# Abdus Salam @ A. Salam v. Election Commission of India

- **Citation:** (2004) 1 ILRA 227
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-02-06
- **Case number:** Civil Misc. Writ Petition No. 4220 of 2004
- **Bench:** S.P. Srivastava, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdus-salam-a-salam-v-election-commission-of-india-40326
- **Pages:** 4

## Headnote

Representation of Peoples Act, 1951- Ss.
10-A and 11- Natural Justice- Order by
Election Commission disqualifying for 3
years-categorical finding that inspite of
notice
no
explanation
furnished-
Applications by petitioner for removal of
disqualification giving full facts and his
version detail- rejection of applications
caused no prejudice to petitioner- No
personal
hearing
or
opportunity
required- Writ dismissed.

Held- Para 14,15 & 17

We are clearly of the opinion that the
duty to hear does not necessarily mean
affording
of
personal
hearing
or
audience and an aggrieved party may be
heard orally or through the medium of
written representation ensuring that no
prejudice is caused.

Considering
the
peculiar
facts
and
circumstances of the present case, we
are clearly of the view that the impugned
order cannot be held to be vitiated in law
on account of its having been passed in
violation of principles of natural justice,
as claimed and further that an effective
opportunity had been afforded to the
petitioner.

It should not be lost sight of that for
considering the question of violation of
principles of natural justice, all that has
to be seen is, as to whether the
concerned authority had acted in a fair
manner.
There
is
nothing
rigid
or
mechanical
about
the
principles
of
natural justice. Whenever, there is a
reference to the rules of natural justice,
it
signifies
that
the
principle
and
procedure which are to be applied have
to be such which in any particular set of
circumstances, are right, just and fair.
Case Law discussed:
AIR 1966 SC 671
AIR 1967 SC 1398
1994 Supp.(2) SCC 463
1957 SCR 1151: AIR 1957 SC 648

## Text

1 All] Abdus Salam @ A. Salam V. Ellection Commission of India and another 227
28. With these directions, the writ
petition is dismissed. Interim order, if
any, stands vacated.

29. The copy of this order be issued
to Sri Piyush Shukla, standing counsel,
for being communicated to the District
Magistrate, Hamirpur.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6.2.2004

BEFORE
THE HON'BLE S.P. SRIVASTAVA, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 4220 of 2004

Abdus Salam @ A. Salam
...Petitioner
Versus
Election
Commission
of
India
and
another

...Respondents

Counsel for the Petitioner:
Sri S.G. Hasnain

Counsel for the Respondents:
Sri B.N. Singh
S.C.

Representation of Peoples Act, 1951- Ss.
10-A and 11- Natural Justice- Order by
Election Commission disqualifying for 3
years-categorical finding that inspite of
notice
no
explanation
furnished-
Applications by petitioner for removal of
disqualification giving full facts and his
version detail- rejection of applications
caused no prejudice to petitioner- No
personal
hearing
or
opportunity
required- Writ dismissed.

Held- Para 14,15 & 17

We are clearly of the opinion that the
duty to hear does not necessarily mean
affording
of
personal
hearing
or
audience and an aggrieved party may be
heard orally or through the medium of
written representation ensuring that no
prejudice is caused.

Considering
the
peculiar
facts
and
circumstances of the present case, we
are clearly of the view that the impugned
order cannot be held to be vitiated in law
on account of its having been passed in
violation of principles of natural justice,
as claimed and further that an effective
opportunity had been afforded to the
petitioner.

It should not be lost sight of that for
considering the question of violation of
principles of natural justice, all that has
to be seen is, as to whether the
concerned authority had acted in a fair
manner.
There
is
nothing
rigid
or
mechanical
about
the
principles
of
natural justice. Whenever, there is a
reference to the rules of natural justice,
it
signifies
that
the
principle
and
procedure which are to be applied have
to be such which in any particular set of
circumstances, are right, just and fair.
Case Law discussed:
AIR 1966 SC 671
AIR 1967 SC 1398
1994 Supp.(2) SCC 463
1957 SCR 1151: AIR 1957 SC 648

(Delivered by Hon'ble S.P. Srivastava, J.)

1. Heard the learned counsel for the
petitioner.

2. The learned standing counsel
representing the respondents who has put
in appearance at this stage on advance
notice has also been heard.

3. The petitioner is aggrieved by the
order of the Election Tribunal dated
7.1.2003
whereby
exercising
the
jurisdiction as envisaged under Section
10-A of the Representation of the People
Act, 1951 the petitioner was disqualified
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228 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
for a period of three years. In the order
dated 7.1.2003 the Tribunal has recorded
a categorical finding that inspite of notice
the petitioner had not furnished any
explanation.

4. The fact that the petitioner had
not submitted any explanation is not
disputed. Further the correctness of the
recitals contained in the order dated
7.1.2003
passed
by
the
Election
Commission
is
also
not
disputed.
However, after passing of the order dated
7.1.2003,
the
petitioner
moved
an
application under Section 11 of the
aforesaid Act seeking removal of the
disqualification imposed under order
dated 7.1.2003. In this connection the
petitioner
has
filed
copies
of
the
applications dated 6.2.2003, 25.7.2003
and 6.10.2003. In the application filed
under Section 11 of the Act, which was
supported by an affidavit, the petitioner
had set forth his grievances in detail.

5. The Election Commission after
considering the applications rejected the
same vide the impugned order dated 20th
October, 2003.

6. The only submission urged and
pressed by the learned counsel for the
petitioner in support of this writ petition is
that the petitioner had not been afforded
any personal hearing.

7. Learned counsel for the petitioner
has strenuously urged that the respondent
-authority has acted in a manifestly illegal
manner in passing the impugned order
without
giving
the
petitioner
an
opportunity of being heard.

8. In the aforesaid connection, it has
further been urged that it was incumbent
upon the respondent-authority to afford
an opportunity of personal hearing to the
petitioner before taking a decision on his
application filed under Section 11 of the
Representation of People Act. Since the
respondent-authority had not afforded
any personal hearing to the petitioner, it is
urged that the impugned order disposing
of the application is vitiated in law and is
not at all sustainable.

9. The question as to whether
hearing necessarily involved affording of
opportunity
of
personal
hearing
or
opportunity
to
give
written
submissions/representation setting forth
the version of the aggrieved party is
substantial compliance of affording of
opportunity of hearing has been the
subject matter of various decisions of the
Apex Court.

10. In its decision in the case of
Madhya Pradesh Industries Ltd. Vs.
Union of India AIR 1966 SC 671, the
Apex Court had observed that it is no
doubt the principle of natural justice that a
quasi judicial Tribunal cannot make any
decision adverse to a party without giving
him an effective opportunity of meeting
any relevant allegations against him.
However, it was further observed that
such an opportunity need not necessarily
be by personal hearing. It can be by
written representation. It was further
observed
that
whether
the
said
opportunity should be by a written
representation or by personal hearing
depends upon the facts of each case and
ordinarily it is in the discretion of the
Tribunal.

11. In its decision in the case of The
State
of
Assam
Vs.
The
Gauhati
Municipal Board, Gauhati, AIR 1967 SC
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1 All] Abdus Salam @ A. Salam V. Ellection Commission of India and another 229
1398, the decision of the High Court that
omission to give an opportunity of oral
hearing violated the principles of natural
justice was reversed by the Apex Court
holding that the opportunity to submit an
explanation was sufficient.

12. In another decision in the case of
State Bank of Patiala Vs. Mahendra
Kumar Singhal 1994 Supp.(2) SCC 463
the Apex Court had indicated that no rule
could be brought to its notice, which
required the appellant to grant a personal
hearing. It was further indicated that the
rule of natural justice does not necessarily
in all cases confer a right of audience, as
indicated in the earlier decision of the
Apex Court in the case of F.N. Roy V.
Collector of Customs, Calcutta, 1957
SCR 1151: (AIR 1957 SC 648). In its
decision in this case, the Apex Court had
observed that there is no rule of natural
justice that at every stage, a person is
entitled to a personal hearing.

13. In the present case the petitioner
had given his version and the facts in
support of his case in detail in his
application filed under Section 11 of the
Representation
of
People
Act.
The
petitioner, in the circumstances, could not
be held to be prejudiced at all.

14. We are clearly of the opinion
that the duty to hear does not necessarily
mean affording of personal hearing or
audience and an aggrieved party may be
heard orally or through the medium of
written representation ensuring that no
prejudice is caused.

15. Considering the peculiar facts
and circumstances of the present case, we
are clearly of the view that the impugned
order cannot be held to be vitiated in law
on account of its having been passed in
violation of principles of natural justice,
as claimed and further that an effective
opportunity had been afforded to the
petitioner.

16. The contention of the learned
counsel for the petitioner, referred to here
in above, is totally devoid of any merit
and is not at all acceptable.

17. It should not be lost sight of that
for considering the question of violation
of principles of natural justice, all that has
to be seen is, as to whether the concerned
authority had acted in a fair manner.
There is nothing rigid or mechanical
about the principles of natural justice.
Whenever, there is a reference to the rules
of natural justice, it signifies that the
principle and procedure which are to be
applied have to be such which in any
particular set of circumstances, are right,
just and fair.

18. Natural justice, in fact, refers to
fair play in action. It is a concept which
has succeeded in keeping the arbitrary
action within the limits of preserving the
rule of law. But with all the religious
rigidity with which it should be observed,
since it is ultimately weighed in balance
of fairness, the Courts have been
circumspect in extending it to situations
where it would cause more injustice than
justice.

19. Taking into consideration the
facts and circumstances as brought on the
record, in their totality no ground has
been made out for any interference by this
Court while exercising the extraordinary
jurisdiction as envisaged under Article
226 of the Constitution of India.

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230 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
This writ petition accordingly fails
and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2004

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No.35180 of 1997

Tej Prakash Jaiswal and another

 ...Petitioners
Versus
Mukhya Nagar Adhikari, Nagar Nigam,
Allahabad and others
 ...Respondents

Counsel for the Petitioners:
Sri R.G. Padia
Sri Prakash Padia
Sri Shesh Kumar

Counsel for the Respondents:
Sri S.D. Kautilya
Sri Dinesh Dwivedi
S.C.

Service Law-Regularisation Appointment
as
Clerk
on
daily
wages-Achieved
proficiency of 25 W.P.M. in typing at that
stage-Selection
Committee
after
acknowledging. This fact recommended
for regularisation-appointed as clerkRegularisation also done-At later stage
condition of 25 w.p.m. in typing was not
necessary to be imposed afresh in
performance, experience, merits and
recommendation
of
Selection
Committee-Impugned order set asidePetitioners to be treated as regular
employees-Their termination on ground
of not achieving typing test of 25 w.p.m.
in Hindi and change in service condition,
held, illegal.

Held: Para 6

I have heard learned counsel for the
petitioner, I find that petitioners were
earlier appointed as daily wagers and
had achieved the proficiency of 25
w.p.m. at that stage and the selection
committee after acknowledging this fact
recommended the cases of petitioners
and
the
petitioners
were
given
appointment of as a clerk i.e. since they
were above Intermediate and were
having proficiency in 25 w.p.m. typing.
Keeping in view the recommendations of
the
selection
committee
they
were
regularised also. Now at later stage a
condition of 25 w.p.m. in typing was not
necessary to be imposed afresh in the
regularisation order as the regularisation
was only made keeping in view of the
performance experience merits and the
recommendation
of
the
selection
committee.
In
view
of
the
above
observations I find that the decision of
Ved Prak Sagar (supra) as referred by
respondents is not applicable in the
present facts and circumstance and in
view of the above observation the order
dated
7.10.1997
is
not
legally
sustainable, therefore, it is set aside and
the petitioner are to be treated as
regular employee and their termination
on the ground of not achieving the
typing test of 25 w.p.m. in Hindi on the
ground of change in service condition of
the petitioner is illegal not justifiable. In
view of the above the writ petition is
allowed. No order as to cost.

(Delivered by Hon'ble R.B. Misra, J.)

Heard Dr. R.G. Padia, learned Senior
Advocate for the petitioners and Sri S.D.
Kautilya,
learned
counsel
for
the
respondents.

1. In this petition prayer has been
made to quash the order dated 7.10.1997
(Annexure-8 to the writ petition) whereby
the services of the petitioners were
terminated as they could not achieve in
the prescribed proficiency Hindi Typing
test.
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