# (2024) 10 ILRA 236

- **Citation:** (2024) 10 ILRA 236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-04
- **Case number:** Writ-C No. 7164 of 2024
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2024-10-ilra-236-51135
- **Pages:** 14

## Headnote

A. Civil Law - Constiution of India,1950Article 226-U.P. Intermediate Education
Act,1921-Section 16(-D(4)-allegations of
commercial activities on the educational
institution's premises-show cause notices
issued with subsequent replies submitted
by the petitioner-the final order was
passed
by
Special
Secretary
who
conducted
inspection
and
submitted
report-report relied upon by the state
government were not shared with the
petitioners, denying them an opportunity
to respond-Held, the High court quashed
the State Government's order appointing
an authorized controller to manage the
affairs of the petitioner institution -the
decision-making authority must provide a
fair hearing to the affected party, and the
order must be passed by the authority
that heard the matter-In this case, the
order was passed by the Special Secretary,
who neither heard the arguments nor
provided the petitioner access to relevant
reports,creating procedural impropriety
and violating natural justice-The Special
Secretary acted as both investigator and
adjudicator, this dual role breached the
principle of nemo judex in causa sua(no
person shall be a judge in their own
cause), rendering the decision void due to
apprehension of bias-the appointment of
an authorized controller under section
16(D)(4) requires quasi-judicial decisionmaking,
therefore
adherence
to
procedural fairness and impartiality is
mandatory-The impugned order is set
aside and matter remanded to the State
Government
for
a
fresh
decision
in
compliance with natural justice within
three months.(Para 1 to 47) .(E-6)

List of Cases cited:

## Text

_Characters 0–39,957 of 46,424. This is a partial read: ask again with offset=39957 for what follows._

236 INDIAN LAW REPORTS ALLAHABAD SERIES
by the trial court merges with the order
passed by the appellate court, having
regard to Explanation I appended to Order
9 Rule 13 of the Code a petition under
Order
9
Rule
13
would
not
be
maintainable. However, Explanation I
appended to the said provision does not
suggest that the converse is also true."

 21. What matters for exercise of
jurisdiction is the source of power and not
the
failure
to
mention
the
correct
provisions of law. Even in the absence of
any express provision having regard to the
principles of natural justice in such a
proceeding, the courts will have ample
jurisdiction to set aside an ex parte decree,
subject of course to the statutory interdict.

 22. In Grindlays Bank Ltd. v.
Central Govt. Industrial Tribunal [1980
Supp SCC 420] this Court has held that an
Industrial Tribunal has the requisite
jurisdiction to recall an ex parte award.
[See also Sangham Tape Co. v. Hans Raj
(2005) 9 SCC 331 and Kapra Mazdoor
Ekta Union v. Birla Cotton Spg and Wvg.
Mills Ltd. (2005) 13 SCC 777]"

26. Contention of the learned
counsel for the petitioner that in view of
Section 19 & 20 of the Family Courts Act,
1984, the petitioner has only remedy of
filing an appeal against the ex-parte
judgment,
is
misconceived.
Learned
counsel for the petitioner could not point
out any provision of Family Court Act or
Rules made thereunder which prohibits the
application of C.P.C.

27. Thus, in my considered
opinion contention of the learned counsel
for the petitioner that writ of prohibition
can be issued restraining the Family Court
from proceeding with the application filed
by the respondent under Order IX Rule 13
C.P.C. is wholly misconceived as I have
already held that in view of Section 10 of
the Family Court Act, the provisions of
Civil Procedure Code are applicable in
proceedings before the Family Court. The
Family Court has jurisdiction to entertain
an application under Order IX Rule 13
C.P.C. and therefore, no writ of prohibition
can be issued to respondent no. 1.

28. Learned counsel for the
petitioner also tried to assail the order
passed by respondent no. 1 on merits. In a
writ of prohibition such a challenge cannot
be entertained. Once, it is held that the
court
has
competence/jurisdiction
to
entertain an application, the manner of
exercise of the said jurisdiction cannot be
seen
while
considering
a
writ
of
prohibition. The petitioner can challenge
the same before the appropriate forum, if so
advised but not in the present petition.

29. In view of the above
discussion, the instant writ petition is not
maintainable,
and
is
accordingly
dismissed.
----------
(2024) 10 ILRA 236
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 7164 of 2024

C/M Ram Bharose Maiku Lal Inter College
Thru Manager Sri Shree Kant Sahu & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
10 All. C/M Ram Bharose Maiku Lal Inter College Thru Manager Sri Shree Kant Sahu & Anr.
 Vs. State of U.P. & Ors.
237
Mahendra Bahadur Singh, Vikas Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law - Constiution of India,1950Article 226-U.P. Intermediate Education
Act,1921-Section 16(-D(4)-allegations of
commercial activities on the educational
institution's premises-show cause notices
issued with subsequent replies submitted
by the petitioner-the final order was
passed
by
Special
Secretary
who
conducted
inspection
and
submitted
report-report relied upon by the state
government were not shared with the
petitioners, denying them an opportunity
to respond-Held, the High court quashed
the State Government's order appointing
an authorized controller to manage the
affairs of the petitioner institution -the
decision-making authority must provide a
fair hearing to the affected party, and the
order must be passed by the authority
that heard the matter-In this case, the
order was passed by the Special Secretary,
who neither heard the arguments nor
provided the petitioner access to relevant
reports,creating procedural impropriety
and violating natural justice-The Special
Secretary acted as both investigator and
adjudicator, this dual role breached the
principle of nemo judex in causa sua(no
person shall be a judge in their own
cause), rendering the decision void due to
apprehension of bias-the appointment of
an authorized controller under section
16(D)(4) requires quasi-judicial decisionmaking,
therefore
adherence
to
procedural fairness and impartiality is
mandatory-The impugned order is set
aside and matter remanded to the State
Government
for
a
fresh
decision
in
compliance with natural justice within
three months.(Para 1 to 47) .(E-6)

List of Cases cited:

1. Chandashekhar Tiwari Vs St of UP & 5 Ors ,
SPLA No. 70 of 2023

2. C/M, Gautam Buddha Inter College & anr. Vs
St. of UP & 4 Ors (2016) ALJ 126

3. A.K. Kraipak Vs U.O.I. (1969) 2 SCC 262

4. U.O.I., Thr. Its Secy. Ministry of Railway Vs
Naseem Siddiqui (2004) SCC OnLine MP 678

5. Rattan Lal Sharma Vs M/C , Dr. Hari Ram
(Co-Ed.) Higher Secondary School & ors.(1993)
4 SCC 10

6. A.U. Kureshi VS HC of Guj. (2009) 11 SCC 84

7. Ashok Kumar Yadav VS St. of Har. (1985) 4
SCC 417

8. Md. Yunus Khan Vs St. of U.P. (2010) 10 SCC
539

9. St. of Ori. Vs Binapani Dei (1967) 2 SCR 625:
AIR 1967 SC 1269: (1967) 2 LLJ 266

10. U.O.I. Vs P.K. Roy (1968) AIR SC 850

11. Secy. to Govt., Trans. Deptt. Vs Munuswamy
Mudaliar (1988) Supp SCC 651

12. St. of U.P. Vs Md. Nooh (1958) SCR 595:
AIR 1958 SC 86

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri J.N. Mathur, learned
Senior counsel assisted by Sri M.B. Singh,
learned counsel for petitioner as well as
learned Standing Counsel for respondents.

2. By means of present writ
petition, the petitioners have challenged the
order of the State Government dated
24.07.2024 wherein in exercise of powers
contained in Section 16-D(4) of the
Intermediate
Education
Act,
1921
(hereinafter referred to as 'Act of 1921') an
authorized controller has been appointed to
manage the affairs of the petitioner
institution.
238 INDIAN LAW REPORTS ALLAHABAD SERIES
3.

Two
applications
for
impleadment have been filed on behalf of
one
Motilal
Gupta
who
was
the
complainant in the present case and on
whose complaint present proceedings have
been initiated. While the second application
has been filed on behalf of one Diwaker
Sahu who is the member of Committee of
Management claiming that he has sufficient
interest to prosecute the said case against
the petitioners.

4. Objections to the application for
impleadment has been filed by the
petitioner but after arguing the matter at
some length, it was submitted that
petitioner would not have any objection in
case
the
applicants
were
heard
as
intervenors.

5. Accordingly, the applications
are allowed to the extent that they are
permitted to intervene in the present case.
Accordingly, Sri L.P. Mishra, learned
counsel as well as Sri Bhupendra Nath
Tripathi, have been heard on behalf of the
intervenors.

6. It has been submitted by learned
Senior Counsel for petitioner that a show
cause notice under Section 16-D(2) Act of
1921 was issued on 28.03.2022 wherein it
was
stated
that
certain
commercial
establishments were operating in the
educational
institution
run
by
the
petitioners and accordingly the same was
contrary to the purposes for which
recognition was granted to the petitioner.

7. The second allegation was in
regard to the fact that the the last elections
to the petitioner society were held on
25.05.2018 and their term which is of three
years was expired on 18.05.2021 and
accordingly the Committee of Management
has become time barred and cannot be
permitted to run the affairs of the society
and on these two grounds it was proposed
that the authorized controller be appointed
to run the affairs of the petitioner
educational institution.

8. On receipt of the show cause
notice the petitioner had submitted a reply
dated
05.06.2022.
Immediately
after
submission of the said reply, another show
cause notice was received by him on
25.08.2022.

9. It has been stated that in the
subsequent notice dated 25.08.2022, the
petitioner was asked to respond with regard
to the allegations against the petitioner
society which according to the petitioner
are proceedings which could not have been
undertaken in exercise of powers under
Section 1-D(3) of Act of 1921 which
pertain only to the educational institution
run
by
the
petitioner
society.
The
petitioners had submitted a detail reply on
12.10.2022.
It
is
in
the
aforesaid
circumstances
that
an
order
dated
15.11.2022 was passed in exercise of
powers under Section 16-D(4) of Act of
1921 referring the matter to the State
Government to initiate proceedings against
the petitioners for appointment of an
authorized controller.

10. The petitioner being aggrieved
by the order dated 15.11.2022 passed by
the Additional Director of Education, Uttar
Pradesh preferred a representation to the
State Government stating that the reply
submitted by him has not been considered
and the order has been passed without
giving any opportunity of hearing and
accordingly
the
State
Government
concurred with the objections raised by the
petitioners and by means of his order dated
10 All. C/M Ram Bharose Maiku Lal Inter College Thru Manager Sri Shree Kant Sahu & Anr.
 Vs. State of U.P. & Ors.
239
16.02.2023 directing the Director of
Education to pass a fresh order after giving
due opportunity of hearing to the petitioner.
While remanding the matter to the Director
of Education, specific directions were
issued that the land records of the petitioner
be duly inspected before any finding is
returned on the allegations levelled against
the petitioners. It is in pursuance of the
order dated 16.02.2023 that proceedings
were initiated afresh by Director of
Education
and
the
petitioner
again
submitted a detail reply on 10.05.2023.
While submitting his reply, the petitioner
had taken a specific plea that the parent
society was different from the committee of
Management
which
is
running
the
educational institution.

11. He has submitted that for
running the educational institutions certain
land records were submitted to the
Education
Department
for
seeking
recognition and educational institution is
running only on the land on which due
permission was accorded by the State
Government. It was further submitted that
in the meanwhile the parent society had
purchased certain other lands of which they
are the owners and it is on this land that
commercial activities going on. It was
stated in detail that two lands are separate
and distinct one on which the educational
institution is running while the second is
the land which is owned by the society and
has
no
relation
to
the
educational
institution.

12. It has been submitted that the
Director after submission of the reply by
the petitioner passed an order dated
27.07.2023 under Section 16-D(3) of Act
of 1921, referring the matter of the
petitioner to the State Government. It is the
case of the petitioners that the order dated
27.07.2023 was never supplied to the
petitioner and it is only in the counter
affidavit the same has been annexed by the
State Government. The State Government
taking cognizance of the report submitted
by the Director on 27.07.2023, issued
notice to the petitioners wherein it was
stated that the matter would be heard by the
Special Secretary, Government of Uttar
Pradesh, Sri Alok Kumar. The petitioners
were asked to submit their reply and also to
be present on 25.09.2023 in case they wish
to be heard in person. Subsequently, the
matter was fixed on 06.10.2023 where
again the petitioners had submitted a detail
reply replying to the two issues on which
previously the show cause notice was
issued to the petitioners.

13. After submission of the reply
of the petitioners on 06.10.2023 and
10.10.2023 by means of order dated
07.11.2023, it was the Special Secretary
Government of Uttar Pradesh who was
hearing the matter thought it fit that the
report with regard to the land use, he
referred
to
the
District
Magistrate,
Lucknow seeking a reply as to whether the
land of the educational institution has been
utilized for commercial activities while
with regard to the status of the Committee
of
management
of
the
educational
institution the Director of Education was
submitted to submit his reply as to whether
the society has become time barred.

14. Before the aforesaid reports
could be submitted, the petitioner received
an order dated 07.03.2024 wherein it was
stated that the hearing would now be
conducted
by
the
Additional
Chief
Secretary,
Department
of
Secondary
Education and the petitioners were directed
to be present before him on 14.03.2024. In
response to the order dated 07.03.2024, the
240 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners again filed a detailed reply on
14.03.2024 and also appeared before the
Additional Chief Secretary. It was noticed
at this stage that neither the report of the
District Magistrate or the Director of
Education
as
directed
previously
on
07.11.2023 were on record and accordingly
the Special Secretary, Sri Alok Kumar who
was hearing the matter previously was
directed to submit his report. It is in
pursuance of direction of the Additional
Chief Secretary that Sri Alok Kumar,
Special Secretary inspected the petitioners'
premises on 30.05.2024 and submitted its
report. Again at this stage, it has been
informed that the report dated 30.05.2024
was never supplied to the petitioners.

15. It has further been stated that
the report was not submitted by the District
Magistrate or by the Director of Education
which is evident from the fact that by
means of letter dated 21.05.2024, the said
fact was brought on record and a reminder
was sent to the authorities concerned to see
that the aforesaid reports are submitted to
the State Government for taking a decision
in the said matter. It is after the aforesaid
that the impugned order dated 24.07.2024
has been passed wherein the authorized
controller has been appointed to run the
petitioners institution and the finding with
regard to both the allegations has attained
finality where it has been held that
commercial activities is being run on the
petitioner institutions and also that the
petitioner's society has become time barred.

16. Learned Senior Counsel while
assailing the aforesaid orders has submitted
that the order is hit by the principles of bias
inasmuch as firstly Sri Alok Kumar,
Special Secretary, Government of Uttar
Pradesh who had himself inspected the
premises and submitted his report has
relied
upon
his
own
report
dated
30.05.2024 while passing the impugned
order. He has submitted that in fact the
matter was heard by the Additional Chief
Secretary and no hearing took place before
the Special Secretary, Sri Alok Kumar
while a perusal of the entire order would
indicate that he has referred the hearing
which took place before the Additional
Chief Secretary and the documents which
were filed before him relying upon the said
findings he has passed the impugned order.

17. It has further been submitted
that a perusal of the entire impugned order
would indicate that though the response of
the petitioners has been recorded but no
submissions or contentions or facts raised
by the petitioners has been considered in
the entire judgment and accordingly the
said order has been passed without any
application of mind and is in violation of
principle of natural justice inasmuch as the
entire order has been passed relying upon
the reports which has never been supplied
to the petitioner prior to passing of the
impugned order.

18.

Learned
counsel
for
respondents on the other hand has opposed
the writ petition.

19. It has been vehemently
submitted by Dr. L.P. Mishra, that there is
no doubt with regard to the fact that
commercial establishment and shops are
being run on the educational institution and
the same activities are prohibited and
accordingly the Committee of Management
is acting in gross violation of the statutory
provisions and accordingly supported the
impugned order wherein the authorized
controller has been appointed. He has
further submitted that even if the impugned
order cannot be set aside merely on the
10 All. C/M Ram Bharose Maiku Lal Inter College Thru Manager Sri Shree Kant Sahu & Anr.
 Vs. State of U.P. & Ors.
241
basis that there was violation of principle of
natural justice. He submits that even if the
petitioners were in fact afforded an
opportunity of hearing still they would be
unable to prove that the commercial
establishments
were
running
on
the
educational institution and it was an
established fact that the petitioners were
running commercial establishment in the
educational institutions and hence submits
that the present order cannot be set aside on
the basis of violation of principle of natural
justice.

20. I have heard learned counsel
for parties and perused the record.

21. From the facts as narrated
herein-above are not disputed with the
parties concerned and accordingly they
need not be reiterated. It is noticed that the
Director of Education had concluded the
proceedings under Section 16(D)-3 after
giving an opportunity of hearing to the
petitioner where he recorded his prima
facie satisfaction and referred the matter to
the
State
Government
for
passing
appropriate order for appointment of
authorized controller in exercise of powers
under
Section
16-D(4).
This
Court
presently concerned in the present case
with the proceedings which had undertaken
by the State Government in exercise of
powers under Section 16-D(4) of Act of
1921. It is in the said proceedings that
initially the petitioners were informed that
the matter would be heard by the Special
Secretary, Government of Uttar Pradesh Sri
Alok Kumar. Proceedings were in fact held
by Sri Alok Kumar before whom the
petitioners had filed their response and he
considering the dispute in the present case
had thought it proper to seek the report of
the District Magistrate as well as the
Director of Education with regard to two
issues which were to be decided in the
present case.

22. The District Magistrate was
directed to submit his report with regard to
the land use made by the petitioners'
educational institution and report as to
whether the commercial establishments
were running on the said educational
institution. While on the other hand the
Director of Education was required to
submit a report with regard to the status of
the petitioners' Committee of Management
and inform as to whether it was time barred
Committee of Management or regular
elections had taken place in accordance
with law.

23. Again there is dispute with
regard to the fact that none of these two
reports were submitted till the time of
passing of the impugned order. Though
report of the District Magistrate was never
received but it seems that Director of
Education
submitted
its
report
on
04.04.2024 which was considered by the
State
Government while passing the
impugned order.

24. A plea has been taken that
even the report dated 14.04.2024 was never
given to the petitioners.

25. I have considered the rival
submissions and perused the record. The
1st issue which was considered by this
court is with regard to the violation of
principles of natural justice during the
hearing before the State government. Bias
been alleged by the petitioner in as much as
the final hearing a taken place on
14/03/2024 before the Additional Chief
Secretary,
Secondary
Education
,subsequent to which the final orders were
passed by Sri Alok Kumar, Special
242 INDIAN LAW REPORTS ALLAHABAD SERIES
Secretary before whom no hearing had
taken place.

26. The State government has been
given the powers to appoint and authorised
controller in excise of powers under section
16-D(4) Of the U.P Intermediate Education
Act, 1921. The Director Education as to
record his satisfaction with regard to the
existence of grounds mentioned in section
16-D(3)(i) to (vii) of the act of 1921, before
forwarding his recommendations to the
State government. At the stage of section
16-D(3) principle of natural justice are
incorporated as part of the statutory
provision itself, in as much as the Director
of Education is mandated to give a show
cause
notice
before
forwarding
his
recommendations.
It
is
on
the
recommendations
of
the
Director
of
Education, order is passed by the State
government
for
appointment
of
the
authorised controller. The question as to
whether the state government has to afford
opportunity of hearing to the committee of
management before passing any order in
exercise of powers under section 16-D(4)
of the act of 1921 was considered by
division bench of this court in the case of
Chandashekhar Tiwari vs State of UP
and 5 others in Special Appeal No. 70 of
2023 where this court relied upon the
judgement of single judge in the case of
Committee of Management, Gautam
Buddha Inter College and another vs
State of UP and 4 others (2016) ALJ 126
wherein it has been held that although the
statute provides for opportunity of hearing
at the stage of enquiry by the director but in
case there is recommendation by Director
to
supersede
the
committee
of
management, it is implicit in the provision
that State government would accord
hearing to the affected party before it
supersede the committee of management. It
was held that, the fact that decision-making
authority is a State government and is
enjoined for duty to record reasons.

27. It was further observed that the
purpose of affording hearing to provide
opportunity
to
the
committee
of
management to place its defence in context
of recommendations made by the Director
of Education. It would get opportunity to
impress upon the state government that on
the basis of material available on record,
the law does not warrant appointment of an
authorised controller.

28. Accordingly, a perusal of the
statutory scheme as well as the judgement
of this court in the case of Chandashekhar
Tiwari (Supra) leaves no doubt that even
the State government while taking a
decision to consider the recommendations
of the director, is required to give an
opportunity of hearing to the committee of
management and also give reasons for its
orders.

29. In the present case the the
petitioners were informed by means of
letter dated 27/07/2023 that the proceedings
would
be
conducted
before
Special
Secretary, Secondary Education, Mr Alok
Kumar, and were required to be present
before him on 14/03/2024. The petitioners
appeared on the date fixed in also filed a
response, but by means of letter dated
07/03/2024 they were required to be
present
before
the
Additional
Chief
Secretary,
Secondary
Education
on
14/03/2024. Again, the petitioners appeared
before the Additional Chief Secretary and
filed their reply and the matter was also
heard and argued on behalf of the
petitioners. No date was fixed thereafter,
and the order in the said case pursuant to
the hearing before the Additional Chief
10 All. C/M Ram Bharose Maiku Lal Inter College Thru Manager Sri Shree Kant Sahu & Anr.
 Vs. State of U.P. & Ors.
243
Secretary was pronounced by Special
Secretary, Secondary Education, Mr Alok
Kumar. In the aforesaid circumstances the
question which was also in consideration is
as to whether the order must be passed by
the person before whom the hearing took
place , or can be validly passed by another
person or authority before whom no
hearing took place, on a bare perusal of the
record of proceedings.

30. To consider the aforesaid
question it has to be determined as to
whether the proceedings under section 16D(4) of the act of 1921 are administrative
in nature or quasi-judicial. In case the State
government was deciding a lis between the
parties, or deciding the rights, then it would
be acting as an tribunal. In the present case
the long list of contingencies provided for
in section 16-D(3) of the act of 1921 all of
which pertain to the inaction of the
committee
of
management
and
circumstances where there were dutybound to do otherwise. The allegations may
also extend to financial impropriety and
acting
contrary
to
the
scheme
of
administration. It is in the backdrop of the
aforesaid provisions that this Court is of the
considered view that while passing an order
appointing authorised controller a definite
finding has to be recorded against the
committee of management for being guilty
of the grounds contained in section 16-D(3)
of Act of 1921, and therefore they have to
give an opportunity of hearing to the
committee of management, and record the
reasons for appointing the authorised
controller. While passing an order under
section 16-D(4) of act of 1921 the State
government is discharging quasi-judicial
functions, and therefore they have to
provide in opportunity of hearing to the
committee of management and follow the
principles of natural justice.
31. To exercise the power of the
state government under section 16-D(4) of
act of 1921 , it has to be delegated to an
authority who would be exercising the
powers on behalf of the state government.
As already discussed while passing an
order under section 16-D(4) the State
government has to give opportunity of
hearing to the committee of management,
and the authority who is empowered to
exercise the powers of the state government
has to pass necessary orders after giving
due opportunity of hearing. There is no
doubt that in the present case the
Additional Chief Secretary, Secondary
Education has given an opportunity of
hearing to the petitioners, but the order was
passed by the Special Secretary Secondary
Education before whom no hearing took
place. The manner of decision-making in
the present case where the decision-making
process has been divided into 2 parts where
one authority has given an opportunity of
hearing, while another has passed the order,
is alien to the concept of fair hearing, as
one who decides does not hear the party, he
does not get an opportunity of clearing
doubt in his mind by reasoned arguments,
and in such situation the opportunity of
personal
hearing
becomes
an
empty
formality.

32. The Supreme Court in the case
of Gullapalli Nageshwar Rao v. A. P.
State Road Transport Corporation, AIR
1959 SC 308, has observed "This divided
responsibility is destructive of the concept
of judicial hearing. Such a procedure
defeats the object of personal hearing.
Personal hearing enables the authority
concerned to watch the demeanour of the
witnesses and clear up his doubts during
the course of the argument and the party
appearing to persuade the authority by
reasoned argument to accept his point of
244 INDIAN LAW REPORTS ALLAHABAD SERIES
view. If one person hears and another
decides, then personal hearing becomes an
empty formality." Accordingly, in the
instant case by the order has been passed
by the Special Secretary is illegal and
arbitrary and clearly violative of principles
of natural justice.

33. The 2nd ground on which the
impugned order has been assailed in the
fact that the Special Secretary had himself
conducted the enquiry on 30/05/2024 and
submitted
his
report
to
the
State
government. It has submitted that during
the hearing before the Additional Chief
Secretary on 14/03/2024 it was recorded
that the reports of the District Magistrate
and the Director education were not on
record, and in the above circumstances the
special Secretary was directed to submit his
report. The report dated 30/05/2024 was
never supplied to the petitioner but has
been relied by the State government while
passing
the
impugned
order
dated
24/07/2024.

34. Considering the ground of bias
as alleged by the petitioner it is relevant to
note that "Bias" means an operative prejudice
whether conscious or unconscious, in relation
to party or issue. Such operative prejudice
may be the result of a preconceived opinion
or a predisposition or a determination to
decide the case in a particular manner, so
much so that it does not leave the mind open.
Accordingly, the rule strikes against those
factors which may improperly influence as
arriving at the decision in a particular case. A
person for whatever reason, cannot take on
objective decision on the basis of evidence on
record, shall be said to be biased.

35. In A.K. Kraipak v. Union of
India, (1969) 2 SCC 262, the Supreme
Court held that the aim of rules of natural
justice is to secure justice or to put it
negatively, to prevent miscarriage of
justice. Concept of natural justice has
undergone a great deal of change. Initially
recognized as consisting of two principles,
i.e., no one shall be a Judge in his own
cause and no decision shall be given
against a party without affording him a
reasonable hearing, a third rule is now
envisaged i.e. quasi-judicial inquiries must
be held in good faith, without bias and not
arbitrarily.

36. In Union of India, Through
Its
Secretary,
Ministry
of
Railway v. Naseem Siddiqui, 2004 SCC
OnLine MP 678, the Court held that one of
the fundamental principles of natural
justice is that no man shall be a Judge in his
own cause and this principle in turn
consists of seven well-recognized facets,
one of them being 'the adjudicator shall be
impartial and free from bias' and 'if any
one of these fundamental rules is breached,
the inquiry will be vitiated'. It was also
held that a domestic inquiry must be held
by an unbiased person so that he can be
impartial and objective in deciding the
subject matter of the inquiry and should
have an open mind till the inquiry is
completed. IO should neither act with bias
nor give an impression of bias.

37. In Rattan Lal Sharma Vs.
managing Committee, Dr. Hari Ram (Coeducation) Higher Secondary School &
Ors, (1993) 4 SCC 10 , the Supreme Court
held that no one can be a Judge in his own
cause, which is a common law principle
derived from the Latin maxim 'nemo debet
esse judex in propria causa'. In A. U.
Kureshi v. High Court of Gujarat, (2009)
11 SCC 84, the Supreme Court referring to
the said principle held that failure to adhere
to this principle creates an apprehension of
10 All. C/M Ram Bharose Maiku Lal Inter College Thru Manager Sri Shree Kant Sahu & Anr.
 Vs. State of U.P. & Ors.
245
bias on the part of the Judge and referred to
the observations of Justice P.N. Bhagwati
in Ashok
Kumar
Yadav v. State
of
Haryana, (1985) 4 SCC 417, as follows:-

 "...

One of the fundamental principles
of our jurisprudence is that no man can be
a judge in his own cause. The question is
not whether the judge is actually biased or
has in fact decided partially but whether
the circumstances are such as to create a
reasonable apprehension in the mind of
others that there is a likelihood of bias
affecting the decision. If there is a
reasonable likelihood of bias 'it is in
accordance with natural justice and
common sense that the judge likely to be so
biased should be incapacitated from
sitting'. The basic principle underlying this
rule is that justice must not only be done
but must also appear to be done."

38. It was further held that failure
to observe the principle that no person
should adjudicate a dispute which he/she
has dealt with in any capacity, creates an
apprehension of bias on the part of the said
person. Therefore, law requires that a
person should not decide a case in which he
is interested and the question is not whether
the person is actually biased but whether
the circumstances are such as to create a
reasonable apprehension in the minds of
others that there is a likelihood of bias
affecting the decision. In Mohd. Yunus
Khan v. State of Uttar Pradesh, (2010) 10
SCC 539, the Supreme Court observed that
existence of an element of bias renders the
entire disciplinary proceedings void and
reiterated
that
apprehension
of
bias
operates as a disqualification for a person
to act as an adjudicator. Anyone who has
personal
interest
in
the
disciplinary
proceedings must keep himself away from
such proceedings else the entire proceeding
will be rendered null and void. I may quote
an observation of the Supreme Court, as
follows:-

 "Principles of natural justice are
to some minds burdensome but this price -
a small price indeed - has to be paid if we
desire a society governed by the rule of
law".

39. In this context, it would be
relevant to refer to a few passages from the
judgment
of
the
Supreme
Court
in Rattan Lal Sharma (supra),
as
follows:-

 "9. In Administrative Law, rules
of natural justice are foundational and
fundamental concepts and law is now well
settled that the principles of natural justice
are part of the legal and judicial
procedures. On the question whether the
principles of natural justice are also
applicable to the administrative bodies,
formerly, the law courts in England and
India had taken a different view. It was
held in Franklin v. Minister of Town and
Country Planning [[1947] 2 All ER 289
(HL)] that the duty imposed on the minister
was merely administrative and not being
judicial or quasi-judicial, the principle of
natural justice as applicable to the judicial
or quasi-judicial authorities was not
applicable and the only question which was
required to be considered was whether the
Minister had complied with the direction or
not. Such view was also taken by the Indian
courts and reference may be made to the
decision of this Court in Kishan Chand
Arora v. Commissioner
of
Police,
Calcutta [(1961) 3 SCR 135 : AIR 1961 SC
705]. It was held that the compulsion of
hearing before passing the order implied in
the maxim 'audi alteram partem' applied
246 INDIAN LAW REPORTS ALLAHABAD SERIES
only
to
judicial
or
quasi-judicial
proceedings. Later on, the law courts in
England and also in India including this
Court have specifically held that the
principle of natural justice is applicable
also
in
administrative
proceedings.
In Breen v. Amalgamated
Engineering
Union [[1971] 1 All ER 1148 (CA)] Lord
Denning emphasised that statutory body is
required to act fairly in functions whether
administrative or judicial or quasi-judicial.
Lord Morris observed (as noted by this
Court
in Maneka
Gandhi
[Maneka
Gandhi v. Union of India, (1978) 1 SCC
248, 285 : (1978) 2 SCR 621] decision)
that:

 "We can, I think, take pride in
what has been done in recent periods and
particularly in the field of administrative
law by invoking and by applying these
principles which we broadly classify under
the designation of natural justice. Many
testing problems as to their application yet
remain to be solved. But I affirm that the
area of administrative action is but one
area in which the principles are to be
deployed."

40. In State of Orissa v. Binapani
Dei [(1967) 2 SCR 625 : AIR 1967 SC
1269 : (1967) 2 LLJ 266] this Court also
accepted the application of the principle of
natural justice in the order which is
administrative in character. It was observed
by Shah, J.:

 "It is true that the order is
administrative in character, but even an
administrative order which involves civil
consequences ... must be made consistently
with the rules of natural justice."

 Similar view was also taken
in A.K. Kraipak v. Union of India [(1969) 2
SCC 262 : (1970) 1 SCR 457] and the
observation of Justice Hegde may be
referred to : (SCC p. 272, para 20)

 "... Till very recently it was the
opinion of the courts that unless the
authority concerned was required by the
law under which it functioned to act
judicially, there was no room for the
application of the rules of natural justice.
The validity of that limitation is now
questioned. If the purpose of the rules of
natural justice is to prevent miscarriage of
justice one fails to see why those rules
should
be
made
inapplicable
to
administrative enquiries."

 There are number of decisions
where application of principle of natural
justice in the decision-making process of
the
administrative
body
having
civil
consequence has been upheld by this Court
but it is not necessary to refer to all such
decisions. Prof Wade in his Administrative
Law (1988) at page 503, has very aptly
observed that the principles of natural
justice are applicable to almost the whole
range of administrative powers.

 10. Since the rules of natural
justice were not embodied rules it is not
possible and practicable to precisely define
the
parameters
of
natural
justice.
In Russell v. Duke of Norfolk [[1949] 1 All
ER 109 (CA)] Tucker, L.J. observed:

 "... There are, in my view, no
words which are of universal application to
every kind of inquiry and the every kind of
domestic tribunal. The requirements of
natural justice must depend on the
circumstances of the case, the nature of the
inquiry, the rules under which the tribunal
is acting, the subject-matter that is being
dealt with, and so forth."
10 All. C/M Ram Bharose Maiku Lal Inter College Thru Manager Sri Shree Kant Sahu & Anr.
 Vs. State of U.P. & Ors.
247
41. It has been observed by this
Court in Union of India v. P.K. Roy [AIR
1968 SC 850]:

 "The extent and application of
the doctrine of natural justice cannot be
imprisoned within the strait-jacket of a
rigid formula. The application of the
doctrine depends upon the nature of the
jurisdiction conferred on the administrative
authority, upon the character of the rights
of the persons affected, the scheme and
policy of the statute and other relevant
circumstances disclosed in the particular
case."

42. Similar view was also
expressed in A.K. Kraipak case [(1969) 2
SCC 262 : (1970) 1 SCR 457]. This Court
observed as follows:

 "... What particular rule of
natural justice should apply to a given case
must depend to a great extent on the facts
and circumstances of that case, the
framework of the law under which the
Inquiry is held and the constitution of the
Tribunal or body of persons appointed for
that purpose. Whenever a complaint is
made before a court that some principle of
natural justice had been contravened, the
court has to decide whether the observance
of that rule was necessary for a just
decision on the facts of that case."

 Prof. Wade in his Administrative
Law
has
succinctly
summarised
the
principle of natural justice to the following
effect:

 "It is not possible to lay down
rigid rules as to when the principles of
natural justice are to apply : not as to their
scope and extent. Everything depends on
the subject-matter, the application for
principles of natural justice, resting as it
does upon statutory implication, must
always be in conformity with the scheme of
the Act and with the subject-matter of the
case. In the application of the concept of
fair play there must be real flexibility.
There must also have been some real
prejudice to the complainant; there is no
such
thing
as
a
merely
technical
infringement
of
natural
justice.
The
requirements of natural justice depend on
the facts and the circumstances of the case,
the nature of the enquiry, the rules under
which the tribunal is acting, the subjectmatter to be dealt with, and so forth."

43. One of the cardinal principles
of natural justice is nemo debet esse judex
in propria causa (no man shall be a judge in
his own cause). The deciding authority
must be impartial and without bias. It has
been held by this Court in Secretary to
Government,
Transport
Department v. Munuswamy
Mudaliar [1988 Supp SCC 651] that a
predisposition to decide for or against one
party without proper regard to the true
merits of the dispute is bias. Personal bias
is one of the three major limbs of bias
namely pecuniary bias, personal bias and
official bias. A classic case of personal bias
was revealed in the decision of this Court
in State of U.P. v. Mohd. Nooh [1958
SCR 595 : AIR 1958 SC 86]. In the said
case, a departmental inquiry was held
against an employee.