# Commissioner, Commercial Tax & Ors. (supra); Lucent Technology (P) Ltd v. Commissioner, Trade Tax U.P. Lucknow (Full Bench) (supra) and; the Supreme Court

- **Citation:** (2022) 1 ILRA 1043
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-12
- **Case number:** Special Appeal No. 497 of 2021
- **Bench:** Rajesh Bindal, C.J. Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/commissioner-commercial-tax-ors-supra-lucent-technology-p-ltd-v-commissioner-48091
- **Pages:** 19

## Headnote

1044 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law-Challenge to-Election of the
Society-elections held by private respondents
with only 22 members whereas the appellants
were conveniently ignored and not permitted to
participate in the elections of Committee of
Management-matter
-the
Deputy
Registrar
found that General body was got fraudulently
registered on the basis of improper and
manufactured documents-the order challenged,
and the court remitted the matter to the Deputy
Registrar for fresh consideration-the appellants
were not heard nor they noticed at the stage of
passing of order-no real prejudice has been
caused to the appellants merely because they
have not heard by the learned Single Judge
does not render the order bad in the eyes of
law-Where procedural or substantive provisions
of law embody the principles of natural justice,
their infraction per se does not lead to invalidity
of orders passed-the breach of the audi alterm
partem rule cannot by itself, without more, lead
to the conclusion that prejudice is thereby
caused.(Para 1 to 37)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,802 of 65,788. This is a partial read: ask again with offset=39802 for what follows._

1 All. Durgawati Singh & Ors. Vs. Deputy Registrar, Firms, Societies & Chits Lucknow & Ors. 1043
provisions of section 29 of the Erstwhile
Act and the earlier decision of this Court
dated 16.04.2010 and the decision of the
Supreme Court dated 12.11.2019.

26. It may have been open to the
petitioner to claim other-than-statutory
interest in the first leg of litigation when
it had challenged the notification dated
14.10.2004 whereby the earlier rebate
notification dated 27.02.1998 issued
under section 5 of the Erstwhile Act had
been withdrawn. The petitioner having
failed to make that prayer then, it is too
late in the day to allow that prayer. The
same may remain barred on the principle
of constructive res judicata.

27. In any case, we also find it
difficult to grant such a prayer in face of
the clear language of section 29 of the
Erstwhile Act that has been conclusively
interpreted in favour of the revenue in a
series of decisions in M/S Indodan
Milk Products Ltd. Vs. State of U.P. &
Anr. (supra); P.P.G. Asian Paints Pvt.
Ltd.
Vs.
Deputy
Commissioner,
Commercial Tax & Ors. (supra);
Lucent
Technology
(P)
Ltd.
Vs.
Commissioner,
Trade
Tax
U.P.
Lucknow (Full Bench) (supra) and; the
Supreme
Court
decision
in
Commissioner of Sales Tax, U.P. Vs.
Hind Lamps Ltd. (supra).

28. In the present case, the order of
refund was passed on 29.6.2020 whereas
the refund was adjusted against the
demand of entry tax on 07.07.2020 i.e.
within the statutory period of thirty (30)
days. The merits of that decision apart
(considered in our earlier decision dated
16.11.2021 in Writ Tax No. 748 of
2021), for both reasons noted above, the
petitioner is found not entitled to
interest on the amount of refund of trade
tax Rs. 17,90,61,418/-, up to the date
07.07.2020.

29. As to the interest for the
subsequent period, we have already
provided for that payment at the rate
equal to the statutory rate of interest.
Such direction (though obtained on an
unreconciled concession made by the
revenue in that case), may remain
referable to the inherent powers of this
Court in exercise of jurisdiction under
Article 226 of the Constitution of India
where, in exercise of equity jurisdiction,
interest awarded may be quantified with
reference to a statutory provision.

30. Accordingly, all the writ
petitions are dismissed.

31. No order as to costs.
----------
(2022)01ILR A1043
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.01.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal No. 497 of 2021

Durgawati Singh & Ors. ...Petitioners
Versus
Deputy Registrar, Firms, Societies & Chits
Lucknow & Ors. ...Respondents

Counsel for the Petitioners:
Mr. Sharad Pathak

Counsel for the Respondents:
Mr. Sudeep Kumar
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law-Challenge to-Election of the
Society-elections held by private respondents
with only 22 members whereas the appellants
were conveniently ignored and not permitted to
participate in the elections of Committee of
Management-matter
-the
Deputy
Registrar
found that General body was got fraudulently
registered on the basis of improper and
manufactured documents-the order challenged,
and the court remitted the matter to the Deputy
Registrar for fresh consideration-the appellants
were not heard nor they noticed at the stage of
passing of order-no real prejudice has been
caused to the appellants merely because they
have not heard by the learned Single Judge
does not render the order bad in the eyes of
law-Where procedural or substantive provisions
of law embody the principles of natural justice,
their infraction per se does not lead to invalidity
of orders passed-the breach of the audi alterm
partem rule cannot by itself, without more, lead
to the conclusion that prejudice is thereby
caused.(Para 1 to 37)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Ins. of C. A. of India Vs L.K. Ratna & ors.,
(1986) 4 SCC 537

2. Dharampal Satyapal Ltd. Vs Dy. Commr. of
Centrel Excise, Gauhati & ors. (2015) 8 SCC 519

3. S.L. Kapoor Vs Jagmohan (1980) 4 SCC 379

4. K.L tripathi Vs S.B.I. (1984) 1 SCC 43

5. MD, ECIL Vs B . Karnakumar (1993) 4 SCC
727

6. St. of Bank of Patiala Vs S.K. Sharma (1996)
3 SCC 364

7. Canara Bank Vs V.K. Awasthy (2005) 6 SCC
321
8. P.D. Agrawal Vs S.B.I. (2006) 8 SCC 776

9. U.O.I. Vs Alok Kumar (2010) 5 SCC 349

10. St. of U.P. Vs Sudhir Kumar & ors. (2020)
SCC OnLine 847
(Delivered by Hon'ble Jaspreet Singh, J.)

01. More often that not the Courts are
faced with the dilemma over the breach of
Rules of natural justice and the Court's
discretion to refuse relief, even though
Rules
of
natural
justice
have
been
breached, on the ground that no real
prejudice is caused to the affected party.
This is the core issue involved in the instant
intracourt appeal.

02. Shri Sharad Pathak, learned
counsel for the appellants has moved Civil
Misc. Application No.165247 of 2021
seeking leave to prefer this intracourt
appeal under Chapter VIII Rule 5 of the
Allahabad
High
Court
Rules,
1952
challenging the order passed by the learned
Single Judge dated 08.10.2021 in Writ
Petition No.36672 (M/S) of 2018 on the
ground that an issue regarding the validity
of the membership of Shri Saraswati
Vidyalaya Samiti was before the Deputy
Registrar, Firms, Societies and Chit,
Lucknow
(hereinafter
referred
to
as
"Deputy Registrar"), who after hearing the
matter, passed an order dated 07.12.2018
upholding the list of the members of the
society which included the names of the
present appellants.

03. This order dated 07.12.2018
passed by the Deputy Registrar was
challenged by Shri Ajit Kumar Jaiswal in
his individual capacity in Writ Petition
No.36672 (M/S) of 2018. The learned
Single Judge, after hearing the parties,
allowed the writ petition by means of the
impugned order dated 08.10.2021, as a
result, the membership of the appellants
which was upheld by the Deputy Registrar,
has been set aside and this has caused
prejudice as the learned Single Judge
passed the order without affording any
1 All. Durgawati Singh & Ors. Vs. Deputy Registrar, Firms, Societies & Chits Lucknow & Ors. 1045
opportunity of hearing to the appellants and
they were not even impleaded as parties in
the writ petition and thus, the impugned
order has been passed behind the back of
the appellants. Since, the appellants were
not parties to the writ petition and they are
aggrieved by the impugned order, hence,
the leave to appeal is being sought.

04. The leave to appeal is granted and
the Court has proceeded to hear the learned
counsel for the parties on merits of the
appeal.

05. The contention of the learned
counsel for the appellants is that they are
bonafide members of the Society namely
Shri Saraswati Vidyalaya Samiti, Khiro,
Raebareli. They had deposited their
requisite
membership
fee
and
are
entitled to exercise their membership
rights including to participate in the
elections of Committee of Management.

06. It is urged that election of the
Society
was
held
by
the
privaterespondents with only 22 Members
whereas
the
appellants
were
conveniently ignored and not permitted
to participate and in the aforesaid
backdrop
the
said
elections
were
challenged.

07. The matter was considered by the
Deputy Registrar and vide order dated
07.12.2018, 22 Members which were
inducted by Shri Udai Bhan Mishra were
found to be bonafide members and it was
held that the list of General Body for the
year 2018-19 presented by Shri Ajit Kumar
Jaiswal was got fraudulently registered on
the basis of improper and manufactured
documents.

08. It is further urged that the
said order dated 07.12.2018 passed by the
Deputy Registrar was assailed by Ajit
Kumar Jaiswal in his individual capacity
before this Court in Writ Petition No.36672
(M/S) of 2018. Two other writ petitions
bearing Writ Petition No.8273 (M/S) of
2019, titled as "Committee of Management,
Sri Saraswati Vidyalaya Samiti v. State of
U.P. and others", and Writ Petition
No.12551 (M/S) of 2021, titled as "Udai
Bhan Mishra v. State of U.P. and others",
were also connected and all the three writ
petitions were disposed by means of the
impugned order dated 08.10.2021 and the
entire matter of membership has been
remitted to the Deputy Registrar to be
decided afresh and this order has caused
prejudice as the same has been passed
without affording an opportunity of hearing
to the appellants.

09. In support of his submissions,
learned counsel for the appellants has relied
upon the decision of the Apex Court in
Institute of Chartered Accountant of
India v. L.K. Ratna and others, (1986) 4
SCC 537, wherein it has been held that an
opportunity of hearing must be given to a
party before an order is passed which
affects his rights.

10. Per contra, Shri Sudeep Kumar,
learned
counsel
appearing
for
the
respondents No.3 and 4 has submitted that
no prejudice has been caused to the present
appellants. The emphasis is that the
appellants are not the members of the
Society, hence, they were not entitled to
any hearing. Moreover, the issue regarding
the membership has not been finally
decided and the matter has been remitted to
the
Deputy
Registrar
for
its
fresh
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration, hence, in absence of any
final decision, at this stage, it cannot be
said
that
the
appellants
have
been
prejudiced.

11. It is further urged that insofar as
the order dated 07.12.2018 passed by the
Deputy
Registrar
is
concerned,
the
appellants were not noticed nor heard by
the Deputy Registrar at the stage of passing
of the order. The issue was primarily
between the answering respondents and
Udai Bhan Mishra. Udai Bhan Mishra had
contested the proceedings before the
learned Single Judge and by a reasoned
order, the learned Single Judge has remitted
the matter to the Deputy Registrar for
deciding the issue of membership afresh
after affording an opportunity of hearing to
the parties concerned. If at all the
appellants have any grievance, they have a
right to appear before the Deputy Registrar
and raise all their grievances which can be
suitably considered by the fact finding
authority and as such no real prejudice has
been caused and for the aforesaid reasons
merely because the appellants were not
heard, the order passed by the learned
Single Judge may not be interfered with.
Accordingly, the appeal deserves to be
dismissed.

12. Learned counsel for the answering
respondents has relied upon the decision of
the Apex Court in the case Dharampal
Satyapal
Limited
v.
Deputy
Commissioner of Central Excise, Gauhati
and others (2015) 8 SCC 519 to contend
that principles of natural justice are flexible
and in absence of real prejudice mere non
grant of a hearing shall not affect the order.

13. The Court has heard learned
counsel for the parties and also perused the
record.

14. In order to appreciate the
submissions of the learned counsel for the
parties, few facts relevant, for adjudicating
the issue involved in the instant appeal are
being noticed hereinafter.

15. Writ Petition No.36672 (M/S) of
2018 was filed by Ajit Kumar Jaiswal and
Committee of Management, Sri Saraswati
Vidyalaya Samiti through its Manager
assailing the order dated 07.12.2018 passed
by the Deputy Registrar, by means of
which, the dispute of membership of the
Society was decided. The aforesaid writ
petition was connected with two other writ
petitions bearing Writ Petition No.8273
(M/S) of 2019 and Writ Petition No.12551
(M/S) of 2021.

16. Writ Petition No.8273 (M/S) of
2019 was filed against the order dated
06.03.2019 by which the Deputy Registrar
directed for holding the elections. The other
Writ Petition, bearing No.12551 (M/S) of
2021 was preferred by Udai Bhan Mishra
challenging the order dated 01.10.2020
passed
by
the
Additional
Director,
Secondary Education, Government of U.P.,
and
the
consequential
order
dated
25.05.2021 passed by the Joint Director of
Education, 6th Region, U.P., Lucknow. By
the order dated 01.10.2020, the Additional
Director, Secondary Education set aside the
order dated 13.08.2020 of the Regional
Committee
appointing
an
authorized
controller in the institution and remanded
the matter to the Joint Director of
Education and by the consequential order
dated 25.05.2021, the Joint Director of
Education had directed for maintaining the
status-quo as was existing prior to passing
of the order dated 13.08.2020.

17. Since, all the three writ petitions,
as mentioned above, were relating to the
1 All. Durgawati Singh & Ors. Vs. Deputy Registrar, Firms, Societies & Chits Lucknow & Ors. 1047
membership, management and affairs of
Shri Saraswati Vidyalaya Samiti, Khiro,
Raebareli, hence they were connected and
heard together and disposed of by the
learned Single Judge by means of the order
dated 08.10.2021.

18. The learned Single Judge while
considering Writ Petition No.36672 (M/S)
of 2018 found that the Deputy Registrar
had not considered the version of the
respondents herein and also did not
consider the documentary evidence, hence,
without entering into the merits it had set
aside the order dated 07.12.2018 and
directed the Deputy Registrar to consider
the issue of membership afresh and also
whether the issue would be decided by the
Deputy Registrar or it is required to be
referred to be Prescribed Authority.

19. Since, the issue in the other Writ
Petition No.8273 (M/S) of 2019 was based
primarily on the order dated 07.12.2018
which had been set aside and the impugned
order being in consequence thereto, hence,
the same was also set aside. Considering
the third writ petition preferred by Udai
Bhan Mishra, the learned Single Judge held
that since the order dated 07.12.2018 had
been set aside and all other orders were
consequential including the order passed by
the Additional Director dated 30.09.2020
and
the
consequential
order
dated
25.05.2021 and, if it were to set aside the
said orders it would result in reviving an
illegal order dated 13.08.2021, which is not
legally
permissible.
Thus,
with
the
aforesaid observations and directions, all
the three writ petitions were disposed of.

20. At the outset, it will be relevant to
notice the order dated 08.10.2021 passed
by the learned Single Judge in relation
to the Writ Petition No.36672 (M/S) of
2018 and in Paragraphs 12 and 18, it
observed as under:-

"12. Be it as it may, it is apparent
that all the aforesaid relevant aspect are not
considered by the Deputy Registrar in his
impugned order dated 07.12.2018. In view
thereof, without further going into the
merits of the case or on the issue as to
whether the Deputy Registrar had power
under
Section
25
of
the
Societies
Registration Act to pass the impugned
order dated 07.12.2018, the impugned
order being passed without taking into
consideration the relevant aspects of the
matter, is set aside. It shall be open for the
Deputy Registrar to proceed afresh and
pass appropriate order with regard to
elections
of
the
Society
strictly
in
accordance with law by giving proper
opportunity of hearing to the parties
concerned. The question as to whether the
matter should be decided by the Deputy
Registrar or be referred by him to the
prescribed authority is also left open to be
decided by the Deputy Registrar."

XXXX

"18.
The
entire
matter
of
membership is remanded to the Deputy
Registrar who shall decide the same in
accordance with law after giving proper
opportunity of hearing to the parties
concerned on merits, including on issue
whether the dispute is required to be
referred to the Prescribed Authority, under
Section 25 of the Societies Registration
Act. The entire
exercise
should be
concluded by the Deputy Registrar within a
period of two months from the date a
certified copy of this order is placed before
him."
1048 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In the aforesaid backdrop, if the
contention of the learned counsel for the
parties is examined, certain undisputed
facts which emerge are, that the question
regarding the membership is primarily a
question of fact which requires scrutiny of
documents, resolutions and other piece of
evidence. It is also undisputed that the
appellants before the Court were not
noticed by the Deputy Registrar at the time
when the impugned order dated 07.12.2018
was passed. At the time of hearing and
passing of the order dated 07.12.2018, the
only two parties present were also available
before the learned Single Judge, namely the
respondents No.3 and 4, who preferred
Writ Petition No.36672 (M/S) of 2018 and
the respondents No.1 and 2, who were the
respondents in the aforesaid writ petitions.

22. The learned Single Judge found that
the contentions raised by the parties were not
properly considered nor the effect of the
documents was examined by the authority. It
also found that the nature of the controversy
involved could be resolved by considering
various documents, vouchers, resolutions
including certain letters which were available
with the bank which have been ignored.
Thus, in the aforesaid circumstances, the
order dated 07.12.2018 was set aside and the
matter has been remanded to the said
authority to decide the matter afresh after
giving an opportunity of hearing to the parties
concerned. It is not disputed that the issue of
membership is open before the Deputy
Registrar and the appellants being 'the party
concerned' have a right to appear and raise all
their contentions before the said authority.

23. In the backdrop of the aforesaid
factual matrix, the core contention of the
learned counsel for the appellants is that since
the order dated 07.12.2018 had approved the
membership of the appellants which has been
set aside by the learned Single Judge, this in
fact has cast a cloud over the membership
and
the
order
is
visited
with
civil
consequences. Hence, such an order could
not be passed by the learned Single Judge
without affording an opportunity of hearing
to the appellants, thus, they have suffered
grave prejudice.

24. The issue whether not granting a
hearing in itself is a prejudice and violation
of principles of natural justice and
sufficient to grant relief to a party without
showing actual prejudice caused to such a
party has been the subject matter of judicial
discourse
and
consideration,
and
its
evolution over the decades can be seen with
the help of the decisions of the Apex Court
noticed hereinafter.

25. In some of the early judgments of
the Apex Court, the non-observance of
natural justice was said to be prejudice in
itself to the person affected, and proof of
prejudice, independent of proof of denial of
natural justice, was held to be unnecessary.
The only exception to this rule is where, on
"admitted or indisputable" facts only one
conclusion is possible, and under the law
only one penalty is permissible. In such
cases, a Court may not issue its writ to
compel the observance of natural justice,
not because it is not necessary to observe
natural justice, but because Courts do not
issue writs which are "futile" - [see S.L.
Kapoor v. Jagmohan (1980) 4 SCC 379
at paragraph 24].

26. In K.L. Tripathi v. State Bank of
India (1984) 1 SCC 43, the Apex Court held:

"29. ... We are in agreement with
the basic submission of Mr. Garg in this
respect, but we find that the relevant rules
which we have set out hereinbefore have
1 All. Durgawati Singh & Ors. Vs. Deputy Registrar, Firms, Societies & Chits Lucknow & Ors. 1049
been complied with even if the rules are read
that requirements of natural justice were
implied in the said rules or even if such basic
principles of natural justice were implied,
there has been no violation of the principles
of natural justice in respect of the order
passed in this case. In respect of an order
involving adverse or penal consequences
against an officer or an employee of Statutory
Corporations like the State Bank of India,
there must be an investigation into the
charges consistent with the requirements of
the situation in accordance with the principles
of natural justice as far as these were
applicable to a particular situation. So
whether a particular principle of natural
justice has been violated or not has to be
judged in the background of the nature of
charges, the nature of the investigation
conducted in the background of any statutory
or relevant rules governing such enquiries.
Here the infraction of the natural justice
complained of was that he was not given an
opportunity to rebut the materials gathered in
his absence.

xxx xxx xxx

32. The basic concept is fair play in
action administrative, judicial or quasijudicial. The concept of fair play in action
must depend upon the particular lis, if there
be any, between the parties. If the credibility
of a person who has testified or given some
information is in doubt, or if the version or
the statement of the person who has testified,
is, in dispute, right of cross-examination must
inevitably form part of fair play in action but
where there is no lis regarding the facts but
certain explanation of the circumstances there
is no requirement of cross-examination to be
fulfilled to justify fair play in action. When
on the question of facts there was no dispute,
no real prejudice has been caused to a party
aggrieved by an order, by absence of any
formal opportunity of cross-examination per
se does not invalidate or vitiate the
decision arrived at fairly. This is more so
when the party against whom an order has
been passed does not dispute the facts and
does not demand to test the veracity of the
version or the credibility of the statement.

33. The party who does not want to
controvert the veracity of the evidence from
record or testimony gathered behind his back
cannot expect to succeed in any subsequent
demand that there was no opportunity of
cross-examination specially when it was not
asked for and there was no dispute about the
veracity of the statements. Where there is no
dispute as to the facts, or the weight to be
attached on disputed facts but only an
explanation
of
the
acts,
absence
of
opportunity to cross-examination does not
create any prejudice in such cases."

 (emphasis supplied)

27. In the Constitution Bench decision
in Managing Director, ECIL v. B.
Karnakumar, (1993) 4 SCC 727, the Apex
Court, after discussing the constitutional
requirement of a report being furnished under
Article 311(2), held thus:

"30[v]
...
The
theory
of
reasonable opportunity and the principles
of natural justice have been evolved to
uphold the rule of law and to assist the
individual to vindicate his just rights. They
are not incantations to be invoked nor rites
to be performed on all and sundry
occasions. Whether in fact, prejudice has
been caused to the employee or not on
account of the denial to him of the report,
has to be considered on the facts and
circumstances
of
each
case.
Where,
therefore, even after the furnishing of the
report, no different consequence would
have followed, it would be a perversion of
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
justice to permit the employee to resume
duty and to get all the consequential
benefits. It amounts to rewarding the
dishonest and the guilty and thus to
stretching the concept of justice to illogical
and exasperating limits. It amounts to an
"unnatural expansion of natural justice"
which in itself is antithetical to justice.

31. Hence, in all cases where the
enquiry officer's report is not furnished to the
delinquent employee in the disciplinary
proceedings, the Courts and Tribunals should
cause the copy of the report to be furnished to
the aggrieved employee if he has not already
secured
it
before
coming
to
the
Court/Tribunal and give the employee an
opportunity to show how his or her case was
prejudiced because of the non-supply of the
report. If after hearing the parties, the
Court/Tribunal comes to the conclusion that
the non-supply of the report would have
made no difference to the ultimate findings
and the punishment given, the Court/Tribunal
should not interfere with the order of
punishment. The Court/Tribunal should not
mechanically
set
aside
the
order
of
punishment on the ground that the report was
not furnished as is regrettably being done at
present. The courts should avoid resorting to
short cuts. Since it is the Courts/Tribunals
which will apply their judicial mind to the
question and give their reasons for setting
aside or not setting aside the order of
punishment, (and not any internal appellate or
revisional authority), there would be neither a
breach of the principles of natural justice nor
a denial of the reasonable opportunity. It is
only if the Court/Tribunal finds that the
furnishing of the report would have made a
difference to the result in the case that it
should set aside the order of punishment.
 (emphasis supplied)"

28. In State Bank of Patiala v. S.K.
Sharma, (1996) 3 SCC 364, the Apex
Court distinguishing between "adequate
opportunity" and "no opportunity at all",
held that the "prejudice" exception operates
more especially in the latter case. This
judgment also speaks of procedural and
substantive
provisions
of
law
which
embody the principles of natural justice
which, when infracted, must lead to
prejudice being caused to the litigant in
order to afford him relief, and it held as
under:-

32. Now, coming back to the
illustration given by us in the preceding
para, would setting aside the punishment
and the entire enquiry on the ground of
aforesaid violation of sub-clause (iii) be in
the interests of justice or would it be its
negation? In our respectful opinion, it
would be the latter. Justice means justice
between both the parties. The interests of
justice equally demand that the guilty
should be punished and that technicalities
and irregularities which do not occasion
failure of justice are not allowed to defeat
the ends of justice. Principles of natural
justice are but the means to achieve the
ends of justice. They cannot be perverted to
achieve the very opposite end. That would
be a counter-productive exercise.

33. We may summarise the
principles
emerging
from
the
above
discussion. (These are by no means
intended to be exhaustive and are evolved
keeping in view the context of disciplinary
enquiries
and
orders
of
punishment
imposed
by
an
employer
upon
the
employee):

(1) An order passed imposing a
punishment on an employee consequent
upon a disciplinary/departmental enquiry in
violation of the rules/regulations/statutory
provisions governing such enquiries should
not be set aside automatically. The Court or
the Tribunal should enquire whether (a) the
1 All. Durgawati Singh & Ors. Vs. Deputy Registrar, Firms, Societies & Chits Lucknow & Ors. 1051
provision violated is of a substantive nature
or (b) whether it is procedural in character.

(2) A substantive provision has
normally to be complied with as explained
hereinbefore and the theory of substantial
compliance or the test of prejudice would
not be applicable in such a case.

(3) In the case of violation of a
procedural provision, the position is this:
procedural provisions are generally meant
for affording a reasonable and adequate
opportunity
to
the
delinquent
officer/employee.
They
are,
generally
speaking,
conceived
in
his
interest.
Violation of any and every procedural
provision cannot be said to automatically
vitiate the enquiry held or order passed.
Except cases falling under -- "no notice",
"no
opportunity"
and
"no
hearing"
categories, the complaint of violation of
procedural provision should be examined
from the point of view of prejudice, viz.,
whether such violation has prejudiced the
delinquent officer/employee in defending
himself properly and effectively. If it is
found that he has been so prejudiced,
appropriate orders have to be made to
repair and remedy the prejudice including
setting aside the enquiry and/or the order of
punishment. If no prejudice is established
to have resulted therefrom, it is obvious, no
interference
is
called
for.
In
this
connection, it may be remembered that
there may be certain procedural provisions
which are of a fundamental character,
whose violation is by itself proof of
prejudice. The Court may not insist on
proof of prejudice in such cases. As
explained in the body of the judgment, take
a case where there is a provision expressly
providing that after the evidence of the
employer/government
is
over,
the
employee shall be given an opportunity to
lead defence in his evidence, and in a given
case, the enquiry officer does not give
that opportunity in spite of the delinquent
officer/employee
asking
for
it.
The
prejudice is self-evident. No proof of
prejudice as such need be called for in such
a case. To repeat, the test is one of
prejudice, i.e., whether the person has
received a fair hearing considering all
things. Now, this very aspect can also be
looked at from the point of view of
directory and mandatory provisions, if one
is so inclined. The principle stated under
(4) hereinbelow is only another way of
looking at the same aspect as is dealt with
herein and not a different or distinct
principle.

(4)(a) In the case of a procedural
provision which is not of a mandatory
character, the complaint of violation has to
be examined from the standpoint of
substantial compliance. Be that as it may,
the order passed in violation of such a
provision can be set aside only where such
violation has occasioned prejudice to the
delinquent employee.

(b) In the case of violation of a
procedural provision, which is of a
mandatory
character,
it
has
to
be
ascertained
whether
the
provision
is
conceived in the interest of the person
proceeded against or in public interest. If it
is found to be the former, then it must be
seen whether the delinquent officer has
waived
the
said
requirement,
either
expressly or by his conduct. If he is found
to have waived it, then the order of
punishment cannot be set aside on the
ground of the said violation. If, on the other
hand, it is found that the delinquent
officer/employee has not waived it or that
the provision could not be waived by him,
then the Court or Tribunal should make
appropriate directions (include the setting
aside of the order of punishment), keeping
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
in mind the approach adopted by the
Constitution Bench in B. Karunakar
[(1993) 4 SCC 727 : 1993 SCC (L&S)
1184 : (1993) 25 ATC 704] . The ultimate
test is always the same, viz., test of
prejudice or the test of fair hearing, as it
may be called.

(5) Where the enquiry is not
governed by any rules/regulations/statutory
provisions and the only obligation is to
observe the principles of natural justice --
or, for that matter, wherever such principles
are held to be implied by the very nature
and impact of the order/action -- the Court
or the Tribunal should make a distinction
between a total violation of natural justice
(rule of audi alteram partem) and violation
of a facet of the said rule, as explained in
the body of the judgment. In other words, a
distinction must be made between "no
opportunity" and no adequate opportunity,
i.e., between "no notice"/"no hearing" and
"no fair hearing". (a) In the case of former,
the order passed would undoubtedly be
invalid (one may call it ''void' or a nullity if
one chooses to). In such cases, normally,
liberty will be reserved for the Authority to
take proceedings afresh according to law,
i.e., in accordance with the said rule (audi
alteram partem). (b) But in the latter case,
the effect of violation (of a facet of the rule
of audi alteram partem) has to be examined
from the standpoint of prejudice; in other
words, what the Court or Tribunal has to
see is whether in the totality of the
circumstances,
the
delinquent
officer/employee did or did not have a fair
hearing and the orders to be made shall
depend upon the answer to the said query.
[It is made clear that this principle (No. 5)
does not apply in the case of rule against
bias, the test in which behalf are laid down
elsewhere.]

(6) While applying the rule of
audi alteram partem (the primary principle
of
natural
justice)
the
Court/Tribunal/Authority must always bear
in mind the ultimate and overriding
objective underlying the said rule, viz., to
ensure a fair hearing and to ensure that
there is no failure of justice. It is this
objective which should guide them in
applying the rule to varying situations that
arise before them.

(7) There may be situations
where the interests of State or public
interest may call for a curtailing of the rule
of audi alteram partem. In such situations,
the Court may have to balance public/State
interest with the requirement of natural
justice and arrive at an appropriate
decision."

29. In Canara Bank v. V.K.
Awasthy, (2005) 6 SCC 321, the Apex
Court held as under:-

"10. The adherence to principles
of natural justice as recognised by all
civilised States is of supreme importance
when a quasi-judicial body embarks on
determining disputes between the parties,
or any administrative action involving civil
consequences is in issue. These principles
are well settled. The first and foremost
principle is what is commonly known as
audi alteram partem rule. It says that no
one should be condemned unheard. Notice
is the first limb of this principle. It must be
precise and unambiguous. It should apprise
the party determinatively of the case he has
to meet. Time given for the purpose should
be adequate so as to enable him to make his
representation. In the absence of a notice of
the kind and such reasonable opportunity,
the order passed becomes wholly vitiated.
Thus, it is but essential that a party should
be put on notice of the case before any
adverse order is passed against him. This is
one of the most important principles of
1 All. Durgawati Singh & Ors. Vs. Deputy Registrar, Firms, Societies & Chits Lucknow & Ors. 1053
natural justice. It is after all an approved
rule of fair play. The concept has gained
significance and shades with time. When
the historic document was made at
Runnymede in 1215, the first statutory
recognition of this principle found its way
into the "Magna Carta". The classic
exposition of Sir Edward Coke of natural
justice requires to "vocate, interrogate and
adjudicate". In the celebrated case of
Cooper v. Wandsworth Board of Works
[(1863) 143 ER 414 : 14 CBNS 180 :
(1861-73) All ER Rep Ext 1554] the
principle was thus stated: (ER p. 420)

"[E]ven God himself did not pass
sentence upon Adam before he was called
upon to make his defence. ''Adam' (says
God), ''where art thou? Hast thou not eaten
of the tree whereof I commanded thee that
thou shouldest not eat?' "

Since then the principle has been
chiselled, honed and refined, enriching its
content. Judicial treatment has added light
and luminosity to the concept, like
polishing of a diamond.

11. Principles of natural justice
are those rules which have been laid down
by the courts as being the minimum
protection of the rights of the individual
against the arbitrary procedure that may be
adopted by a judicial, quasi-judicial and
administrative authority while making an
order affecting those rights. These rules are
intended to prevent such authority from
doing injustice.

12. What is meant by the term
"principles of natural justice" is not easy to
determine. Lord Summer (then Hamilton,
L.J.) in R. v. Local Govt. Board [(1914) 1 KB
160 : 83 LJKB 86] (KB at p. 199) described
the phrase as sadly lacking in precision. In
General Council of Medical Education &
Registration of U.K. v.Spackman [1943 AC
627 : (1943) 2 All ER 337 : 112 LJKB 529
(HL)] Lord Wright observed that it was
not desirable to attempt "to force it into any
Procrustean bed" and mentioned that one
essential requirement was that the Tribunal
should be impartial and have no personal
interest in the controversy, and further that it
should give "a full and fair opportunity" to
every party of being heard.

13. Lord Wright referred to the
leading cases on the subject. The most
important of them is the Board of Education
v. Rice [1911 AC 179 : 80 LJKB 796 : (191113) All ER Rep 36 (HL)] where Lord
Loreburn, L.C. observed as follows: (All ER
p. 38 C-F)

"Comparatively
recent
statutes
have extended, if they have not originated,
the practice of imposing upon departments or
officers of State the duty of deciding or
determining questions of various kinds. ... It
will,
I
suppose,
usually
be
of
an
administrative kind; but sometimes it will
involve matter of law as well as matter of
fact, or even depend upon matter of law
alone. In such cases the Board of Education
will have to ascertain the law and also to
ascertain the facts. I need not add that in
doing either they must act in good faith and
listen fairly to both sides, for that is a duty
lying upon everyone who decides anything.
But I do not think that they are bound to treat
such a question as though it were a trial. ...
The Board is in the nature of the arbitral
tribunal, and a court of law has no jurisdiction
to hear appeals from their determination,
either upon law or upon fact. But if the court
is satisfied either that the Board have not
acted judicially in the way which I have
described, or have not determined the
question which they are required by the Act
to determine, then there is a remedy by
mandamus and certiorari."

Lord Wright also emphasised
from the same decision the observation of
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
the Lord Chancellor that the Board can
obtain information in any way they think
best, always giving a fair opportunity to
those who are parties to the controversy for
correcting or contradicting any relevant
statement prejudicial to their view. To the
same effect are the observations of the Earl
of
Selbourne,
L.C.
in
Arthur
John
Spackman v. Plumstead Distt. Board of
Works [(1885) 10 AC 229 : 54 LJMC 81 :
53 LT 151] where the learned and noble
Lord Chancellor observed as follows:

"No doubt, in the absence of
special provisions as to how the person
who is to decide is to proceed, law will
imply no more than that the substantial
requirements of justice shall not be
violated. He is not a judge in the proper
sense of the word; but he must give the
parties an opportunity of being heard
before him and stating their case and their
view. He must give notice when he will
proceed with the matter and he must act
honestly and impartially and not under the
dictation of some other person or persons to
whom the authority is not given by law.
There must be no malversation of any kind.
There would be no decision within the
meaning of the statute if there were
anything of that sort done contrary to the
essence of justice."

Lord Selbourne also added that
the essence of justice consisted in requiring
that all parties should have an opportunity
of submitting to the person by whose
decision they are to be bound, such
considerations as in their judgment ought to
be brought before him. All these cases lay
down the very important rule of natural
justice contained in the oft-quoted phrase
"justice should not only be done, but should
be seen to be done".

14. Concept of natural justice has
undergone a great deal of change in recent
years. Rules of natural justice are not rules
embodied always expressly in a statute or
in rules framed thereunder. They may be
implied from the nature of the duty to be
performed under a statute. What particular
rule of natural justice should be implied
and what its context should be in a given
case must depend to a great extent on the
fact and circumstances of that case, the
framework of the statute under which the
enquiry is held. The old distinction between
a judicial act and an administrative act has
withered away.