any indication of its views with regard thereto. Therefore the <ORG> notification cannot be sustained and as it was not valid, the <ORG> was within its rights to transfer the petitioner to another District, [674 <CITATION> .  1 S.C.R. 454. followed. [Desirability of avoiding misunderstanding between <ORG> and <ORG>, and resolution of differences of opinion by mutual deliberation pointed out.] JUDGMENT:

ORIGINAL JURISDICTION :Writ Petition No. 349 of 1968. Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the petitioner. <NAME>, Advocate-General for the State of Bihar, <NAME>, <NAME>, <NAME> and <NAME> for respondent No. 1.

<NAME> and <NAME>, for respondent No. 2. <NAME>, for the Advocate-General, Kerala. <NAME>, Attorney-General and <NAME>, for the Advocate-General, Maharashtra.

<NAME>, for the Advocate-General, Madras. <NAME>, for the Advocate-General, <NAME>, <NAME> for <NAME>, for the Advocate-General, West Bengal.

<NAME> for <NAME> for <ORG>.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for <ORG>. Sup.CI/70 12 The Judgment of the Court was delivered by <NAME>, J. By this petition under Art. 32 of the Constitution the petitioner, at present an Additional <ORG> in the State of Bihar, challenges the validity of (1) the order of <ORG> by Notification No. 333 dated 25th October 1968 transferring him from Arrah and posting him as Additional <ORG> at Singhbhum, (2) direction or as calls it, lie order of <ORG> dated September 23, 1968, declaring respondents 3 to 5 as senior to him in the gradation list of Additional <ORG> judges maintained by <ORG>. he also prays that <ORG> to be directed to allow him to take over charge as officiating <ORG> at Arrah in terms of <ORG> notification dated October 17, 1968. According Lo him the direction or order of September 23, 1968 was in contravention of R. 16(b) and R. 16(d) of the Bihar- Superior Judicial, Service Rules. He takes his stand on the notification of <ORG> dated October 17, 1968 purporting to appoint him temporarily as officiating <ORG> of Arrah and contends that the order of <ORG> dated October 25, 1968 following close to the heels of the said <ORG> notification amounted to his reduction in rank and was otherwise penal in nature. His further complaint is that the direction of <ORG> requiring <NAME> the retiring District Judge of Arrah in September 1968 to hand over charge of his office to <NAME>, respondent No. 3, by purporting to appoint him as officiating <ORG> was a discriminatory order contravening Arts. 14, 16 and 311 of the Constitution. The respondents to the petition are (1) <ORG> of Judicature at Patna through its Registrar, (2) the State of Bihar through its Chief Secretary, (3) <NAME>, at present Additional <ORG> of Arrati, (4) <NAME>, at present Additional <ORG>. <NAME> and (5) <NAME>, at present Secretary, Legis- lative <ORG>, Patna.

The controversy arose in the following way In September 1968 <NAME>, <ORG> Sessions Judge at Arrah was due to retire on September 30. The petitioner was then working there as the first Additional <ORG> Judge. Respondent No. 3, <NAME> was another Additional <ORG> Judge at Arrah designated as the third Additional <ORG> Judge. On the retirement of <NAME> someone had to take charge from him and act as <ORG> Judge either temporarily or on a permanent basis <ORG> was of opinion that <NAME>, respondent No. 3 was the senior. Additional <ORG> Judge at Arrah and as such should be directed to officiate in the vacancy. The high Court wanted to post one <NAME> as the District Judge there but there was some difficulty in the way of his taking over charge Immediately. The petitioner who had joined the judicial service some years before respondent No. 3 considered this as super-session of his claims. <ORG> also appears to have felt that the petit-loner should be appointed to act temporarily as the <ORG> Judge at Arrah. Before the difference in the points of view of <ORG> and the <ORG> could be effectively discussed or resolved, <ORG> directed <NAME> to make over charge to responding No. 3 which was complied with. While the <ORG> was still undecided as to the course to be adopted it received a representation from the petitioner alleging wrongful supersession by <ORG> and claiming seniority over <NAME> and respondents 4 and 5. This appears to have stirred the <ORG> into immediate action by the issue of a notification of October 17, 1968 appointing the petitioner as officiating <ORG> Judge at Arrah tem- porarily. This not being to liking of <ORG>, the latter transferred the petitioner to the District of Singhbhum as Additional <ORG> Judge on 25th October 1968. The petitioner filed this Writ Petition on 29th October 1968 claiming the reliefs mentioned. In order to appreciate the respective contentions of the parties, it is necessary to note a few facts happening before the above controversy. The petitioner as well as respondents 3, 4 and 5 all belong to <ORG>. They all joined service 'is Munsifs, the petitioner doing so in 1941 while the respondents 3, 4 and 5 did so in 1944. Later they were all appointed as Additional Subordinate Judges, the petitioner in 1949 and the said respondents in 1951-1952. <ORG> published it, March 1968 shows the petitioner at serial No. 10, one <NAME> at No. 11, Govind Mohan <NAME>, respondent No. 3 at No. 11, <NAME>, respondent No. 4 at No. 13 and <NAME>, respondent No. 5 at No. 14. The question of these persons being selected and as Additional <ORG> Judges engaged the of <ORG> as early as March 1962 when two vacancies occurred in that rank. In considering the claims of these persons to promotion the Registrar of <ORG> wrote to the Chief Secretary, <ORG> of Bihar pointing out that three officers including the petitioner had been passed over only about a month back and the question of re-considering their cases did not at the moment arise. Among the four officers immediately below the said three persons, <ORG> considered the respondents 3 and 4. to be fit for promotion in preference to the other two for reasons given. <ORG> recommend <NAME>, respondent No. 3 and <NAME>,  as fit for promotion and suggested their posting as Additional <ORG> Judges at Hazaribagh and at Arrah. As <NAME> was then acting as Deputy Secretary, <ORG> and <NAME> was functioning as Under Secretary, <ORG>, <ORG> requested that they might be released to enable them to join their new, posts. The <ORG> record of April 1962 shows that the matter was considered in detail and that <ORG> recommendation which involved the supersession of the petitioner and two other officers by respondents 3 and 4 met with the approval of the Secretary subject to the acceptance of the Chief Minister. The suggestion for the posting of the said respondents on promotion was also accepted and the Secretary asked for the sanction of the Chief Minister to the proposed promotion and request to the <ORG> and <ORG> for release of respondents 3 and 4 to give effect to their proposed posting. This proposal of the Secretary was accepted by the Chief Minister. However effect could not be given to the above for reasons which it is not necessary to note. The Registrar of <ORG> wrote to the Secretary to the <ORG> of Bihar on May 5, 1962 to keep the notification appointing respondents 3 and 4 as Additional <ORG> Judges in abeyance until receipt of further communication. The matter came up before <ORG> once more in September 1962 and the Registrar wrote to the Secretary intimating that the forthcoming vacancy in the rank of Additional <ORG> Judge on 12th October, 1962 by retirement of an officer should be filled up by promoting <NAME> then Deputy Secretary, <ORG> to act as Additional <ORG> Judge of Hazaribagh with effect from the said date. Request was also made to take steps to get <NAME> relieved from the post he was then holding. Within the space of a few days the matter was considered at the <ORG> and a note was put up by the Secretary for the Chief Minister to the effect that if the latter agreed, the <ORG> would be asked to accord its approval to relieve <NAME> whereupon he would be posted as Additional District Judge, Hazaribagh. The Chief Minister agreed to this proposal on 14th September. Soon thereafter the Registrar informed the Secretary that another vacancy had already occurred on 14th September 1962 and recommended <NAME>'s appointment as Additional <ORG> Judge of Hazaribagh in the earlier vacancy. The recommendation apparently could not be given effect to. It a pears that <ORG> recommended respondent No. 4 to act <NAME> Additional <ORG> Judge on 4th October, 1962 when he was still serving <ORG> as its Deputy Secretary. The subject of promotion of these officers again came up before <ORG> in November 1962. On a reconsideration of the cases of the petitioner and <NAME> as a result of the enquiry made through <ORG> Judges the Court found them fit for promotion, and by letter dated November 21 recommended that the petitioner who was then acting as Subordinate Judge, <NAME>, be appointed to act as Additional <ORG> Judge in place of respondent No. 4 and posted at Darbhanga. The Court also suggested that <NAME> should be appointed to act as Additional <ORG> Judge at Hazaribagh. <ORG> accepted this recommendation and made the necessary notification of posting the petitioner and <NAME> as Additional <ORG> Judges oil 7th January 1963. As respondents 3 and 4 could not then take up their appointments as Additional <ORG> Judges because they were not released from the <ORG> and <ORG> the <ORG> by letter dated 7th November 1963 addressed to the Accountant General, Bihar allowed respondents 3 and 4 to draw pay in the scale admissible to Additional <ORG> Judges with effect from 15th January 1963. The petitioner started functioning as Additional <ORG> Judge at Darbhanga on January 23, 1963.

It would therefore appear that although <ORG> want- ed respondents 3 and 4 to function as Additional District and Sessions Judges ahead of the petitioner on more than one occasion and its recommendation on that behalf was accepted by the Government of Bihar by a fortuitous combination of circumstances the petitioner and <NAME> started acting as such earlier than the said. respondents 3, 4 and 5. As the recommendations of <ORG> were probably not unknown to them respondents 3, 4 and 5 made a representation to <ORG> in August 1968 for correction of their gradation in the Civil List so as to rank them over the petitioner and <NAME> in the cadre of Additional District and Sessions Judges and <ORG> by letter dated 23rd September 1968 accepted the representation and sent copies thereof to the petitioner and <NAME> for their information.

It may be noted at this stage that the gradation of the officers by <ORG> or maintaining any list showing which gradation is not sanctioned by any service rules. The Bihar Superior Judicial Service Rules to which our attention was drawn do not contain any provision which would entitle <ORG> to make such a gradation or act thereon. Rule 5 of the said Rules prescribes that ordinarily appointments to the post of Additional <ORG> Judges shall be made by the Government in consultation with <ORG> and under R. 8 a person appointed either on substantive or officiating basis to the post of Additional <ORG> Judge shall draw pay on the lower time basis. Rule 16(b) provides that seniority inter se of promoted officers shall be determined in accordance with the dates of their substantive appointments to the service and R. 16(d) lays down that more than one appointment is made by promotion at one time, the seniority inter se of the officers promoted shall be in accordance with the respective seniority in the Bihar Civil Service (<ORG>). The question of seniority therefore has to be determined when the persons appointed either temporarily or on an officiating basis are given substantive appointments. So far as the petitioner and the three respondents are concerned that time is yet to come. We may now proceed to note the events in the crucial days of September and October 1968. Towards the end of September 1968 <ORG> had to consider that question of someone taking charge as <ORG> Judge from the retiring incumbent, <NAME>. <ORG> as already noted, wanted to fill that post by <NAME> who was an Additional District Judge at Singhbhum but for some reason or other was not free to join immediately and it became necessary to make some temporary arrangement. The Registrar wrote a letter to the Secretary that the senior Additional District Judge of Arrah be temporarily appointed to act as <ORG> Judge with effect from 1st October 1968 and as in the view of <ORG> <NAME> was the senior officer in that cadre the <ORG> recommended his to the Government. The Secretary wrote back to the Registrar on 30th September that Government had no objection to notify the Senior Additional District Judge as temporary <ORG> Judge of Shahabad but from the records at ,he Secretariat it appeared that <NAME> was ,not the senior Officer. On 2nd October 1968 the Registrar wrote to the Secretary that as <NAME> had already retired it was necessary to appoint <NAME> the senior Additional District Judge to act temporarily as <ORG> Judge without any loss of time so that any urgent bail applications etc. might be disposed of and requested that necessary notification be issued immediately. There was no response from the Secretariat. The Registrar followed his memorandum of October 2 by writing to the Secretary again on October 4, the subject matter of the letter being "Correction of the Bihar Civil List so as to rank Gobind Mohan <NAME>, <NAME> and <NAME> 1 above <NAME> and D. N.

<NAME>".

The Registrar forwarded copies of the representations of the three respondents and gave the <ORG>'s view that there was justification for correcting the civil list as suggested in the representations. Reference was made to the letters of 4th October 1962 and 21st November 1962 mentioned above and it was pointed out that the decision of the <ORG> to give respondents 3 and 4 the status of Additional <ORG>s with effect from 15th January 1963 by upgrading the posts they were holding was based on the fact that they had been recommended earlier than the petitioner and <NAME> to officiate as Additional <ORG>s and that the last two officers had started to function as such from 23rd January 1963. It was further pointed out that <NAME>, respondent No. 5 could not take over charge earlier than 6th February 1963 because the <ORG> had required him to finish the part-heard Sessions Case which he was then trying as Assistant Sessions Judge before joining his post on promotion. The <ORG> therefore requested the <ORG> to correct the Bihar Civil List as suggested, <ORG> does not seem to have taken any action on the letters of 2nd and 4th October. On receipt of a copy of the <ORG>'s direction on the representation of respondents 3, 4 and 5 the petitioner started moving on his own behalf and addressed a memorial to the Chief Secretary to the <ORG> of Bihar through the Registrar of High <ORG> on October 15, 1968. In substance the complaint of the petitioner was that the High <ORG> was not right in accepting, the representation of respondents 3, 4 and 5 and placing them above him in the gradation list. He prayed that the order of the High <ORG> in this respect might not be implemented until the disposal of his appeal by the <ORG> and that promotion to the senior scale of <ORG> be kept pending until then. <ORG> reacted to this by a notification dated 17th October 1968 appointing the petitioner as temporary <ORG> Shahabad until the appointment of a permanent officer in the vacancy caused by the retirement of <NAME>. The letter of the Secretary to the Registrar of even date was to the effect that <ORG> was until then not able to consider the recommendation of the High <ORG> forwarded in its letter of October 4, 1968 regarding revision of seniority 'and it could. not accept the position that the petitioner should 'he treated as junior to <NAME> and therefore it would not be desirable to notify <NAME> as officiating <ORG> pending finalisation of the posting of a regular <ORG>. With regard to the High <ORG>'s recommendation of 4th October <ORG> stated that it would take time to examine the same. It is obvious that <ORG> was moved by the representation of he petitioner.

The question arises whether the action of the <ORG> in issuing the notification of October 17, 1968 was in compliance with Art. 233 of the Constitution. No doubt the appointment of a person to be a District Judge rests with the Governor but he cannot make the appointment on his own initiative and must do so in consultation with <ORG>. The underlying idea of the Article is that the Governor should make up his mind after there has been a deliberation with <ORG>. <ORG> is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. <ORG> alone knows their merits as also demerits. This does not mean that the Governor must accept whatever advice is given by <ORG> but the Article does require that the Governor should obtain from <ORG> its views on the merits or demerits of persons among whom the choice of promotion is to be limited. If <ORG> recommends A while the Governor is of opinion that B's claim is superior to A's it is incumbent on the Governor to consult <ORG> with regard to its proposal to appoint B and not A. If the Governor is to appoint B without getting the views of <ORG> about B's claim vis-a-vis A's Lo promotion, B's appointment cannot be said to be in compliance with Art. 233 of the Constitution. The correspondence noted above which passed between <ORG> and the <ORG> from 28th September 1968 to 7th October 1968, shows that whereas <ORG> had definitely taken the that <NAME> as the senior Additional District Sessions Judge should be directed to take charge from Chakravarty, the <ORG> was not of the view that according to the records in its appointment department <NAME> was the senior officer at Shahabad among he Additional District and Sessions Judges. <ORG> never suggested to <ORG> that the petitioner was senior to <NAME> or that the petitioner had a better claim han <NAME>'s and as such was the person fit to be appointed temporarily as District and Sessions Judge, Before the notification of October 17, 1968 <ORG> never attempted to ascertain the views of <ORG> with regard to the petitioner's claim to the temporary appointment or gave <ORG> any indication of its own views with regard thereto excepting recording dissent about <NAME>'s being the senior officer in the cadre of Additional District and Sessions Judges at Arrah. Consultation with <ORG> under Art. 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned <ORG> is best fitted to adjudge the claims and merits of persons to be considered for promotion. The Governor cannot discharge his function under Art. 233 if he makes an appointment of a person without ascertaining <ORG>'s views in regard thereto. It was strenuously contended on behalf of the State of Bihar the materials before the Court amply demonstrate that there had been consultation with <ORG> before the issue of the notification of October 17, 1968. It was said that <ORG> had given the <ORG> its views in the matter; the <ORG> was posted with all the facts and there was con- sultation sufficient for the purpose of Art. 233. We cannot accept this. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation. In our opinion, the notification of October 17, 1968 was not in compliance with Art. 233 of the Constitution. In the absence of consultation the validity of the notification of 17th October, 1968 cannot be sustained.

If the notification of October 17, 1968 be not valid <ORG> was within its rights to transfer the petitioner to the District of Singhbhum as an Additional District and Sessions Judge. It was pointed out by this Court in <CITATION> (1) that the right to transfer judicial officers including District Judges after their appointment and posting, rested with <ORG>. The correspondence between <ORG> and <ORG> in the years 1962, 1963 and 1968 was placed before us in detail. We were also shown the notes prepared at the Secretariat and the Chief Minister's views thereon from time to time. Having considered all this material and the affidavits affirmed in this case, our definite conclusion is that there was no foundation for the petitioner's of mala fides against <ORG> or the veiled insinuations against its present Chief Justice. Supersession of the petitioner by <NAME> and others bad been decided upon as far back as 1962 and 1963 when <ORG> had a different Chief Justice. In making its recommendation in 1968 <ORG> was merely attempting to give effect to a decision arrived at in 1962 and 1963. The cause of the supersession of the petitioner was the adverse remarks against him by some of the former Judges of <ORG>. Whatever be the effect of these remarks the petitioner may be considered to have outlived them by reason of the fact that <ORG> recommended his case for posting as an Additional District and Sessions Judge in November 1962. The position of a person in a Civil List gives no indication of his intrinsic quality as an officer. The list merely shows the length of service of the officers according to the dates of their appointment, their posting at the time when the list is published and their designation and scale of pay at flat time. The gradation list of <ORG> has no legal basis and its preparation is not sanctioned by the Bihar Superior Judicial Service Rules. The seniority inter se of the petitioner and the three respondents will have to be determined when the question of their confirmation comes up for consideration. At the present (1)  1 S.C.R 454.

moment the question does not arise and <NAME> who holds the office of the District and Sessions Judge at Arrah is undoubtedly senior to them all. We only hope that there will be no such misunderstanding between <ORG> and the <ORG> in the future and if there ever be any difference of opinion attempts will be made to resolve them by mutual deliberation without one or the other making an order or giving a direction contrary to the views of the other before deliberation.

In the result we hold that the Government notification of October 17, 1968 was not in terms of Art. 233 of the Constitution and consequently the question of quashing <ORG> order dated October 25, 1968 does not arise. We also hold that the Gradation List of Additional District and Session judges prepared by <ORG> has no legal sanction and that the seniority of the petitioner an respondents 3 to 5 can only be determined in the superior <ORG> where they are now all holding officiating posts when the occasion arises. There will be no order as to costs.

Y.P.


PETITIONER: S. L. KAPOOR Vs. RESPONDENT: <NAME> & <NAME>. DATE OF JUDGMENT18/09/1980 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SARKARIA, RANJIT SINGH SEN, A.P. (J) CITATION: 1981 AIR 136 1981 SCR (1) 746 1980 SCC (4) 379 CITATOR INFO : RF 1981 SC 818 (85,89,92) RF 1981 SC 873 (66) R 1986 SC 180 (48,51) RF 1987 SC1239 (5) RF 1988 SC1531 (188) D 1988 SC1737 (87) R 1990 SC1480 (113) ACT: Punjab Municipal Act, 1911, Sec. 238(1)-Supersession of Municipal <ORG> ordered-allegations on which order passed-committee whether entitled to offer explanation- failure to observe principle of audi alteram partem-whether vitiates order. Administrative Law-Natural Justice-Hearing-opportunity whether to be a `double opportunity'-one on factual allegation and another on proposed penalty. HEADNOTE: The Punjab Municipal Act, 1911 which is the law applicable to <ORG> empowers by Section 238(1), <ORG> by a notification to supersede <ORG> if in its view, <ORG> is incompetent to perform or persistently makes default in the performance of, the duties imposed by the Act or under any other Act, or exceeds or abuses its powers. Exercising the powers under this section the Lt. Governor, Delhi, superseded <ORG> on the ground that it had made persistent default in the performance of the duties imposed on it under the law and had abused its powers resulting in wastage of municipal funds. Four grounds were enumerated in the order of supersession. In their writ petition two non-official members of the superseded committee impugned the order of supersession contending that the order was passed in complete violation of the principles of natural justice and total disregard of fair-play. The Full Bench of <ORG> dismissing the writ petition held that although the <ORG> should have been given an opportunity to state its case, since the <ORG> was aware of the allegations in 3 out of 4 grounds, mere failure to observe principles of natural justice did not vitiate the order. In appeal to this <ORG>, it was contended on behalf of the appellants that the <ORG> had no opportunity to offer their explanation in regard to the allegations on which the order of supersession was passed and failure to observe principles of natural justice vitiated the order of supersession. On behalf of the Respondents, it was contended that : (1) Section 238(1) of the Punjab Municipal Act did not contemplate that an opportunity should be given to the <ORG> before an order of supersession was passed, (2) neither the <ORG> nor its members had any beneficial interest in the continuance of the <ORG> and the supersession of the <ORG> did not 747 involve any civil consequences entitling it to a right to be heard, (3) when the question of the disqualification of any individual member was involved, section 16 of the Punjab Municipal Act expressly provided for an opportunity being given to the member concerned, whereas section 238(1) did not provide for such as opportunity and so by necessary implication the principle of audi alteram partem was excluded, and (4) section 238(1) also contemplated emergent situation where quick action might be necessary to avert a disaster and in such a situation if the demands of natural justice were to be met, the very object of the provisions would be frustrated. Allowing the appeal, ^ HELD : (1) The order dated February 27, 1980 of the Lt. Governor superseding <ORG> is vitiated by the failure to observe the principle of audi alteram partem. [767D] (2) (i) An administrative body may in a proper case, be bound to give a person who is affected by their decision an opportunity of making representation. It all depends on whether he has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him. [754 C]. <CITATION> for Home Affairs, (1969) 2 Chancery Divn. 149 referred to. (ii) In its comprehensive connotation, everything that affects a citizen in his civil life, inflicts a civil consequence. [753H] (iii) In the region of public law locus standi person aggrieved, right and interest have a broader import. [754B] <CITATION> .  2 SCR 272 @ 308, 309, referred to. (3) A <ORG> so soon as it is constituted at once assumes a certain office and status, is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. To be stripped of the office and status, to be deprived of the rights, to be removed from the responsibilities, in an unceremonious way as to suffer in public esteem, is certainly to visit the committee with civil consequences. [756H; 757A] (4) The status and office and the rights and responsibilities and the expectation of the <ORG> to serve its full term of office would certainly create sufficient interest in <ORG> and their loss, if superseded, would entail civil consequences so as to justify an insistence upon the observance of the principles of natural justice before an order of supersession is passed. [757B] Alfred Thangarajah Durayappah v. W. J. Fernando & Ors.  2 A.C. 337 applied. (5) It is not always a necessary inference that if opportunity is expressly provided in one provision (Sec. 16) and not so provided in another [Sec. 238(1)] opportunity is to be considered as excluded from that other provision. It may be a weighty consideration to be taken into account but the weightier consideration is whether the administrative action entails civil consequences. [757D- <CITATION> .  2 SCR p. 272 @ 316 referred to. 748 (6) A Municipal <ORG> under the Punjab Municipal Act is a public body consisting of both officials and non- officials and one cannot imagine anything momentous being done in a matter of minutes and seconds. And, natural justice may always be tailored to the situation. Minimal natural justice, the barest notice and the `littlest' opportunity in the shortest time, may serve. The authority acting under section 238(1) is the master of its own procedure. There need be no oral hearing. It is not necessary to put every detail of the case to the <ORG> : broad grounds sufficient to indicate the substance of the allegations may be given. Even minimal natural justice is not excluded when alleged grave situation arises under section 238. [757H; 758A-B] (7) If grave situations arise, the public interest can be sufficiently protected by appropriate prohibitory and mandatory action under the other relevant provisions of the statute in sections 232 to 235 of the Act. Minimum natural justice is, therefore, not excluded when alleged grave situations arise under section 238. [758C-D] (8) The opportunity which is required to be given need not be a `double opportunity' one on factual allegations and another on the proposed penalty. Both may be rolled into one but the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. [762B-C] (9) Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the <ORG> may not issue its writ to compel the observance of natural justice not because it approves the non-observance of natural justice but because <ORG>s do not issue futile-writs. [762E] <NAME> v. <ORG>.  AC 40 @ 68, <CITATION> . [1970 1 Chancery p. 345 @ 402, <NAME> v. <ORG>,  3 All E.R. 621 (H.L.) @ p. 625, Margerits Fuentes et al. v. <NAME>, 32 L. Ed. 2d. 556 @ 574, <ORG> Taluk Arrack Sales Cooperative Society Ltd. etc. v. Secretary (Food & Agriculture) Govt. of Andhra Pradesh etc.,  1 SCR 563 @ 567, 569-70, referred to. (10) The principles of natural justice know of no exclusionary rule dependant on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. [766-E-F] (11) In regard to the grant of contract for building the City Centre and payment of mobilisation advance, the correspondence that passed was between <ORG> and <ORG> and not between <ORG> and <ORG>. The authority competent to take action under section 238(1) of the Punjab Municipal Act was <ORG> and not <ORG>. It cannot, therefore, be said that <ORG> ever gave any opportunity to <ORG> to make any representation in regard to this ground. [760D-F] (12) With regard to the reemployment of a retired official against whom vigilance case was recommended, the letter from <ORG> 749 to <ORG> cannot be construed as a notice to <ORG> to come forward with its explanation. The letter was peremptory and final and there was nothing to indicate that any other action was contemplated and that <ORG> could offer its explanation if so minded. [760H-761C] (13) The charge that <ORG> created a number of posts and made appointments indicated that though <ORG>, objected to these irregular appointments, the correspondence does not reveal that any action was proposed against <ORG>. [761D; G] (14) The New Delhi Municipal <ORG> was never put on notice of any action proposed to be taken under section 238 of the Punjab Municipal Act and no opportunity was given to <ORG> to explain any fact or circumstance on the basis that action was proposed. If there was any correspondence between <ORG> and any other authority about the subject matter of any of the allegations, if information was given and gathered it was for entirely different purposes. [761H; 762A] (15) Every wrong action of <ORG> need not necessarily lead to the inference of incompetence on the part of the <ORG> or amount to an abuse of the powers of the <ORG>. It is a matter to be decided by <ORG> on the facts of each case. A <ORG> may admit that what it has done is wrong and yet may plead that its action does not reveal incompetence or an abuse of its powers. It may plead some misapprehension about the state of facts or state of the law, it may plead that in any event the drastic action contemplated by section 238(1) is not called for and it should not be invoked. [766G-H; 767A] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1516 of 1980.

Appeal by Special Leave from the Judgment and Order dated 9-5-1980 of <ORG> in C.W. No. 404/80.

<NAME>, <NAME> and <NAME> for the Appellant.

<NAME>, Att. Genl. <NAME> and Miss <NAME> for the Respondents.

The Judgment of the Court was delivered by.

CHINNAPPA REDDY, J.-In exercise of the powers conferred by Sec. 12 of the Punjab Municipal Act 1911, as applicable to New Delhi, the Lt. Governor of the Union Territory of Delhi, by a notification dated September 29, 1979, appointed nine non-official members and four ex-officio members to <ORG> to hold office for a period of one year with effect from October 4, 1979. However, well before the expiry of the term for which the members were appointed, on February 27, 1980, the Lt.

Governor, in exercise of the powers conferred by Sec. 238(1) superseded <ORG> with immediate effect and appointed <NAME> as the person who may exercise and perform all powers and duties of <ORG> until the said Committee was reconstituted.

The preamble to the order of supersession recited that the <ORG> was incompetent to perform and had made persistent default in the performance of the duties imposed on it under the law had further abused its powers, resulting in wastage of <ORG> funds. Four instances or grounds were mentioned. The first ground was that a clause for the payment of a mobilisation advance of Rs. fifteen lakhs was included in the contract awarded to <ORG> for the construction of City Centre though such a clause did not find a place in the original contract with <ORG> The contract we may mention here, had been awarded to <ORG> on the failure of <ORG> to complete the work. It was alleged that the contract was awarded to <ORG>, at an enhanced cost without the prior approval of the Lt. Governor. The inclusion of the clause relating to payment of mobilisation advance was also without the approval of the Lt. Governor. The second ground was that one <NAME> was re-employed by the New Delhi <ORG> <ORG> notwithstanding the advice of <ORG> that `major penalty proceedings' should be initiated against him. The third ground was that although <ORG> advised the removal from service of <NAME>, the <ORG> <ORG> resolved to impose the minor penalty of stoppage of a few increments. The fourth ground was that the <ORG> <ORG> created a number of posts including that of Director of Horticulture and appointed <NAME> to that post inspite of the directive of the Lt. Governor not to create posts unless the staffing pattern was studied by <ORG>.

Two of the non-official members of the superseded <ORG>, <NAME> and another, filed Civil Writ Petitions in <ORG> to quash the order of supersession dated February 27, 1980. The Writ Petitions were heard by a Full Bench of five judges and were dismissed on May 9, 1980. <NAME> has preferred this appeal after obtaining Special Leave of this Court under Art. 136 of the Constitution.

Before <ORG>, as before us, the principal submission of the learned counsel for the petitioner- appellant was that the order of supersession was passed in complete violation of the principles of natural justice and total disregard of fair-play. It was pointed out that no notice to show cause against supersession was ever issued to the <ORG>, there was not the slightest hint until the order was made that there was any proposal to supersede the <ORG> and the <ORG> never had any opportunity either before or after the order of supersession was passed to offer their explanation against the allegations made in the order of supersession. <ORG> upheld the claim of the petitioners that it was necessary to hear the <ORG> before an order under Sec. 238(1) of the Punjab Municipal Act was passed. But, held, <ORG>, the <ORG> was made aware of the allegations and had been given opportunity to state its case or version in the case of atleast three out of the four grounds and therefore, there was no failure to observe the principles of natural justice. Even otherwise, <ORG> expressed the view that undisputed facts were there and they spoke for themselves and no purpose would have been served by giving formal notice to the <ORG> of the allegations and the proposal to take action to supersede the <ORG> since the result would have been the same. In the view of <ORG> there was no prejudice to the <ORG> by the failure to observe natural justice. <NAME>, learned counsel for the appellant, questioned the conclusion of <ORG> that the <ORG> had the opportunity to offer their explanation in regard to the allegations on which the order of supersession was passed. He also canvassed the view that the failure to observe the principles of natural justice did not vitiate the order of supersession since the observance of natural justice would have, on the undisputed facts, led to the same result.

The learned Attorney General who appeared for the Lt. Governor contended that Sec. 238(1) of the Punjab Municipal Act did not contemplate and did not require, as a matter of interpretation, that any opportunity should be given to the <ORG> before an order of supersession was passed. It was submitted that although much of the distinction between a judicial act and an administrative act had vanished, there was still a thin but discernible line between the two and that in the case of an administrative act some positive beneficial interest must be established before natural justice could be insisted upon. It was said that neither the <ORG> nor its members had any beneficial interest in the continuance of the <ORG> and therefore, the supersession of the <ORG> did not involve any Civil consequences such as would give rise to a right to be heard. The argument was initially pushed further and it was submitted that, in any case, an individual member of the <ORG>, none of whose individual rights had been infringed, had no locus standi to maintain the petition. The submission about locus standi was however, withdrawn by the learned Attorney General at a later stage and it is unnecessary for us to consider that question.

First, the question whether the rule of <ORG> is attracted : Sec. 11 of the Punjab Municipal Act provides that there shall be established for each Municipality a <ORG> having authority over the Municipality consisting of such number of members as <ORG> may fix in that behalf. Sec. 12 provides that every such <ORG> shall consist of members appointed by <ORG> either by name or by office, or of members selected from among inhabitants in accordance with rules made under the Act. Sec. 13 empowers <ORG> to stipulate the term of office for which members of the <ORG> shall be appointed and elected. Sec. 18 makes every <ORG> a body Corporate having perpetual succession and a common seal, with power to acquire and hold property to contract etc. etc. Every member of the <ORG> is deemed to be a public servant by Sec. 19. Sec. 56 vests in the <ORG> the various kinds of property specified therein. Sec. 61 empowers the <ORG> to impose varied taxes. There are innumerable other provisions of the Act which prescribe the powers and duties of the <ORG>. Sec. 16 empowers <ORG> to remove any member of the <ORG> if he comes to suffer any of the specified disqualifications but only after <ORG> communicates to the member concerned the reasons for his proposed removal and gives him an opportunity of tendering an explanation in writing. Sec. 232 empowers the Commissioner or Deputy Commissioner to suspend the execution of any resolution or order of the <ORG> or prohibit the doing of any act which is about to be done or is being done in pursuance of or under the cover of the Act or in pursuance of any sanction or permission granted by the <ORG> if in his opinion the resolution, order or act is in excess of the powers conferred by law or contrary to the public interest or likely to cause waste or damage to Municipal funds or property. Sec. 233 authorises the Deputy Commissioner, in case of emergency to provide for the execution of any work or the doing of any act if the immediate execution of the work or the doing of the Act is necessary for the service or the safety of the public. Sec. 234 enables the Commissioner to provide for the performance of any duty to the <ORG> if the <ORG> makes default in performing such duty after being required to perform it. Sec. 236 empowers <ORG> to require that the proceedings of the <ORG> shall be in conformity with law and vests in the <ORG> necessary powers to annul or modify any proceedings which it may consider not to be in conformity with law. Sec. 238 is what we are directly concerned with and it reads as follows :

"238(1) Should a Committee be incompetent to perform or persistently make default in the performance of, the duties imposed on it by or under this or any other Act, or exceed or abuse its powers, the State Government may by notification, in which the reasons for so doing shall be stated, declare the Committee to be superseded :

(2) When a committee is so superseded, the following consequences shall ensue :

(a) all members of the committee shall, from the date of the notification, vacate their seats;

(b) all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such persons as <ORG> may appoint in that behalf;

(c) all property vested in the committee shall, until the committee is reconstituted, vest in <ORG>;

(3) The State Government may, if it shall think fit, at any time constitute another committee in the place of any committee superseded under this section".

The old distinction between a judicial act and an administrative act has withered away and we have been liberated from the psittacine incantation of `administrative action'. Now, from the time of the decision of this Court in <CITATION> . "even an administrative order which involves civil consequences.... must be made consistently with the rules of natural justice". What are civil consequences? The question was posed and answered by this Court in <CITATION> ., speaking for <ORG> said (at p. 308-309):

"But what is a civil consequence, let us ask ourselves, by passing verbal booby-traps? `Civil consequence' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence".

The learned Judge then proceeded to quote from Black's Legal Dictionary and to consider the interest of a candidate at a Parliamentary election. He finally said:

"The appellant has a right to have the election conducted not according to humour or hubris but according to law and justice. And so natural justice cannot be stumped out on this score. In the region of public law locus standi and person aggrieved, right and interest have a broader import".

<CITATION> for Home Affairs Lord Denning M.R., observed : "The speeches in Ridge v. Baldwin  AC 40, show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or, I would add, some legitimate expectation, of which it would not be fair to deprive him". It was held in that case that a foreign alien had no right to enter the country except by leave, but, if he was given leave to come for a limited period and his permit was sought to be revoked before the expiry of the time limit, he ought to be given an opportunity of making representation, for he had a legitimate expectation of being allowed to stay for the permitted time.

In <NAME> v. <NAME> & Ors. <ORG> was dissolved and superseded by the Governor-General on the ground that it appeared to him that the <ORG> was not competent to perform the duties imposed upon it. The Mayor sought to question the dissolution and supersession of the <ORG> in <ORG>, on the ground that there was a failure to observe the principles of natural justice. One of the questions which arose for consideration was whether, as a matter of interpretation, natural justice was not excluded from action under Sec. 277 of the Municipal Ordinance under which provision the dissolution and supersession had been made. The argument was that words such as "where it appears to ......." or "if it appears to the satisfaction of ......." or "if the.........considers it expedient that ............." or "if the .........is satisfied that ........." stood by themselves without other words or circumstances or qualifications, a duty to act judicially was excluded, and so, was natural justice. The argument was accepted by <ORG> but the Privy <ORG> disagreed with the approach. They observed that there were three matters which should always be borne in mind when considering whether the principle <ORG> Alteram Partem should be applied or not. The three matters were:

"first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of the application of the principle can properly be determined".

<ORG> then proceeded to examine the facts of the case upon those considerations and said:

`As to the first matter it cannot be doubted that <ORG> was by statute a public corporation entrusted like all other municipal councils with the administration of a large area and the discharge of important duties. No one would consider that its activities should be lightly interfered with ............ The legislature has enacted a statute setting up municipal authorities with a considerable measure of independence from the central government within defined local areas and fields of government. No Minister should have the right to dissolve such an authority without allowing it the right to be heard upon that matter unless the statute is so clear that it is plain it has no right of self defence. Upon the second matter it is clear that the Minister can dissolve the council on one of the three grounds : that it (a) is not competent to perform any duty or duties imposed upon it (for brevity their Lordships will refer to this head as incompetency); or

(b) persistently makes default in the performance of any duty or duties imposed upon it; or (c) persistently refuses or neglects to comply with any provision of law.....It seems clear to their Lordships that it is a most serious charge to allege that the council, entrusted with these very important duties, persistently makes default in the performance of any duty or duties imposed upon it. No authority is required to support the view that in such circumstances it is plain and obvious that the principle audi alteram partem must apply.

Equally it is clear that if a council is alleged persistently to refuse or neglect to comply with a provision of law it must be entitled (as a matter of the most elementary justice) to be heard in its defence. Again this proposition requires no authority to support it. If, therefore, it is clear that in two of the three-cases, the Minister must act judicially, then it seems to their Lordships, looking at the section as a whole, that it is not possible to single out for different treatment the third case, namely, incompetence...... The third matter can be dealt with quite shortly. The sanction which the Minister can impose and indeed, if he is satisfied of the necessary premise, must impose upon the erring council is as complete as could be imagined; it involves the dissolution of the council and therefore the confiscation of all its properties. It was at one moment faintly argued that the council was a trustee and that it was not therefore being deprived of any of its property but this argument (soon abandoned) depended upon a complete misconception of the law of corporations.....For the purposes of the application of the principle it seems to their Lordships that this must apply equally to a statutory body having statutory powers, authorities and duties just as it does to an individual. Accordingly on this ground too the Minister should have observed the principle.

For these reasons their Lordships have no doubt that in the circumstances of this case the Minister should have observed the principle audi alteram partem: Sugathadasa v. <NAME> [1958] 59 N.L.R. (457) was wrongly decided".

Narrow as were the considerations applied by <ORG> to determine whether the principle audi alteram partem applied or not, <NAME>, <NAME> v. <NAME> & <NAME>. (<NAME>) appears to us furnish a complete answer to the submission of the learned Attorney General that, as a matter of interpretation, Sec. 238 of the Punjab Municipal Act did not contemplate and did not require that an opportunity should be given to the <ORG> before an order of supersession was passed. We may notice here that the language of Sec. 238(1) of the Punjab Municipal Act is very nearly the same as the language of Sec. 277(1) of the Municipal Ordinance which was interpreted by <ORG> in <NAME> <NAME> v. <NAME> & <NAME>. (<NAME>) We have already referred to some of the relevant provisions of the Punjab Municipal Act to indicate some of the rights and duties of the <ORG> under that Act. A <ORG> so soon as it is constituted, at once, assumes a certain office and status, is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. To be stripped of the office and status, to be deprived of the rights, to be removed from the responsibilities, in an unceremonious way as to suffer in public esteem, is certainly to visit the <ORG> with civil consequences. In our opinion the status and office and the rights and responsibilities to which we have referred and the expectation of the <ORG> to serve its full term of office would certainly create sufficient interest in the Municipal <ORG> and their loss, if superseded, would entail civil consequences so as to justify an insistence upon the observance of the principles of natural justice before an order of supersession is passed.

One of the submissions of the learned Attorney General was that when the question was one of disqualification of an individual member, Sec. 16 of the Punjab Municipal Act expressly provided for an opportunity being given to the member concerned whereas Sec. 238(1) did not provide for such an opportunity and, so, by necessary implication, it must be considered that the principle <ORG> was excluded. We are unable to agree with the submission of the learned Attorney General. It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, opportunity is to be considered as excluded from that other provision. It may be a weighty consideration to be taken into account but the weightier consideration is whether the administrative action entails civil consequences. This was also the view taken in <CITATION> . where it was observed (at p.

316) :

"We have been told that wherever the <ORG> has intended a hearing it has said so in the Act and the rules and inferentially where it has not specified it is otiose. There is no such sequitur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Art. 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation".

Another submission of the learned Attorney General was that Sec. 238(1) also contemplated emergent situations where swift action might be necessary to avert disaster and that in such situations if the demands of natural justice were to be met, the very object of the provision would be frustrated. It is difficult to visualise the sudden and calamitous situations gloomily foreboded by the learned Attorney General where there would not be enough breathing time to observe natural justice, at least in a rudimentary way. <ORG> under the Punjab Municipal Act is a public body consisting of both officials and non-officials and one cannot imagine anything momentous being done in a matter of minutes and seconds. And, natural justice may always be tailored to the situation. Minimal natural justice, the barest notice and the `littlest' opportunity, in the shortest time, may serve. The authority acting under Sec. 238(1) is the master of its own procedure. There need be no oral hearing. It is not necessary to put every detail of the case to the <ORG> : broad grounds sufficient to indicate the substance of the allegations may be given. We do not think that even minimal natural justice is excluded when alleged grave situations arise under Sec. 238. If indeed such grave situations arise, the public interest can be sufficiently protected by appropriate prohibitory and mandatory action under the other relevant provisions of the statute in Sections 232 to 235 of the Act. We guard ourselves against being understood as laying down any proposition of universal application. Other statutes providing for speedy action to meet emergent situations may well be construed as excluding the principle audi alteram partem. All that we say is that Sec. 238(1) of the Punjab Municipal Act does not.

The next question for consideration is weather the <ORG> was given an opportunity to make its representations against the allegations upon which the order of supersession was ultimately founded. We have already mentioned that the first allegation was about the agreement to pay `mobilisation advance' to M/s. <ORG> It appears that the work of construction of New Delhi City Centre was initially awarded to <ORG> in October, 1976 but on account of their inability to complete the work within the stipulated time it was decided to invite "restricted tenders" from other contractors. That was done and the contract was awarded to <ORG> One of the conditions of the contract which was accepted by the <ORG> was that the contractor should be paid 7 1/2% of the value of the tender as `mobilisation advance' : On December 31, 1979, <ORG> addressed a letter to the Secretary (<ORG>), <ORG> requesting the sanction of the Lt. Governor for payment of `mobilisation advance' to the contractors. It was mentioned in the letter that the contractors had offered to pay interest at the rate of 9% per annum and to give a bank guarantee to cover the advance as well as the interest. While the question of the grant of approval by the Lt. Governor was under consideration, <NAME>, the original contractor appears to have submitted a representation to the Govt. of India about the award of the contract to <ORG> On February 11, 1980, the Deputy Secretary, <ORG>, <ORG>, forwarded a copy of the representation to <NAME>, President, <ORG> and requested him "(a) to send a factual report on the subject, and (b) not to make further payments, commitments or arrangements or to do anything irrevocable till <ORG> hears from this Ministry". The President of <ORG> submitted the factual report on February 13, 1980, and on February 19, 1980 wrote a letter to <NAME>, Secretary, <ORG>, pointing out that a serious situation and stale-mate had been created because of the direction contained in the Deputy Secretary's letter dated February 11, 1980 not to make further payments to the contractors until they again heard from the <ORG>. The circumstances under which the contract had been awarded to <ORG> were explained and the <ORG> requested to communicate their decision at an early date. A copy of the letter was also sent to the Lt. Governor and to the Secretary, <ORG>, <ORG>. On February 10, 1980 the Deputy Secretary, <ORG>, <ORG> wrote to <NAME>, Secretary, <ORG>, <ORG> pointing to the letter from him (the Deputy Secretary, <ORG>) to the President, <ORG>, a copy of which had been sent to <NAME> and referring to a subsequent telephonic conversation between the two of them, and mentioning that a report had since been received from <ORG>. The Deputy Secretary, <ORG> also reminded <NAME> that he had given him to understand that the Lt. Governor had not agreed to the grant of mobilisation advance of Rs. 15 lakhs by <ORG> to M/s. <ORG> He requested <NAME> to expedite the views of <ORG> on <NAME> & Co's representation and the modalities of the grant of the contract for the remainder of the work to M/s. <ORG> It is to be noted here that though according to this letter <NAME> had already informed the Deputy Secretary, <ORG>, that the Lt. Governor had not agreed to the grant of the mobilisation advance, <ORG> themselves had not been so informed by <ORG> until then, nor even later. What is even more curious is the circumstance that after receiving <NAME>'s letter, the Deputy Secretary, <ORG>, on February 22, 1980, wrote to the President, <ORG> informing him that the <ORG> had considered the position and that <ORG> might deal with the matter according to law and that the request made in sub-para (b) of his D.O. letter of even number dated February, 11, 1980, addressed to the President, <ORG> might be treated as withdrawn. This was to be without prejudice to any action that <ORG> and/or <ORG> might like to take in the matter. This was how the matter stood when the impugned order was passed on February 27, 1980, by the Lt. Governor. The order was signed by <NAME>, Secretary, <ORG>, <ORG>. It appears that <NAME> had made a notice on the file on February 12, 1980, apparently for the consideration of the Lt. Governor. However, that was entirely an internal matter about which <ORG> could have had no knowledge. This is the entire material placed before us in support of the claim made by the learned Attorney General on behalf of <ORG> that the <ORG> had the opportunity of making its representation in regard to the first of the allegations made in the impugned order. It is difficult to sustain the claim of the learned Attorney General even in a remote way. In the first place the correspondence that passed was between the <ORG> and <ORG> and not between <ORG> and <ORG>. The authority competent to take action under Sec. 238(1) of the Punjab Municipal Act was <ORG> and not the <ORG>. It cannot, therefore, be contended that <ORG> ever gave any opportunity to <ORG> to make any representation about this matter. In the second place the correspondence that passed between the <ORG> and <ORG> was in regard to the representation of <ORG> about the award of the contract to <ORG>; The letter dated February 11, 1980, from the Deputy Secretary, <ORG> to the President, <ORG> does not even mention the mobilisation advance. In the third place, throughout the correspondence, there is not a hint or whisper about any proposal to take action under Sec. 238. On the material before us we find it impossible to hold that <ORG> was ever put on notice of any proposed action by <ORG> in regard to first of the allegations made in the impugned order. If any information was sought from <ORG> and if any information was given by the <ORG> such information was furnished and gathered in the course of an exploratory or fact finding expedition and was never intended to be an answer to an action-inspired notice.

The second of the charges or allegations in the notice was that one <NAME> had been re-employed despite the advice of <ORG> that proceedings for the imposition of a major penalty should be initiated against him. Our attention was invited to a letter dated November 20, 1979, from <ORG> to <ORG> in which <ORG> took to task and reprimanded <ORG> for re-employing <NAME>. This letter cannot be construed as a notice to <ORG> to come forward with its explanation. The letter was peremptory and final and the indication was that the chapter was closed with the reprimand. Here again, there was nothing to indicate that any other action was contemplated against <ORG> and that <ORG> could offer its explanation if so minded.

In regard to the third of the allegations in the impugned order <ORG> found that <ORG> had no opportunity to meet the same. It is, therefore, unnecessary for us to consider the matter.

The fourth charge or allegation was that <ORG> created a number of posts including that of a Director (Horticulture) and also appointed one <NAME> to that post, notwithstanding the directive of the Lt. Governor that no post should be created until the staffing pattern was studied by <ORG>. <ORG> sought the sanction of the Lt. Governor for its budget estimates. <ORG> in its comments addressed to the President. <ORG> pointed out that there was an ad-hoc provision for additional staff amounting to Rs. 33 lakhs without indicating the details of posts. A directive was issued that until <ORG> made a study of the staffing pattern the ad-hoc provision of Rs. 33 lakhs should not be utilised. Correspondence ensued between the <ORG> and <ORG>, the former requesting the latter to withdraw the directive and the latter insisting upon the directive. Shri <NAME> was however, appointed as Director (Horticulture), by the <ORG> inspite of the directive. Though <ORG> objected to the irregular appointments made by <ORG> the correspondence does not reveal that any action was proposed against <ORG>.

Thus on a consideration of the entire material placed before us we do not have any doubt that <ORG> was never put on notice of any action proposed to be taken under Sec. 238 of the Punjab Municipal Act and no opportunity was given to <ORG> to explain any fact or circumstance on the basis that action was proposed. If there was any correspondence between <ORG> and any other authority about the subject matter of any of the allegations, if information was given and gathered it was for entirely different purposes. In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. We disagree with the finding of <ORG> that the <ORG> had the opportunity to meet the allegations contained in the order of supersession.

Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the <ORG> may not issue its writ to compel the observance of natural justice, not because it approves the non observance of natural justice but because <ORG>s do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary.

In <NAME> v. <NAME> & <NAME>, one of the arguments was that even if the appellant had been heard by the watch committee nothing that he could have said could have made any difference. <ORG> observed (at p. 68):

"It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the respondents would, in my view, fail on the facts. It may well be that no reasonable body of men could have reinstated the appellant. But as between the other two courses open to the watch committee the case is not so clear. Certainly on the facts, as we know them, the watch committee could reasonably have decided to forfeit the appellant's pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course".

<NAME> discussed the question in <CITATION> said (at p. 402):

"It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. 'When something is obvious', they may say, 'why force everybody to go through the tiresome waste of time involved in faming charges and giving an opportunity to be heard? The result is obvious from the start'. Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events".

In <NAME> v. <ORG>, Lord <NAME>, in his speech said (at p. 625):

"Counsel for the respondent union did suggest that a man could not complain of a failure of natural justice unless he could show that he had been prejudiced by it. Their Lordships cannot accept this suggestion. If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts. It is a prejudice to any man to be denied justice".

In <NAME> et al., v. <NAME>, it was said (at p. 574):

"But even assuming that the appellants had fallen behind in their instalment payments, and that they had no other valid defenses, that is immaterial here. The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. 'To one who protest against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits'".

In <ORG> <ORG>, etc. v. <ORG> of Andhra Pradesh etc., there was a non-compliance with sec. 77(2) of the Cooperative Societies Act which provided that no order prejudicial to any person shall be passed unless such person had been given an opportunity of making his representation. The argument was that since the facts were clear the non-compliance did not matter. It was also said that the appellant had of his own motion made some representation in the matter. This Court rejected the arguments observing (at p. 567, 569-570):

"It is submitted that the Government did not afford any opportunity to the appellant for making representation before it. <ORG> rejected this plea on the ground that from a perusal of the voluntary applications filed by the appellant it was clear that the appellant had any how met with the points urged by the respondents in their revision petition before the Government. We are, however, unable to accept the view of <ORG> as correct".

"As mentioned earlier in the judgment the <ORG> did not give any notice communicating to the appellant about entertainment of the application in revision preferred by the respondents. Even though the appellant had filed some representations in respect of the matter, it would not absolve the <ORG> from giving notice to the appellant to make the representation against the claim of the respondents. The minimal requirement under section 77(2) is a notice informing the opponent about the application and affording him an opportunity to make his representation against whatever has been alleged in his petition. It is true that a personal hearing is not obligatory but the minimal requirement of the principles of natural justice which are ingrained in section 77(2) is that the party whose rights are going to be affected and against whom some allegations are made and some prejudicial orders are claimed should have a written notice of the proceedings from the authority disclosing grounds of complaint or other objection preferably by furnishing a copy of the petition on which action is contemplated in order that a proper and effective representation may be made. This minimal requirement can on no account be dispensed with by relying upon the principle of absence of prejudice or imputation of certain knowledge to the party against whom action is sought for.

It is admitted that no notice whatever had been given by the <ORG> to the appellant. There is, therefore, clear violation of section 77(2) which is a mandatory provision. We do not agree with <ORG> that this provision can by-passed by resort to delving into correspondence between the appellant and the <ORG>. Such non-compliance with a mandatory provision gives rise to unnecessary litigation which must be avoided at all costs".

The observations of this <ORG> in Chintapalli Agency <ORG> v. Secretary (Supra) are clearly against the submissions of the learned Attorney General.

The matter has also been treated as an application of the general principle that justice should not only be done but should be seen to be done. <NAME>'s Natural Justice (1980 Edn.) contains a very interesting discussion of the subject. He says:

"The distinction between justice being done and being seen to be done has been emphasised in many cases.

The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim are found in Lord <NAME> judgment in R. V. Home Secretary, Ex. P. Hosenball (1977) 1 W.L.R. 766, 772, whereafter saying that "the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done" he went on to describe the maxim as "one of the rules generally accepted in the bundle of the rules making up natural justice".

It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the <ORG> is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. In <ORG> v. <NAME> (1971) 2 <ORG> said that the court, in deciding whether to interfere where an arbitrator had not given a party a full hearing was not concerned with whether a further hearing would produce a different or the same result. It was important that the parties should not only be given justice, but, as reasonable men, know that they had justice or "to use the time hallowed phrase" that justice should not only be done but be seen to be done. In R. V. Thames Magistrates <ORG>, ex.p. <NAME> (1974)1 W.L.R. 1371, the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional <ORG> rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge.

"It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: 'Well, even if the case had been properly conducted, the result would have been the same'. That is mixing up doing justice with seeing that justice is done (per Lord Widgery C.J. at p. 1375)".

In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the <ORG> may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because <ORG>s do not issue futile writs. We do not agree with the contrary view taken by the Delhi High <ORG> in the judgment under appeal.

Every wrong action of <ORG> need not necessarily lead to the inference of incompetence on the part of the <ORG> or amount to an abuse of the powers of the <ORG>. That is a matter to be decided by <ORG> on the facts of each case. A <ORG> may admit that what it has done is wrong and yet may plead that its action does not reveal incompetence or an abuse of its powers. It may plead an honest error judgment;

it may plead some misapprehension about the state of facts or state of the law; it may plead that in any event the drastic action contemplated by Sec. 238(1) is not called for. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. In fact in the present case one of the complaints of the appellant is that relevant facts were not considered by the Lt. Governor. Neither the impugned order nor the note of Shri <NAME> shows that in regard to the first allegation two vital circumstances were considered:

(a) The contractor had agreed to pay interest at the rate of 9% on the mobilisation advance; (b) the contractor had agreed to offer bank guarantee to cover the mobilisation advance as well as the interest. It was argued that had these facts been brought to the notice of the Lt. Governor he might not have made the impugned order. If notice had been given to the <ORG>, the <ORG> would have certainly brought these facts to the notice of the Lt. Governor.

In the light of the discussion we have no option but to hold that the order dated February 27, 1980, of the Lt. Governor superseding <ORG> is vitiated by the failure to observe the principle Audi Alteram Partem. The question is what relief should be given to the appellant? The term of the <ORG> is due to expire on October 3, 1980 which means that just a few days more are left for the term to run out. If now the order is quashed and the <ORG> is directed to be reinstated with liberty to the Lt. Governor to proceed according to law-this should be our order ordinarily-, it may lead to confusion and even chaos in the affairs of the Municipality. <NAME>, learned Counsel for the appellant, had relieved us of our anxiety by stating "in view of the fact that the term expires on October 3, 1980, and as the appellant is anxious to have the stigma cast on him by the notification removed, the appellant does not press either for reinstatement in office or for striking down the notification so long as there is a just determination of the invalidity of the notification". We have held that the notification is vitiated by the failure to observe the principles of natural justice and we let the matter rest there. We neither quash the notification nor reinstate the <ORG>. Nor are we to be understood as having expressed any opinion on the merits of the supersession. We allow the appeal in the manner indicated. The appellant is entitled to his costs.

N.V.K. Appeal allowed.