# Smt. Kaushalya Chaubey v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 705
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-22
- **Case number:** WRIT - C No. 38586 of 2018
- **Bench:** Bala Krishna Narayana, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kaushalya-chaubey-v-state-of-u-p-ors-46070
- **Pages:** 12

## Headnote

(A) Civil Law - principles of natural justice
-audi alteram partem - procedural fairness
which ensures taking of correct decision -
any order or any action having civil
consequences has to be passed/taken
after affording opportunity of hearing to
the person concerned, in consonance with
the principles of natural justice - If this
requirement not fulfilled - order or the
action cannot be sustained - person has a
right to show cause against the proposed
action which, if taken, would adversely
affect his rights or impose some liability
on him/her - revisional order & demand
notice quashed .(Para-15)

District
Magistrate
By
order/notice
dated
13.7.2018 - cancelled the petitioner's mining
permit - after determining the petitioner's
liability for payment - directed for recovery of
the
said
amount
from
the
petitioner
-
petitioner's revision dismissed - petitioner was
directed to make the payment failing which, it
was provided that the same shall be recovered
as arrears of land revenue - order/notice -
composite one - passed in violation of the
principles
of
natural
justice
of
providing
opportunity of hearing to the petitioner . (Para2,20)

HELD:- The order/notice dated 13.7.2018 shall
be treated only as a show cause notice to the
petitioner for (i) cancellation of petitioner's
mining
permit,
(ii)
for
determination
of
petitioner's liability for payment of amount
under different heads as mentioned therein and
(iii) black listing on the grounds mentioned
therein. The cancellation of mining permit and
direction to deposit the amount determined in
the order dated 13.7.2018 shall be treated only
as
the
proposed
actions
against
the
petitioner.(Para-21)

Petition allowed partly. (E-7)

List of Cases cited: -

## Text

_Characters 0–39,964 of 41,154. This is a partial read: ask again with offset=39964 for what follows._

9 All. Smt. Kaushalya Chauabey Vs. State of U.P. & Ors.
705

18. In view of the facts as stated above,
it is clear that the petitioner does not have a
clear title of land for construction of godown
as per the Clause 6.1 of the Guidelines issued
by the respondent-corporation for selection of
regular LPG distributors.

19. In view of the aforesaid facts as
stated above, in our view the respondent
corporation rightly rejected the candidature
of the petitioner. The order passed by the
respondent corporation dated 1.8.2016 is a
perfect and valid order and does not call for
any interference by this Court especially
under Article 226 of the Constitution of
India.

20. The writ petition being devoid of
merits is liable to be dismissed.

21. The writ petition is dismissed. No
order as to costs.
----------
(2020)09ILR A705
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVI NATH TILHARI, J.

WRIT - C No. 38586 of 2018

Smt. Kaushalya Chaubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nand Kishore Mishra

Counsel for the Respondents:
C.S.C.

(A) Civil Law - principles of natural justice
-audi alteram partem - procedural fairness
which ensures taking of correct decision -
any order or any action having civil
consequences has to be passed/taken
after affording opportunity of hearing to
the person concerned, in consonance with
the principles of natural justice - If this
requirement not fulfilled - order or the
action cannot be sustained - person has a
right to show cause against the proposed
action which, if taken, would adversely
affect his rights or impose some liability
on him/her - revisional order & demand
notice quashed .(Para-15)

District
Magistrate
By
order/notice
dated
13.7.2018 - cancelled the petitioner's mining
permit - after determining the petitioner's
liability for payment - directed for recovery of
the
said
amount
from
the
petitioner
-
petitioner's revision dismissed - petitioner was
directed to make the payment failing which, it
was provided that the same shall be recovered
as arrears of land revenue - order/notice -
composite one - passed in violation of the
principles
of
natural
justice
of
providing
opportunity of hearing to the petitioner . (Para2,20)

HELD:- The order/notice dated 13.7.2018 shall
be treated only as a show cause notice to the
petitioner for (i) cancellation of petitioner's
mining
permit,
(ii)
for
determination
of
petitioner's liability for payment of amount
under different heads as mentioned therein and
(iii) black listing on the grounds mentioned
therein. The cancellation of mining permit and
direction to deposit the amount determined in
the order dated 13.7.2018 shall be treated only
as
the
proposed
actions
against
the
petitioner.(Para-21)

Petition allowed partly. (E-7)

List of Cases cited: -

1. Nisha Devi Vs St. of H.P. & ors., (2014) 16
SCC 392

2. Dharampal Satyapal Vs Deputy Commissioner
of Central Excise & ors., (2015) 8 SCC 519

UOI Vs Hanil Era Textiles Ltd, (2018) 13 SCC
219
706 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. We have heard Sri Nand Kishor
Mishra learned counsel for the petitioner
and
learned
Standing
Counsel
for
Respondent Nos. 1 to 5 and have perused
the material on record. The petitioner has
filed the present writ petition for the
following reliefs:

"(a) Issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
17.10.2018 passed by the Respondent No.3
and order dated 13.7.2018 as well as notice
dated 27.10.2018 issued by the District
Magistrate, Mahoba (Annexure Nos. 1,2
and 3 to the writ petition).

(b) Issue a writ, order or
direction in the nature of Mandamus
directing
the
respondents
not
to
realize/recover the amount Rs. 57,36,750/-
mineral cost (Khaniz Mulya) as well as
penalty sum of Rs. 50,000/- from the
petitioner on the basis of the notice dated
27.10.2018.

(c) Issue a writ, order or
direction in the nature of mandamus
directing the respondents to restore the
mining permit of the petitioner and issue
Form MM-11 for the remaining quantity by
extending the time period which has been
lapsed due to passing of the impugned
order dated 13.7.2018, cancelling the
mining permit.

(d) Issue any other suitable writ,
order or direction as this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case.

(e) Award cost of the petition in
favour of the petitioner."

2. By order/notice dated 13.7.2018 the
District Magistrate, Mahoba had cancelled
the petitioner's mining permit and after
determining the petitioner's liability for
payment, directed for recovery of the said
amount from the petitioner. By order dated
17.10.2018 the petitioner's revision was
dismissed
by
the
Additional
Chief
Secretary/Special Secretary, Department of
Geology and Mining Government of U.P.,
Lucknow. By notice dated 27.10.2018 the
petitioner was directed to make the
payment failing which, it was provided that
the same shall be recovered as arrears of
land revenue.

3. The facts of the case are that the
petitioner was granted mining permit on
12.5.2018 for removal of 12350 cubic
meter
of
sand/maurram
from
her
agricultural field of Gata No. 39 kha having
an area of 1.235 hectares situated in village
Barano, Tehsil Kulpahar, District Mahoba,
for a period of three months w.e.f.
12.5.2018 upto 11.8.2018 and in pursuance
thereof petitioner deposited an amount of
Rs. 25,00,876/- in total under different
heads on 12.5.2018 itself, whereupon the
mining
plan
was
approved
by
the
competent authority and after getting the
mining permission the petitioner started
excavation work for removal of the
mineral/sands/mauram
from
her
agricultural gata.

4. On 13.7.2018 the Respondent
No.4/District Magistrate, Mohaba passed
the impugned order (Annexure No.2)
according
to
which,
as
per
the
inspection/survey report dated 13.7.2018 of
the inspecting team, there were following
irregularities
found
at
the
time
of
inspection;-

"(a) that as per the inspection
and survey made by the inspection team
petitioner had mined total 13,976 cubic
meter of mineral whereas till date of
9 All. Smt. Kaushalya Chauabey Vs. State of U.P. & Ors.
707
inspection for only 6,327 cubic meter of
mineral e-MM-11 has been issued hence
petitioner has done 7,649 cubic meter of
illegal mining.

(b) That in the area petitioner has
done the mining for 13,976 cubic meter of
mineral which is more than the approved
quantity of 12,350 cubic meter of mineral.

(c) The petitioner has used the
machines in the area.

(d)
Approach
roads
of
the
villages have been damaged.

(e) Adjoining land has damaged.

(f) Mining has been done beyond
the approved depth.

(g) Unsafe and undercut mining
work has been done.

(h) Mining permit has been granted
for making the land cultivable but petitioner has
made the land unlevel with pits."

5. Consequently, the mining permit
was cancelled with direction to the
petitioner to deposit the amount of royalty,
mineral cost and penalty, failing which it
was provided that the said amount shall be
recovered as arrears of land revenue. The
petitioner was also directed by order/notice
dated 13.7.2018 to submit explanation with
respect to the irregularities mentioned
above and as to why legal proceedings be
not initiated against her and she not be
blacklisted. The petitioner's Revision No.
136 (R)/ACS/M of 2018 under Rule 78 of
the U.P. Minor Minerals (Concession)
Rules, 1963 (in short 'the Rules 1963') was
dismissed by the Respondent No.3 and a
notice dated 27.10.2018 (Annexure No.3)
was issued to the petitioner for recovery of
the amount determined by order/notice
dated 13.7.2018.

6. The State-Respondents, inspite of
time having been granted, did not file any
counter affidavit.

7. Sri Nand Kishore Mishra, learned
counsel for the petitioner has submitted that
the impugned order/notice dated 13.7.2018
has been passed in gross violation of the
principles of natural justice of affording
opportunity of hearing to the petitioner
before cancelling her mining permit. On the
one hand the petitioner was issued the show
cause notice but at the same time by the
same notice/order the petitioner's mining
permit was also cancelled. He has further
submitted that the inspection report dated
13.7.2018, which is the very basis of the
order of cancellation, was not provided to
the petitioner and she was also not
associated in the said inspection which was
conducted, if conducted at all, behind the
back of the petitioner without any notice of
such inspection. The liability for payment
has been fastened on the petitioner in gross
violation of principles of natural justice. He
next submitted that the above aspects were
raised before the revisional authority, but
without
considering
the
same
the
petitioner's
revision
was
dismissed,
mechanically, affirming the order dated
13.7.2018
and
demand
notice
dated
27.10.2018 was also issued.

8. The learned Standing Counsel has
submitted that the order/notice dated 13.7.2018
has been passed in view of the illegal mining
being done by the petitioner and the grave
irregularities committed by her which are
evident from the inspection report dated
13.7.2018, and, as such, the impugned orders
and the demand notice are perfectly justified.

9.
We
have
considered
the
submissions advanced by the learned
counsel for the parties and have perused the
records.

10. The order dated 13.7.2018 is being
reproduced as under:
708 INDIAN LAW REPORTS ALLAHABAD SERIES

^^izkIr f'kdk;rks ds n`f"Vxr ck<+ ls
,df=r ckyw@eksje dks gVkus ds fy, m0iz0
mi[kfut (ifjgkj) fu;ekoyh 1963 ds fu;e 52
d ds vUrxZr Lohd`r [kuu vuqKk {ks=ksa dh tkap
ds
fy,
dk;kZy;
vkns'k
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esa
fujh{k.k@losZ{k.k
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LOkhd`r {ks= esa 13]976 ?kuehVj [kuu fd;k x;k gS
tcfd vkids }kjk fujh{k.k fnukad rd 6]327
?kuehVj izi= bZ&,e0,e0&11 dk gh fuxZeu fd;k
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[kuu@fcuk jk;YVh dk ifjogu fd;k x;k gSA

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12]350 ?kuehVj ls Hkh vf/kd 13]976 ?kuehVj
[kuu dj fy;k x;k gSA

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gSA

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[kuu fd;k x;k gSA

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fd;k x;k gSA

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ckyw@eksje dks gVkdj [ksrh ;ksX; cukus ds fy,
fn;k x;k gS ijUrq {ks= dks vlery rFkk xM~

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dk;Z jksd ns ,ao voS/k [kuu dh ek=k 7]649
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fofu;eu) vf/kfu;e 1957 dh /kkjk 4 o 21 ds
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[kfueq[k ewY; :0 57]36]750-00 dh /kujkf'k 15
fnu ds vUnj fu/kkZfjr ys[kk 'kh"kZd esa tek
djk;k tkuk lqfuf'pr djs rFkk e'khuksa ds iz;ksx
ds lEcU/k esa m0iz0 mi[kfut (ifjgkj)
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vUrxZr :0 50]000 dh /kujkf'k fu/kkZfjr ys[kk
'kh"kZd esa tek djk;k tkuk lqfuf'pr djs vU;Fkk
leLr /kujkf'k e; C;kt ds Hkw&jktLo dh HkkWfr
olwy dj yh tk;sxhA

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fd mijksDRk vfu;ferrkvksa ds vUrxZr viuk
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izLrqr djs fd D;ksa u vkids fo#) fu;ekuqlkj
dkuwuh dk;Zokgh laLrqr dh tk;s ,ao vkidk uke
dkyh lwph esa ntZ dj fn;k tk;A

vkidks iqu% lpsr fd;k tkrk gS fd
{ks= esa dksbZ [kuu dk;Z ik;k tkrk gS rks vkids
fo:) fu;ekuqlkj dBksj dk;Zokgh dh tk;sxhA^^

11. A perusal of the impugned
order/notice dated 13.7.2018 shows that on
the one had the petitioner's mining permit
was cancelled and the liability for payment
of royalty etc. was imposed and at the same
time, the petitioner was also directed to
show cause against the irregularities
mentioned therein pointed by the report of
the inspection team, as well as to show
cause as to why legal proceedings be not
initiated against the petitioner and she be
not black listed. It is evident that the
order/notice dated 13.7.2018 was issued as
some complaints were made and in view
thereof an inspection team was constituted
by office order dated 4340/MMC-2018
which submitted its report dated 13.7.2018
pointing out so many irregularities and
illegalities committed by the petitioner in
her mining permit area.

12. We find that there is nothing on
record to show that the inspection was
made after notice to the petitioner or the
petitioner was given any opportunity to
show cause against the inspection report
dated 13.7.2018, serving a copy thereof to
the petitioner. There is also nothing on
record to show that any show cause notice
9 All. Smt. Kaushalya Chauabey Vs. State of U.P. & Ors.
709
for the proposed cancellation of mining
permit was issued to the petitioner after
submission of the inspection report. The
date of the inspection report and the
impugned order/notice is the same i.e.
13.7.2018 whereby mining permit was also
cancelled and the liability was determined
ex parte, on the basis of the inspection
report. After doing that, the respondent
No.2 by the same order directed the
petitioner to submit explanation as to why
legal proceedings be not taken against the
petitioner and she be not black listed.

13. Any thing contrary to the above
mentioned could not be brought to our
noticce by the learned standing counsel.

14. We thus find that the order dated
13.7.2018 to the extent of cancellation of the
petitioner's mining permit and a direction to
deposit the amount determined thereunder,
has been passed without affording any
opportunity of hearing to the petitioner,
although the same adversely affects the
petitioner and has civil consequences.

15. It is settled in law that any order or
any action having civil consequences has to
be passed/taken after affording opportunity
of hearing to the person concerned, in
consonance with the principles of natural
justice. If this requirement is not fulfilled,
the order or the action cannot be sustained.
The person has a right to show cause
against the proposed action which, if taken,
would adversely affect his rights or impose
some liability on him/her.

16. In the case of Nisha Devi vs. State
of Himanchal Pradesh and others (2014)
16 SCC 392 wherein the income certificate
of the appellant therein was cancelled on
the report of Tehsildar, which was itself
predicated only on the revenue records and
it was admitted that the appellant was not
afforded any opportunity of being heard
before cancellation, inasmuch as the report
of the tehsildar being based on revenue
records, was presumed to be correct, the
Hon'ble Apex Court held as under:-

"4. In the course of arguments
addressed before us, the fervent submission of
counsel of the Appellant that she was not
afforded any opportunity of being heard has not
been controverted, inasmuch as it has been
contended that the Report of the Tehsildar was
based on revenue records, which, therefore,
was presumed to be correct. The High Court
has acted upon this one sided or unilateral
Report of the Tehsildar in arriving at the
conclusion that the Appellant indeed had an
income in excess of Rupees twelve thousand per
annum and, accordingly, was ineligible for
appointment as an Anganwadi Worker.

5. Trite though it is, we may yet
again reiterate that the principle of audi
alteram partem admits of no exception, and
demands to be adhered to in all circumstances.
In other words, before arriving at any decision
which
has
serious
implications
and
consequences to any person, such person must
be heard in his defence. We find that the High
Court did not notice the violation and infraction
of this salutary principle of law. Accordingly,
on this short ground, the impugned Judgments
and Orders require to be set aside, and are so
done. The matter is remanded back to the
Divisional Commissioner for taking a fresh
decision after giving due notice to the Appellant
and affording her an opportunity of being
heard. The Divisional Magistrate, Kullu, shall
complete the proceedings expeditiously, and not
later than six months from the date on which a
copy of this Order is

served on him."

17. In the case of Dharampal
Satyapal Vs. Deputy Commissioner of
710 INDIAN LAW REPORTS ALLAHABAD SERIES
Central Excise and others (2015) 8 SCC
519 the Hon'ble Apex court has elaborately
discussed the rule of audi alteram partem,
its origin, scope and the consequences of its
non-observance. We consider it appropriate
to
reproduce
relevant
paragraphs
of
Dharampal's case (supra) as under:

"18.
Natural
justice
is
an
expression of English Common Law.
Natural justice is not a single theory-it is a
family of views. In one sense administering
justice itself is treated as natural virtue
and, therefore, a part of natural justice. It
is also called 'naturalist' approach to the
phrase 'natural justice' and is related to
'moral
naturalism'.
Moral
naturalism
captures the essence of commonsense
morality-that good and evil, right and
wrong, are the real features of the natural
world that human reason can comprehend.
In this sense, it may comprehend virtue
ethics and virtue jurisprudence in relation
to justice as all these are attributes of
natural justice. We are not addressing
ourselves with this connotation of natural
justice here.

19. In Common Law, the concept
and doctrine of natural justice, particularly
which is made applicable in the decision
making by judicial and quasi-judicial
bodies, has assumed different connotation.
It is developed with this fundamental in
mind that those whose duty is to decide,
must act judicially. They must deal with the
question referred both without bias and
they must given to each of the parties to
adequately present the case made. It is
perceived that the practice of aforesaid
attributes in mind only would lead to doing
justice. Since these attributes are treated as
natural or fundamental, it is known as
'natural justice'. The principles of natural
justice developed over a period of time and
which is still in vogue and valid even today
were: (i) rule against bias, i.e. nemo judex
in causa sua; and (ii) opportunity of being
heard to the concerned party, i.e. audi
alteram partem. These are known as
principles of natural justice. To these
principles a third principle is added, which
is of recent origin. It is duty to give reasons
in support of decision, namely, passing of a
'reasoned order'.

20.
Though
the
aforesaid
principles of natural justice are known to
have their origin in Common Law, even in
India the principle is prevalent from
ancient times, which was even invoked in
Kautilya's 'Arthashastra'. This Court in the
case of Mohinder Singh Gill and Anr. v.
The Chief Election Commissioner, New
Delhi
and
Ors.
MANU/SC/0209/1977MANU/SC/0209/197
7 : (1978) 1 SCC 405 : AIR 1978 SC 851
explained the Indian origin of these
principles in the following words:

Indeed, natural justice is a
pervasive facet of secular law where a
spiritual
touch
enlivens
legislation,
administration and adjudication, to make
fairness a creed of life. It has many colours
and shades, many forms and shapes and,
save where valid law excludes, it applies
when people are affected by acts of
authority. It is the bone of healthy
government, recognised from earliest times
and not a mystic testament of judge-made
law. Indeed from the legendary days of
Adam-and of Kautilya's Arthashastra-the
rule of law has had this stamp of natural
justice, which makes it social justice. We
need not go into these deeps for the present
except to indicate that the roots of natural
justice and its foliage are noble and not
new-fangled. Today its application must be
sustained by current legislation, case law
or other extant principle, not the hoary
chords
of
legend
and
history.
Our
jurisprudence
has
sanctioned
its
9 All. Smt. Kaushalya Chauabey Vs. State of U.P. & Ors.
711
prevalence even like the Anglo-American
system.

21. Aristotle, before the era of
Christ, spoke of such principles calling it
as universal law. Justinian in the fifth and
sixth Centuries A.D. called it 'jura
naturalia', i.e. natural law.

22. The principles have sound
jurisprudential basis. Since the function of
the judicial and quasi-judicial authorities is
to secure justice with fairness, these
principles provide great humanising factor
intended to invest law with fairness to
secure justice and to prevent miscarriage
of justice. The principles are extended even
to those who have to take administrative
decision and who are not necessarily
discharging
judicial
or
quasi-judicial
functions. They are a kind of code of fair
administrative procedure. In this context,
procedure is not a matter of secondary
importance as it is only by procedural
fairness shown in the decision making that
decision becomes acceptable. In its proper
sense, thus, natural justice would mean the
natural sense of what is right and wrong.

23. This aspect of procedural
fairness, namely, right to a fair hearing,
would mandate what is literally known as
'hearing the other side'. Prof. D.J.
Galligan1 attempts to provide what he calls
'a general theory of fair treatment' by
exploring what it is that legal rules
requiring procedural fairness might seek to
achieve. He underlines the importance of
arriving at correct decisions, which is not
possible without adopting the aforesaid
procedural fairness, by emphasizing that
taking
of
correct
decisions
would
demonstrate that the system is working
well. On the other hand, if mistakes are
committed leading to incorrect decisions, it
would mean that the system is not working
well and the social good is to that extent
diminished. The rule of procedure is to see
that the law is applied accurately and, as a
consequence, that the social good is
realised. For taking this view, Galligan
took support from Bentham2 , who wrote at
length about the need to follow such
principles of natural justice in civil and
criminal trials and insisted that the said
theory developed by Bentham can be
transposed to other forms of decision
making as well. This jurisprudence of
advancing social good by adhering to the
principles of natural justice and arriving at
correct decisions is explained by Galligan
in the following words:

On this approach, the value of
legal procedures is judged according to
their contribution to general social goals.
The object is to advance certain social
goals, whether through administrative
processes, or through the civil or criminal
trial. The law and its processes are simply
instruments for achieving some social good
as determined from time to time by the law
makers of the society. Each case is an
instance in achieving the general goal, and
a mistaken decision, whether to the benefit
or the detriment of a particular person, is
simply a failure to achieve the general
good in that case. At this level of
understanding, judgments of fairness have
no place, for all that matters is whether the
social good, as expressed through laws, is
effectively achieved.

Galligan also takes the idea of
fair treatment to a second level of
understanding, namely, pursuit of common
good involves the distribution of benefits
and
burdens,
advantages
and
disadvantages to individuals (or groups).
According to him, principles of justice are
the subject matter of fair treatment.

However, that aspect need not be
dilated.

24. Allan, on the other hand,
justifies
the
procedural
fairness
by
712 INDIAN LAW REPORTS ALLAHABAD SERIES
following the aforesaid principles of
natural justice as rooted in rule of law
leading to good governance. He supports
Galligan in this respect and goes to the
extent by saying that it is same as ensuring
dignity of individuals, in respect of whom
or against whom the decision is taken, in
the following words:

The
instrumental
value
of
procedures should not be underestimated;
the accurate application of authoritative
standards is, as Galligan clearly explains,
an important aspect of treating someone
with respect. But procedures also have
intrinsic value in acknowledging a person's
right to understand his treatment, and
thereby to determine his response as a
conscientious citizen, willing to make
reasonable sacrifices for the public good. If
obedience
to
law
ideally
entails
a
recognition of its morally obligatory
character,
there
must
be
suitable
opportunities to test its moral credentials.
Procedures may also be though to have
intrinsic value in so far as they constitute a
fair balance between the demands of
accuracy and other social needs: where the
moral
harm
entailed
by
erroneous
decisions is reasonably assessed and fairly
distributed, procedures express society's
commitment to equal concern and respect
for all.

It, thus, cannot be denied that
principles of natural justice are grounded
in procedural fairness which ensures taking
of correct decision and procedural fairness
is fundamentally an instrumental good, in
the sense that procedure should be
designed to ensure accurate or appropriate
outcomes. In fact, procedural fairness is
valuable in both instrumental and noninstrumental terms.

25. 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.

De Smith captures the essence
thus-"Where
a
statute
authorises
interference with properties or other rights
and is silent on the question of hearing, the
courts would apply rule of universal
application and founded on plainest
principles of natural justice".

Wade
also
emphasizes
that
principles of natural justice operate as
implied mandatory requirements, nonobservance
of
which
invalidates
the
exercise of power. In Cooper v. Sandworth
Board of Works (1863) 14 GB (NS) the
Court laid down that:

'...although there is no positive
word in the statute requiring that the party
shall be heard, yet justice of common law
would supply the omission of Legislature".
Exhaustive commentary explaining the
varied contours of this principle can be
traced to the judgment of this Court in
Managing Director, ECIL, Hyderabad and
Ors.
v.
B.
Karunakar
and
Ors.
9 All. Smt. Kaushalya Chauabey Vs. State of U.P. & Ors.
713
MANU/SC/0237/1994MANU/SC/0237/199
4 : (1993) 4 SCC 727, wherein the Court
discussed plenty of previous case law in
restating the aforesaid principle, a glimpse
whereof can be found in the following
passages:

20. The origins of the law can also
be traced to the principles of natural justice, as
developed in the following cases: In A.K.
Kraipak
v.
Union
of
India
MANU/SC/0427/1969MANU/SC/0427/1969 :
(1969) 2 SCC 262 : (1970) 1 SCR 457, it was
held that the rules of natural justice operate in
areas not covered by any law. They do not
supplant the law of the land but supplement it.
They are not embodied rules and their aim is to
secure justice or to prevent miscarriage of
justice. If that is their purpose, there is no
reason why they should not be made applicable
to administrative proceedings also especially
when it is not easy to draw the line that
demarcates administrative enquiries from
quasi-judicial ones. An unjust decision in an
administrative inquiry may have a more far
reaching effect than a decision in a quasijudicial inquiry. It was further observed that the
concept of natural justice has undergone a
great deal of change in recent years. What
particular rule of natural justice should apply to
a given case must depend to a great extent on
the facts and circumstances of that case, the
framework of the law under which the inquiry is
held and the constitution of the tribunal or the
body of persons appointed for that purpose.
Whenever a complaint is made before a Court
that some principle of natural justice has been
contravened, the Court has to decide whether
the observance of that rule was necessary for a
just decision on the facts of that case. The rule
that inquiry must be held in good faith and
without
bias
and
not
arbitrarily
or
unreasonably is now included among the
principles of natural justice.................."

27.
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's case (supra)
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 the case of Maneka Gandhi v.
Union
of
India
and
Anr.
MANU/SC/0133/1978MANU/SC/0133/197
8 : (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 and
Anr.
MANU/SC/0527/1994MANU/SC/0527/199
4 : (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 straightjacket; its rules are not embodied and they do
vary from case to case and from one factsituation 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
714 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

28. In the case of East India
Commercial Co. Ltd., Calcutta and Anr. v. The
Collector
of
Customs,
Calcutta
MANU/SC/0179/1962MANU/SC/0179/1962
:
AIR 1962 SC 1893, this Court held that whether
the statute provides for notice or not, it is
incumbent upon the quasi-judicial authority to
issue a notice to the concerned persons
disclosing the circumstances under which
proceedings are sought to be initiated against
them, failing which the conclusion would be that
principle of natural justice are violated. To the
same effect are the following judgments:

a) U.O.I. and Ors. v. Madhumilan
Syntex
Pvt.
Ltd.
and
Anr.
MANU/SC/0550/1988
MANU/SC/0550/1988 : (1988) 3 SCC 348

b) Morarji Goculdas B and W
Co. Ltd. and Anr. v. U.O.I. and Ors.

MANU/SC/1267/1995MANU/SC/1267
/1995 : (1995) Supp 3 SCC 588

c) Metal Forgings and Anr. v.
U.O.I. and Ors.

MANU/SC/1029/2002MANU/SC/1029
/2002 : (2003) 2 SCC 36

d) U.O.I. and Ors. v. Tata
Yodogawa Ltd. and Anr.

MANU/SC/0694/1988MANU/SC/0694/198
8 : 1988 (38) ELT 739 (SC) : 1988 (19) ECR 569
(SC)

29. Therefore, we are inclined to hold
that there was a requirement of issuance of
show-cause notice by the Deputy Commissioner
before passing the order of recovery, irrespective
of the fact whether Section 11A of the Act is
attracted in the instant case or not."

18. In the case of Union of India
(UOI) Vs. Hanil Era Textiles Ltd (2018)
13 SCC 219 wherein the Development
Commissioner had passed order in review
but without issuing any show cause notice
to the assessee affected by the order of
review, the Hon'ble Apex Court held as
under:

"9. In the instant case, it is not in
dispute nor it can be disputed by the
Revenue that before passing the review
order the Development Commissioner had
not issued a show cause notice to the
Assessee(s) inter alia asking it to show
cause as to why the order passed earlier
should not be reviewed. In our view, the
omission on the part of the Development
Commissioner
would
go
to
the
fundamentals in the sense that no order
could be passed against a person without
issuing a show cause notice to him/it. This
would be in violation of the principles of
natural justice and also infringe Article 14
of the Constitution of India. Audi Alteram
Partem, as the basic principle of natural
justice ensures an opportunity of fair
hearing to the parties. Issuance of a show
cause notice is a part and parcel of the
aforesaid principle which provides that the
parties are in a position to defend
themselves adequately; after being aware
of the exactness of the allegation against
them. The concept of natural justice cannot
be put into a strait-jacket formula. The only
essential point is that in the given facts of a
case,
if
the
person
concerned
has
reasonable opportunity of presenting his
case and if the administrative authority
have
acted
fairly,
impartially
and
reasonably. In the instant case, no show
cause notice has been issued to the
Respondent before the review order was
passed by the Development Commissioner
which had put the Respondent No. 1 at a
disadvantage by not allowing them to
defend themselves. The aim of the rules of
9 All. Smt. Kaushalya Chauabey Vs. State of U.P. & Ors.
715
natural justice is to secure justice or to put
it negatively to prevent miscarriage of
justice and therefore, this doctrine is the
most paramount doctrine that goes to the
root of all laws and to the concept of
justice.
The
order
passed
by
the
Development
Commissioner
is
in
contravention to the principles of natural
justice
and
is
therefore
cannot
be
sustained. In that view of the matter, we set
aside the order passed by the Appellant No.
2, dated 4-6-2003."

19. Thus, it is consistently held, that
the principles of natural justice, including
audi alteram partem are grounded in
procedural fairness which ensures taking of
correct decision. Before taking an action
against a person, service of notice and
giving of hearing to the person concerned is
required. Even though there are no positive
words in the statute, requiring that the party
shall be heard, the principles of natural
justice are to be mandatorily applied, unless
their
applicability
is
specifically
barred/excluded.
The
opportunity
to
provide hearing before giving any decision
has been considered to be a basic
requirement in the court proceedings and
this principle has been applied to quasi
judicial proceedings before tribunals etc.
and to the administrative actions as well,
where the decision of the authority may
result in civil consequences.

20. Thus considered the order/notice
dated 13.7.2018 to the extent it cancels the
mining permit of the petitioner and imposes
liability for payment of royalty etc. cannot
be sustained having been passed in
violation of the principles of natural justice
of providing opportunity of hearing to the
petitioner. The very basis of the order of
cancellation
of
permit
was
exparte
inspection report with which the petitioner
was not confronted nor was granted any
opportunity to rebut the same or submit
explanation to the irregularities/ illegalities
mentioned in the inspection report.

21. The order/notice dated 13.7.2018 is
composite one. It cancels the mining permit
and imposes liability for payment of royalty
etc. and also directs the petitioner to submit
reply. We are of the considered view that the
order/notice dated 13.7.2018 shall be treated
only as a show cause notice to the petitioner
for (i) cancellation of petitioner's mining
permit, (ii) for determination of petitioner's
liability for payment of amount under
different heads as mentioned therein and (iii)
black listing on the grounds mentioned
therein. The cancellation of mining permit
and
direction
to
deposit
the
amount
determined in the order dated 13.7.2018 shall
be treated only as the proposed actions
against the petitioner.

22. We issue the following further
directions:

(i) The petitioner shall serve
certified copy of this judgment to the
District Magistrate Mahoba/Respondent
No.4, along with an application for
providing a copy of the inspection report of
the joint inspecting team dated 13.7.2018
upon which the same shall be provided to
the petitioner within a period of next one
week.

(ii) The petitioner shall have three
weeks thereafter to file reply/explanation to
the notice dated 13.7.2018.

(iii) The District Magistrate,
Mahoba/Respondent No.4 shall take final
decision within a period of next two weeks.

23.
The
revisional
order
dated
17.10.2018 and the demand notice dated
27.10.2018 are hereby quashed.
716 INDIAN LAW REPORTS ALLAHABAD SERIES

24. We make it clear that we have not
adjudicated the controversy on its merit
either way.

25. The writ petition is allowed in part
with the aforesaid directions. No order as to
costs.
----------
(2020)09ILR A716
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2020

BEFORE
THE HON'BLE J.J. MUNIR, J.

WRIT - C No. 38708 of 2018

M/s Super Cassettes Industries Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Diptiman Singh

Counsel for the Respondents:
C.S.C., Sri Shekhar Srivastava

Civil Law - U.P. Industrial Disputes Act (28
of 1947) - Transfer of workman outside
State - workman refused to comply with
transfer order - as transfer not part of his
service conditions - S.4K - Reference to
Labour
Court
-
regarding
validity
of
termination - Held - On reference about the
validity of the workman's dismissal - based
on a charge of disobeying transfer order -
Labour Court has jurisdiction to examine
whether the transfer order could be lawfully
made - though validity of the transfer order
not referred - validity of dismissal order
referred & validity of transfer order cannot
be
separated
-
requires
wholesome
determination - Labour Court directed to
firstly examine the validity of the transfer
order & then determine the validity of the
order of dismissal referred (Para 18)

Allowed in part. (E- 5)
List of Cases cited: -

1.
Workman
of
Bijlibari
Tea
Estate
Vs
Management of Bijlibari Tea Estate (2010) 4
Gauhati Law Reports 849

(Delivered by Hon'ble J.J. Munir, J)

1. This writ petition is directed
against an award of the Labour Court,
dated
27.07.2018
(published
on
06.09.2018) passed by the Presiding
Officer, Labour Court, NOIDA, Gautam
Budh Nagar in Adjudication Case no.33 of
2018, between Kishan Bahadur and Toni
Electronics Limited.