# M/S Eastern Machine Bricks & Tiles Industries Pvt. Ltd., Jharkhand v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 1172
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-08
- **Case number:** Writ Tax No. 1507 of 2023
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-eastern-machine-bricks-tiles-industries-pvt-ltd-jharkhand-v-state-of-u-p-ors-51048
- **Pages:** 9

## Headnote

Civil Law - The Central Goods and Services
Tax Act, 2017 - Section 74 - Challenge to
order dated 14.09.2021 under Section 74 of
CGST Act and appellate order dated 05.10.2023
- Show cause notice uploaded on web portal
after petitioner's voluntary cancellation of GST
registration in 2019, without proper service at
petitioner's address - Non-disclosure of Special
Investigation Branch (SIB) report relied upon by
authorities - Appellate authority dismissed
appeal without granting second hearing - Both
orders violated principles of natural justice (audi
alteram partem) - Orders quashed, matter
remitted to Assistant Commissioner for fresh
hearing on 30.01.2024 with SIB report provided
to petitioner, reasoned order to be passed within
two weeks.

List of Cases cited:

## Text

1172 INDIAN LAW REPORTS ALLAHABAD SERIES
operation and effect of Section 129 of
Telangana Goods and Services Tax Act,
2017 and violation by the writ petitioner,
may be kept open. The submissions sought
to be made do not give rise to even a
question of fact what to say of a question of
law. As noticed hereinabove, on the facts of
this case, it has precisely been found that
there was no intent on the part of the writ
petitioner to evade tax and rather, the goods
in question could not be taken to the
destination within time for the reasons
beyond the control of the writ petitioner.
When the undeniable facts, including the
traffic blockage due to agitation, are taken
into consideration, the State alone remains
responsible for not providing smooth
passage of traffic."

8. Upon perusal of the judgments, the
principle that emerges is that presence of
mens rea for evasion of tax is a sine qua non
for imposition of penalty. A typographical
error in the e-way bill without any further
material to substantiate the intention to evade
tax should not and cannot lead to imposition
of penalty. In the case of M/s. Varun
Beverages Limited (supra) there was a
typographical error in the e-way bill of 4
letters (HR - 73). In the present case, instead
of '5332', '3552' was incorrectly entered into
the e-way bill which clearly appears to be a
typographical error. In certain cases where
lapses by the dealers are major, it may be
deemed that there is an intention to evade tax
but not so in every case. Typically when the
error is a minor error of the nature found in
this particular case, I am of the view that
imposition of penalty under Section 129 of
the Act is without jurisdiction and illegal in
law.

9. In light of the above findings, the
impugned orders dated 29.8.2019 and
24.5.2018 are quashed and set-aside. The
consequential reliefs to be provided to the
petitioner within the next four weeks.

10. The writ petition is allowed
accordingly.
----------
(2024) 1 ILRA 1172
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 08.01.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 1507 of 2023

M/S Eastern Machine Bricks & Tiles
Industries Pvt. Ltd., Jharkhand
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Aloke Kumar

Counsel for the Respondents:
Sri Arvind Kumar Mishra (S.C.)

Civil Law - The Central Goods and Services
Tax Act, 2017 - Section 74 - Challenge to
order dated 14.09.2021 under Section 74 of
CGST Act and appellate order dated 05.10.2023
- Show cause notice uploaded on web portal
after petitioner's voluntary cancellation of GST
registration in 2019, without proper service at
petitioner's address - Non-disclosure of Special
Investigation Branch (SIB) report relied upon by
authorities - Appellate authority dismissed
appeal without granting second hearing - Both
orders violated principles of natural justice (audi
alteram partem) - Orders quashed, matter
remitted to Assistant Commissioner for fresh
hearing on 30.01.2024 with SIB report provided
to petitioner, reasoned order to be passed within
two weeks.

List of Cases cited:

1. S.R. Cold Storage Vs U.O.I. & ors., 2022 SCC
online (All) 550; [2022] 448 ITR 37 (All)
1 All. M/S Eastern Machine Bricks & Tiles Industries Pvt. Ltd., Jharkhand Vs. State of U.P.
 & Ors.
1173
2. Mrs. Maneka Gandhi Vs U.O.I. & anr., (1978)
1 SCC 248

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. This is a writ petition under Article
226 of the Constitution of India, wherein
the petitioner is aggrieved by order dated
September 14, 2021 passed by Assistant
Commissioner,
State
Tax,
Sector-2,
Fatehpur under Section 74 of the Central
Goods and Services Tax Act, 2017
(hereinafter referred to as "the Act") for
the tax period 2018-19 and the appellate
order dated October 5, 2023 passed by
the Additional Commissioner, Grade-2,
(Appeal)-III, State Tax, Prayagraj.

2. The first ground taken by the
learned counsel for the petitioner is that
the
petitioner
had
cancelled
its
registration voluntarily on September 18,
2019, whereas the notice under Section
74 of the Act was given to it only by way
of uploading the same on the web portal
on a subsequent date. He submits that the
notice, that has been issued, was issued in
the year 2021 or in late December 2020
as the date fixed for hearing was January
12, 2021. He further submits that as the
petitioner had already cancelled its
registration
voluntarily,
it
was
not
required to check the web portal. Further
ground has also been taken by the learned
counsel for the petitioner with regard to
the respondent No.3 proceeding on the
basis of a Special Investigation Branch
report (SIB report) behind the back of the
petitioner without providing a copy of the
same to the petitioner. He further states
that the appellate authority also did not
grant a second opportunity of hearing to
the petitioner. He submits that the date
fixed for hearing was August 22, 2023, on
which date the petitioner could not appear.
Subsequently,
the
appellate
authority
passed an order on October 5, 2023
dismissing the appeal of the petitioner on
the ground that none appeared on behalf of
the petitioner and reaffirming the order
passed by Assistant Commissioner, State
Tax/respondent No.3.

3. It is trite law that principles of audi
alteram partem are required to be followed
by the authority and giving a go by to the
same results in violation of the principles of
natural justice. One may examine the
development of the law in relation to
natural justice. The Division Bench of this
Court in S.R. Cold Storage v. Union of
India and Others reported in 2022 SCC
online (All) 550; {[2022] 448 ITR 37
(All)} held as follows:

"25. The first and foremost
principle of natural justice 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 appraise the party determinatively
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
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. It is an approved
rule of fair play.

26. The 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
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
order affecting those rights. These rules are
intended to prevent such authority from
doing injustice. Even an administrative
order which involves civil consequences
must be consistent with the rules of natural
justice.

27.
The
expression
"civil
consequences" encompasses infraction of
not merely property or personal rights but
of civil liberties, material deprivations, and
non-pecuniary
damages.
In
its
wide
umbrella comes everything that affects a
citizen in his civil life.

28. Natural justice has been
variously defined by different judges, for
instance a duty to act fairly, the substantial
requirements of justice, the natural sense of
what is right and wrong, fundamental
justice and fair-play in action. Over the
years by a process of judicial interpretation
two
rules
have
been
evolved
as
representing the principles of natural
justice in judicial process, including therein
quasi-judicial and administrative process.
They constitute the basic elements of a fair
hearing, having their roots in the innate
sense of man for fair-play and justice which
is not the preserve of any particular race or
country but is shared in common by all
men. The first rule is "nemo judex in causa
sua" or "nemo debet esse judex in propria
causa sua" that is no man shall be a judge
in his own cause. The second rule is "audi
alteram partem", that is, "hear the other
side". A corollary has been deduced from
the above two rules and particularly the
audi alteram partem rule, i. e., "he who
shall decide anything without the other side
having been heard, although he may have
said what is right, will not have been what
is right" or in other words, as it is now
expressed, "justice should not only be done
but should manifestly be seen to be done".
Natural justice is the essence of fair
adjudication, deeply rooted in tradition and
conscience, to be ranked as fundamental.
The purpose of following the principles of
natural justice is the prevention of
miscarriage of justice."

4. The Supreme Court, in the
celebrated constitutional judgment in Mrs.
Maneka Gandhi v. Union of India and
another reported in (1978) 1 SCC 248,
while dealing with a challenge laid to an
order by which a passport was impounded,
expounded upon the significance of the
principles of audi alteram partem to the
doctrine of natural justice. Justice P.N.
Bhagwati while authoring the judgment
beautifully expounded the said principles as
follows:

"14. .....But at the same time it
must be remembered that this is a rule of
vital
importance
in
the
field
of
administrative law and it must not be
jettisoned
save
in
very
exceptional
circumstances where compulsive necessity
so demands. It is a wholesome rule
designed to secure the rule of law and the
court should not be too ready to eschew it
in its application to a given case. True it is
that in questions of this kind a fanatical or
doctrinaire approach should be avoided,
but that does not mean that merely because
the traditional methodology of a formalised
hearing may have the effect of stultifying
the exercise of the statutory power, the audi
alteram partem should be wholly excluded.
The court must make every effort to salvage
this cardinal rule to the maximum extent
permissible in a given case. It must not be
forgotten
that
"natural
justice
is
pragmatically flexible and is amenable to
capsulation under the compulsive pressure
of
circumstances".
The audi
alteram
partem rule is not cast in a rigid mould and
1 All. M/S Eastern Machine Bricks & Tiles Industries Pvt. Ltd., Jharkhand Vs. State of U.P.
 & Ors.
1175
judicial decisions establish that it may
suffer situational modifications. The core of
it must, however, remain, namely, that the
person affected must have a reasonable
opportunity of being heard and the hearing
must be a genuine hearing and not an
empty public relations exercise. That is why
Tucker, L.J., emphasised in Russel v. Duke
of Norfolk [(1949) 1 All ER 109] that
"whatever standard of natural justice is
adopted, one essential is that the person
concerned should have a reasonable
opportunity of presenting his case". What
opportunity may be regarded as reasonable
would necessarily depend on the practical
necessities of the situation. It may be a
sophisticated full-fledged hearing or it may
be a hearing which is very brief and
minimal : it may be a hearing prior to the
decision or it may even be a post-decisional
remedial
hearing.
The audi
alteram
partem rule is sufficiently flexible to permit
modifications and variations to suit the
exigencies of myriad kinds of situations
which may arise."

5. Subsequently, the Supreme Court,
in State of Kerala v. K.T. Shaduli
Grocery Dealer Etc. reported in (1977) 2
SCC 777, while dealing with the provision
under the Kerala General Sales Tax Act,
1963, examined the principle of natural
justice as follows:

"2. Now, the law is well settled
that tax authorities entrusted with the
power to make assessment of tax discharge
quasi-judicial functions and they are bound
to observe principles of natural justice in
reaching their conclusions. It is true, as
pointed out by this Court in Dhakeswari
Cotton Mills Ltd. v. CIT [AIR 1955 SC 154
: (1955) 1 SCR 941 : (1955) 27 ITR 126]
that a taxing officer "is not fettered by
technical rules of evidence and pleadings,
and that he is entitled to act on material
which may not be accepted as evidence in a
court of law", but that does not absolve
him from the obligation to comply with the
fundamental rules of justice which have
come to be known in the jurisprudence of
administrative law as principles of natural
justice. It is, however, necessary to
remember that the rules of natural justice
are not a constant: they are not absolute
and
rigid
rules
having
universal
application. It was pointed out by this
Court in Suresh Koshy George v. University
of Kerala [AIR 1969 SC 198 : (1969) 1
SCR 317 : (1969) 1 SCJ 543] that "the
rules of natural justice are not embodied
rules" and in the same case this Court
approved the following observations from
the judgment of Tucker, L.J. in Russel v.
Duke of Norfolk [(1949) 1 All ER 109] :

"There are, in my view, no words
which are of universal application to every
kind of inquiry and every kind of domestic
tribunal. The requirements of natural
justice must depend on the circumstances of
the case, the nature of the inquiry, the rules
under which the tribunal is acting, the
subject-matter that is being dealt with, and
so forth. Accordingly I do not derive much
assistance from the definitions of natural
justice which have been from time to time
used, but, whatever standard is adopted,
one essential is that the person concerned
should have a reasonable opportunity of
presenting his case."

3. One of the rules which
constitutes a part of the principles of
natural justice is the rule of audi alteram
partem which requires that no man should
be condemned unheard. It is indeed a
requirement of the duty to act fairly which
lies on all quasi-judicial authorities and
this duty has been extended also to the
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
authorities
holding
administrative
enquiries involving civil consequences or
affecting rights of parties because as
pointed out by this Court in A.K. Kraipak
v. Union of India [(1969) 2 SCC 262 :
(1970) 1 SCR 457] "the aim of the rules
of natural justice is to secure justice or to
put it negatively, to prevent miscarriage
of justice" and justice, in a society which
has accepted socialism as its article of
faith in the Constitution is dispensed not
only
by
judicial
or
quasi-judicial
authorities
but
also
by
authorities
discharging
administrative
functions.
This rule which requires an opportunity
to be heard to be given to a person likely
to be affected by a decision is also, like
the genus of which it is a species, not an
inflexible rule having a fixed connotation.
It has a variable content depending on
the nature of the inquiry, the framework
of the law under which it is held, the
constitution of the authority holding the
inquiry, the nature and character of the
rights affected and the consequences
flowing from the decision. It is, therefore,
not possible to say that in every case the
rule of audi alteram partem requires that
a particular specified procedure is to be
followed. It may be that in a given case
the rule of audi alteram partem may
import a requirement that witnesses
whose statements are sought to be relied
upon by the authority holding the inquiry
should be permitted to be cross-examined
by the party affected while in some other
case it may not. The procedure required
to be adopted for giving an opportunity to
a person to be heard must necessarily
depend on facts and circumstances of each
case."

6. Justice P.N. Bhagwati further
expounded on the necessity of disclosing to
the assessee the information relied upon by
the authorities. The relevant extract is
provided below:

"12. This Court further fully
approved of the four propositions laid down
by the Lahore High Court in Seth Gurmukh
Singh v. Commissioner of Income Tax
[(1944) 12 ITR 393 (Lahore HC)]. This
Court was of the opinion that the Taxing
Authorities
had
violated
certain
fundamental rules of natural justice in that
they did not disclose to the assessee the
information
supplied
to
it
by
the
departmental representatives. This case
was relied upon by this Court in a later
decision in Raghubar Mandal Harihar
Mandal's case (supra) where it reiterated
the decision of this Court in Dhakeswari
Cotton Mills Ltd.'s case (supra), and while
further endorsing the decision of the
Lahore High Court in Seth Gurmukh
Singh's case pointed out the rules laid
down by the Lahore High Court for
proceeding under sub-section (3) of Section
23 of the Income-tax Act and observed as
follows:

"The rules laid down in that
decision were these: (1) While proceeding
under sub-section (3) of section 23 of the
Income-tax Act, the Income-tax Officer is
not bound to rely on such evidence
produced by the assessee as he considers to
be false; (2) if he proposes to make an
estimate in disregard of the evidence, oral
or documentary, led by the assessee, he
should in fairness disclose to the assessee
the material on which he is going to found
that estimate; (3) he is not however
debarred from relying on private sources of
information, which sources he may not
disclose to the assessee at all; and (4) in
case he proposes to use against the
assessee the result of any private inquiries
made by him, he must commu- nicate to the
1 All. M/S Eastern Machine Bricks & Tiles Industries Pvt. Ltd., Jharkhand Vs. State of U.P.
 & Ors.
1177
assessee the substance of the information
so proposed to be utilised to such an extent
as to put the assessee in possession of full
particulars of the case he is expected to
meet and should further give him ample
opportunity to meet it, if possible."

It will thus be noticed that this
Court clearly laid down that while the
Income-tax Officer was not debarred from
relying on any material against the
assessee, justice and fair-play demanded
that the sources of information relied upon
by the Income-tax Officer must be disclosed
to the assessee so that he is in a position to
rebut the same and an opportunity should
be given to the assessee to meet the effect
the aforesaid information."

7. Going forward, the Supreme Court
in Dharampal Satyapal Limited v. Deputy
Commissioner of Central Excise, Gauhati
and others reported in (2015) 8 SCC 519
outlined the fundamental importance of
providing an opportunity for hearing before
making any decision, and characterized it
as a basic requirement in any legal
proceedings. The Supreme Court further
propounded
that
compliance
with
principles of natural justice is an implied
mandatory
requirement,
and
nonobservance
of
these
principles
can
invalidate the exercise of power. Relevant
paragraphs have been extracted below:

28. It
is
on
the
aforesaid
jurisprudential
premise
that
the
fundamental principles of natural justice,
including audi
alteram
partem,
have
developed. It is for this reason that the
courts have consistently insisted that such
procedural fairness has to be adhered to
before a decision is made and infraction
thereof has led to the quashing of decisions
taken. In many statutes, provisions are
made ensuring that a notice is given to a
person against whom an order is likely to
be passed before a decision is made, but
there may be instances where though an
authority is vested with the powers to pass
such orders, which affect the liberty or
property of an individual but the statute
may not contain a provision for prior
hearing. But what is important to be noted
is that the applicability of principles of
natural justice is not dependent upon any
statutory provision. The principle has to be
mandatorily applied irrespective of the fact
as to whether there is any such statutory
provision or not.

***

30. Wade
[Administrative
Law (1977) 395] also emphasises that
principles of natural justice operate as
implied mandatory requirements, nonobservance
of
which
invalidates
the
exercise of power.

***

35. From
the
aforesaid
discussion, it becomes clear that the
opportunity to provide hearing before
making any decision was considered to be a
basic requirement in the court proceeding.
Later on, this principle was applied to
other quasi-judicial authorities and other
tribunals and ultimately it is now clearly
laid down that even in the administrative
actions, where the decision of the authority
may result in civil consequences, a hearing
before taking a decision is necessary. It
was, thus, observed in A.K. Kraipak v.
Union of India; [(1969) 2 SCC 262] that if
the purpose of rules of natural justice is to
prevent miscarriage of justice, one fails to
see how these rules should not be made
available to administrative inquiries. In
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
Maneka Gandhi v. Union of India;[(1978)
1 SCC 248] also the application of
principle of natural justice was extended to
the administrative action of the State and
its authorities. It is, thus, clear that before
taking an action, service of notice and
giving of hearing to the noticee is required.
In
Maharashtra
State
Financial
Corporation
v.
Suvarna
Board
Mills;[(1994) 5 SCC 566] , this aspect was
explained in the following manner :

"3. It has been contended before
us by the learned counsel for the appellant
that principles of natural justice were
satisfied before taking action under Section
29, assuming that it was necessary to do so.
Let it be seen whether it was so. It is well
settled that natural justice cannot be placed
in a straitjacket; its rules are not embodied
and they do vary from case to case and
from one fact-situation to another. All that
has to be seen is that no adverse civil
consequences are allowed to ensue before
one is put on notice that the consequence
would follow if he would not take care of
the lapse, because of which the action as
made known is contemplated. No particular
form of notice is the demand of law. All will
depend on facts and circumstances of the
case."

8. One may further refer to the recent
judgment of the Supreme Court in
Madhyamam Broadcasting Limited v.
Union of India and others reported in
ILR 2023 (2) Kerala 545; (2023 SCC
OnLine 366) wherein the Supreme court
highlighted that the principles of natural
justice of which audi alteram partem is a
part, guarantee a reasonable procedure
which is a requirement entrenched in
Articles 14, 19 and 21 of the Constitution
of
India.
Chief
Justice
Dr.
D.Y.
Chandrachud while authoring the judgment
has succinctly examined the principles of
natural justice and after examining the
Supreme Court's ratio in umpteen cases has
penned the relevant paragraph which is
extracted below:

"47. The judgment of this Court
in Maneka Gandhi (supra) spearheaded
two doctrinal shifts on procedural fairness
because of the constitutionalising of
natural justice. Firstly, procedural fairness
was no longer viewed merely as a means to
secure a just outcome but a requirement
that holds an inherent value in itself. In
view of this shift, the Courts are now
precluded from solely assessing procedural
infringements
based
on
whether
the
procedure would have prejudiced the
outcome of the case [See S.L. Kapoor v.
Jagmohan; (1980) 4 SCC 379 "The nonobservance of natural justice is itself
prejudice to any man and proof of prejudice
independently of proof of denial of natural
justice is unnecessary"; also see Swadeshi
Cotton Mills v. Union of India; A.I.R. 1981
S.C. 818]. Instead, the courts would have to
decide if the procedure that was followed
infringed upon the right to a fair and
reasonable procedure, independent of the
outcome. In compliance with this line of
thought, the courts have read the principles
of natural justice into an enactment to save
it from being declared unconstitutional on
procedural grounds [See Olga Tellis v.
Bombay Municipal Corporation: (1985) 3
SCC 545; C.B. Gautam v. Union of
India:(1993) 1 SCC 78; Sahara India
(Firm), Lucknow v. Commissioner of
Income Tax, Central-I: (2008) 14 SCC 151
and Kesar Enterprises v. State of Uttar
Pradesh: (2011) 13 SCC 733]. Secondly,
natural
justice
principles
breathe
reasonableness
into
the
procedure.
Responding to the argument that the
principles of natural justice are not static
1 All. M/S Eastern Machine Bricks & Tiles Industries Pvt. Ltd., Jharkhand Vs. State of U.P.
 & Ors.
1179
but are capable of being moulded to the
circumstances, it was held that the core of
natural justice guarantees a reasonable
procedure
which
is
a
constitutional
requirement entrenched in Articles 14, 19
and
21.
The
facet
of audi
alterum
partem encompasses the components of
notice, contents of the notice, reports of
inquiry, and materials that are available
for perusal. While situational modifications
are permissible, the rules of natural justice
cannot be modified to suit the needs of the
situation to such an extent that the core of
the principle is abrogated because it is the
core
that
infuses
procedural
reasonableness. The burden is on the
applicant to prove that the procedure that
was followed (or not followed) by the
adjudicating authority, in effect, infringes
upon the core of the right to a fair and
reasonable hearing."

9. Chief Justice Dr. D.Y. Chandrachud
has further elaborated on the principles of
natural justice in State Bank of India and
others v. Rajesh Agarwal and others
reported in (2023) 6 SCC 1. The relevant
paragraph is delineated below:

"36. We need to bear in mind that
the principles of natural justice are not
mere legal formalities. They constitute
substantive obligations that need to be
followed
by
decision-making
and
adjudicating authorities. The principles of
natural justice act as a guarantee against
arbitrary action, both in terms of procedure
and substance, by judicial, quasi-judicial,
and
administrative
authorities.
Two
fundamental principles of natural justice
are entrenched in Indian jurisprudence: (i)
nemo judex in causa sua, which means that
no person should be a judge in their own
cause; and (ii) audi alteram partem, which
means
that
a
person
affected
by
administrative, judicial or quasi-judicial
action must be heard before a decision is
taken.
The
courts
generally
favor
interpretation of a statutory provision
consistent with the principles of natural
justice because it is presumed that the
statutory authorities do not intend to
contravene fundamental rights. Application
of the said principles depends on the facts
and circumstances of the case, express
language and basic scheme of the statute
under which the administrative power is
exercised, the nature and purpose for which
the power is conferred, and the final effect
of the exercise of that power."

10. The common thread that runs
across these judgments is that although the
principle of audi alteram partem can evolve
itself given the facts and circumstances of
each case, its significance and applicability
is universal. Audi alteram partem, which is
a part of the doctrine of natural justice,
finds
its
roots
primarily
in
the
constitutionally
guaranteed
ideal
of
equality. This principle ensures that no one
is condemned, penalized, or deprived of
their rights without a fair and reasonable
opportunity of hearing. It acts as a
safeguard
against
arbitrary
decisionmaking, upholding the principle of due
process while also providing a crucial
foundation for just and equitable legal or
administrative proceedings.

11. Furthermore, the significance of
the principal of audi alteram partem is
deeply entrenched in the foundational
tenets of natural justice. The phrase,
denoting
"hear
the
other
side,"
is
emblematic of the sacrosanct right vested
in individuals to be accorded a fair and
impartial hearing before the adjudication of
their rights or interests. This cardinal
principle operates as a bulwark against
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitrariness and the capricious exercise of
authority, mandating that decisions be
reached
only
subsequent
to
a
comprehensive and equitable deliberation
of all relevant contentions. It is, in essence,
the sine qua non of due process, standing as
an unwavering sentinel against the potential
tyranny of unchecked power. The judicious
application of audi alteram partem not only
upholds the sanctity of individual freedom
but also fortifies the integrity of legal
proceedings, fostering a milieu where
justice is not merely meted out, but is
perceived
to
be
done
through
a
conscientious consideration of diverse and
adversarial perspectives.

12. In the present case, when the
petitioner had cancelled its registration in
the year 2019, a proper notice was required
to be issued to it under Section 74 of the
Act at its address. However, the authorities
simply uploaded the Section 74 show cause
notice on the web portal inspite of knowing
that the petitioner had already cancelled its
registration prior to the date of issuance of
the show cause notice. This action clearly
prevented the petitioner from appearing in
the hearing in the original proceeding under
Section 74 of the Act that was accordingly
passed
ex
parte.
Moreover,
it
was
incumbent upon the authorities to provide
the copies of materials being relied upon
by them (SIB report, in this case) to the
petitioner/assessee so as to enable him to
deal with the same. In my view, any action
that proceeds without proper intimation and
service of the show cause notice to the
petitioner is vitiated and bad in law, and is,
accordingly required to be quashed and set
aside.

13. In light of the above, the
impugned orders dated September 14, 2021
and October 5, 2023 are quashed and set
aside with a direction upon respondent
No.3 to grant an opportunity of hearing to
the petitioner on January 30, 2024 at 11.00
AM, and after hearing the petitioner, pass a
reasoned order within two weeks from the
date of hearing. It is expected that no
unnecessary adjournments shall be granted
by the authority concerned. The authority is
also directed to provide a copy of the SIB
report to the petitioner within a week from
date.

14. With the above directions, the writ
petition is allowed.
----------
(2024) 1 ILRA 1180
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 3785 of 2023

Alok Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vipul Raj Gautam, Sri Kunal Shah, Sri
Suvansit Kumar Jaiswal

Counsel for the Respondents:
C.S.C.

A. Service Law - Engineering Services
Rules, 1990 - UP Service of (Irrigation
Department) (Group-A) Rules, 1990 -
Rule 5(1) - Relaxation Rules, 2006 - Rule
4 - Promotion - Promotional benefit -
Entitlement - Not including the probation
period in requisite period of 7 years as
experience - Permissibility - Held, period
of probation is liable to be included within
7 years service period required under the
Rule for a candidate to possess requisite
period
of
service
for
promotion
-