# Anil Kumar Rana v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 644
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-28
- **Case number:** Special Appeal No. 140 of 2020
- **Bench:** Pankaj Kumar Jaiswal, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-rana-v-state-of-u-p-ors-45872
- **Pages:** 12

## Headnote

Law
-
Departmental/disciplinary proceedings -
Dismissal - U.P. Police Officers of
Subordinate
Rank
(Punishment
and
Appeal), Rules, 1991 - After several rounds
of litigation opposing the dismissal from
service, appellant filed an application dated
13.06.2018 for de-novo enquiry and w.r.t that
moved
an
application
under
Right
to
Information Act, 2005 and in absence of any
reply to the same preferred a Claim Petition
before the Tribunal seeking directions to
official respondents to provide the status of
de-novo enquiry and the copy of the enquiry
report, which was dismissed vide order dated
24.01.2020. The writ petition against the said
order was also dismissed by impugned order
dated 27.02.2020. Court in appeal has held
that
considering
the
contents
of
uncontroverted personal affidavit filed by
Superintendent of Police, District Hardoi and in
absence of any order of the competent
authority
(i.e.
Superintendent
of
Police,
District Hardoi) for holding the de-novo
enquiry in the matter of appellant, it cannot be
held that the de-novo enquiry was initiated in
the matter of appellant. (Para 32 to 35)
Principles of "Useless Formality" theory -
"no one can complain of not being given an
opportunity to make representations if such an
opportunity would have availed him nothing."
Every violation of a facet of natural
justice may not lead to the conclusion
that the order passed is always null and
void. The validity of the order has to be
decided on the touchstone of "prejudice". The
ultimate test is always the same viz. the test
of prejudice or the test of fair hearing." (Para
40)

It was held that no fruitful purpose would be
served in interfering in the judgment and
order dated 27.02.2020 on the basis of
arguments raised by the appellant broadly
based on violation of principles of natural
justice, as copy of the personal affidavit was
not provided to the appellant and the Writ
Court passed an ex-parte judgment without
giving any opportunity to appellant for filing
response. (Para 41)

Special Appeal dismissed. (E-4)

Precedent followed:

## Text

644 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A644
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.05.2020

BEFORE
THE HON'BLE PANKAJ KUMAR JAISWAL,
J.
THE HON'BLE SAURABH LAVANIA, J.

Special Appeal No. 140 of 2020

Anil Kumar Rana ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Raj Vikram Singh.

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Departmental/disciplinary proceedings -
Dismissal - U.P. Police Officers of
Subordinate
Rank
(Punishment
and
Appeal), Rules, 1991 - After several rounds
of litigation opposing the dismissal from
service, appellant filed an application dated
13.06.2018 for de-novo enquiry and w.r.t that
moved
an
application
under
Right
to
Information Act, 2005 and in absence of any
reply to the same preferred a Claim Petition
before the Tribunal seeking directions to
official respondents to provide the status of
de-novo enquiry and the copy of the enquiry
report, which was dismissed vide order dated
24.01.2020. The writ petition against the said
order was also dismissed by impugned order
dated 27.02.2020. Court in appeal has held
that
considering
the
contents
of
uncontroverted personal affidavit filed by
Superintendent of Police, District Hardoi and in
absence of any order of the competent
authority
(i.e.
Superintendent
of
Police,
District Hardoi) for holding the de-novo
enquiry in the matter of appellant, it cannot be
held that the de-novo enquiry was initiated in
the matter of appellant. (Para 32 to 35)
Principles of "Useless Formality" theory -
"no one can complain of not being given an
opportunity to make representations if such an
opportunity would have availed him nothing."
Every violation of a facet of natural
justice may not lead to the conclusion
that the order passed is always null and
void. The validity of the order has to be
decided on the touchstone of "prejudice". The
ultimate test is always the same viz. the test
of prejudice or the test of fair hearing." (Para
40)

It was held that no fruitful purpose would be
served in interfering in the judgment and
order dated 27.02.2020 on the basis of
arguments raised by the appellant broadly
based on violation of principles of natural
justice, as copy of the personal affidavit was
not provided to the appellant and the Writ
Court passed an ex-parte judgment without
giving any opportunity to appellant for filing
response. (Para 41)

Special Appeal dismissed. (E-4)

Precedent followed:

1. Aligarh Muslim University & ors. Vs Mansoor
Ali Khan, (2000) 7 SCC 529 (Para 39)

2. M/s Dharampal Satyapal Ltd. Vs Deputy
Commissioner of Central Excise, Gauhati &
ors., (2015) 8 SCC 519 (Para 40)

Precedent cited:

1. Shamsher Bahadur Vs Board of Directors,
Farrukhabad Gramin Bank, Writ-A No. 41169
of 2003, Judgment dated 14.09.2016 (Para
23)

Appeal assails the judgment and order
dated 27.02.2020, passed by the learned
Writ Court.

(Delivered by Hon'ble Saurabh Lavania,
J.)

1. When the matter was taken up
through Video Conferencing Sri Raj
Vikram Singh, learned counsel for the
petitioner and Sri Manish Mathur, learned
6 All. Anil Kumar Rana Vs. State of U.P. & Ors. 645
counsel
for
the
State-respondent
appeared.

2. Under appeal is the judgment and
order dated 27.02.2020 passed in Writ
Petition No.2936 (S/S) of 2020 (Anil
Kumar Rana v. State of U.P. & Ors.).

3. Brief facts of the case are to the
effect that the petitioner/appellant filed
the Writ Petition No.2936 (S/S) of 2020,
for the following main reliefs:-

"(i)
This
Hon'ble
Court
may
graciously be pleased to issue a writ of
mandamus to direct the opposite parties
to provide the enquiry report of the denova enquiry to the petitioner.

(ii)
This
Hon'ble
Court
may
graciously be pleased to issue a writ of
mandamus to direct the opposite parties
to provide the status of the de-nova
enquiry to the petitioner."

4. It is stated that the appellant was
duly selected on 17.08.1997 on the post
of constable in the police department of
Uttar Pradesh under reserved category i.e.
Schedule Tribes. After rendering 11 years
regular service in the department, a
preliminary enquiry was initiated against
the petitioner in regard to the Caste
Certificate No.9320, which was issued on
01.02.1994 by the Tehsildar ShahbadDistrict-Hardoi,
and
thereafter
departmental/disciplinary
proceedings
were carried out against the appellant
under the U.P. Police Officers of the
Subordinate Ranks (Punishment and
Appeal) Rules 1991 (in short "Rules of
1991") and the appellant was dismissed
from service vide order dated 26.06.2007.

5. Being aggrieved by the order of
dismissal dated 26.06.2007, the appellant
preferred the departmental appeal under
the Rules of 1991, that too was dismissed
by the Appellate Authority vide order
dated 30.04.2008.

6. Challenging the order of
dismissal dated 26.06.2007 as also the
order of Appellate Authority dated
30.04.2008, the appellant preferred the
Writ Petition No. 4262 (S/S) of 2008
(Anil Kumar Rana vs. State of U.P. &
Ors.) and the same was decided on
28.07.2008 by this Court. Vide order
dated 28.07.2008, the appellant was
directed to approach the U.P. State
Services Tribunal (in short "Tribunal").
Thereafter, the appellant approach the
Tribunal by filing Claim Petition 2306 of
2010 (Anil Kumar Rana vs. State of U.P.
& Ors.). The Claim Petition was filed
against the order of dismissal dated
26.06.2007
and order
of Appellate
Authority dated 30.04.2008 and the same
was dismissed vide judgment and order
dated 24.08.2011 by the Tribunal. The
Claim Petition was dismissed being
highly time barred.

7.

Thereafter,
the
petitioner
approached this Court by means of Writ
Petition No.1788 (S/B) of 2010 (Anil
Kumar Rana vs. State of U.P. & Ors.) and
the same was dismissed vide order dated
10.12.2015.

8. Needless to say that this Court
also dismissed the Review Petition
No.563 of 2015 filed by the appellant
with regard to judgment and order dated
10.12.2015 passed in Writ Petition
No.1788 (S/B) of 2011 vide order dated
19.05.2016.

9. Being aggrieved, the appellant
approached the Hon'ble Apex Court by
646 INDIAN LAW REPORTS ALLAHABAD SERIES
preferring the Special Leave Petition,
which was also dismissed.

10. It is also stated that after
dismissal of Special Leave Petition, the
appellant preferred an application dated
13.06.2018 for de-novo enquiry and on
the
said
application,
the
denovo/disciplinary enquiry was initiated by
the opposite party no.2, in which the
opposite party no.3, Inspector Police
Station-Shahabad, District Hardoi, was
appointed as enquiry officer. In the denono enquiry, the enquiry officer sent a
letter dated 27.08.2018 to Tehsildar
Shahabad,
District-Hardoi
for
the
purposes
of
verification
of
Caste
Certificate No.9320 of the appellant. In
response to the letter dated 27.08.2018,
Tehsildar Shahabad, District-Hardoi vide
his letter dated 31.10.2018 informed that
the Caste Certificate No.9320 is not
original but another Case Certificate
No.7629 is the original and was issued by
the Tehsildar-Shahabad, District-Hardoi.

11. It is further stated that with
regard
to
the
de-novo/disciplinary
enquiry,
the
appellant
moved
an
application under Right to Information
Act, 2005 through an Advocate and in
absence of any reply to the same, the
appellant preferred the Claim Petition
no.1819 of 2019 (Anil Kumar Rana vs.
State of U.P. & Ors. ) before the Tribunal
seeking direction to official respondents
to provide the status of de-novo enquiry
and the copy of the enquiry report, as
apppears from order of Tribunal dated
24.01.2020. The Tribunal dismissed the
Claim
Petition
vide
order
dated
24.01.2020 being not maintainable.

12.

In
the
aforesaid
factual
background the appellant approached this
Court by means of Writ Petition No.2936
(S/S) of 2020 for the reliefs quoted above.
The relevant paras of the Writ Petition are
quoted below for ready reference:-

"25. That there after on 14.06.2018
the petitioner sent an application for denovo enquiry in the light of the judgment
of the Hon'ble Apex Court in "Union of
India and others vs. P.Thayagarajan"
dated 24, November 1998. This is
pertinent to mention herein the said
judgment
of
Hon'ble
Apex
Court
reiterated that if any fact or legal point
has been left then the de-novo enquiry
may be initiated.

26. That on the application the
opposite party no.2 initiated the de-novo
enquiry and the opposite party no.3 was
appointed the enquiry officer.

27. That after commencement of the
enquiry the petitioner was called various
times for the inquiry and the petitioner
co-operated in the enquiry so that he
always appeared before enquiry officer.

28. That the caste certificate which
was disputed and in question was verified
by the enquiry officer opposite party no.3
and reply thereof the opposite party no.4
written a letter to the opposite party no.
whereby the opposite party no. (Tehsildar
Shahabad Hardoi rectified and told the
caste certificate no.6320 of the petitioner
is fake.)".

29. That on the application the
opposite party no.2 initiated the de-novo
enquiry and the Inspector Police Station,
Shahabad, District Hardoi was appointed
the enquiry officer.

30. That on 27.08.2018 the enquiry
officer sent a letter ot verify the caste
certificate no.9320 of the petitioner from
the Tehsildar Shahabad, Hardoi.

31. That the Tehsildar Shahabad,
District Hardoi vide his letter No.595/Ra.
6 All. Anil Kumar Rana Vs. State of U.P. & Ors. 647
Li.-Jati Satyapan/18 dated 31.10.2018
informed to the enquiry officer that the
caste certificate 9320 of the appellant is
not original but his another caste
certificate no.7629 is the original and
issued by the Tehsil Shahabad. The true
copy of the letter No.595/Ra. Li.-Jati
Satyapan/18 dated 31.10.2018 of the
Tehsildar Shahabad, District Hardoi, is
being annexed here as Anneuxre No.2 to
this Writ Petition.

32. That the petitioner was
never sent any letter of enquiry nor he
was provided the number of the letter of
the opposite parties pertaining to the denovo enquiry and he was not told the final
decision taken by the opposite parties on
the enquiry report of the enquiry officer."

13. The Writ Court on 14.02.2020,
after taking into consideration the facts
and the relevant documents available on
record granted time to learned counsel for
the appellant to bring on record any
document to show that the de-novo
enquiry
was
conducted
against
the
appellant. The relevant observation made
in the order dated 14.02.2020, on
reproduction, reads as under:-

"From a perusal of the material on
record, it appears that there is no
document indicating initiation of any de
novo inquiry after dismissal of special
leave petition by Hon'ble the Supreme
Court. In the aforesaid factors it does not
appear that any de novo inquiry was
conducted although learned counsel for
petitioner has drawn attention to a letter
dated 31st October, 2018, which however
does not indicate the same.

Learned counsel for petitioner seeks
some time in order to bring on record any
document such as as a charge sheet
indicating de novo disciplinary inquiry
having been held."

14. The Writ Court after taking into
consideration the arguments advanced by
the learned counsel for the petitionerappellant made following observations in
the order dated 12.02.2020:-

"Today, learned counsel for the
petitioner could not bring on record any
documents indicating the fact as to
whether the de novo inquiry has been
initiated in the issue of the petitioner.

As per learned counsel for the
petitioner, since no document any kind
whatsoever including the charge-sheet
have been served upon the petitioner after
initiating the de novo proceedings,
therefore, he is unable to bring on record
such documents.

If the petitioner was unable to bring
on record such documents in terms of
order dated 04.02.2020, he could have
pointed out the Court with the request
that he could not bring on record those
documents so that the precious time of the
Court could be saved. Further, he has not
filed any affidavit indicating therein that
the documents, as per the order of this
Court dated 04.02.2020, may not be
brought on record as those documents are
not available with him.

This Court is unable to comprehend
as to why the de novo proceedings have
been initiated in the issue of the petitioner
when the issue has finally been decided
upto the level of Hon'ble Supreme Court.

Learned counsel for the petitioner
has drawn attention of this Court towards
Annexure No.2 to the writ petition, which
is a letter dated 31.10.2018 preferred by
the Tehsildar, Tehsil-Shahabad, DistrictHardoi addressing to the Inspector
Incharge, Kotwali-Shahabad referring the
648 INDIAN LAW REPORTS ALLAHABAD SERIES
letter dated 27.08.2018 of Inspector
Incharge of Kotwali, Shahabad apprising
him that the Caste Certificate of the
petitioner was issued from his office.

The contention of learned counsel
for the petitioner is that if this Court
summons the letter dated 27.08.2018 of
Inspector Incharge, Kotwali-Shahabad,
the fact would be clarified that in the
issue of the petitioner the de novo inquiry
has been initiated and the Inspector
Incharge, Kotwali-Shahabad was the
Inquiry Officer.

As per learned counsel for the
petitioner, the petitioner was serving on
the post of Constable, whose Appointing
Authority is Superintendent of Police,
therefore, only the Superintendent of
Police can initiate de novo proceedings, if
any, and appoint any officer as Inquiry
Officer.

In view of the aforesaid submissions,
learned counsel for the petitioner has
submitted that on perusal of the letter
dated 27.08.2018 of Inspector Incharge,
Kotwali-Shahabad would be clarifed that
de novo proceedings in the issue of the
petitioner has been initiated.

After
considering
the
aforesaid
submission of learned counsel for the
petitioner, this Court has observed that
all the aforesaid contentions do not
satisfy the Court regarding query being
made in the order dated 04.02.2020 and
has cautioned the learned counsel for the
petitioner that if after summoning the said
letter it is not disclose that any de novo
proceedings have been initiated in issue
of the petitioner, the writ petition would
be dismissed with heavy cost, even then,
he has pressed his request for summoning
the document."

15. On 19.02.2020, the learned Writ
Court passed the following order:-

"Heard learned counsel for the
petitioner and Dr. Udaiveer, learned
Additional Chief Standing Counsel.

On the basis of instruction received
from Superintendent of Police, Hardoi,
learned
Additional
Chief
Standing
counsel submits that no de novo enquiry
has been initiated against the petitioner.

Learned counsel for the petitioner
refuted the said statement and submitted
that if there is no de novo enquiry, then
personal affidavit of Superintendent of
Police, Hardoi should be filed. It is
further submitted by learned counsel for
the petitioner that letter dated 27.8.2018
issued
by
respondent
no.3-Enquiry
Officer/Inspector,
Police
Station
Shahabad, District Hardoi, has not been
placed before this Court.

Learned Additional Chief Standing
counsel prays for and is granted a week's
time
to
file
personal
affidavit
of
Superintendent of Police, District Hardoi
stating all these things therein.

List this case again in the next cause
list."

16. After the aforesaid, the personal
affidavit was filed by Sri Amit Kumar,
Superintendent of Police, District Hardoi.
In the said affidavit it has been
specifically stated that Superintendent of
Police
is
the
competent/appointing/disciplinary
authority and by the authority concerned
i.e. Superintendent of Police, DistrictHardoi, no direction was ever given for
holding the de-novo/disciplinary enuqiry
against the appellant.

17.

In
regard
to
the
application/representation
dated
13.06.2018 moved by the appellant after
dismissal of Special Leave Petition by the
Apex Court, it is stated that in routine
6 All. Anil Kumar Rana Vs. State of U.P. & Ors. 649
manner the same was forwarded to
S.H.O. Shahabad on 21.06.2018 and in
turn the S.H.O., Hardoi forwarded the
same to the Sub-Inspector Civil Police,
P.S.-Shahabad
and
thereafter
SubInspector sent a letter to the TehsildarShahabad and in response to the same,
Tehsildar-Shahabad replied vide letter
dated 31.10.2018 Shahabad affirming its
earlier report sent in respect of Caste
Certificate. The relevant paras of the
personal affidavit of Superintendent of
Police, District- Hardoi, Sri Amit Kumar
reads as under:-

"13. That after the aforesaid legal
recourse
being
exhausted
by
the
petitioner (except the claim petition no.
1819 of 2019) he made a misconceived
representation
/
application
dated
13.06.2018 address to the Superintendent
of Police, District Hardoi for de-nova
enquiry and the marked to the Circle
Officer same was (Police) Shahabad in
routine manner and the Circle Officer, in
turn, forwarded to the said application to
S.H.O. Shahabad on 21.06.2018.

14.. That in very routine manner the
Shahabad also deputed the application to
the Sub Inspector, Civil Police, namely
Sri Om Pal Singh working in P.S.
Shahabad and the said Sub Inspector sent
a letter to Tehsildar, Tehsil- Shahabad
and the Tehsildar replied vide ts letter
dated 31.10.2018 to S.H.O. Shahabad
affirming its earlier report sent in respect
of caste certificate. The copy of the letter
dated 27.08.2018 issued to Tehsildar
Shahabad, Hardoi by Sub-Inspector Om
Pal Singh and reply thereof by Tehsildar
dated 31.10.2018 annexed are herewith
as Annexure No. P.A.-1 and P.A.-2.

15. That deponent reaffirms and
states that no order direction was ever for
initiating/ conducting the de-nova enquiry
in the natter of the petitioner by the
deponent or the then Superintendent of
Police, District Hardoi in furtherance to
application
of
petitioner
dated
13.06.2018.

16. That there is no question to
initiate or conduct any fresh enquiry in
the matter particularity when the matter
went to the level of the Hon'ble Apex
Court. However, the application being
received in routine manner in the office of
deponent are forwarded to the concerned
Circle Officer and in the present matter
also the C.O. Shahabad Circle sent the
application dated 13.06.2018 to S.H.O.
Shahabad and the correspondence have
been made in between the P.S. Shahabad
Tehsil and Authorities.

17. That the deponent humbly
submits that in the matter of petitioner the
direction for de- nova enquiry was never
given by the deponent or by the
predecessor
after
receiving
the
application on 13.06.2018. None else
except the Superintendent of Police can
direct for enquiry or de-nova enquiry
being the Appointing Authority and as
such no direction at the level of
appointing authority was ever given for
de- nova enquiry. The correspondence
between the P.S. Shahabad and Tehsildar
has been made and the same cannot be
said to be de-nova enquiry. However, it
so happened in very routine manner and
the petitioner cannot alleged the same to
be de-nova enquiry nor can get any
benefit."

18. Thereafter, the writ petition was
fixed on 27.02.2020 and on that date
when the case was called out, no one
appeared for the appellant.

19. The learned Writ Court, after
considering the previous orders as also
650 INDIAN LAW REPORTS ALLAHABAD SERIES
the
personal
affidavit
of
the
Superintendent of Police, District-HardoiSri Amit Kumar, dismissed the writ
petition with costs of Rs.5,000/- vide
judgment and order dated 27.02.2020.

20. Needless to say that in the order
dated 12.02.2020, the learned Writ Court
specifically observed as under:-

"After considering the aforesaid
submission of learned counsel for the
petitioner, this Court has observed that all
the aforesaid contentions do not satisfy
the Court regarding query being made in
the order dated 04.02.2020 and has
cautioned the learned counsel for the
petitioner that if after summoning the said
letter it is not disclose that any de novo
proceedings have been initiated in issue
of the petitioner, the writ petition would
be dismissed with heavy cost, even then,
he has pressed his request for summoning
the document."

21. Further, in the judgment under
appeal dated 27.02.2020, the learned Writ
Court has specifically stated that "since
the learned counsel for the appellant has
not appeared in this case today nor any
request for adjournment has been made,
therefore, the matter is being decided
finally on the basis of material available
on record."

22.

In
the
aforesaid
factual
background the present appeal has been
filed assailing the judgment and order
dated 27.02.2020.

23. Sri Raj Vikram Singh, learned
counsel for the appellant while assailing
the
judgment
and
order
dated
27.02.2020,
under
appeal,
broadly
argued that:-

(i) The observation of the learned
Writ Court with regard to the issuance
of fresh charge-sheet for the purposes of
holding
the
de-novo
enquiry
is
unsustainable in view of the judgment
of this Court dated 14.09.2016 in WritA No.41169 of 2003 of (Shamsher
Bahadur
vs.
Board
of
Directors,
Farrukhabad Gramin Bank).

(ii) The copy of the supplementary
affidavit was not provided to the
appellant and even no opportunity of
filing its response was given to the
appellant. In absence of reply to the
personal affidavit, the Writ Court
considered the averments made therein
and dismissed the writ petition.

(iii) The judgment, under appeal,
dated
27.02.2020
is
an
ex-parte
judgment as on the said date the learned
counsel for the appellant could not
appear before the learned Writ Court.
The learned Writ Court failed to
appreciate the pleadings and documents
on record pertaining to initiation of denovo enquiry.

24. Per contra, Sri Manish Mishra,
learned Standing Counsel appearing for
State, supporting the judgment, under
appeal, dated 27.02.2020 submitted that
pleading with regard to holding of denovo enquiry against the appellant are
not sufficient nor any document has
been placed before the learned Writ
Court by the appellant to prove the fact
that the de-novo enquiry was ordered by
the
competent
authority
i.e.
Superintendent
of
Police,
District
Hardoi.

25. Learned State Counsel further
submitted
that
after
taking
into
consideration
the
pleadings
and
documents on record, the Writ Court vide
6 All. Anil Kumar Rana Vs. State of U.P. & Ors. 651
order dated 04.02.2020 granted time to
learned counsel for the appellant to bring
on record any document by which it can
be proved that de-novo enquiry was
ordered
against
the
appellant
and
thereafter this Court passed the order
dated 12.02.2020 as also the 19.02.2020.
In compliance of order passed by this
Court
dated
19.02.2020,
the
Superintendent of Police, Hardoi filed his
personal affidavit, wherein it has been
specifically stated that no order by the
competent authority i.e. Superintendent of
Police, Hardoi was ever passed for
holding the de-novo enquiry against the
appellant.

26. It is also stated that after
dismissal of Special Leave Petition, the
appellant moved an application dated
13.06.2018 for holding the de-novo
enquiry and the same was proceeded in
routine manner and in relation to the
same, the Tehsildar vide his reply dated
21.06.2018 affirmed its earlier report sent
in respect of Caste Certificate.

27. In response to the arguments
advanced by the learned counsel for the
appellant that the copy of the personal
affidavit was not provided to the appellant
nor any opportunity was given by the
Writ Court to file its response as also the
judgment under appeal, is an ex-parte
judgment and in view of the same the
judgment and order dated 27.02 2020 is
liable to be set aside and the matter may
be remanded back to the learned Writ
Court for decision afresh, the learned
counsel for the State, Sri Manish Mishra,
submitted that the arguments advanced by
the learned counsel for the appellant, are
liable to be rejected keeping in view the
principles of "Useless Formality" theory.
Elaborating his arguments, he further
submitted that before the Writ Court, the
appellant failed to prove the fact related
to holding of de-novo enquiry against him
and even the appellant has not placed any
document or affidavit before this Court to
controvert the averments made in the
personal affidavit sworn by Sri Amit
Kumar, Superintendent of Police, District
Hardoi and to prove that the de-novo
enquiry was ordered or conducted in the
matter of appellant and as such no fruitful
purpose would be served in interfering in
the judgment and order dated 27.02.2020
on the basis of the arguments raised by
the learned counsel for the appellant
broadly based on violation of principles
of natural justice.

28. It is further submitted by Sri
Manish Mishra, learned counsel for the
State-respondent that the observations of
the Writ Court in regard to issuance of
charge sheet made in the judgment and
order dated 27.02.2020 have only been
made to ascertain the fact that whether in
the matter of appellant the de-novo
enquiry was ordered or conducted, which
in
fact
was
neither
initiated
nor
conducted, and accordingly, on this
aspect, the judgment, under appeal, is not
liable to be interfered with.

29. In addition to above, it is
submitted that the appeal is liable to be
dismissed with heavy costs taking into
consideration the entirety of the case as
also the observation made by the Writ
Court in the order dated 12.02.2020.

30. Heard learned counsel for the
parties and perused the record.

31. The following issues are
required to be considered in the instant
appeal.
652 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) Weather in the instant case for
holding
the
de-novo
enquiry
the
competent authority i.e. Superintendent of
Police, District Hardoi passed any order
or not.

(ii) Whether the judgment, under
appeal, is liable to be interfered with on
the grounds related to principles of
natural justice or not.

32. With regard to issue no.(i), we
have considered the averments made in
the memo of writ petition, quoted
hereinbefore, as also documents annexed
therewith and the contents of the
uncontroverted personal affidavit filed by
the Superintendent of Police District
Hardoi.

33. In para 25 to 32 of the Writ
Petition certain facts have been narrated
with regard to initiation of holding of denovo enquiry. In support of averments
made in para 25 to 32, the petitionerappellant has not placed on record the
order of initiation of de-novo enquiry
against him by the competent authority
i.e. Superintendent of Police, District
Hardoi. In absence of any order of the
competent authority i.e. Superintendent of
Police, District Hardoi for holding the denovo enquiry in the matter of appellant, it
can not be held that the de-novo enquiry
was initiated in the matter of appellant. In
this view, we are of the view that the
averments made in para 25 to 32 of the
writ petition, are misconceived.

34. The averments made in para 25
to 32 of the writ petition have been
controverted by the Superintendent of
Police, District Hardoi in his personal
affidavit. In the personal affidavit filed by
the Superintendent of Police, District
Hardoi, it has been specifically stated that
the application of the appellant dated
13.06.2018 was proceeded in routine
manner and in relation to the same,
Tehsildar-Shahabad, District Hardoi vide
his letter dated 31.10.2018 affirmed its
earlier report sent in respect of caste
certificate and it has also been specifically
stated therein that de-novo enquiry was
never initiated either by the deponent or
by the predecessor of the deponent after
receiving the application of the appellant
on 13.06.2018. It has also been stated that
Superintendent of Police, District Hardoi
is the competent authority and in the case
of appellant no order was ever passed by
the competent authority to hold the denovo enquiry.

35. Even before this Court, in the
appeal, no affidavit or document has been
filed
by
the
petitioner-appellant
controverting the averments made in the
personal affidavit of the Superintendent
of Police, District Hardoi.

36. In view of the aforesaid,
particularly in absence of any document
or
affidavit
controverting
the
facts/averments made in the personal
affidavit filed by the Superintendent of
Police, District Hardoi, we are of the view
that in the instant case, de-novo enquiry
against the appellant was never ordered or
initiated by the competent authority i.e.
Superintendent of Police, District Hardoi.

37. Now coming to issue no.(ii).
Issue no.(ii), which is to the effect that
whether the judgment, under appeal, is
liable to be interfered with on the ground
of violation of principles of natural justice
or not.

38. In the instant case, the violation
of principles of natural justice has been
6 All. Anil Kumar Rana Vs. State of U.P. & Ors. 653
alleged by the learned counsel for the
appellant on two aspects i.e. (i) the
opportunity was not provided by the Writ
Court to file the response to the personal
affidavit filed by the Superintendent of
Police, District Hardoi, which was relied
upon by the Writ Court while passing the
judgment dated 27.02.2020 and (ii) the
judgment, is an ex-parte judgment as on
the date of passing of judgment i.e.
27.02.2020, learned counsel for the
appellant could not appear before the Writ
Court.

39. At this juncture, we feel it
appropriate to quote relevant paragraphs
of the judgment of the Hon'ble Apex
Court passed in the case of Aligarh
Muslim University & Ors. vs. Mansoor
Ali Khan reported in (2000) 7 SCC 529,
which are as under:-

"21. As pointed recently in M.C.
Mehta v. Union of India [(1999) 6 SCC
237] there can be certain situations in
which an order passed in violation of
natural justice need not be set aside
under Article 226 of the Constitution of
India. For example where no prejudice is
caused
to
the
person
concerned,
interference under Article 226 is not
necessary. Similarly, if the quashing of
the order which is in breach of natural
justice is likely to result in revival of
another order which is in itself illegal as
in Gadde Venkateswara Rao v. Govt. of
A.P. [AIR 1966 SC 828 : (1966) 2 SCR
172] it is not necessary to quash the order
merely because of violation of principles
of natural justice.

22. In M.C. Mehta [(1999) 6 SCC
237] it was pointed out that at one time, it
was held in Ridge v. Baldwin [1964 AC
40 : (1963) 2 All ER 66 (HL)] that breach
of principles of natural justice was in
itself treated as prejudice and that no
other "de facto" prejudice needed to be
proved. But, since then the rigour of the
rule has been relaxed not only in England
but also in our country. In S.L. Kapoor v.
Jagmohan
[(1980)
4
SCC
379]
Chinnappa Reddy, J. followed Ridge v.
Baldwin [1964 AC 40 : (1963) 2 All ER
66 (HL)] and set aside the order of
supersession
of
the
New
Delhi
Metropolitan Committee rejecting the
argument that there was no prejudice
though notice was not given. The
proceedings were quashed on the ground
of violation of principles of natural
justice. But even in that case certain
exceptions were laid down to which we
shall presently refer.

23. Chinnappa Reddy, J. in S.L.
Kapoor case [(1980) 4 SCC 379] laid
down two exceptions (at SCC p. 395)
namely, if upon admitted or indisputable
facts only one conclusion was possible,
then in such a case, the principle that
breach of natural justice was in itself
prejudice, would not apply. In other
words if no other conclusion was possible
on admitted or indisputable facts, it is not
necessary to quash the order which was
passed in violation of natural justice. Of
course, this being an exception, great
care must be taken in applying this
exception.

24. The principle that in addition to
breach of natural justice, prejudice must
also be proved has been developed in
several cases. In K.L. Tripathi v. State
Bank of India [(1984) 1 SCC 43 : 1984
SCC (L&S) 62] Sabyasachi Mukharji, J.
(as he then was) also laid down the
principle that not mere violation of
natural justice but de facto prejudice
(other than non-issue of notice) had to be
proved. It was observed, quoting Wade's
654 INDIAN LAW REPORTS ALLAHABAD SERIES
Administrative Law (5th Edn., pp. 47275), as follows: (SCC p. 58, para 31)

"[I]t is not possible to lay down rigid
rules as to when the principles of natural
justice are to apply, nor as to their scope
and extent. ... 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 must
depend on the facts and circumstances of
the case, the nature of the inquiry, the
rules under which the tribunal is acting,
the subject-matter to be dealt with, and so
forth."

Since
then,
this
Court
has
consistently applied the principle of
prejudice in several cases. The above
ruling and various other rulings taking
the same view have been exhaustively
referred to in State Bank of Patiala v.
S.K. Sharma [(1996) 3 SCC 364 : 1996
SCC (L&S) 717] . In that case, the
principle of "prejudice" has been further
elaborated. The same principle has been
reiterated again in Rajendra Singh v.
State of M.P. [(1996) 5 SCC 460]

25. The "useless formality" theory, it
must be noted, is an exception. Apart
from the class of cases of "admitted or
indisputable facts leading only to one
conclusion" referred to above, there has
been
considerable
debate
on
the
application of that theory in other cases.
The divergent views expressed in regard
to this theory have been elaborately
considered by this Court in M.C. Mehta
[(1999) 6 SCC 237] referred to above.
This Court surveyed the views expressed
in various judgments in England by Lord
Reid, Lord Wilberforce, Lord Woolf, Lord
Bingham, Megarry, J. and Straughton,
L.J. etc. in various cases and also views
expressed by leading writers like Profs.
Garner, Craig, de Smith, Wade, D.H.
Clark etc. Some of them have said that
orders passed in violation must always be
quashed for otherwise the court will be
prejudging the issue. Some others have
said that there is no such absolute rule
and prejudice must be shown. Yet, some
others have applied via media rules. We
do not think it necessary in this case to go
deeper into these issues. In the ultimate
analysis, it may depend on the facts of a
particular case.

26. It will be sufficient, for the
purpose of the case of Mr Mansoor Ali
Khan to show that his case will fall within
the exceptions stated by Chinnappa
Reddy, J. in S.L. Kapoor v. Jagmohan
[(1980) 4 SCC 379] , namely, that on the
admitted or indisputable facts, only one
view is possible. In that event no
prejudice can be said to have been caused
to Mr Mansoor Ali Khan though notice
has not been issued."

40. In the judgment passed in the
case of M/s Dharampal Satyapal Ltd.
vs. Deputy Commissioner of Central
Excise, Gauhati & ors, 2015 (8) SCC
519, the Hon'ble Apex Court observed as
under:-

"39. We are not concerned with
these aspects in the present case as the
issue relates to giving of notice before
taking action. While emphasising that the
principles of natural justice cannot be
applied in straitjacket formula, the
aforesaid instances are given. We have
highlighted the jurisprudential basis of
adhering to the principles of natural
justice which are grounded on the
doctrine of procedural fairness, accuracy
of outcome leading to general social
goals, etc. Nevertheless, there may be
situations wherein for some reason--
perhaps because the evidence against the
6 All. Ram Niwas Singh Vs. State of U.P. & Ors. 655
individual is thought to be utterly
compelling--it is felt that a fair hearing
"would make no difference"--meaning
that a hearing would not change the
ultimate conclusion reached by the
decision-maker--then no legal duty to
supply a hearing arises. Such an
approach
was
endorsed
by
Lord
Wilberforce in Malloch v. Aberdeen
Corpn. [(1971) 1 WLR 1578 : (1971) 2
All ER 1278 (HL)] , who said that: (WLR
p. 1595 : All ER p. 1294)

"... A breach of procedure ... cannot
give [rise to] a remedy in the courts,
unless behind it there is something of
substance which has been lost by the
failure. The court does not act in vain."

Relying on these comments, Brandon
L.J. opined in Cinnamond v. British
Airports Authority [(1980) 1 WLR 582 :
(1980) 2 All ER 368 (CA)] that: (WLR p.
593 : All ER p. 377)

"... no one can complain of not being
given
an
opportunity
to
make
representations if such an opportunity
would have availed him nothing."

In such situations, fair procedures
appear to serve no purpose since the
"right" result can be secured without
according
such
treatment
to
the
individual.

40. In this behalf, we need to notice
one other exception which has been
carved out to the aforesaid principle by
the courts. Even if it is found by the court
that there is a violation of principles of
natural justice, the courts have held that
it may not be necessary to strike down the
action and refer the matter back to the
authorities to take fresh decision after
complying
with
the
procedural
requirement in those cases where nongrant of hearing has not caused any
prejudice to the person against whom the
action is taken. Therefore, every violation
of a facet of natural justice may not lead
to the conclusion that the order passed is
always null and void. The validity of the
order has to be decided on the touchstone
of "prejudice". The ultimate test is always
the same viz. the test of prejudice or the
test of fair hearing."

41. Taking into consideration the
facts and circumstances of the present
case including the reasoning given by us
on issue no.(i), as noted above, and the
principles of "Useless Formality" theory
as also the observations made by the
Hon'ble Apex Court, quoted hereinabove,
we decide the issue no.2 against the
appellant and hold that the judgment and
order dated 27.02.2020 is not liable to be
interfered with on the ground of violation
of principles of natural justice, as alleged
by the learned counsel for the appellant.

42. In view of aforesaid, the Special
Appeal is dismissed. No order as to costs.
----------
(2020)06ILR A655
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ A No. 190 of 2020 alongwith other
connected cases

Ram Niwas Singh ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Shantanu Khare, Ashok Khare

Counsel for the Opposite Parties:
C.S.C.
Avneesh
Tripathi,
Chandan
Agarwal, Sri Vivek Verma