Remanded

Lalan Prasad v. The State Of Bihar and Ors.

Patna HC25 Jul 2012CWJC/12801/2012

Case brief

AI extract

What is this about?

Writ petition challenging termination of appointment where petitioner was absent due to non-impleadment in the Tribunal's cause title. Court held procedural vitiation warranted remand to Tribunal.

What did the court decide?

Petitioner granted liberty to file application before Tribunal within four weeks to demonstrate lack of impleadment or notice, upon which Tribunal must decide afresh after hearing.

Lalan Prasad Vs The State Of Bihar and… — Constitutional and Fundamental Rights | Patna HC (2012)

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Patna High Court CWJC No.12801 of 2012 (2) dt.25-07-2012

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12801 of 2012

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====================================================== 1. Lalan Prasad Son Of Late Sita Ram Sah Resident Of Village- Lakhaura, P.S.- Lakhaura, District- East Champaran .... .... Petitioner/s Versus 1. The State Of Bihar 2. The District Teacher Appointment Appellate Authority, Motihari, East Champaran 3. The Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna 4. The Director, Primary Education, Govt. Of Bihar, Patna 5. The Deputy Director, Primary Education, Govt. Of Bihar, Patna 6. The District Magistrate, Motihari, East Champaran 7. The District Education Officer, Motihari, East Champaran 8. The District Programme Officer (Establishment), Motihari, East Champaran 9. The Block Development Officer, Chauradano, District- East Champaran 10. The Block Education Extension Officer, Chauradano, District- East Champaran 11. The Pramukh, Chauradano Prakhand, District- East Champaran 12. Md. Adil Son Of Md. Avjar Resident Of Village- Vijai, P.S.Ghorasahan, District- East Champaran 13. The Headmaster, Up-Graded Middle School, Kataharia, BlockChhauradano, District- East Champaran .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Satyavarat Verma For the Respondent/s : Mr. S.A. Alam SC-3 Mr. Gautam Kumar Yadav. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER 2 25-07-2012 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by order dated 06.06.2012 passed by the District Teachers Appointment Appellate Tribunal, East Champaran at Motihari, in Case No. 793 of 2011. It terminates his appointment in favour of respondent no.

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Patna High Court CWJC No.12801 of 2012 (2) dt.25-07-2012

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Learned counsel for the petitioner submits that the cause title of the order of the Tribunal adequately reflects that he was not one of the 24 respondents. The question of any notice being issued to him for defending his appointment therefore did not arise. Without prejudice to the same, it is next submitted that even if notices were issued to him as mentioned in the order of the Tribunal, there is no finding that notice had been validly served notwithstanding which the petitioner took the risk of not appearing. The mode by which the notice was sent also not been noticed in the order. Learned counsel for the petitioner further assailed the order on merits also contending that his B.Ed. training qualification was genuine and not from a fake unrecognized Institution, relying on an order dated 18.04.2011 passed by the District Teachers Appointment Appellate Tribunal, Sasaram, in Case No. 134 of 2011, dated 07.06.2011 in Case No. 141 of 2011 and dated 20.09.2011 in Case No. 94 of 2011.

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Counsel for the State opposed the application urging that if the petitioner did not appear despite valid service of notice, he did so at his own risk and the Court may not entertain the writ application at the behest of a person who voluntarily chose not to defend himself before the Tribunal. If the Tribunal

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Patna High Court CWJC No.12801 of 2012 (2) dt.25-07-2012

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has arrived at a finding of fact to its satisfaction that the institution from where the petitioner obtained his training qualification was fake notified by the respondents, the Court may not interfere with the order.

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The jurisdiction for judicial review under Article 226 of the Constitution of India over the order of the Tribunal is primarily concerned with errors in the decision making process. If the order of the Tribunal is vitiated on that ground alone, no further prejudice need be shown and the question of examining the order on merits does not arise. The name of the petitioner does not find place in the list of 24 respondents named in the cause title of the order. Prima facie, it leaves the Court satisfied that he had not been impleaded as a party respondent. If that be so, the question for issuance of notice to him did not arise. If notice came to be issued without impleading him as a party respondent, he was under no compulsion or obligation to appear. There had to be a finding in the order both with regard to the mode by which notice was issued and satisfaction for valid service. If the notice was sent by registered post, there may be a presumption but which is rebuttable and not absolute. If the notice was sent by UPC, there is no presumption of delivery even and the order required a specific finding for the satisfaction of the Tribunal with regard to delivery.

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Patna High Court CWJC No.12801 of 2012 (2) dt.25-07-2012

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In view of the aforesaid infirmity in the decision making process, vitiating the impugned order the stage to examine the merits of the controversy has not arisen. The question is not with regard to the correctness of the contention and counter contentions for the validity of the institution and whether the defence taken by the petitioner is acceptable or non-acceptable. The primary question is with regard to the manner in which the decision has arrived at without an opportunity of defence. The conclusion is not relevant at this stage.

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In (1964) 4 SCR 540 (State of Mysore v. K. Manche Gowda) at paragraph-7 it was observed:-

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``7. …… The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of “presumptive knowledge” or that of “purposeless enquiry”, as their acceptance will be subversive of the principle of “reasonable opportunity….” The Court is satisfied on the facts of the case that

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there has been an inherent flaw for the manner in which the Tribunal has exercised jurisdiction to the prejudice of a person in conduct of the proceedings. It was an act of the Court by reason of which the petitioner has been prejudiced. The present is not a case of error in exercise of jurisdiction by overlooking facts/materials

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Patna High Court CWJC No.12801 of 2012 (2) dt.25-07-2012

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or misinterpretation of the same. The very manner for exercise of jurisdiction is itself vitiated attributable exclusively to the Tribunal itself. Where the defect in procedure is attributable to the Tribunal itself, the inherent power of the Tribunal permits it, on its attention being drawn to the same to rectify the error that may have been committed by it in procedure. This power is completely separate and distinct from the power of the Tribunal in Review required to be specifically conferred.

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In 1980 Supp SCC 420 (Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal) the distinction between such inherent power and Review was explained at paragraph-13 as follows:-

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`` 13 …. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in Section 11. The answer to the question is, therefore, to be found in Sub-section (1) of Section 11 and not in Sub-section (3) of Section 11. Furthermore, different considerations arise on review. The expression “review” is used in the two distinct senses, namely (1 ) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when

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Patna High Court CWJC No.12801 of 2012 (2) dt.25-07-2012

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the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.”

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In (1990) 4 SCC 453 ( Union of India & Anr. v. Paras Laminates (P) Ltd ), the inherent and ancillary powers of a Tribunal was noticed at paragraph-8 as follows :-

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`` 8. There is no doubt that the tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognized as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but

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Patna High Court CWJC No.12801 of 2012 (2) dt.25-07-2012

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within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. As stated in Maxwell on Interpretation of Statutes (11^th edn.) “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.”

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In (1996) 6 SCC 92 (J.K. Synthetics Ltd. v. CCE, ) at

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paragraph- 6 it was observed :-

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``6. If, in a given case, it is established that the respondent was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do so on the ground of lack of power would be manifest injustice. Quite apart from the inherent power that every tribunal and court constituted to do justice has in his respect…”

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In (1999) 4 SCC 396 (Budhia Swain v. Gopinath Deb) the inherent jurisdiction of a Tribunal was again noticed at paragraph-8 holding :-

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In our opinion a tribunal or a court may recall an order earlier made by it if

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(i) the proceedings culminating into an order suffer from

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Patna High Court CWJC No.12801 of 2012 (2) dt.25-07-2012

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the inherent lack of jurisdiction and such lack of

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jurisdiction is patent,

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(ii) there exists fraud or collusion in obtaining the

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judgment,

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(iii) there has been a mistake of the court prejudicing a

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party, or

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(iv ) a judgment was rendered in ignorance of the fact that

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a necessary party had not been served at all or had

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died and the estate was not represented….”

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The manner in which the Tribunal has erred by improper exercise of jurisdiction, necessary requires a remand to it. To keep the matter pending, awaiting service on Respondent 12, and then pass orders for remand will be prolonging the proceedings unnecessarily.

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Liberty is granted to the petitioner to file an application before the Tribunal itself within a maximum period of four weeks from today. If he does so and places materials before the Tribunal that he was not impleaded as a party respondent in the Appeal and/or that no notice had been received by him much less any service report received before the Tribunal, the Tribunal in light of the aforesaid discussion, if satisfied, shall possess the inherent power to decide the matter afresh between the petitioner and respondent no. 12 in accordance with law after hearing all

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Patna High Court CWJC No.12801 of 2012 (2) dt.25-07-2012

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concerned. In that event, the Court expects the Tribunal to decide the matter within a maximum period of two months from the date that it arrives at the satisfaction for a fresh hearing. If the Tribunal is satisfied that on facts there was no occasion to exercise its inherent powers that shall be the jurisdiction of the Tribunal by a reasoned order.

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If the petitioner makes an application for interim relief pending his request for exercise of inherent powers by the Tribunal, it is expected to be considered and disposed expeditiously without awaiting final decision on merits.

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The application stands disposed.

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(Navin Sinha, J.)

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Md. Ibrarul/-

Lalan Prasad v. The State Of Bihar and Ors.

Case brief

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Lalan Prasad v. The State Of Bihar and Ors.

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