ORDER
V.V.S. Rao, J.
1. As similar questions of fact and law are involved in these two writ petitions, it is necessary to dispose of them by a common order. Both the institutions are private educational institutions running junior colleges. On allegations that the colleges are involved in scholarship scam and that the Principal and the Management forged the signatures of concerned Mandal Revenue Officers and also ineligible students, the Commissioner and Secretary, Board of Intermediate Education, the third respondent herein, by the impugned order dated 17-5-2003 disaffiliated and de-recognised both the colleges. The orders passed by the third respondent are challenged in these writ petitions.
2. The events leading to filing of the writ petitions are almost similar. Therefore, the allegations and facts in W.P. No. 10481 of 2003 may be noticed. The first petitioner, Sri Sai Educational Society, is running the second petitioner college, Little Flower Junior College since 1993-94 after obtaining provisional permission/affiliation from Board of Intermediate Education vide proceedings dated 17-11-1993.
3. The third respondent, by an order in Rc.No. 89/El-3/93-94, dated 7-2-2002 directed the Secretary and Correspondent of the college to show-cause why the college shall not be disaffiliated for misappropriation of post-Matric scholarships of Scheduled Caste students. It is alleged in the show-cause notice that the Management of the college has claimed scholarships by producing bogus caste certificates during 1998-99, 1999-2000 and 2000-2001, that the Management forged the signatures of Mandal Revenue Officers with the aim of misappropriating the scholarship amounts granted to the students belonging to Scheduled Caste and that as per the directions of the Commissioner of Social Welfare, District Collector (Social Welfare), Nalgonda requested the third respondent to cancel the recognition granted in favour of the college. The petitioners allege that the said show-cause notice dated 7-2-2002 was issued at the behest of the Commissioner of Social Welfare and that they were not aware of any enquiry.
4. By a letter dated 20-2-2002, the Correspondent of the college submitted explanation stating that students were admitted on the basis of caste certificates issued by the Revenue Authorities and that they have nothing to do with the same. He stated that it is the duty of the Assistant Social Welfare Officer to scrutinize the applications for grant of scholarships. Not satisfied with the explanation submitted by the college, the third respondent again issued another notice dated 26-3-2002. The Correspondent of the college submitted explanation reiterating earlier explanation. Dissatisfied with the explanation submitted by the college, by Proceedings in Rc.No. 89/ El-3/94-95, dated 30-5-2002, the third respondent cancelled the affiliation.
5. Feeling aggrieved by the proceedings dated 30-5-2002, the petitioners approached this Court by filing writ petitions being W.P.Nos. 11526 and 11531 of 2002. This Court, by order dated 13-8-2002, (reported in Sri Sai Educational Society, Suryapet, Nalgonda v. State of A.P., : 2002(5)ALD239 ) allowed the said writ petitions holding that principles of natural justice have been violated. This Court also made it clear that if the third respondent wants to proceed with disaffiliation of the petitioner colleges, it is open for them to give fresh show-cause notice with specific allegations and to take appropriate action according to law. As observed by this Court, the third respondent issued another show-cause notice dated 20-12-2002 framing six charges and calling for the explanation of the Management. By letter dated 20-1-2003, the Correspondent of the College submitted a detailed explanation to the charges levelled against them. It was alleged in the explanation that the report of the District Collector dated 8-1-2002 and another report of the Commissioner of Social Welfare dated 29-10-2002, were not supplied to them along with the show-cause notice dated 20-12-2002. It was also alleged that no opportunity of personal hearing was afforded to the petitioners to defend their case. After considering the explanation dated 20-1-2003, the third respondent passed the impugned orders dated 17-5-2003 cancelling the affiliation granted to the petitioner colleges.
6. A counter-affidavit is filed on behalf of respondents 3 and 4 denying the allegations made by the petitioners. It stated that pursuant to a news item published on 1-12-2001 alleging misappropriation of post-Manic scholarships in certain colleges of Suryapet, the Commissioner of Social Welfare deputed two Joint Directors and a team of officers for conducting a detailed enquiry in the matter. The enquiry revealed that the petitioner college and another college claimed bogus scholarships during the academic years 1998-99 to 2000-2001 by producing bogus caste certificates. The District Collector (S.W.), Nalgonda sent a letter dated 8-1-2003 informing that the signatures of the concerned Mandal Revenue Officers were forged. Scholarship amounts were claimed and received in the names of fictitious students.
7. The contention that the third respondent has no power or jurisdiction to pass the impugned order is denied by making a reference to the order of this Court in W.P. No. 11531 of 2002, dated 13-8-2002 [reported in Sri Sai Educational Society (supra)]. After disposal of the earlier writ petition, a show-cause notice was issued to the petitioners on 20-12-2002 by framing specific charges and furnishing details. The enquiry report was also furnished to the petitioners. The explanation submitted by the petitioner was carefully considered and it was found that the Principal and the Management of the college are guilty of all the charges. Therefore, it is felt that continuance of affiliation to such an institution will not be in public interest. The impugned order dated 17-5-2003 was issued by the third respondent without prejudice to any criminal proceedings that are pending against the Principal and Management of the college. Reasonable opportunity was given to the petitioners and they are not entitled to any oral hearing. In the letter dated 8-1-2003, the District Collector suggested to cancel the recognition of the petitioner college and the report of the Commissioner of Social Welfare was furnished to the petitioners. It is also stated in the counter-affidavit that the impugned order was issued considering the explanation and the material on record and findings were recorded on each and every charge. The Secretary is the Chief Executive Officer of the Board of Intermediate Education and is competent to disaffiliate any college. Mr. A. Rajendra Prasad, who signed the impugned order is the Joint Secretary of the Board and it was issued with the approval of the Commissioner. It is further stated in the counter- affidavit that there are 240 students in n year Intermediate course and alternative arrangements will be made to such students who are going to be affected by the disaffiliation of the petitioner college.
8. A reply affidavit is filed by the Secretary and Correspondent of the college reiterating the allegations made in the affidavit accompanying the writ petition. Insofar as the power of the third respondent to disaffiliate the college is concerned, it is stated that the finding of this Court in W.P.No. 11531 of 2002 [reported in Sri Sai Educational Society (supra)] that the Commissioner is competent to disaffiliate the college is per incuriam. In the said order, this Court followed the judgment in Gowthami Co-operative Junior College v. Commissioner and Secretary, Board of Intermediate Education, : 1999(4)ALD362 , which related to Cooperative colleges governed by a different set of rules whereunder power is conferred on the Secretary to affiliate and disaffiliate Co-operative junior colleges. Whereas such power is not conferred on the Secretary under the A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987 issued in G.O, Ms. No. 29, Education (Rules), dated 5-2-1987.
Submissions of The Counsel
9. Learned Senior Counsel for the petitioners, Sri K.G. Kannabhiran, submits that under the provisions of A.P.Intermediate Education Act, 1971 (for short, the Act), it is not competent for the Commissioner and Secretary of the Board of Intermediate Education to pass orders disaffiliating a Junior College, He submits that though the Board of Intermediate Education delegated powers to the Secretary to grant affiliation, the power to disaffiliate a Junior College is not delegated and therefore the impugned order is without jurisdiction. Secondly he would submit that the impugned order is void as principles of natural justice are breached. Elaborating further, the learned Counsel submits that in the earlier litigation this Court set aside the order of disaffiliation on the ground that vague allegations were made. Though this Court remitted the matter to the respondents, even thereafter a show-cause notice was issued with vague allegations and the material on which reliance is placed was not communicated and that the report of the District Collector dated 8-1-2002 and the report of the Commissioner of Social Welfare dated 29-10-2002 were not furnished to the petitioner. The order based on uncommunicated material does not satisfy the test of adequate opportunity to the aggrieved person. When serious allegations are made as to misappropriation of scholarships, the respondents ought to have conducted oral enquiry. The order is also not valid for though the show-cause notice was issued in the name of Commissioner and Secretary of the Board, the same was signed by Joint Secretary and therefore this violates the principle that the authority who hears the matter must decide.
10. Learned Standing Counsel for Board of Intermediate Education, Sri S. Satyanarayana Prasad, submits that A.P. Education Act, 1982 (for short, Education Act) does not govern Intermediate education or Junior Colleges in the State. These subjects are exclusively governed by A.P. Intermediate Education Act and the Rules made thereunder. Therefore, the Rules made vide G.O. Ms. No. 29 dated 5-2-1987 under Sections 20, 21 and 99 of the Education Act known as A.P. Educational Institutions (Establishment, Recognition, Administration and- Control of Institutions of Higher Education) Rules, 1987 (for short, the Higher Education Rules) have no application. The power exercised by the Commissioner and Secretary of Board of Intermediate Education is not governed by Higher Education Rules, especially Rule 9 thereof. He also placed reliance on the judgment of this Court in earlier Writ Petitions filed by petitioners in Sri Sat Educational Society (supra) where this question was decided against the petitioners in view of earlier decision of this Court in Gowthami Co-operative Junior College (supra). He contends that the petitioners were given adequate opportunity. As directed by this Court in the earlier Writ Petitions, a show-cause notice was issued and petitioners filed explanations. Along with show-cause notice the report of the Joint Director is enclosed. In his letter the District Collector only requested the Commissioner and Secretary of Board of Intermediate Education to take action and mere reference to the same does not in any manner prejudice the case of the petitioners. He placed reliance on judgments of the Supreme Court in M.P. Industries Ltd v. Union of India, : [1966]1SCR466 , Union of India v. Jyoti Prakash, : (1971)ILLJ256SC , Union of India v. G.R. Prabhavalkar, : (1973)IILLJ84SC , Jain Exports (P) Ltd. v. Union of India, : 1992(61)ELT173(SC) , and Grosons Pharmaceuticals (P) Ltd. v. State of U.P., : AIR2001SC3707 , in support of his contention that right to personal hearing is not part of natural justice. It is his further submission that mere absence of oral enquiry in the absence of any proven prejudice does not vitiate the proceedings. As no prejudice is caused, petitioners cannot be heard that absence of oral enquiry vitiated the proceedings.
Points for Consideration
11. In view of the rival submissions, the question of power of the Commissioner and Secretary of Board of Intermediate Education to disaffiliate a Junior College, and the question of adequate opportunity and personal hearing, would arise for consideration.
(1) Question of power of the Commissioner and Secretary of Board of Intermediate Education
12. During the narration of the facts as above, it is noticed that initially the third respondent issued proceedings on 30.5.2002 cancelling affiliation. The petitioners filed Writ Petition Nos. 11526 and 11531 of 2003. My learned brother Hon'ble Sri Justice A. Gopal Reddy after referring to Gowthami Co-operative Junior College (supra), in Sri Sai Educational Society (supra) held as under:
In view of the same, the contention of the learned Counsel for the petitioners that the third respondent is not competent and has no jurisdiction to withdraw the affiliation is devoid of any substance. Equally, the contention that the competent authority can withdraw the affiliation/disafEiliate only under the conditions enumerated under Rule 11 cannot be accepted for the reason Rule 11 mandates withdrawal of recognition/affiliation, if the institution fails to fulfil any of the conditions prescribed either permanently or for a specified period. The Board has no option except to withdraw the permission if the colleges fail to fulfil the conditions prescribed, whereas Section 9(ii) of the Act 2/71 does not restrict the power to withdraw the affiliation or recognition if there is any large scale irregularities or mismanagement of the institution were noticed after granting recognition. When there is a power to grant affiliation or recognition, then the same can be withdrawn if it is not enumerated under the rules,
13. According to the learned Counsel, the above decision was based on earlier judgment in Gowthami Co-operative Junior College (supra) which itself was decided based on Rule 11 of the Higher Education Rules which has no relevance insofar as the Intermediate/Junior Colleges and the judgment was rendered without reference to Rule 9 of the Higher Education Rules and therefore it is per incuriam. He also refers to a decision of the King's Bench in Young v. Bristol Aeroplane Co., 1944 (1) KB 718 = 1944 (2) All.ER 293, in support of the submission that the judgment rendered in ignorance of law is not a binding authority. In usual course it would not be permissible for this Court to re-examine the question whether the Commissioner and Secretary of the Board has jurisdiction to pass order of disaffiliation in view of two earlier judgments of this Court referred to supra, especially the latest one between same parties. As the learned Senior Counsel placed strong reliance on Rule 9 of Higher Education Rules in support of the contention that both the earlier decisions did not notice Rule 9, I shall consider the question again.
14. A.P. Education Act, 1982 is a law which essentially deals with organizing and developing educational system and to provide for matters connected therewith. Sub-section (3) of Section 1 lays down that the Education Act applies to all educational institutions and tutorial institutions in the State, except inter alia to educational institutions imparting Intermediate education insofar as the matters pertaining to them are dealt with under A.P. Intermediate Education Act, 1971. In exercise of powers under Sections 20, 21 and 99 of the Education Act, the State promulgated Higher Education Rules, 1987. While enforcing Higher Education Rules in relation to Intermediate Colleges one should not ignore Section 1(3)(iv) of the Education Act specifically excluding Intermediate Colleges in relation to those matters pertaining to them which are dealt with by Intermediate Education Act, Keeping this in view, the provisions of Higher Education Rules may be noticed.
15. Rule 1(2) of the Higher Education Rules stipulates that the Rules shall apply to all educational institutions imparting certain categories of education mentioned in Clauses (a) to (f). Clause (a) mentions all institutions imparting Intermediate education with or without attached high school/degree classes/courses i.e., Junior Colleges. As per Rule 3 competent authority for granting or withdrawing permission for establishment of all classes or categories of educational institutions mentioned in Sub-rule (2) of Rule 1 shall be the Commissionarate, which is defined in Rule 2(c) as to mean A.P. Commissionarate of Higher Education. Rule 5, however, lays down that all applications for establishment of a Junior College shall be made to the Secretary, Board of Intermediate Education and applications for establishment of other classes/categories of institutions mentioned at Clauses (b) to (f) in Sub-rule (2) of Rule 1 shall be made to the Registrar of the University concerned. Thus, though Junior Colleges are also mentioned in Sub-rule (2) of Rule 1 they are specifically dealt with by other Rules. This is made further clear by Rule 9(1)(a) which deals with the power to grant or withdraw recognition/ affiliation. Rule 9(1) reads as under.
9. Power to grant or withdraw Recognition/ Affiliation:- (1) Competent authority, (a) The Board of Intermediate Education shall be the competent authority for granting or withdrawing of temporary/permanent recognition/affiliation for all educational institutions imparting intermediate education as per Clause (ii) of Sub-section (1) of Section 9 of the Andhra Pradesh Intermediate Education Act, 1971 (Act No. 1 of 1971).
(b) For all other institutions mentioned at (b) to (f) in Sub-rule (2) of Rule 1, the competent authority for granting or withdrawing of temporary/permanent recognition/affiliation shall be the University concerned.
16. As per Rule 2(d) 'Competent Authority' is defined as 'the authority who is competent to grant permission/recognition/ affiliation as the case may be to the educational institution'. Rule 9(1)(a) postulates that the Board of Intermediate Education shall be the competent authority for granting or withdrawing temporary/ permanent recognition/affiliation for all educational institutions imparting Intermediate Education as per Clause (ii) of Sub-section (1) of Section 9 of the Intermediate Education Act, Rule 11 of Higher Education Rules empowers the competent authority to withdraw permission/ recognition/affiliation granted to private educational institutions. Therefore, insofar as Junior Colleges of Intermediate Education are concerned, it is only Intermediate Education Act which governs the Intermediate Education system and the authorities under the said Act are alone competent, by reason of Section 1(3) of the Education Act, to grant affiliation and withdraw affiliation.
17. Board of Intermediate Education is established under Section 3 of the Act. The Secretary to the Board is appointed under Sub-section (1) of Section 7 of the Act by the Government who is required to perform the functions as may be entrusted to him by or under the Act. The Secretary shall be Chief Executive Officer of the Board and shall be responsible for implementing the Resolutions of the Board or its committees. Section 9 of the Act deals with powers of the Board. Clause (ii) of Sub-section (1) thereof empowers the Board to affiliate any College imparting Intermediate education, recognize any College by granting affiliation or recognition and also withdrawing such affiliation or recognition. Clause (xvii) of Sub-section (1) of Section 9 of the Apt empowers the Board to delegate such powers as it deems fit to any of the Committees or to Chairman or to any other authority of the Board. Section 17 of the Act gives rule making power to the Government in exercise of which the Governor of Andhra Pradesh made Rules vide G.O.Ms.No. 539, dated 9-4-1975 relating to powers of the Secretary of the Board. Clause (vi) of Rule 1 obligates Secretary to perform such other functions as may be entrusted to him by either the Chairman or the Board.
18. Vice-Chairman of the Board, who is appointed under Section 6(1) of the Act is required to perform the functions of the Chairman when the office of the Chairman is vacant. On 17-8-1974 the Vice-Chairman of the Board issued an order of distribution of work entrusting the following powers to the Secretary of the Board.
(1) Constitution of Board of Intermediate Education - Meetings of the Board -Meetings of the Standing Committees -Conferences - Agenda - Minutes of the meetings, etc.
(2) Services - Appointments - Promotions -Increments - All kinds of leave except casual leave to non-gazetbed staff -Confidential reports, etc., -Supervision and control of services.
(3)(a) Budget Estimates - Re-appropriations -Sanction of expenditure -Arrangements for confidential printing presses and secret expenditure.
(b) Pay fixation of staff - Approval of tenders and quotations - Execution of agreements.
(4)(a) Affiliation of colleges - Inspection Commissions - Exemption of prescribed qualifications for the staff of colleges, etc, - Approval of appointments - Work load of Lecturers - Additional seats, additional sections, etc.- Appointment of Committees.
(b) Combination of attendance - Condonation of shortage of attendance -Change of language/group - Change of medium.
(5) Gazette Notifications - Publication in newspapers - Examinations time-table (Theory) - Overtime work.
(6) Appointment of paper setters, translators, Chief Assistants and Special Assistant Examiners - Spot Valuation Officers -Scrutinizes etc.
(7) Malpractice Committee - Malpractice cases and correspondent thereon.
(8) Award of certificates - Issue of Duplicate Certificates - Evaluation and recognition of certificates.
19. As seen from the above, the power to sanction affiliation to a College is given to Secretary. It is the submission of the learned Counsel for the petitioners that when the power to disaffiliate is not specifically delegated to the Secretary of the Board, it is not competent for him to pass the impugned order. I am afraid, I cannot agree with the same. In Sri Sai Educational Society (supra) this Court observed that when there is a power to grant affiliation/recognition the same can be withdrawn even if it is not enumerated under the Rules. I am in respectful agreement with the view. Further, it is well settled that power to sanction something would also include power to withdraw the sanction. Therefore, merely because delegation of powers by office order dated 17-8-1974 does not specifically mention disaffiliation, it does not mean that the Secretary of the Board is not vested with the power to withdraw. It must be remembered that as per Rule 9(1)(a) of the Higher Education Rules, Board of Intermediate Education being the competent authority to grant affiliation, it is competent to withdraw recognition under Rule 11. As the power is delegated by Board of Intermediate Education, it is competent for the Secretary to issue the impugned order.
(ii) Question of adequate opportunity
20. There was a press report in Eenadu Telugu Daily District Edition, Nalgonda dated 1-12-2001 about misappropriation of post-matric scholarships in certain Colleges in Suryapet Town, Nalgonda District. In response to the same, the Commissioner of Social Welfare, Government of Andhra Pradesh got an enquiry conducted by two Joint Directors of the Commissionerate of Social Welfare. They submitted a report to the effect that there are more than fifty per cent of bogus caste certificates produced by the Principals and Managements of petitioner Colleges for the years 1998-99, 1999-2000, 2000-2001. Therefore, the Commissioner of Social Welfare, addressed a letter dated 19-12-2001 to the District Collector, Nalgonda, second respondent herein, requesting to take immediate action by lodging criminal proceedings against both the Managements. As a consequence thereof, second respondent addressed the Director of Higher Education, Hyderabad, Secretary of Board of Intermediate Education Hyderabad and Regional Inspecting Officer, Intermediate Education, Nalgonda informing about the enquiry conducted at the instance of the Commissioner of Social Welfare and requested the addressees to cancel the recognition orders of two colleges with immediate effect Thereafter, a show-cause notice dated 7-2-2002 was issued to the petitioner colleges under the Orders of the Commissioner and Secretary of Board of Intermediate Education. In the explanation submitted by the petitioners the fact that Joint Directors, Social Welfare Department conducted enquiry was admitted. Both the petitioners in their explanations requested the third respondent to drop all charges on humanitarian grounds and assured that they would not give any scope for any kind of misappropriation of scholarships to Scheduled Castes candidates. Not satisfied with the same, third respondent issued another show-cause notice dated 26-3-2002. The petitioners again replied requesting to give one more chance to continue the Colleges. The order of disaffiliation was passed on 30-5-2002 cancelling affiliation which was challenged in the earlier Writ Petitions. In the explanation submitted by the petitioners to two show-cause notices they never raised any objection with regard to non-supply of so-called report of the District Collector. After this Court set aside those orders of disaffiliation and gave liberty to third respondent to give fresh show-cause notice with specific allegations and take appropriate action, a fresh show-cause notice was issued on 20-12-2002 framing as many as VI specific charges and enclosing a copy of the report of the Commissioner of Social Welfare as proof of said charges along with report of the Joint Directors of Social Welfare. In the explanation submitted by the petitioners they did not deny that they have received the report of the Commissioner and the report of the Joint Directors. What all they object is that the report of the Joint Directors is in the form of findings only without disclosing any material and that the said report does not contain any details regarding the alleged irregularities. They also objected that it is an ex parte report. On this basis, they contend that they are deprived of adequate opportunity. I am afraid, I cannot agree with the submission made by learned Senior Counsel in this regard.
21. Admittedly, the petitioners were supplied with a copy of the report of Joint Directors along with Commissioner's report. When there is no other report than what was supplied to them the petitioners cannot make any grievance out of the same. After perusing the report of the Joint Directors placed before me, it becomes clear that the report is based on the record and the enquiry made by the Mandal Revenue Officer who stated that signatures of Mandal Revenue Officers were forged. If the scholarship applications with all the enclosures attached to such applications in petitioner colleges were found to be forged or it was found that even for non-Scheduled Caste candidates pre-matric scholarships were claimed, whether there is direct involvement of the Correspondent or Principal or Management or not, the College management alone must be responsible. Who is the person directly involved in sending fraudulent scholarship application forms would be revealed only in criminal case where the standard of proof would be different. Insofar as the exercise undertaken for disaffiliation of petitioner Colleges is concerned, the method adopted by the third respondent does not suffer from any unfairness. Even according to Rule 11 of the Higher Education Rules an educational institution is entitled only to an opportunity to give its explanation and no elaborate enquiry is warranted for the purpose of derecognition or disaffiliation of a Junior College.
22. The other submission of the learned Senior Counsel that when the charges of cheating, fraud and forgery in getting pre-matric scholarships are made, having regard to the complicated nature of the enquiry, oral enquiry ought to have been conducted by the third respondent, is devoid of any merit. Either under the Act or the Rules made thereunder or under Rule 11 of the Higher Education Rules oral enquiry is not contemplated. It is now well settled that oral enquiry is not part of principles of natural justice.
23. The two principal modes of hearing are oral (personal) before the adjudicatory authority and the other is hearing by way of a written representation. It is no doubt true that oral personal hearing is more fruitful to the affected person for he can effectively persuade the authorities to countenance his view. However, in all situations, oral personal hearing is not compulsory. An opportunity of making a representation is equally efficacious and it also amounts to hearing. A reference may be made to M.P. Industries Ltd. v. Union of India, 0044/1965 : [1966]1SCR466 , Union of India v. Jyoti Prakash, : (1971)ILLJ256SC , Indru Ramchand Bharvani v. Union of India, : 1992(59)ELT201(SC) .
24. The decision in M.P. Industries (supra) was concerned with interpretation of Rule 55 of Mineral Concession Rules, 1960, which provided that an opportunity to make a representation is to be afforded to a person who makes a petition for revision under Rule 54 before passing an order either affirming or modifying or setting aside the order. A question arose whether personal hearing should be afforded before passing an order. His Lordship Sri Justice Subba Rao (as he then was) laid down.
As regards the second contention, I do not think that the appellant is entitled as of right to a personal hearing. It is no doubt a principle of natural justice that a quasi judicial Tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. Indeed, Rule 55 of the Rules, quoted supra, recognize the said principle and states that no order shall be passed against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority. The said opportunity need not necessarily be by personal hearing. It can be by written representation. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and ordinarily it is in the discretion of the Tribunal. The facts of the present case disclose that a written representation would effectively meet the requirements of the principles of natural justice...............(empnasis supplied)
25. In Jyoti Prakash (supra), the Supreme Court held that oral personal hearing is not an incident of rules of natural justice. In the said case, the question was whether the President of India is required to give an oral personal hearing to the Judge of a High Court while deciding the age of such Judge under Article 217(3) of the Constitution. Speaking for the unanimous Bench, His Lordship Chief Justice J.C. Shah opined:
natural justice must be followed. The respondent was on that account entitled to make a representation. But it is not necessarily an, incident of the rules of natural justice that personal hearing must be given to a party likely to be affected by the order. Except in proceedings in Courts, a mere denial of opportunity of making an oral representation will not, without more, vitiate the proceeding. A party likely to be affected by a decision is entitled to know the evidence against him, and to have an opportunity of making a representation. He however cannot claim that an order made without affording him an opportunity of a personal hearing is invalid.
26. In Indru Ramchand Bharvani (supra), the Supreme Court observed that a fair hearing has two justiciable elements, that an opportunity of hearing must be given and that opportunity must be reasonable. Whether a person has a fair hearing can be gone into by the Court and a Court's conscience shall be satisfied that an administrative Tribunal charged with the duty of deciding a dispute has conformed to the principles of natural justice.
27. The discussion on the question of mandatory oral personal hearing cannot be complete without reference to the doctrine of prejudice which is gaining ground in various jurisdictions in relation to the law of natural justice. A reference may be made to Institute of Chartered Accountants of India v. L.K. Ratna, : [1987]164ITR1(SC) , State Bank of Patiala v. S.K. Sharma, : (1996)IILLJ296SC , M.C. Mehta v. Union of India, : [1999]3SCR1173 , and Aligarh Muslim University v. Mansoor Ali Khan, : AIR2000SC2783 , wherein this aspect of the matter has been considered in detail.
28. In L.K. Ratna (supra) the Supreme Court observed thus;
It is next pointed out on behalf of the appellant that while Regulation 15 requires the Council, when it proceeds to act under Section 21(4), to furnish to the member a copy of the report of the Disciplinary Committee, no such requirement is incorporated in Regulation 14 which prescribes what the Council will do when it receives the report of the Disciplinary Committee. That, it is said, envisages that the member has no right to make a representation before the Council against the report of the Disciplinary Committee. The contention can be disposed of shortly. There is nothing in Regulation 14 which excludes the operation of the principle of natural justice entitling the member to be heard by the Council when it proceeds to render its finding. The principles of natural justice must be read into the unoccupied interstices of the statute unless there is a clear mandate to the contrary.
29. In S.K. Sharma (supra), the Supreme Court considered the question whether a decision arrived at in violation of any and every facet of principles of natural justice is void. After referring to Ridge v. Baldwin, 1964 AC 40, M. Vasudevan Pillai v. City Council of Singapore, (1968) 1 WLR 1278 (PC), AI Mehdawi v. Secretary of State for the Home Department, (1990) 1 AC 876, Malloch v. Aberdeen Corporation, (1971) 2 All ER 1278, R. v. Secretary of State for Transport, (1987) 1 All ER 161, State of U.P. v. Mohd. Nooh, AIR 1958 SC 56, Janakinath Sarangi v. State of Orissa, : (1970)ILLJ356SC , Chintapalli Agency T.A.S.C.S. Ltd., v. Secretary (F & A) Government of Andhra Pradesh, : [1978]1SCR563 , S.L. Kapoor v. Jagmohan, : [1981]1SCR746 , K.L. Tripathi v. State Bank of India, : (1984)ILLJ2SC , Managing Director, ECIL v. B. Karunakar, : (1994)ILLJ162SC , C.B. Gautam v. Union of India, : [1993]199ITR530(SC) , Krishan Lal v. State of Jammu and Kashmir, : (1995)IILLJ718SC , the Supreme Court laid down that a decision or order which is passed or taken without fully complying the principles of natural justice, is not rendered void unless the aggrieved person pleads and proves the prejudice caused by such violation of principles of natural justice. The Supreme Court in paragraph 32 of the judgment summarised the principles emerging from various decisions considered by the Court as under.
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under - 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/ employee in defending himself properly and effectively.
4(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
4(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(6) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
30. In Aligarh Muslim University (supra) after referring to earlier case law, the Supreme Court laid down as under:
The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L Tripathi v. State Bank of India (supra) Sabyasachi Mukharji, J (as he then was also laid down principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed: quoting Wade Administrative Law (5th Ed. Pp.472-475) as follows (para 31):
'...it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent....There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter to be dealt with and so forth'. Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma : (1996)IILLJ296SC . In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated in Rajendra Singh v. State of M.P. : AIR1996SC2736 .
31. In M. Sadasiva Sekhar v. District Collector, Kurnool, : 2003(2)ALD843 , I considered this aspect of the matter and in relation to Clause 3(4) of A.P. Scheduled Commodities (Regulation of Distribution by Card System) Order, 1973 summarised the principles regarding personal hearing as under.
1. 'Personal hearing' is not considered as an incident of rule of audi alteram partem. A person is entitled to an opportunity of making a representation even if delegated legislation is silent on the same. The same is not, however, true with regard to affording a personal hearing to an aggrieved party. The law treats an opportunity to make a representation also as a personal hearing.
2. When delegated legislation excludes 'personal hearing' it is not permissible for the Court to read into the rule 'an opportunity of being heard by the authority';
3. When the rule itself says that an authority is vested with the power to conduct 'such enquiry as deemed fit', the discretion is left to the authority as to what is the nature of enquiry. If the authority, as a part of such enquiry, intends to give an opportunity of being heard, it must be treated as a manifestation of exercise of discretion in the facts of a particular case and not as a general rule;
4. In all cases where an enquiry is conducted under Clause 3(4) of the Control Order and where an opportunity of personal hearing is not given, the burden is on the dealer to plead and prove the prejudice caused to him by not giving a personal hearing. Illegality of the order cannot be readily presumed wherever no personal hearing was given.
5(a). In a case where a show-cause notice is issued requiring submission of explanation and also affording personal hearing, if desired, and the authority fails to afford such opportunity, the impugned order has to be scrutinized by applying the test of prejudice; and
(b) In a case where a show-cause notice is issued requiring submission of explanation and also affording personal hearing, if desired, and the aggrieved party fails to exercise such option for personal hearing, it should be deemed that he has waived such right of being heard [See S.K. Sharma (supra)].
32. Sri K.G. Kannabhiran submits that by reason of the judgment of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, : AIR2003SC355 , right to establish an educational institution is a fundamental right and therefore when the fundamental right itself is infringed, no prejudice need be pleaded or proved. This submission is misconceived. In T.M.A. Pai Foundation (supra) Hon'ble Chief Justice Kirpal in a majority judgment explained the nature and scope of fundamental right to establish an educational institution in the following manner: ...............The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation. The exercise of a fundamental right may be controlled in a variety of ways, For example, the right to carry on a business does not entail the right to carry on a business at a particular place. The right to carry on a business may be subject to licensing laws so that a denial of the licence prevents a person from carrying on that particular business. The question of whether there is a fundamental right or not cannot be dependent upon whether it can be made the subject-matter of controls....The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in Article 19(1)(g). 'Occupation' would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh v. New Delhi Municipal Committee, : [1989]3SCR1038 , correctly interpret the expression 'occupation' in Article 19(1)(g).
33. Therefore, right to establish an educational institution does not mean that every educational institution has a fundamental right to seek affiliation. Further, though the petitioners in their explanations to the initial show-cause notices never raised objections in the explanations to the show-cause notice issued for second time, after this Court set aside earlier orders. Even in these explanations no prejudice is shown. Above all, in fact a request for one more chance to run the institutions was made. After going through the explanations submitted by the petitioners, it is not possible to agree with the learned Senior Counsel that by not conducting oral enquiry prejudice is caused to them. When statute does not specifically provide method and manner of conducting enquiry, it is for the appropriate authority to decide whether or not to conduct oral enquiry as held by the Supreme Court in various decisions referred supra. The absence of oral enquiry does not vitiate the impugned order. The petitioners were given adequate opportunity, their explanations were considered and the impugned orders were passed disaffiliating/ derecognising their Colleges for their involvement in pre-matric scholarship scam. The writ petitions do not warrant interference by this Court under Article 226 of the Constitution of India.
34. In the result, for the above reasons, the writ petitions fail and are accordingly dismissed with costs assessed at Rs. 5,000/-in each writ petition.