S.B. Sinha, C.J.
1. How far and towhat extent the Doctrine of Procedural Ultra Vires shall be applicable is the question involved in this reference.
FACTS:
2. The petitioner was appointed as a Reader in the Copying Section of the Court of Metropolitan Sessions Judge, Hyderabad. She was subsequently promoted to the post of L.D.C. A Disciplinary Proceeding was initiated against her in relationthereto the following charges were framed on 15-12-1993:
'1. When the Presiding Officer Sri P. Venugopala Rao, VIII Metropolitan Magistrate orally directed you to prepare and get it typed the consolidated report of the old criminal cases in which accused were absconding, you refused to prepare and get it typed the same and further stated even if a written direction is given you will tear it off and go on leave; and
2. When the Presiding Officer stated thathe will not grant leave for the employeeswho avoid work then you threatened thePresiding Officer as '
and thereby you exhibited gross misconduct, dereliction of duty, indiscipline, lack of sense of propriety and behaved in a manner unbecoming of a Government servant and thus violated Rule 3 Clauses (1) and (2) of the Andhra Pradesh Civil Services (Conduct) Rules, 1964.'
3. An Enquiry Officer was appointed. The petitioner took part in the enquiry proceedings without any demur whatsoever. In the disciplinary proceedings, the petitioner was found guilty the misconduct alleged against her. Upon issuance of a 2nd show cause notice and perusing the explanation submitted by her, the Metropolitan Sessions Judge, Hyderabad - 2nd respondent herein has removed her from service by an order dated 24-9-1998 stating:
'For the reasons aforesaid, I cannot take a lenient view in this case. The continuance of the delinquent in employment would endanger the career of several male employees, and it is also not in public interest to continue her in service.'
4. An appeal was preferred by the delinquent before this Court, which was dismissed by an order dated 30-07-1999.The writ petition was filed by the petitioner wherein a question was raised that although Civil Services (Classification, Control and Appeal) Rules, 1963 ('the 1963 Rules' for brevity) was repealed and replaced by new set of Rules known as A.P. Civil Services (Classification, Control and Appeal) Rules, 1991, ('the 1991 rules' for brevity) proceedings were initiated against her under the old rules.
Reason for reference:
5. The writ petition came up for hearing before a Division Bench of this Court (Coram: Mr. Bilal Nazki and Mr. E. Dharma Rao, JJ). The attention of the Division Bench was drawn to a Judgment dated 12-4-2001 delivered by another Division Bench of this Court (Coram: Mr. S.R. Nayak & S. Anand Reddy, JJ) in W.P. No. 4931 of 1998 wherein a similar question has been considered, and the said Division Bench while upholding the disciplinary action of the respondents held that no prejudice was caused to the writ petitioner of that case and that he has not made any complaint with regard to the grievance that the enquiry was being conducted under the repealed rules. The Division Bench (Coram: Mr. Bilal Nazki & Mr. E. Dharma Rao, JJ), however, was of the opinion that when an enquiry conducted against non-existent and repealed Rules; the punishment given on the basis of such an enquiry would basically be without Jurisdiction and thus the question of any prejudice may be irrelevant. In the order of reference, the Division Bench observed:
Heard the learned counsel for the parties. Disciplinary action against the petitioner has been taken after initiation of disciplinary proceedings against him in terms 'of the provisions of Andhra Pradesh Civil Services; (Classification, Control and Appeal) Rules, 1963. When the disciplinary action was taken, the 1963 Rules were not in existence, theyhad beer repealed and replaced by a new set of Rules known as 'Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. The action of the authorities to initiate an enquiry under the repealed Rules was prima facie without jurisdiction. While hearing the matter, Mr. C.V. Nagarjuna Reddy, learned Standing Counsel appearing for the High Court has drawn our attention to the judgment of a Division Bench of this Court in W.P. No. 4931 of 1998, dt. 12-4-2001 in which this question has been considered. The Division Bench was of the view after comparing the two sets of Rules that no prejudice had been caused to the writ petitioner in that case and that the petitioner had not made any complaint with regard to his grievance that the enquiry was being conducted under the Repealed Rules therefore upheld the action of the respondents. With respects we are of the prima facie view that an enquiry conducted under the non-existent and repealed Rules and the punishment given on the basis of such an enquiry is basically without jurisdiction. Prejudice or no prejudice, if an enquiry is conducted against nonexistent and repealed Rules, the punishment cannot be sustained. Since we do not find ourselves in agreement with the law laid down by the Division Bench in the judgment delivered in W.P. No. 4931 of 1998, we refer this matter to a Full Bench. Let the matter be placed before the Hon'ble the Chief Justice for constitution of an appropriate Bench.
SUBMISSIONS:
Submissions of the Petitioner:
6. Ms. Kavitha, the learned counsel appearing on behalf the petitioner would submit that as 1963 Rules were non-existent, having been replied and replaced by the 199) Rules, the Doctrine of Procedural UltraVires shall come into play and it must be held that the entire procedure is a nullity. Although, contends the learned counsel, the question of jurisdiction had not been raised before the disciplinary authority or before the appellate authority, as there can be no waiver of jurisdiction, the petitioner is entitled to raise the said question. The learned counsel would also contend that the 1991 Rules would apply to the alleged misconduct dated 16-6-1993 and the proceedings being a nullity, the same should be set aside by this Court. The learned counsel next contended that Article 235 of the Constitution of India does not authorize the High Court to issue Circular Letters as regards the mode and manner of holding disciplinary proceedings against an employee and on that ground too, the impugned order must be held to be bad in law. The learned counsel urged that such administrative circulars cannot have the effect of any statutory rule. Strong reliance in this connection has been placed on the decisions of the Apex Court in C.L. VERMA v. STATE OF MADHYA PRADESH, 1990 (1) SLR 134 and K. KUPPUSWAMY v. STATE OF TAMILNADU, : (1998)8SCC469 .
Submission on behalf of respondents:
7. Mr. C.V. Nagarjuna Reddy, the learned counsel appearing on behalf of respondents, on the other hand, would submit that the 1991 Rules became applicable in respect of the judicial employees only on or about 1-1-1998. The learned counsel has drawn our attention to the fact that a Full Bench of this Court in HIGH COURT OF A.P. v. GOVT. OF A.P., 1998 (2) ALT 356 (FB), had declared Rules 11(1) and 22 (2) of the 1963 Rules as ultra vires. The Apex Court, however, reversed the said decision in T. LAKSHMI NARASIMHA CHARI v. HIGH COURT OF A.P., : AIR1996SC2067 , wherein it was held:
'16. In our opinion Rule 21 (2) can be interpreted in conformity with Article235 without the requirement of reading any limitation therein as indicated by the High Court. The second part of Article 235 enables the framing of such a rule to confer a right of appeal. Such a provision for appeal must be construed to mean that the appeal to the Governor against the order of the High Court provides for reconsideration of the High Court's order by the Governor, but in keeping with the requirement of Article 235 that the power of control over persons-belonging to the judicial service of a State vests in the High Court, and that the appeal must be decided by the Governor only in accordance with the opinion of the High Court. In other words, such an appeal has to be forwarded by the Governor to the High Court for its opinion, which would enable the High Court to rec6nsider its earlier decision and give its opinion to the Governor, in accordance with which the Governor must decide the appeal. In short, the remedy of such an appeal provided by the Rules which have been framed in consultation with the High Court is in the nature of a provision for reconsideration or review by the High Court of its earlier decision. The High Court on reconsideration of the matter has to give its opinion to the Governor and the Governor must invariably act in accordance with the opinion so given by the High Court. The Governor has no option to act in a manner different from that recommended by the High Court. This procedure requires reconsideration by the High Court of its earlier opinion and the opinion given by the High Court after reconsideration indicates the manner of decision of that appeal. There is thus no erosion in the control vested in the High Court over persons belonging to the judicial service of a State: and the requirement of an appeal i.e., reconsideration of the earlier decision is also satisfied. In this process, any comments by the Governor on themerits of the case would also receive consideration of the High Court before it forms the final opinion and forwards its recommendation to the Governor for decision of the appeal in accordance with that opinion. This is the scheme and requirement of Article 235. We are informed that similar provision exists for appeal in the case of persons belonging to the judicial service in some other States and the Rule is worked in the manner indicated. Such a construction of the Rule gives effect to the provision for appeal consistent with the right of appeal available under the second part of Article 235 and is consistent with the vesting of control in the High Court over the subordinate judiciary.'
8. Thereafter the High Court adopted the 1991 Rules, which came into force with effect from 1-1-1998.
9. The learned counsel would submit that keeping in view the uncertain situation, the High Court on its administrative side issued some circulars, which was within its jurisdiction under Article 235 of the Constitution of India. The learned counsel would submit that such a power emanates from control of the subordinate judiciary as adumbrated under Article 235 of the Constitution. Strong reliance in this connection has been placed on the decisions of the Apex Court in STATE OF WEST BENGAL v. NRIPENDRA NATH BAGCHI, : (1968)ILLJ270SC , STATE OF HARYANA v. INDER PRAKASH ANAND, : AIR1976SC1841 and STATE OF U.P. v. BATUK DEO PATI TRIPATI, : 1978CriLJ839 .
10. The learned counsel would contend that the principles of natural justice must be applied in the fact situation of the case. No hard and fast rule therefore can be laid down. Reliance in this connection has been placed on the decisions of the Apex Court in ALIGARH MUSLIM UNIVERSITY v.MANSOOR ALI KHAN, : AIR2000SC2783 3 and M.C. MEHTA v. UNION OF INDIA, : [1999]3SCR1173 .
11. The learned counsel submits that the prejudice doctrine may, therefore, in a given situation like the present one, come into play. Reliance in this connection has been placed on a decision of the Apex Court in REGISTRAR (ADMN.) v. SISIR KANTA SATAPATHY, : AIR1999SC3265 .
12. The learned counsel would contend that having regard to the limited scope of judicial review, it may be held that the court is riot concerned with the merit of the decision. Reliance in this connection has been placed on the decisions of the Apex Court in STATE OF U.P. v. NAND KISHORE SHUKLA, : (1996)IILLJ672SC , INDIAN OIL CORPORATION LTD. AND ANR. v. ASHOK KUMAR ARORA, : AIR1997SC1030 and HIGH COURT OF JUDICATURE v. SHASHIKANT S. PATIL, : 2000(67)ECC16 .
FINDINGS:
13. On a perusal of both the old and the new rules, one major difference in the provisions of the 1963 and the 1991 Rules may be noticed. In terms of 1963 Rules, the enquiry officer could frame charges whereas in terms of the 1991 Rules, the disciplinary authority itself is required to do the same.
14. The learned counsel for the petitioner submits that the functions of the disciplinary authority, as also the appellate authority, in terms of Rule 9 and Rule 37 of the 1991 Rules are of imperative character, as they were required to consider the factors specified in the Rules for the purpose of arriving at a decision as regards the proof of misconduct on the part of the delinquent employee.
Before proceeding further, we may notice Article 235 of the Constitution, which reads thus:
235. Control over subordinate courts:--The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to; persons belonging to the judicial service of a State and holding any post inferior to the post of district shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
15. The word 'control' is of wide amplitude. The question as to whether the extent of control vested in the High Court under Article 235 extends to judicial employees or not came up for consideration in R.M. GURJAR v. HIGH COURT OF GUJARAT, : [1992]3SCR775 , wherein the Apex Court answered the same in affirmation.
16. Noticing the Full Bench decision of the Gujarat High Court wherein it was held that control under Article 235 of the Constitution of India extends to ministerial officers and servant under the establishment of the subordinate court also, the Apex. Court R.M. GURJAR (14 supra) observed:
5. xxx
On the interpretation placed by us on the Rules, the answer to the first question has to be in the affirmative. We are also of the opinion that the answer to the second question as rendered by the Full Bench of the High Court is unexceptionable and does not call for any interference ......
17. In INDER PRAKASH ANAND (supra) the Apex Court observed:
15. This Court in Bagchi's case (State of West Bengal v. Nripendra Nath Bagchi- : (1968)ILLJ270SC ) said that control vested in the High Court is over the conduct and discipline of the members of the Judicial Service. Orders passed in disciplinary jurisdiction by the High Court are subject to an appeal as provided in the conditions of service. The High Court further deals with members of the Judicial Service in accordance with the rules and conditions of service. This Court in Bagchi's case said that the word 'deal' points to disciplinary and not merely administrative jurisdiction. The order terminating the appointment of a member of the service otherwise than upon his reaching the age fixed for superannuation will be passed by the State Government on the recommendation of the High Court. This is because the High Court is not the authority for appointing, removing, reducing the ranker terminating the service.
16. It is true that the fixation of the age of superannuation is the right of the State Government - The curtailment of that period under rule governing the conditions of service is a matter pertaining to disciplinary control as well as administrative control. Disciplinary control means not merely jurisdiction to award punishment for misconduct. It also embraces the power to determine whether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation. Administrative, judicial' and disciplinary control over members of the Judicial Service is vested solely in the High Court. Premature retirement is made in the exercise of administrative and disciplinary jurisdiction. It is administrative because it is decided in public interest to retire him prematurely. It is disciplinary because the decision was taken that he does not deserve to continue in service up to the normal age of superannuationand that it is in the public interest to do so.
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18. The control vested in the High Court is that if the High Court is of opinion that a particular judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the contemplation in the Constitution that the Governor as the head of the State will-act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. 'The Government will act on the recommendation of the High Court. That is the broad basis of Article 235.' (See Shamsher Singh's case {SHAMSHER SINGH v. STATE OF PUNJAB - : (1974)IILLJ465SC
18. In BATUK DEO PATI TRIPATHI (supra) the Apex Court held:
14. Having given our close and anxious consideration to that question, regret that we are unable to share the view of the majority of the High Court Full Bench that by leaving the decision of the question of the respondent's compulsory retirement to the Administrative Committee, the Court has abdicated its constitutional function. According to the view of the majority, the act of the Courtin allowing the Administrative Committee to decide that question under Rule 1 of Chapter III of the 1952 Rules is an act of 'self- abnegation' and therefore void. This approach betrays, with respect, a misunderstanding of the object of Article 235, the ideal which inspired the provision that the control over District Courts and courts subordinate thereto shall vest in the High Courts is that those wings of the Judiciary should be independent of the executive. Tracing the history of that concept, Hidayatullah, J in State of West Bengal v. Nripendra Nath Baghehi : (1968)ILLJ270SC has highlighted the meaning and purpose of Article 235. It is in order to effectuate that high purpose that Article 235, as construed by this Court in various decisions, requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding the imposition of punishment falling within the scope of Article 311 and the first appointments and promotions should be dealt with and decided upon by the High Courts in the exercise of the control vested in them. A proper understanding and appreciation of this position will be conducive to a correct assessment of the situation under examination in the instant case. For, knowing that the object of Article 235 is to ensure the independence of an important wing of the judiciary, the inquiry which assumes relevance is whether the procedure sanctified by the Rules of the High Court is in any manner calculated to interfere with or undermine that independence. Does that procedure involve 'self-abnegation', by conceding the right of control to any, outside authority? It is pertinent, while we are on this question, to know the context in which the expression 'self-abnegation' was used by this Court. In Shamsher Singh v. State of Punjab (supra) {AIR 1974 SC 2152} the action of the HighCourt in asking the State Government to depute the Director of Vigilance to hold an inquiry against a judicial officer was deprecated by this Court as an act of self-abnegation. The High Court abdicated its control over the subordinate judiciary, which includes the power to hold a disciplinary inquiry against a defaulting Judge, by surrendering that power to the executive. That, truly, was an act of self- abnegation. There is no parallel between what the High Court did in Shamsher Singh and that has been done in the instant case. Here, the decision to compulsory retire the respondent was taken by the Judges of the High Court itself, though not by all. If some but not all Judges of the High Court participate in a decision relating to a matter which falls within the High Courts' controlling jurisdiction over subordinate courts, the High Court does not efface itself by surrendering its power to an extraneous authority. The procedures adopted by the High Court under its Rules is not subversive of the independence of the subordinate judiciary, which is what Article 235 recognises and seeks to achieve. The true question then for decision is not the one by which the majority of the Full Bench felt oppressed but simply, whether the procedure prescribed by the High Court Rules is in any other manner inconsistent with the terms of Article 235 of the Constitution.
19. There cannot therefore be any doubt whatsoever, having regard to the aforementioned authoritative pronouncement of the Apex Court, that the High Court exercises administrative control over the ministerial officers engaged in subordinate courts also.
20. It is trite that the applicability of a Rule framed by the State shall necessarily have to be extended to the Judicial Officersand Ministerial Officers in consultation with the High Court.
21. In STATE OF BIHAR v. BAL MUKUND SAH, : [2000]2SCR299 , the Apex court held that even the principle of reservation evolved by the State cannot be extended to the Judicial Officers without concurrence of the High Court.
22. In the aforementioned situation, the question of the doctrine of procedural ultra vires, as raised by Ms. Kavitha, would not arise.
23. Rule 45 of the 1991 Rules repealed the 1963 Rules, which include the A.P. State Higher Judicial Service Rules, but the same would not ipso facto mean that the 1991 Rules would become applicable to the ministerial officers of the subordinate judicial service. For applicability of such Rules, the consultation of the High Court was necessary. In the aforementioned situation, even non-existence of the 1991 Rules to take disciplinary proceedings would not mean that an employee guilty of misconduct cannot be proceeded against and punished. The same can be done by following the principles of natural justice. If the 1963 Rules and the departmental circulars issued by High court had been followed, which are not said to be contrary or inconsistent with the general principles of natural justice, in our considered opinion, the disciplinary proceedings would not be vitiated in law.
24. Natural justice as is well known, cannot be applied in its rigid form. It is flexible in its application.
25. The applicability of the principles of natural justice has undergone a sea-change. A slight infraction of procedural safeguard cannot vitiate the disciplinary proceedings unless it is held that thereby the delinquent employee was seriously prejudiced. To the aforementioned extent, the Apex Courtreferred to its earlier decision in GADDA VENKATESWARA RAO v. GOVT. OF ANDHRA PRADESH, : [1966]2SCR172 , in M.C. MEHTA (supra) observing:
'18. ... The above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law.'
26. In the aforementioned case, the Apex Court after taking into consideration a large number of its earlier decisions held;
23. ... 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 entitled 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. ...
27. It is now trite that judicial review is not the review to the order but it is the revision of the decision making process. Technical rules of evidence have no application to the disciplinary authorities and this Court in its writ jurisdiction cannot re-appreciate the evidence. It has to be only ensured that the delinquent officers received fair treatment in the hands of the disciplinary authority and there was no violation of principles of natural justice by way of denial of reasonable opportunity.
28. The Apex Court, while dealing with a dispute as regards unauthorized absence or overstaying of leave by the delinquent therein, under Aligarh University Revised Leave Rules (1969) and Aligarh Muslim University Act in MANSOOR ALI KHAN (supra), referred to various decisions and held that each case must be tested on its own merit.
29. In KUMAON MANDAL VIKAS NIGAM LTD. v. GIRJA SHANKAR PAN, AIR 2001 SC 24, it was held:
2. While it is true that over the years there as been a steady refinement regards this particular doctrine, but no attempt has been made and if may say so, cannot be made to define the doctrine in a specific manner method. Straight-jacket formula cannot be made applicable but compliance of the doctrine is solely dependant upon the facts and circumstances each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance of the doctrine, the law courts in that event ought to set right the wrong inflicted upon the concerned person and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action.
30. In SISIR KANTA SATAPATHY (supra) the Apex Court, again taking into consideration a large number of decisions held:
15. On going through the judgments of this Court right from Shyamial v. State of U.P. : (1954)IILLJ139SC down to High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal {(1988) 3 SCC 7.} one cannot but reach one conclusion regarding the power or the High Court in the matter of ordering compulsory retirement. That conclusion is that the High Courts are vested with the disciplinary control as well as administrative control over the members of the judicial service exclusively, but that does not mean that they can also pass orders of dismissal, removal, reduction in rank or termination from service while exercising administrative and disciplinary control over the members of the judicial service. Undoubtedly, the High Courts alone are entitled to initiate, to hold enquiry and to take a decision in respect of dismissal removal, reduction in rank or termination from service, but the formal order to give effect to such a decision has to be passed only by the State Governor on the recommendation of the High Court. It is well settled again by a catena of decisions of this Court that the recommendation of the High Court is binding on the State Government/ Governor (vide para 18 in Inder Prakash Anand case : AIR1976SC1841 .
16. We are clearly of the view that while the High Court retains the power of disciplinary control over the subordinate Judiciary, including the power to initiate disciplinary proceedings, suspend them pending enquiries and impose punishment on them but when it comes to the question of dismissal, removal, reduction in rank or termination of the services of the judicial officer, on any count whatsoever, the High Court becomes only the recommending authority and cannot itself pass such an order {vide Inder Prakash Anand case and Rajiah case-- : AIR1988SC1388 }
31. The petitioner, in this case, did not raise the question of violation of the principles of natural Justice at any stage. She has raised no grievance as regards procedural fairness. It is not her case that charges have wrongly been framed. It is also not her case that the disciplinary authority could have framed some other charges having regard to the fact situation obtaining in her case.
32. We may notice, although speaking generally, that the procedural doctrine of estoppel arises where an order passed is wholly without jurisdiction, but the same may not be held to be applicable in a case where the procedural infirmity may not lead to a substantial change in the result.
33. In the aforementioned situation, the prejudice doctrine shall apply.
34. In V. RAJAMALLAIAH v. HIGH COURT OF A.P., : 2001(3)ALD625 (DB), a Division Bench of this Court while dealing with the question that the enquiry officer has followed the procedure prescribed in Civil Services (CCA) Rules of 1963 instead of subsequent Rules of 1991, which are holding the field at the relevant time held that there are no material differences between the two procedures and no prejudice is shown to have been caused to the delinquent. The Bench meeting - the contention of the delinquent's counsel that in the enquiry conducted by the Enquiry Officer, the Enquiry Officer first examined the petitioner and later examined the witnesses produced by the disciplinary authority, without even supplying the list of witnesses examined by the disciplinary authority before they were examined in the course of the enquiry, and this procedure is not in consonance with the well established procedure in a departmental enquiry and also regulations governing the departmental enquiry observed:
'12. Coming to the third contention of the learned Counsel for the petitioner, itis true that ordinarily the disciplinary authority should examine witnesses first in support of the charge. In the instant case, it is admitted that the Enquiry Officer examined the delinquent-petitioner in the first instance. It is also alleged that no list of witnesses of the disciplinary authority was furnished to the petitioner before they were produced before the Enquiry Officer for examination. As quite often said and reiterated by the Courts, procedure is hand-made of justice and it is essentially meant to advance justice. It is not the case of the petitioner that on account of this departure in the procedure, the petitioner could not effectively cross-examine the witnesses produced on behalf of the disciplinary authority. If that was the case, he ought to have made grievance then and there only. Records do not disclose that the petitioner made complaint to the Enquiry Officer in that regard or before the Disciplinary Authority or before the High Court on administrative side. Though the fact of the Enquiry Officer examining the petitioner in the first instance was stated in the Memorandum of Appeal before the High Court, no prejudice on that count was pleaded in the Memorandum of Appeal, A Division Bench of this Court consisting one of us (SRN.J) in Bankatlal Satyanarayana Parik and Co. v. Commissioner of Commercial Taxes, : 2001(2)ALD147 (DB), observed as follows: 'The dialectics of the audi alteram partem rule has, in contemporaneous administrative law, evolved dynamically. The means-based technical view has been eschewed in favour of the holistic and effect-analysis model. Violation of natural justice is by itself, no longer sufficient to invalidate State action. A clear prejudice that has been suffered by the violation needs to be pleaded anddemonstrated. This is the current and operative doctrine-vide S.L. Kapoor v. Jagmohan : [1981]1SCR746 ; K.L. Tripathi v. S.B.I. : (1984)ILLJ2SC ; Rajender Singh v. State of Madhya Pradesh : AIR1996SC2736 ; MC v. Union of India {(1996) 6 SCC 237} and Aligarh Muslim University v. Mansoor Ali Khan : AIR2000SC2783 .'
We agree with the aforementioned Division Bench judgment. If ANITHA v. STATE OF A.P., : AIR2001AP236 (DB), a Division Bench of this Court (wherein one of us, S.B. Sinha, C.J., was a party) held:
'2. The principle of natural justice does not have a rigid formula. Natural justice has different facets - the requirement to comply with the principle of audi alteram partem and the extent thereof. The doctrine of natural justice does not contain any body of codified canons. As natural justice has a root in fairness the application thereof would certainly vary from case to case. When there are gross irregularities involving a large number of persons may not be possible to give a personal hearing to each one of them particularly when the truth and substance of the matter can be found out from the record. Although natural justice to some of us is being considered to be part of Article 14 the concept has undergone a change, Although one point of time non-compliance of the principles of natural justice was considered to be per se having a prejudicial effect, by and by the prejudice theory have been evolved by the Apex Court.' (see pp. 311)
35. This aspect of the matter has also been considered by this Bench in an unreported judgment in W. P. No. 18717 of 1999 dated 6-6-2001 wherein it was held:
'7. In a case of this nature, where the facts are admitted, in our considered opinion, the principles of natural justiceare not required to be complied with not only because the said principles are not applicable but also on the ground that even if the principles of natural justice are directed to be complied with, the same would not yield any different result.
8. In Malloch v. Aberdeen Corporation {(1972) 2 All ER 1278}, Lord Wilberforce stated: ' a breach of procedure whether called a failure of natural justice, or an essential administrative fault cannot give..... a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain.'
9. Yet again, in R. v. Secretary of State for Transport parte Gwent Country Council {(1987) 1 All ER 161}, it has been held mat the test of prejudice should be applied in a case of enhancement of 'toll charges over a bridge. Although in that case, the statute provided for a public hearing before effecting increase in toll charges over a bridge, the Court of Appeal held that unless prejudice is established to have resulted from the procedural impropriety, no interference was called for.
10. In Jankinath Sarangi v. State of Orissa : (1970)ILLJ356SC , while holding that the principles of natural justice are violated, the Apex Court observed that in the facts and circumstances of the case, no prejudice was caused to the appellant by, not examining the two retired Superintending Engineers who were cited as witnesses. Hidayatullah, CJ, observed: There is no doubt that if the principles of natural justice are violate and there is a gross case this Court would interfere by striking down the order of dismissal; but, there are cases and cases. We have tolook to what actual prejudice has been caused to a person by the supposed denial to him of a particular right.
36. In STATE BANK OF PATIALA v. S.K. SHARMA, : (1996)IILLJ296SC , the apex Court succinctly laid down the cardinal principles with regard to the power of the High Court over the disciplinary proceedings in the following lines:
33 We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee);
(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) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/ employee. They are, generally speaking, conceived in his interest. 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. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice The court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(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 aprovision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(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) Where the enquiry is not governed by any rules/regulations/statutory/ provisions and the only obligation is to observe the principles of natural justice -or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/ action - the court or the tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet the said rule, as explained in the body of the judgment. In other words, a distinction must be made between 'no opportunity' and no adequate opportunity, i.e., between 'no notice'/'no hearing' and 'no fair hearing', (a) in the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). Insuch cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the litter ease, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice, in other words, what the court of tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5 does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.]
(6) While applying the rule of audi alteram pattern (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.
(7) 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.
37. The Division Bench also noticed the decisions of the Apex Court in K.L. TRIPATHI v. STATE BANK OF INDIA, : (1984)ILLJ2SC , THE CHAIRMAN, BOARD OF MINING EXAMINATION & CHIEF INSPECTOR OF MINES v. RAMJEE, : [1977]2SCR904 and a Division Bench judgment of this Court in ANITHA v. STATE OF A.P. (supra).
38. Even assuming that principle of Rule 20 was mandatory in nature, the same may not be held to be applicable in a given case. In Crawford's Statutory Constructions and Interpretation of Laws, it was held:
271. Miscellaneous Implied Expectations from the Requirements a Mandatory Statutes, In General--Even where a statute is clearly mandatory or prohibitory, yet, in many instances, the courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their justification in considerations of justice. It is a well known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and human considerations, and other considerations of a closely related nature, would seem to be of a sufficient caliber to excuse or justify a technical violation of the law. (see pp. 539)
39. The aforementioned principle applies squarely, having regard to the instant case and having regard to the fact that the charges were framed at, a point of time when Rules 11(1) and 22 (2) had been held to be ultra vires by a Full Bench decision of this Court and the matter was pending decision before the Apex Court.
40. For the reasons aforementioned, we are of the opinion that this is not a fit case where this court should exercise its discretionary jurisdiction under Article 226 of the Constitution. There is no merit in the writ petition and it is accordingly dismissed. No order as to costs.