1. These batch of petitions were analogously heard on the joint request of learned counsel for the parties. The facts are taken from W.P.No.17678/2015. Learned counsel for the parties contended that in all connected matters, similar question of facts and law are involved.
2. The challenge in these petitions is made to the order dated 5.10.2015 whereby the appointment order of the petitioner was cancelled. The petitioner was appointed by order dated 19.8.2013 (Annexure P/4). Thereafter, a showcause notice dated 16.6.2015 (Annexure P/7) was issued. The petitioner filed her reply. Thereafter by impugned order, petitioner''s appointment order dated 19.8.2013 was cancelled.
3. Criticizing the said order, learned counsel for the petitioners contended that the earlier order dated 19.8.13 was issued in accordance with law. There was no misrepresentation of fact by the petitioners. In the show-cause notice Annexure P/7, no reasons are assigned as to why the said order was found to be illegal or unjustifiable. The show-cause notice cannot be said to be in consonance with the principles of natural justice. It is submitted that the impugned order is passed without assigning any reason about reply of petitioners and, therefore, the said order is bad in law.
4. Prayer is opposed by Shri Pushpendra Yadav, GA for the respondents/State. He submits that there is no flaw in the decision making process adopted by the respondents. The petitioners were put to notice and their reply were obtained. This shows that principles of natural justice were followed by the respondents. Since there were serious irregularities in appointing/ regularizing the petitioners, the petitioners appointment orders were rightly cancelled.
5. No other point is pressed by learned counsel for the parties.
6. I have heard learned counsel for the parties at length and perused the record.
7. Before dealing with the rival contentions, it is apposite to reproduce the averments of the showcause notice dated 16.6.2015 (Annexure P/7). It reads as under :-
"VERNACULR MATTER OMITTED"
8. A plain reading of the show-cause notice shows
that no allegations are mentioned against the
petitioners. The entire burden was shifted on the
shoulders of the petitioners to show correctness
of process of issuance of appointment/
regularization order.
9. In the opinion of this court, the very purpose of issuance of show-cause notice is to ensure that the other side comes to know about the specific allegations levelled against her/ him. Thus, in the show-cause notice, the nature of irregularity/ illegality, must be disclosed with accuracy and precision. In the case of Canara Bank Vs. Debasis Das, (2003) 4 SCC 557 , it was held as under:
".........Notice
is the first limb
in this principle.
It must be
precise and
unambiguous. It
should apprise
the party
determinatively
of the case he
has to meet
Time given for
the purpose
should be
adequate so as
to enable him to
makehis
representation.
In the absence
of a notice of
this kind and
such reasonable
opportunity, the
order passed
becomes wholly
vitiated.........â
(Emphasis
supplied)
10. Similarly
in the case
of Rajesh
Kumar Vs.
CIT, (2007)
2 SCC 181,
the Apex
Court opined
as under:
"5 5 .
Justice, as is
well known,
is not only to
be done but
manifestly
seem to be
done. If the
assessee is
putto notice, he
could show
that the
nature of
accounts is
not such
which would
require
appointment
of special
auditors. He
could
further show
that what
the
assessing
officer
considers to
be complex
is in fact not
so . It was
also open to
him to show
that the
same would
not be in the
interest of
t h e
Revenue.
56. In this
case itself
the
appellants
were not
made known
as to what
led the
Deputy
Commission
er to form
an opinion
that all
relevant
factors
including
the ones
mentioned
in Section
142(2-A) of
the Act are
satisfied. If
even one of
the mwas
not satisfied,
no order
could be
passed. If
the attention
o f t h e
Commissioner could be
drawn to the
fact that the
underlined
purpose for
appoin tment
for
appointment
of the
special
auditor is
not bonafide he
might not
have
approved
the
same.
(Emphasis
supplied)
11 . In the case of
Gorkha
Security
Services
Vs. Govt.
(NCT of
Delhi),
(2014) 9
SCC 105,
the Apex
Court laid
down the
law that ;
"21. The central issue,
however, pertains to the
requirement of stating the
action which is proposed to be
taken. The fundamental purpose
behind the serving of showcause
notice is to make the
noticee understand the precise
case set up against him which
he has to meet. This would
require the statement of
imputations detailing out the
alleged breaches and defaults
he has committed, so that he
gets an opportunity to rebut the
same............
(Emphasis supplied)
12. In view of aforesaid legal position, I find
substance in the arguments of learned counsel
for the petitioners that the show-cause notice
issued by the respondents were not in
consonance with the principles of natural justice.
The entire burden to prove the validity of
regularization order/ appointment order was
shifted on the petitioners whereas if department
was not satisfied or was of the opinion that such
orders were suffering from any infirmity/
illegality, the department should have issued
specific show-cause notice by mentioning the
nature of irregularity/ illegality in the matter of
issuance of appointment/ regularization order.
The respondents have not undertaken the said
exercise and, therefore, I have no scintilla of
doubt that the said show-cause notice is against
the principles of natural justice. In the impugned
order dated 5.10.2015, the decision was taken on
the basis of aforesaid cryptic show-cause notice.
In the impugned order, no reasons are assigned
as to why defence taken by the petitioners were
not found to be trustworthy. The conclusion is
drawn by holding that the reply received are not
satisfactory. The reasons are held to be the heart
beat of conclusions. In absence of reasons,
conclusion cannot sustain judicial scrutiny. In
M/s Kranti Associates Pvt. Ltd. and another
vs. Masood Ahmed Khan and others-(2010) 9
SCC 497, the Supreme Court emphasized the
need of assigning reasons in administrative,
quasi judicial and judicial proceedings. The
relevant portion reads as under:
51. Summarizing the above discussion, this
Court holds:
a. In India the judicial trend has always
been torecordreasons , evenin
administrative decisions, if such decisions
affect anyone prejudicially.
b. A quasi-judicial authority must record
reasons in support of its conclusions.
c. Insistence on recording of reasons is
meant to serve the wider principle of justice
that justice must not only be done it must
also appear to be done as well.
d. Recording of reasons also operates as a
valid restraint on any possible arbitrary
exercise of judicial and quasi-judicial or even
administrative power.
e. Reasons reassure that discretion has
been exercised by the decision maker on
relevant grounds and by disregarding
extraneous considerations.
f. Reasons have virtually become as
indispensable a component of a decision
making process as observing principles of
natural justice by judicial, quasi-judicial and
even by administrative bodies.
g. Reasons facilitate the process of judicial
review by superior Courts.
h. The ongoing judicial trend in all
countries committed to rule of law and
constitutional governance is in favour of
reasoned decisions based on relevant facts.
This is virtually the life blood of judicial
decision making justifying the principle that
reason is the soul of justice.
i. Judicial or even quasi-judicial opinions
these days can be as different as the judges
and authorities who deliver them. All these
decisions serve one common purpose which
is to demonstrate by reason that the
relevant factors have been objectively
considered. This is important for sustaining
the litigants'' faith in the justice delivery
system.
j. Insistence on reason is a requirement for
both judicial accountability and
transparency. k. If a Judge or a quasijudicial
authority is not candid enough
about his/her decision making process then
M/S Kranti Asso. Pvt. Ltd. & Anr vs Masood
Ahmed Khan & Ors on 8 September, 2010 it
is impossible to know whether the person
deciding is faithful to the doctrine of
precedent or toprinciples of
incrementalism. l. Reasons in support of
decisions must be cogent, clear and
succinct. A pretence of reasons or `rubberstamp
reasons'' is not to be equated with a
valid decision making process.
m. It cannot be doubted that transparency
is the sine qua non of restraint on abuse of
judicial powers. Transparency in decision
making not only makes the judges and
decision makers less prone to errors but
also makes them subject to broader
scrutiny. (See David Shapiro in Defence of
Judicial Candor (1987) 100 Harward Law
Review 731-737). n. Since the requirement
to record reasons emanates from the broad
doctrine of fairness in decision making, the
said requirement is now virtually a
component of human rights and was
consideredpart of Strasbourg
Jurisprudence. See (1994) 19 EHRR 553, at
562 para 29 and Anya vs. University of
Oxford, 2001 EWCA Civ 405, wherein the
Court referred to Article 6 of European
Convention of Human Rights which
requires, "adequate and intelligent reasons
must be given for judicial decisions".
o. In all common law jurisdictions judgments
play a vital role in setting up precedents for
the future. Therefore, for development of
law, requirement of giving reasons for the
decision is of the essence and is virtually a
part of "Due Process".
13. If the impugned orders are tested on the anvil
of principles of natural justice, it will be clear that
neither the show-cause notice nor the final order
cancelling the appointment/ regularization, are
passed by following the principles of natural
justice. Apart from this, impugned order of
termination shows that it is based on various
reasons which were not subject matter of showcause
notice. Hence, petitioners could not get any
opportunity to putforth their defence in this
regard. This is well settled that principles of
natural justice are to be followed even in cases of
illegal appointments. {See : Mahendra Kumar
Chourasia Vs. State of M.P.-2002(3)
MPLJ-112 and Arvind Kumar Vs. State of
M.P.-2002(3) MPLJ-224.}
14. At the cost of repetition, in the opinion of this court, the show-cause notices are cryptic in nature and do not contain the reasons, on the strength of which, the respondents intended to cancel the appointment/ regularization order. The final order is also pregnant with the similar infirmity. Resultantly, the impugned orders of cancellation of appointment/ regularization in all these petitions are set aside. Liberty is reserved to the respondents to issue fresh show-cause notice and proceed against the petitioners in accordance with law by taking into account the observations made hereinabove. It is made clear that this court has not expressed any opinion on merits of the case.
15. All the aforesaid petitions are allowed. No cost.
