The High Court of Madhya Pradesh in Dr KS Dubey vs State set aside an administrative order cancelling the appointment of the petitioner as Chairperson of the Child Welfare Committee, Bhopal, holding that termination under Juvenile Justice Act Section 29 requires strict adherence to the principles of natural justice inquiry. Delivering the judgment in Writ Petition No. 600/2016 on November 25, 2016, Justice Sujoy Paul ruled that any statutory removal under Section 29(4) for alleged misuse of power demands a specific show-cause notice and a fair opportunity of hearing, directing the state authorities to conduct a time-bound inquiry within forty-five days.
Judicial Roster and Case Particulars
HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT JABALPUR
Present: Justice Sujoy Paul
Date of Decision: 25/11/2016
Writ Petition No. 600/2016
Dr. K.S. Dubey Vs. State of M.P. and others
Shri Mahendra Pateriya, learned counsel for the petitioner.
Shri Pushpendra Yadav, learned Govt. Advocate for the respondents/State.
Operative Order and Background Facts
1. This Madhya Pradesh High Court writ petition, filed under Article 226 of the Constitution of India, takes exception to the order dated 28.12.2015 (Annexure-P/8), whereby the respondents have cancelled the appointment of the petitioner as Chairperson of Child Welfare Committee, Bhopal.
2. The admitted facts between the parties are that the petitioner was appointed as Child Welfare Committee chairperson, Bhopal constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act'). The petitioner was appointed by Gazette Notification published on 21.02.2014 (Annexure-P/1). The counsel for the petitioner assailed the order dated 28.12.2015 (Annexure-P/8) by contending that the appointment of the petitioner is cancelled without giving any opportunity of hearing and without conducting any inquiry. By taking this Court to Section 29(4) of the Act, it is submitted that the appointment of a member or chairperson can be terminated only when an inquiry is conducted and it is found that the member or chairperson has been found guilty of misuse of power vested under the Act or has been convicted of an offence involving moral turpitude or fails to attend proceedings of the Committee for consecutive three months without any valid reason in writing or fails to attend minimum three-fourth sittings in a year. It is contended that no such inquiry has been conducted. The petitioner has not committed any misconduct or misuse of power. In absence of any such inquiry, the impugned order could not have been passed. In support of this contention, he relied on an interim order passed by this Court in W.P. No. 4935/2016 (Sunil Kumar Sharma v. State of M.P.).
Submissions on Behalf of the State
3.Per contra, Shri Pushpendra Yadav, learned Government Advocate for the respondents/State supported the impugned order. He contends that Section 29(4) of the Act does not prescribe any particular mode or method of inquiry. The Collector conducted an inquiry in which the petitioner was found guilty of misconduct and misuse of authority. It is submitted that in a preliminary inquiry, it was found that the petitioner misbehaved with the District Programme Officer, Woman and Child Development Department, Bhopal. The petitioner has filed certain private complaints against said Officer which shows that there was lack of coordination between the petitioner and the department. In addition, it is contended that the petitioner was demanding a government vehicle for his personal work and was misusing his authority.
4. Shri Pushpendra Yadav, learned Government Advocate further submitted that the tenure of appointment of the petitioner is three years. His appointment was contractual in nature and therefore, no regular departmental inquiry was required to be conducted against him. Lastly, it is submitted that looking to the nature of appointment and allegations against the petitioner, the respondents have rightly terminated his appointment.
5. No other point is pressed by the learned counsel for the parties.
Core Legal Question Before the High Court
6. I have heard learned counsel for the parties at length and perused the record.
7. In view of the stand taken by the parties, the core question is whether the termination of committee chairperson could have been ordered without affording an opportunity of hearing and without conducting an inquiry as per Section 29(4) of the Act. The collateral question is whether the nature of inquiry conducted by the Collector meets the requirement of principles of natural justice and the statutory mandate of Section 29(4) of the Act.
Evolution of Natural Justice and Duty to Act Judicially
8. In the foundational English case of Ridge v. Baldwin, 1964 AC 40, it was held that the duty to act judicially may arise from the very nature of the power exercised by an authority. This principle has been consistently followed and expanded by the Supreme Court of India in Maneka Gandhi v. Union of India, (1978) 1 SCC 248. A Division Bench of this Court in Sukhlal Sen v. Collector, District Satna and others, 1969 MPLJ 519, opined that the nature of duty to determine whether a licensee has committed a breach of conditions of licence is quasi-judicial in nature. The Division Bench observed:
'5. Ridge vs. Baldwin establishes that judicial character of a duty may arise from the very nature of the power. It is not necessary that there must be something in the statute which should require the authority to act judicially. When the power is to determine questions affecting the rights of subjects, there is a duty to act judicially. The question whether an authority is required to act judicially or not has to be decided on the basis of the power conferred, the nature of the right affected, and the consequences of the decision.'
The Court further observed in paragraph 8 of the same judgment:
'8. Cancellation of a licence is a serious matter as it deprives the licensee of his right to carry on business. A power to cancel a licence must, therefore, be exercised reasonably and fairly. The authority must give the licensee an opportunity to show cause against the proposed cancellation. An order passed in violation of this fundamental principle of natural justice cannot be sustained.'
9. It is also apt to mention that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. In the celebrated judgment of A.K. Kraipak v. Union of India, AIR 1970 SC 150, the Apex Court opined as under:
'13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours which is regulated and controlled by the rule of law it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.'
10. In the same judgment, the Court observed that the horizon of natural justice is constantly expanding. In Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405, the Apex Court opined as under in paragraphs 53 and 55:
'53. Today, in our jurisprudence, the advances made by natural justice and its extensions are so substantial and the exceptions so narrow that the rule of audi alteram partem has become an integral part of our administrative law. The dichotomy between administrative and quasi-judicial functions is disappearing. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it.'
'55. Fair play in action is the soul of natural justice. It is a fundamental principle of our constitutional jurisprudence that no man shall be condemned unheard. The rule applies to administrative proceedings which involve civil consequences.'
11. In Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664, the Apex Court opined as under:
'44. This rule of fair play must not be jettisoned unless the statute expressly or by necessary implication excludes it. The rule of natural justice is not a rigid or inflexible rule. Its application depends upon the facts and circumstances of each case, the framework of the statute under which the action is taken, and the nature of the rights affected. The phrase civil consequences encompasses infractions 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 and status.'
12. The Constitution Bench in Maneka Gandhi (supra) held:
'12. The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable. Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.'
13. In Mohinder Singh Gill (supra), the Apex Court further observed in paragraph 44:
'44. The dichotomy between administrative and quasi-judicial functions does not eliminate the rule of fair play in action. If civil consequences ensue, the authority must act fairly and impartially. It is an unwritten rule of administrative law that an order casting a stigma on an individual cannot be passed without hearing him.'
14. In S.L. Kapoor vs. Jagmohan, (1980) 4 SCC 379, the Apex Court opined as under:
'7. The old distinction between a judicial act and an administrative act has withered away and we have been liberated from the bondage of the old phraseology. The modern concept of natural justice embraces all proceedings involving civil consequences. An order of cancellation or super-session visited with civil consequences must satisfy the test of audi alteram partem. It is not necessary that the statute should specify the requirement of giving a notice; the rule is implied in the absence of an express statutory exclusion.'
15. On the basis of the development of law and its interpretation, the Supreme Court in Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321, held:
'10. Even if a statute is silent and there are no positive words in the statute requiring that the party shall be heard, the court will imply that the legislature intended to adhere to the principles of natural justice, unless there is an express provision excluding it. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. They are principles ingrained into the conscience of man. The adherence to principles of natural justice as recognized by all civilized states is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action which involves civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should 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 such reasonable opportunity, the order passed becomes wholly unsustainable in law.'
16. The legal position stated above makes it clear that even when an administrative order entails civil consequences or attaches a stigma to a public functionary, the authority must adhere to procedural fairness. The concepts of natural justice apply with equal force to statutory tribunals and administrative bodies exercising disciplinary or removal functions, much like procedural rights analyzed in International Confederation of Societies of Authors and Composers (CISAC) Vs. Aditya Pandey [Supreme Court of India, 202016] or foundational criminal procedural safeguards outlined in Class Notes on Criminal Law 1 - Unit III (1st Sem / 3 year LL.B).
Statutory Mandate of Section 29(4) of the Juvenile Justice Act
17. This is settled in law that principles of natural justice are implicit in every statutory power unless expressly excluded by the Legislature. In Dr. Umrao Singh Chaudhary vs. State of M.P. & Another, (1994) 4 SCC 328, the Supreme Court considered the removal of a Vice-Chancellor and held that where an order cast stigma, holding an inquiry was mandatory. In Mohinder Singh Gill (supra), it is held by the Supreme Court that when a statutory power is exercised causing adverse civil consequences, the requirement of giving an opportunity of hearing is implicit.
18. As per the aforesaid analysis, it is clear that the respondents were obliged to conduct an inquiry before passing an order of termination under Section 29(4) of the Act. Section 29 of the Act reads as under:
'29. Child Welfare Committee.- (1) The State Government may, by notification in Official Gazette, constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the duties conferred on such Committee in relation to child in need of care and protection under this Act.
(2) The Committee shall consist of a Chairperson and four other members as the State Government may think fit to appoint, of whom at least one shall be a woman and another, an expert on matters concerning children.
(3) The qualifications of the Chairperson and the members, and the tenure for which they may be appointed shall be such as may be prescribed.
(4) The appointment of any member of the Committee may be terminated, after holding an inquiry, by the State Government, if-
(i) he has been found guilty of misuse of power vested under this Act;
(ii) he has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;
(iii) he fails to attend the proceedings of the Committee for consecutive three months without any valid reason in writing or he fails to attend the minimum three-fourth sittings in a year.'
19. The appointment of a Chairperson or Member of the Committee can be terminated only when the statutory ingredients specified in Section 29(4) of the Act are established after holding a proper inquiry:
- (i) Misuse of Power: He has been found guilty of misuse of power vested under this Act;
- (ii) Moral Turpitude: He has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;
- (iii) Absenteeism: He fails to attend the proceedings of the Committee for consecutive three months without any valid reason in writing or he fails to attend the minimum three-fourth sittings in a year.
Doctrine of Prescribed Procedure and Illegality in Decision-Making
20. This is settled in law that if a Statute requires a particular thing to be done in a particular manner, it must be done in that manner alone or not at all. Other methods of performance are necessarily forbidden. This classic rule laid down in Taylor v. Taylor, (1875) 1 Ch. D. 426 has been repeatedly approved and adopted by the Supreme Court of India in Shri Baru Ram v. Smt. Prasanni and others, AIR 1959 SC 93, Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, (2002) 1 SCC 533, and by this Court in Satyanjay Tripathi and another v. Banarsi Devi, 2011 (2) MPLJ 690. Where an Act provides that a termination can take place only after holding an inquiry on specified grounds, the executive cannot dispense with that inquiry or substitute it with an ex-parte preliminary report prepared behind the back of the affected person. The statutory power must be exercised strictly in conformity with the legislative command.
21. The aforesaid factual matrix makes it clear that the respondents have not passed the impugned order by following the principles of natural justice. This is not the case of the respondents that the petitioner has been convicted for any offence involving moral turpitude. Similarly, it is not the allegation against the petitioner that he failed to attend the proceedings of the Committee for three consecutive months. Whether or not he is guilty of misuse of power or any other charge, requires holding of an inquiry where he should be given due opportunity to meet the allegations, inspect relevant material, and present his defense. Since the decision-making process for terminating the appointment of the petitioner is polluted, the order dated 28.12.2015 is set aside.
The judicial analysis in this matter reinforces that procedural fairness is an indispensable prerequisite whenever statutory functionaries are subjected to punitive or stigmatic termination. Administrative authorities exercising statutory powers under special enactments must recognize that preliminary vigilance or administrative reports cannot be equated with the statutory inquiry mandated by the legislature. An affected office holder must be supplied with the adverse material, given specific charges, and afforded an adequate opportunity to submit a defense before any final adverse order is formulated.
In service and administrative jurisprudence, adherence to natural justice is not a mere technicality, but a constitutional imperative flowing directly from Article 14 of the Constitution. Where an appointment is terminated on grounds of alleged misuse of office, the stigma attached inevitably impairs the professional standing and personal reputation of the individual. Consequently, courts exercising writ jurisdiction under Article 226 will readily intervene to strike down arbitrary removals effected in breach of statutory procedures and fair hearing guarantees.
Directions and Disposal of Writ Petition
22. However, in the peculiar facts and circumstances of this case and considering the sensitive nature of the assignment of the petitioner, it is directed that the respondents shall issue a specific show-cause notice containing precise allegations and provide a reasonable opportunity of hearing to the petitioner and then take an appropriate decision in consonance with Section 29(4) of the Act within forty-five days from the date of communication of this order. During these forty-five days and till a fresh decision is taken, the petitioner shall not be permitted to perform the duties of Chairperson, Child Welfare Committee, Bhopal. The completion of the aforesaid exercise within the period of forty-five days will depend upon the cooperation of the petitioner in the inquiry.
23. The petition is allowed to the extent indicated hereinabove. There shall be no order as to costs.