Dismissed

Krishna Nand Rai v. State of U P and 2 Others

Allahabad HC29 Sept 2020WRIC/13427/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the cancellation of a petitioner's certificate as a dependent of freedom fighter. The court held that despite the lack of notice, no prejudice was caused as the petitioner was ineligible under the law, applying the useless formality doctrine.

What did the court decide?

The instant petition stands dismissed with liberty to claim benefits under the Dattu Namdev Thakur judgment if employment action is taken.

Krishna Nand Rai Vs State of U P and 2… — Pension and Retirement Benefits | Allahabad HC (2020)

AFR

Court No. - 35

Case :- WRIT - C No. - 13427 of 2020

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Petitioner :- Krishna Nand Rai Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Syed Wajid Ali, Rachna Vyas Counsel for Respondent :- C.S.C.

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Hon'ble Manoj Kumar Gupta,J. Hon'ble Dr. Yogendra Kumar Srivastava,J.

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The instant petition has been filed challenging the order dated 24.6.2020, passed by District Magistrate, Gorakhpur (respondent no. 2 herein), whereby the petitioner's certificate of being a dependent of freedom fighter dated 6.9.2001 has been cancelled. The order records that the petitioner is great grandson of late Ram Chandra Rai, who was a freedom fighter. The benefit of being dependent of freedom fighter is available only to descendants upto the stage of grandson and not beyond it, i.e. a great grandson or descendants lower in line would not come within the definition of 'dependent of freedom fighter'.

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The sole contention of learned counsel for the petitioner is that the impugned order has been passed without any notice or opportunity of hearing to the petitioner.

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On query made by the Court as to how the petitioner would come within the definition of 'dependent of freedom fighter', Sri Syed Wajid Ali, learned counsel for the petitioner very fairly admitted that the petitioner would be beyond the sweep of the definition of dependent of freedom fighter as defined in Government Orders issued in this regard.

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He only reiterated his contention that since the impugned order has been passed without notice to the petitioner, therefore it is illegal.

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Learned counsel for the petitioner has placed reliance upon judgments of the Supreme Court in Dattu Namdev Thakur vs. State of Maharashtra and Others, 2012 AIR SCW 203 ; Uma Nath Pandey and Others vs. State of U.P. and Another, 2009 AIR SCW 3200 and Asit Kumar Kar vs. State of West Bengal and others, 2009 (2) AWC 1628 in submitting that the impugned order, being in violation of principles of natural justice, is liable to be quashed.

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In Asit Kumar Kar (supra), the Supreme Court re-emphasised that an order having adverse consequences should not be passed without hearing the person affected thereby. Reliance was placed on the Seven Judge Constitution Bench judgement in A.R. Antuley vs. R.S. Nayak and another, 1988 (2) SCC 602, where in paragraph 55, the Supreme Court observed as follows :-

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“so also the violation of the principles of natural justice renders the act a nullity”.

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The next judgement of the Supreme Court in Uma Nath Pandey (supra), while considering the principles of natural justice also took note of the 'useless formality' theory. The observations made in earlier judgement in M.C. Mehta vs. Union of India and others, 1999 (6) SCC 237 were alluded to. The 'useless formality' theory stipulates that in cases where despite non-observance of the principles of natural justice, the ultimate result is bound to remain the same; where there is no other

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view possible even if opportunity of hearing is afforded to the aggrieved parties, then such are the cases where impugned action cannot be struck down on ground of violation of principles of natural justice nor are such cases required to be remitted back to the authorities for a fresh decision after giving show cause notice or opportunity of hearing, as it will be an empty formality, a mere ritual. After taking notice of the said doctrine, it was observed as follows :-

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“Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed.”

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The Apex Court in its judgment in the case of Haryana Financial

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Corporation and another vs. Kailash Chandra Ahuja reported in (2008) 9 SCC 3 1 has considered in great detail the consequence of nonobservance of principles of natural justice. The Apex Court has held that the recent trend of judgments is that unless prejudice is shown, the impugned order or action cannot be struck down. It has been observed as under:-

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"The recent trend, however, is of "prejudice". Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.

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In Malloch Vs. Abendeen Corpn., Lord Reid said : (All ER p. 1283a-b)

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"....it was argued to have afforded a hearing to the applicant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer".

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(emphasis supplied)

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Lord Guest agreed with the above statement, went further and stated: (All ER p.1291b-c)

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"...A great many arguments might have been put forward but if none of them had any chance of success then I can see no good reason why the respondents should have given the appellant a hearing, nor can I see that he was prejudiced in any way".

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In Aligarh Muslim University vs. Mansoor Ali Khan, (2000) 7

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SCC 529 , the Court held that though the rules of natural justice have been violated but the order impugned cannot be set aside as no prejudice has been caused. Referring to several cases, and after considering the theory of "useless" or "empty formality" and noting "admitted or undisputed" facts, the Court held that the only conclusion which could be drawn was that "had the petitioner been given notice", it "would not have made any difference" and, hence, no prejudice has been caused.

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In the instant case as well, no purpose will be served in remitting the matter back to the authority for decision afresh after providing opportunity of hearing to the petitioner, in as much as the defect is incurable; no amount of explanation can change the ultimate result, being a fait accompli . For the petitioner can by no means negate the admitted fact that being great grand son of a 'freedom fighter', he is beyond the purview of the definition of 'dependent of freedom fighter'.

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Consequently, even if opportunity of hearing would have been given to the petitioner, it would not have improved the situation, a fact clearly admitted by learned counsel for the petitioner.

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Coming to the next judgement cited by learned counsel for the petitioner in Dattu Namdev Thakur (supra), it is pertinent to note that in the said case, the Supreme Court did not interfere with the findings of the High Court upholding order of the Caste Scrutiny Committee cancelling the caste certificate of the petitioners. However, while dismissing the Special Leave Petition, the Supreme Court issued certain directions to safeguard the interest of the petitioners before it by observing thus :-

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“9. Accordingly, while dismissing all the three Special Leave Petitions, we direct that whatever advantage the three petitioners in the three Special Leave Petitions, may have derived on the basis of their 'Caste Certificates', shall not be disturbed and the cancellation of their respective 'Caste Certificates' will not deprive them of the benefits which they have already enjoyed. However, we also make it clear that none of the three petitioners in the three respective Special Leave Petitions, will be entitled to take any further advantage of reservation in future, either for studies or for employment. Following the judgment in Swati's case, we also direct that if the petitioners in the 2nd and 3rd Special Leave Petitions, have obtained any concession by way of reduction in fees, as a reserved candidate, they will have to make good the same by paying the difference in fees that is being paid by general candidates. Such payment has to be made within a period of six months and in default of such payment, this order will cease to have any effect.”

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The petitioner, it seems, is working as Assistant Teacher in a Primary School run by Basic Shiksha Parishad. If any action is taken by the employer on the ground of cancellation of the certificate of 'dependent of freedom fighter', it would always be open to the petitioner

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to press for extending the benefit of the judgement of the Supreme Court in Dattu Namdev Thakur being given to him. Since at this stage, the only order challenged before us is that of cancellation of the certificate, therefore, with the above liberty reserved in favour of the petitioner, the instant petition stands dismissed.

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Order Date :- 29.9.2020 Jaideep/-

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(Dr. Y.K.Srivastava,J.) (Manoj Kumar Gupta,J.)

Krishna Nand Rai v. State of U P and 2 Others

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Krishna Nand Rai v. State of U P and 2 Others

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