1. The issue in these writ petitions concerns the legality of an appointment made by the President of a Society. The appointment is said to have been ratified subsequently by the managing committee. Acting on the complaints of certain persons, the Assistant Registrar interdicted the appointment; the Society implemented his directive. But the employee was not heard before her termination. Thus, the Court is called upon to decide on the propriety of the procedure adopted by the Assistant Registrar and the Society in removing the employee.
2. The petitioner in W.P.(C) No. 38458 of 2015 challenges Exts.P2 and P3, the order of the Assistant Registrar and the resolution of the society respectively, through which the petitioner s appointment was sought to be cancelled.
3. In W.P. (C) No.2028 of 2016, the petitioner, who is said to be a rival candidate for the post, raises an issue concerning the competence of the President to appoint the petitioner in W.P.(C) No. 38458 of 2015. The appointment is allegedly without a proper sanction from the managing committee in terms of Section 182 of the Co-operative Societies Act ('the Act').
4. I reckon both the writ petitions focus on the same issue, i.e., the legality of the appointment of the petitioner in W.P.(C) No. 38458 of 2015. For ease of reference and convenience, I take into account the facts and exhibits in W.P.(C) No. 38458 of 2015 for narrative purpose.
5. The petitioner was appointed a peon in the second respondent Bank on 10.05.2015. In time, the 4th respondent and some others are said to have complained against the appointment to the Assistant Registrar of the Co-operative Societies, the first respondent. The principal allegation seems to be that the President appointed the petitioner though he has no power.
6. Ostensibly, acting on the complaint referred to above, the first respondent passed Ext.P2 order declaring that the petitioner's appointment being contrary to law must be cancelled. The second respondent Bank passed Ext.P3 resolution implementing Ext.P2 directive. Aggrieved, the petitioner has approached this Court.
7. Sri P.C. Sasidharan, the learned counsel for the petitioner, has strenuously contended that at no point in time has the petitioner been put on notice before the first respondent's passing Ext.P2 order, not to speak of Ext.P3, the consequential order. According to the learned counsel, both Exts.P2 and P3 are illegal and unsustainable on the singular premise that those orders violate the principles of natural justice.
8. The learned counsel has also addressed the issue on merits . According to him, the first respondent lacks the vires to pass Ext.P2 order. Even if he were treated as the delegate of the Registrar, contends the learned counsel, no substantive provision of either the principal enactment or the Rules empowered the Registrar or its delegate to interdict any appointment. It is essentially in the realm of a service dispute, for which there is an efficacious remedial mechanism under Section 69 of the Kerala Co-operative Societies Act ('the Act').
9. Proceeding further, the learned counsel has drawn my attention to Sections 3(2) and 66A of the Act to hammer home his contention that it does not lie in the power of the Registrar or Assistant Registrar to interdict a decision validly taken by the second respondent, the employer. In further elaboration, he has also submitted that even the managing committee of the second respondent cannot review its own decision appointing the petitioner absent any specific allegation of fraud by, say, the employee. Summing up his submissions the learned counsel has submitted that Exts.P2 and P3 orders cannot be sustained.
10. Sri P.N. Mohanan, the learned counsel for respondents 2 and 3, has contended with equal vehemence that Exts.P2 and P3 orders are unexceptional. According to him, the Assistant Registrar, as a delegate of the Registrar, has ample powers under Rule 176 of the Kerala Co-operative Societies Rules ('the Rules') to rescind the resolution, if at all, passed by the previous managing committee of the second respondent Bank. It is his specific contention that if the employer knows that the appointment is per se illegal, it has plenary powers to re-consider its decision.
11. The whole issue is said to have come to light because of the complaint lodged by the 4th respondent. His counsel has contended that the erstwhile managing committee of the second respondent, in the first place, passed no resolution approving the petitioner's appointment. According to him, it is the President of the Managing Committee that arrogated to himself the power he did not have.
12. The learned counsel has also drawn my attention to Ext.R4 (h) to contend that initially the 4th respondent complained to the Joint Registrar, who, in turn, delegated the power of adjudication to the Assistant Registrar, the first respondent. The learned counsel has contended that in terms of Rule 176 of the Rules, the Assistant Registrar is eminently empowered to pass Ext.P2.
13. Heard the learned counsel on both sides, apart from perusing the record.
Issues:
1. Can the petitioner s appointment be interdicted without an opportunity of hearing to him unless the petitioner is guilty of practicing fraud in securing the appointment?
2. Does the Registrar or his delegates have the power to rescind any resolution concerning, especially, the employees of society? In other words, does the Registrar have the power to adjudicate upon the service disputes in a society?
3. Can a private person approach the Registrar or the employer, the society, complaining against the appointment of a person as an employee?
4. Can the society reconsider its decision of appointing a person as its employee? In the alternative, does the society s rectification of an apparent illegality amount to a review of its decision with no statutory backing?
5. Does the petitioner s appointment exhibit any element of fraud by either the petitioner or the President of the society?
Issue No.1:
14. Indisputably, the petitioner is in service. As regards the legality of her appointment, certain persons complained. Acting on those complaints, the first respondent issued Ext.P2 order directing the respondent society to cancel the petitioner s appointment. The society did act on Ext.P2: It passed Ext.P3 consequential order terminating the petitioner s services.
15. Admittedly, the petitioner has never been put on notice at any point in time. It is trite to observe that no order without hearing the affected person can be sustained, for the right to prior hearing is an important facet of the natural justice, a quasi-fundamental right.
16. Plain as it seems, on the issue of prior hearing or following the principles of natural justice, the judicial thinking in service matters has undergone a significant change. Till early 1970s, the Courts held the view that as the nature of employment was contractual; illegal termination, even without hearing, could only entail an employee to damages. In Indian Airlines Corpn. v. Sukhdeo Rai (1971) 2 SCC 192 , a three-Judge Bench of the Apex Court has quoted with approval the dictum of Rigdge v. Baldwin [1964] A.C. 40 that in a case of purely master and servant relationship, the servant is not entitled to say that he was not heard by his master before his dismissal. Such a question of being heard or not can only arise where the authority employing the servant is under some statutory or other obligation in that regard. The question, therefore, would be whether the relationship between the Corporation and the respondent was anything else than that of master and servant, or whether the Corporation was under some statutory limitation or obligation by which it could not terminate his service except by complying with such an obligation [hearing].
17. Later in Managing Director, U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee (1980) 3 SCC 459 , the Apex Court has quoted with approval the decision of the House of Lords in Melloch v. Aberdeen Corporation 4 [1971] 1 W.L.R.1578 . According to Vijay Narayan Vajpayee, where there is an element of public employment or service, or support by statute, or something like an office, or a status capable of protection, then irrespective of the terminology used, and even though in some inter parties aspects the relationship may be called that of master and servant, there may be essential procedural requirement to be observed on the grounds of natural justice. The Court has emphatically observed that whenever a man s rights are affected by decision taken under statutory powers, the court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute.
18. Putting the issue in perspective, I may observe that the Apex Court has declared in Vijay Narayan Vajpayee (supra) that the principles of natural justice must be read into a service dispute involving, say, the termination of service. Demonstrably, the same judicial trend continues to this day as is evident from the recent decision in Raghubir Singh v. Haryana Roadways 2014) 10 SCC 301.
19. Therefore, without expending further time on the issue and with no fear of contradiction, I can declare that both Ext.P2 and Ext.P3 orders suffer from the vice of violating the principles of natural justice.
Issue No.2:
20. With the engrafting of Chapter IX, containing Section 69, in to the statute book, it is beyond any cavil that the Co-operative Arbitration Court has an exclusive jurisdiction to decide any dispute in connection with the employment of the officers and servants of the classes of societies specified in sub-section (1) of Section 80 of the Act. The jurisdiction encompasses the issues of promotion and interse seniority, too.
21. Section 69 (1) (d) of the Act is eloquent on the adjudicatory mechanism concerning the service disputes. I am, therefore, of the opinion that if the dispute is raised by an employee or any other person than the employer itself, the recourse ought to be to the Co- operative Arbitration Court. The remedy, indeed, is efficacious. Section 69 Vs. Rule 176:
22. The Registrar has plenary powers under Rule 176 of the Rules to rescind a resolution passed by the Managing Committee of a society. Evidently, the power conferred on the Registrar or his delegate is a species of subordinate legislation. Section 69 of the Act, on the other hand, provides for the dispute resolution mechanism involving the quasi-judicial authorities service disputes included.
23. A Co-operative society regulates its affairs through resolutions; it regulates the service of its employees, too, through resolutions. Resolutions can be rescinded by invoking Rule 176 of the Rules; the service disputes ought to be resolved by invoking Section 69 of the Act the Arbitration Proceedings. There is a seeming conflict between Section 69 of the Act and Rule 176 of the Rules. The obvious question is, what should be the way out if there is a conflict between a provision of principal legislation and that of subordinate legislation?
24. It needs little cogitation that the former prevails. At any rate, obvious as the answer is, we cannot lose sight of the cardinal canon of statutory construction that both the streams should be read harmoniously. The inferior source of delegated legislation does not denude of its statutory efficacy. For, once it is enacted, the subordinate legislation must be read as if it were part of the principal legislation so long as it does not suffer from any vice of repugnancy or irreconcilable incompatibility.
25. Viewed from another perspective, even when harmoniously read, Rule 176 of the Rules is a generic, omnibus provision; Section 69 is a specific provision. Though they have distinct, different spheres carved out for them; there can, however, be certain penumbral areas where they do seem to impinge on each other. In those penumbral areas, Rule 176 of the Rules yields to Section 69 of the Act. After all, Generalia specialibus non deroganti Special law will always prevail over the general law.
Issue No.3:
26. In the light of the discussion on the issues 1 and 2, the inevitable conclusion is that an employee of a society or a third party questioning any aspects of service (employment) in the society shall approach only the Co-operative Arbitration Court under Section 69 of the Act. Expressed in the negative, the question of a private person approaching the Registrar or the employer, the very society, complaining against the appointment of a person does not arise.
Issue Nos.4 and 5:
27. Before addressing these two issues, we may need to clear the air on certain cognitive confusions over the concept of natural justice. Sacrosanct it is, having attained aphoristic proportions: a quasi-fundamental right. But even the best of the rights inviolable and fundamental still have their limitations. Therefore, natural justice is not be all and end all. Its invocation is no panacea in public law remedy if the candidate does not pass the muster of equitable consideration. The suitor must meet certain preconditions to earn its application to his or her cause.
28. In Board of Mining Examination and Chief Inspector of Mines v. Ramjee (1977) 2 SCC 256, at page 261 , the Supreme Court, per V. R. Krishna Iyer J, has held that natural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features, and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a case, can exasperate. We can neither be finical nor fanatical but should be flexible, yet firm, in this jurisdiction. No man shall be hit below the belt that is the conscience.
Useless Formality:
29. With the march of time, Courts have added adjudicatory nuances to the judicial concept of natural justice. It is held that the Courts, at times, can come to a conclusion that forcing the parties post factum to follow the principles of natural justice may result in a useless formality, an inconsequential rigmarole. In M.C. Mehta v. Union of India (1999) 6 SCC 237 , M. Jagannatha Rao, J., speaking for a Division Bench of the Supreme Court, in his Lordship s characteristic erudition, after surveying the theory of useless formality in its entire gamut, has held thus:
21. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of the principles of natural justice.
22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice, do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of real substance or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed Thus, in relation to cases other than those relating to admitted or indisputable facts, there is 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 entitle 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 considerable unanimity that the courts can, in exercise of their discretion , refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v.S.K. Sharma, (1996) II LLJ 296 SC, Rajendra Singh v. State of M.P., AIR 1996 SC 2736, that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it can be waived.
(italics supplied)
Restoration of an Illegality:
30. Another facet added to the adjudicatory ambit of a public law remedy be it involving an order issued in violation of the principles of natural justice is that if the recession of an order restores an illegal order issued earlier, such a procedure is to be eschewed.
31. In Godde Venkateswara Rao v. Government of AP AIR 1966 SC 828 , the facts in brief are that initially a Panchayat Samithi resolved to have a health center at one place. Though the said resolution was approved by the Government, the Panchayat Samithi finally, by another resolution, cancelled it and resolved to locate the center at some other place. The Government, in response, set aside the latter resolution of the Panchayat Samithi on the grounds that it did not get the requisite support of two-thirds majority. But, soon thereafter, the Government reviewed its previous order. The affected person approached the High Court and later the Supreme Court.
32. In the above context, the Apex Court, having held that both the orders were illegal, has observed that had the High Court quashed the subsequent order, it would have restored an illegal order, the previous one. The High Court, therefore, according to their Lordships, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case. This well-settled proposition of law has been consistently followed to cite a few cases in Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar AIR 1999 SC 3609 ; Mallikarjuna Mudhagal Nagappa v. State of Karnataka; 10 AIR 2000 SC 2976 Chandra Singh v. State of Rajasthan AIR 2003 SC 2889; ; State of Uttaranchal v. Ajit Singh Bhola 12 (2004) 6 SCC 800) , and Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel 13 (2012) 9 SCC 310 . Fraud and Principles of Natural Justice: 33. In State of Chhattisgarh v. Dhirjo Kumar Sengar 14 (2009) 13 SCC 600, at page 606 , after referring to many decisions on the point, the Supreme Court has held that though the legal principles carved out on the issue of natural justice are unexceptional, a case of fraud stands on a different footing: fraud, as is well known, vitiates all solemn acts.
34. As to the facts of the present case, fraud may have been committed or may not have been committed. If committed, it could have been committed either by the candidate or by her patron in power. If it is the latter, what should follow?
35. In State of Punjab v. Gurdial Singh (1980) 2 SCC 471, at page 474, the Apex Court has posed unto itself a question: What is mala fides in the jurisprudence of power? It has gone onto answer thus:
[L]egal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: I repeat . . . that all power is a trust that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist . Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act.
36. Remembering the above legal propositions, we may examine the allegations only allegations, I stress the petitioner faces.
37. In response to the notification published on 05.04.2013, the petitioner is said to have applied for the posts of Peon and Salesperson. She secured second rank. Initially, based on the rank list, one Smt. Sreeja. S was appointed as a Peon and Kumari Sajitha. S.R., a Salesperson on 16.5.2013. The rank list allegedly had no period of validity; it came to a cipher soon after the filling up of the notified posts. After two years, Smt. Sreeja, the peon, resigned from service on 28.4.2015, however.
38. Because of the subsequent developments, the President of the Society convened a meeting on 28.4.2015 to appoint the petitioner as a Peon. But the committee members, it is alleged, did not agree. Despite the disinclination of the majority, the President appointed the petitioner unilaterally. As the Act or the provisions do not provide for any rank list and its subsistence for any period, the petitioner s appointment is said to be violative of, among others, Articles 14 and 16 of the Constitution of India.
39. There are, indeed, disputes about the petitioner s date of birth and qualification, too. The core legal issue is that as the President could not usurp the powers of the Managing Committee, the appointing authority, the Assistant Registrar, acting on the complaints, ordered the cancellation of the petitioner s appointment. It is also an alternative contention of the respondents that as the petitioner is on probation as per Rule 184 (1) of the Rules, the termination simpliciter does not call for compliance with the principles of natural justice. The respondents have laid emphasis on the fact that the Assistant Registrar issued the impugned proceedings only after doing his fact finding exercise through a departmental official, whose report speaks volumes about the illegality of appointment.
40. Grave are the allegations, but allegations they are still. The Impact of Illegality Ratification:
41. Even if conjecturally considered, the legal fallout of an illegal appointment is not far to seek. In Raghavendra Rao v. State of Karnataka (2009) 4 SCC 635 the Supreme Court has held that once the appointment is by an incompetent person, the said appointment is a nullity. In Ashok Kumar Sonkar v. Union of India, (2007) 4 SCC 54 at 69 the Court has further held that if an appointment is irregular, the same can be regularised. But if an appointment is illegal, it is non est in the eye of the law, apart from being a nullity. In Govt. of A.P. v. K. Brahmanandam (2008) 5 SCC 241, at 245 , the Court has held that appointments made in violation of the mandatory provisions of a statute would be illegal and, thus, void. Illegality cannot be ratified or regularized; only an irregularity can be.
42. In V.C. Banaras Hindu University v. Shrikant (2006) 11 SCC 42 (para 46) , the Supreme Court has observed that once the initial order is wholly without jurisdiction, it is a nullity and, therefore, the purported approval thereof later by a competent authority will not cure the defect. The Other Decisions in the Resolution:
43. The learned Counsel for the petitioner has also contended that in the same resolution, allegedly not signed by the members of the Managing Committee, all other decisions have been implemented. Not to put too fine a point on the said submission, I may observe that there can be no parity in illegality, if it were. In other words, two wrongs cannot make one right. I may, therefore, hold that an act impugned should sustain itself on its own; it cannot draw succor from something similar any contrary view is a licence to perpetuate an illegality.
Probationer Rule 184 (3):
44. As has been contended by the learned counsel for the petitioner, Rule 184 (3) of the Rules provides for the mechanism to terminate the service of an employee on probation: on the ground of suitability. It, however, needs prior approval of the Registrar, as well as a reasonable opportunity to the employee concerned to show cause against the action proposed. Indeed, the learned counsel has also placed reliance on A. P. Admakumari v. ISRO Employees Co-op. Society 1989 (2) KLT 170 and Chackov. Pindimanan Service Co.op., Bank Ltd. 1988 (2) KLT SN 25 (C. No.39)
45. In the present instance, the termination is not based, as I reckon, on the petitioner s rendering unsatisfactory service as a probationer. I do not think Rule 184 (3) of the Rules and the decisions cited in support thereof have any relevance. Can the Society Review the Appointment?
Review Meaning:
46. First, let us examine what review semantically stands for. P. Ramanatha Aiyar s Major Law Lexicon22 defines the term review as a proceeding which exists by statute. It is in its nature a new trial of an issue previously tried between the parties, the cause of action being brought into Court again for trial by a new petition. The proceeding in some respects resembles a writ of error, and a new trial. According to the lexicon, the power of a Court or a superior Government officer or agency is to examine and either to confirm, modify, or annul a regulation or determination of an inferior Court, or official, or of an administrative agency; Court s power to examine a proposed act of an administrative agency.
47. Garner s Dictionary of Legal Usage23 has treated the expression review a genus, of which appeal and certiorari are species. In reference, then, to many an appellate scrutiny however the cases may have arrived in the appellate court review is the most accurate term. In S. Nagaraj v. State of Karnataka 1993 Supp (4) SCC 595, at page 618 the Apex Court has held that review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal 22 9th Ed. 23 3rd Ed. acceptance of human fallibility. Yet in the realm of law, the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice.
The Source and Exercise of Power:
48. In Kalabharati Advertising v. Hemant Vimalnath Narichania (2010) 9 SCC 437 at 445 the Apex Court has acknowledged the well-settled legal proposition that the power to review is not an inherent power. It has gone on further to hold that unless the statute/rules so permit, the review application is not maintainable with judicial/quasi-judicial orders. Kapra Mazdoor Ekta Union v. Birla Cotton Spg. and Wvg. Mills Ltd. (2005) 13 SCC 777, at 786 , too, echoes the same legal principle.
49. There is an exception: An order passed by mistake and ignorance of the facts indisputably can be reviewed; if, among other things, it is found that a person has practiced fraud or willfully suppressed any material facts. (vide G. Srinivas v. Govt. of A.P.27).
50. From the above, it is apparent that the power of review can be exercised, if statutorily permissible, only by quasi-judicial or judicial bodies. As regards an administrative action which has no judicial trappings, the same yard stick, in my view, cannot be applied. Appointments: Quasi-judicial or Administrative Function?:
51. Recruitment is a matter of an employer s policy, and the existence of any rules of recruitment is not sine qua non for effecting appointments. True, if rules hold the field, they need to be scrupulously complied with. In their absence, the employer, if it were State or its instrumentality, can regulate the recruitment through mere administrative instructions. So long as the procedure adopted is imbued with fairness and equality of opportunity, the employer enjoys much play at the joints, so to say.
52. It needs little cogitation that the employer s power of appointing its employees is purely administrative function: it is neither legislative, nor judicial not even quasi-judicial.
53. In National Institute of Mental Health and Neuro Sciences v. K. Kalyana Raman (Dr) 1992 Supp (2) SCC 481, at 485 , the Apex Court has held that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. It has further observed that giving of reasons for decision is different and, in principle, distinct from the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The fairness or fair procedure in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration.
In Perspective:
54. From the above, two propositions emerge: (1) that the power of review is a matter in the domain of judicial and quasi-judicial functions, but not administrative functions. An administrator, on the other hand, must adopt a fair procedure in discharging his functions;
(2) The whole process of recruitment or its crowning glory of appointment is purely an administrative function. Can an Administrator be shackled through the Restriction of Review?
55. Administration is not canonical; adjudication is. Administration is policy based, and adjudication is principle based. Policy is welfare driven and is, therefore, protean. Its norm is experimentation, which, in fact, is an anathema in adjudication judicial or quasi-judicial. If an administrator is tethered to his or her decisions treating them as immutable, irrevocable determinations in dispensation, it sounds the death knell for the efficient administration. Nay, such an approach is chimerical or utopian.
56. The concept of review or restriction on reconsidering decisions applies to judicial and quasi-judicial dispensation, but not administrative agencies. An administrator is always free to consider his or her decision subject to safeguards: the procedural fairness and the principles of natural justice, where their observance is called for. Should this Court just passively, in a pure adversarial manner, adjudicate even on matters of judicial review under public law remedy?
57. Adversarial is our adjudication. It is on the lines of Anglo- Saxon (common law world) justice dispensation system. Judges are arbitrators guided by, for example, in civil cases, the principle of preponderance of probabilities. That said, I hasten to add that a judge, even then, does not sit blindfolded with the swinging scales in his hand the metaphorical representation of justice may conjure up such a graphic image, though.
58. The Latin legal maxim ubi jus ibi remedium means there is no wrong without a remedy. Broom s Legal Maxims 12th Ed. P135 says that Social Justice is a pervasive presence; and so, save in special situations it is fair to be guided by the strategy of equity by asking those who claim the service of the judicial process to embrace the basic rule of distributive justice, while moulding the relief, by consenting to restore little sums, taken in little transactions, from little persons, to whom they belong. It was, therefore, held that the petition for direction for refund of enhanced rate of market fee paid subsequently declared the enhanced levy to be ulta vires Held, writ cannot be turned down on the negative plea of alternative remedy and must be sustained on the basis of rule of 'ubi jus ibi remedium' and equity.
59. But in public law remedy, the principle of remedial recourse cannot be applied with the same yardstick as is done with statutory remedy before an ordinary court of law.
Rights, Prerogatives and Distinction: Semantic Significance
60. English Synonyms and Antonyms by James C. Fernald 9th Ed., Funk and Wagnalls Company defines Right as that which one may properly demand upon considerations of justice, morality, equity, or of natural or positive law. A right may be general or special, natural or artificial. "Life, liberty, and the pursuit of happiness" are the natural and inalienable rights of all men; rights of property, inheritance, etc., are individual and special, and often artificial, as the right of inheritance by primogeniture.
61. The same lexicon defines Prerogative as an official right or privilege, especially one inherent in the royal or sovereign power; in a wider sense it is an exclusive and peculiar privilege which one possesses by being what he is; as, reason is the prerogative of man; kings and nobles have often claimed prerogatives and privileges opposed to the inherent rights of the people.
62. Black s Law Dictionary defines the expression judicial discretion to mean the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. Also termed legal discretion.
63. From the above lexical lineaments of the expressions, we may appreciate that right differs from prerogative. In a republic regulated by a written constitution, as ours is, it is difficult to call a constitutional remedy mandatory, at least, in the cases of infraction of fundamental rights a prerogative. It cannot, however, still be called a right in the realm of judicial review. Under public law dispensation, recourse to Constitutional Courts is a right; remedy is, still, discretionary a constitutional prerogative.
64. Tracing the historical origins of the prerogative writs in England, the learned author De Smith in his Judicial Review of Administrative Action 4th Ed. P.587 observes thus:
That some of the prerogative writs were discretionary came to be directly linked with their designation as prerogative writs. Thus, in one case, it was said: "An application for mandamus is an application to the discretion of the court; a mandamus is a prerogative writ and is not a writ of right". But although none of the prerogative writs is a writ of course, not all are discretionary. Prohibition, for example, issues as of right in certain cases, and habeas corpus ad subjiciendum, the most famous of them all, is a writ of right which issues ex debito justitiae when the applicant has satisfied the court that his detention was unlawful. These two writs, therefore, are not in the fullest sense writs of grace.
65. From the above, we can observe the doctrinal dichotomy. On one hand, certain writs are acknowledged as writs of right or course; some other, of discretion. De Smith nevertheless observes that they are not in the fullest sense writs of grace.
66. In Harelkin v. University of Regina [1979] 2 S.C.R. 561, the argument is that failure to observe the principle of audi alteram partem was akin to a jurisdictional error and the writs should issue ex debito justitiae. Ex debito justiae means "as of right", by opposition to "as of grace" Canadian Supreme Court has observed that using the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate. It is based on a contradiction and imports a great deal of confusion into the law. A writ cannot at once be a writ of grace and a writ of right. To say in a case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of issuing the writ rather than for refusal. But the expression, albeit Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the discretion even in cases involving lack of jurisdiction.
67. In Judicial Remedies in Public Law 4th Ed., P.426, Sweet and Maxwell , Clive Lewis has succinctly summarised the adjudicatory ambit of a discretionary public law remedy thus:
Judicial review is a discretionary jurisdiction. The prerogative remedies, the declaration and the injunction are all discretionary remedies. A court may in its discretion refuse to grant a remedy, even if the claimant can demonstrate that a public authority has acted unlawfully. If the courts refuse to grant a remedy recognising that an act is unlawful and ultra vires, the act is effectively treated as if it were valid.
There is a variety of considerations discernible in the case law which are relevant to the excise of the judicial discretion to refuse a remedy. Some are related to the conduct of the claimant, such as delay or waiver; others are related to the circumstances of the particular case, such as the fact that a remedy would be of no practical effect. Other considerations relate to the particular nature of public law where the court may need to have regard to the wider public interest as well as the interest of the claimant in obtaining an effective remedy. This point was strongly made by the Master of the Rolls in refusing to quash a decision of the Monopolies and Mergers Commission, even though the decision was legally flawed. The interests of the claimant had to be measured against the needs of good administration, which included: the need for speed, finality in decision-making, the public interest, the purpose of the administrative process and the need to consider substance not form.
68. The learned author eventually observes that the court must consider the nature of the flaw in the decision and the ground for exercising the discretion. This discretion, like all discretions, should be exercised on the basis of clear, consistent, and defensible principles, otherwise there is a risk that this judicial discretion may become arbitrary, making it impossible to predict the attitude of the courts.
69. In Air India Statutory Corpn. v. United Labour Union (1997) 9 SCC 377 at 435 , the Apex Court has held that the Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts.
70. Adverting to the factual context, the Court has observed that on finding that either the workmen were engaged in violation of the Act or were continued as contract labour, despite prohibition of the contract labour, the High Court has, with judicial review as the basic structure, a constitutional duty to enforce the law through suitable directions.
71. It may be appropriate to observe that Air India Statutory Corpn., (supra) was overruled prospectively later by Steel Authority of India Ltd. and others v. National Waterfront Workers and others (2001) 7 SCC 1 and other cases on the issue of compulsory absorption of the workmen. It is, however, unconnected to our discussion.
72. In Dwarka Nath v. ITO 1965) 3 SCR 536 , the Hon ble Supreme Court has admirably outlined the plenary powers of the Constitutional Courts under public law remedy. It observes that Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the power, the purpose for which, and the person or authority against whom it can be exercised. It can issue writs like prerogative writs as understood in England; but the scope of those writs also is widened by the expression nature , for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders, or writs, other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country.
73. Any attempt to equate the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions, grown over the years in a comparatively small country like England with a unitary form of government, to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. It is, however, not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. (vide Dwarka Nath (supra))
74. On the issue of natural justice and fairness, Halsbury s Laws of England 4th Ed. Vol.I, Para 59 opines that the rules of natural justice must be observed by Courts, Tribunals, Arbitrators, and all persons and bodies having the duty to act judicially, save where their application is excluded expressly or by necessary implication, or by reason of other special circumstances. However, the obligation to observe natural justice is not confined to persons acting in judicial or quasi-judicial capacities. Now when any administrative decision is taken, it will be presumed that is to be taken fairly.
75. Similarly, the distinction previously drawn between the determination of rights where the obligation applied, and the determination of privileges where it did not, is also defunct. For these reasons the courts now tend to speak in terms of procedural fairness of a general duty to act fairly. The fact that these distinctions have now been eroded does mean that in some circumstances it is difficult to determine wither the boundaries of the application of the duty to act fairly or the substance of its contents or both. However, whether a decision is administrative or quasi-judicial , or whether the subject matter of the decision may be regarded as a right or a privilege is relevant in order to determine what fairness requires in any particular situation.
76. The content of the duty to act fairly is highly flexible. Although the two rules stated above must normally, though not invariably, be observed, the precise procedure to be followed in a given situation depends upon the subject matter of the decision or adjudication and upon all the circumstances of the case. (Ibid, para 95)
77. In CAG v. K.S. Jagannathan, (1986) 2 SCC 679 at 692 the Supreme Court has observed that in a proper case, to prevent injustice inflicted on the parties concerned, the Court may itself pass an order or give directions which the government or the public authority would have passed or given, had it properly and lawfully exercised its discretion. Conclusion:
78. Infraction of the principles of natural justice goes to the root of the matter; a Court on that count interferes. But is that all? If at all this Court finds, prima facie, there is a palpable illegality in the administration of the society qua the appointing authority, can it turn a Nelson s eye to the problem? Can it leave the issue indeterminate, so the parties may indulge themselves in endless and needless, too rounds of litigation in the name of procedural flaws? It is inadvisable. The Court can show the course of action that can be taken recourse to by the parties; it can even by itself adjudicate on the issue. For the procedural constraints are the least of the hurdles the Constitutional Courts brook.
79. In the present instance, one complainant is a private person; another, a member of the Managing Committee. The private person can only approach the Co-operative Arbitration Court under Section 69 of the Act. The member, however, being a part of the Society and the decision making body as well, himself is a co-employer. An employer need not go to the Arbitration Court, which only rules on the actions of the employer.
80. The member of the Managing Committee can, thus, raise the issue of the illegal appointment in the Committee meetings. To begin with, the allegation is that the petitioner was appointed by the President, rather than by the Managing Committee. The defence is that the Managing Committee has ratified the President s decision. If the former is true, there is no review; if the latter is true, the reconsideration of the issue is akin to review, though not review proper. However, I have already held that the judicial concept of review cannot be imported into the administrative realms. A wrong, if it were to be, cannot be perpetuated by a reference to the bogey of procedural rigmarole.
81. Under these circumstances, this Court sets aside Ext.P2 and P3 as being unsustainable. This Court further directs, in the interest of justice, the Managing Committee to take a decision on the legality of the petitioner s appointment after providing an opportunity of hearing to the petitioner. The decision shall be taken as expeditiously as possible, at any rate, within three months from the date of receipt of the copy of this Judgment.
82. It is abundantly clarified that the Managing Committee shall decide the issue on its own uninfluenced by the observations, if any, made herein touching on the merits. For all the observations are incidental and meant to aid the adjudication of the issues raised in the writ petition.
With the above observations, all the three writ petitions are disposed of. No order on costs.