Rule Of 'Audi Alteram Partem' Not Mandatory Where Opportunity Of Hearing Would Make No Difference In The Outcome: J&K&L High Court

Jammu & Kashmir and Ladakh High Court recently upheld an order where a person's pension was withdrawn by way of an order without affording him an opportunity of being heard. Justice Sanjeev Kumar observed that the plea of the petitioner that he was not provided a prior opportunity of being heard is not tenable in law: "The plea of the petitioner that he was not provided a prior opportunity of being heard is not tenable in law. This is so because had the petitioner been given an opportunity of being heard, the position would not have changed. The petitioner could not have, by any stretch of reasoning, demonstrated before the respondent-University that the offences for which he has been convicted are not serious or do not constitute grave misconduct. Therefore, issuance of notice of hearing to the petitioner before passing of the order impugned, in the given facts and circumstances would have been a useless formality." The petitioner was working as Director/Professor in the Computer Department of the University of Kashmir since the year 1989 and was sent on deputation to the Board of Profession Entrance Examinations as Chairman for a period of two years or till he attains the age of 65 years, whichever was earlier. He retired in 2010 and in 2013 an FIR was filed against him for offences under Section 406, 420, 120-B read with Section 5(1)(d) and Section 5(2) of J&K Prevention of Corruption Act. Since the FIR against the petitioner was registered after his superannuation, as such, the respondent-University vide order dated 23 November, 2010 accorded sanction to the grant of pension and other pensionary benefits in favour of the petitioner. It was not disputed that along with others, the petitioner has been convicted of the offences and has been sentenced to undergo sentence for a period ranging more than twenty years. Therefore, the University by way of impugned order stopped the pension of the petitioner. Petitioner argued the following: 1)The order impugned has been issued without providing the petitioner an opportunity of being heard; 2)That since the appeal against conviction and sentence awarded to the petitioner is pending before the High court, as such, the petitioner cannot be treated as a convict for the purpose of Article 168 of J&K CSR. With regard to the first argument of Senior Counsel was concerned, the Court said that the same is devoid of any substance or merit and, therefore, deserves to be rejected outrightly. "It is not denied by the petitioner that he has been convicted for the offence under Sections 406, 420 and 120-B RPC read with Sections 5(1)(d) and 5(2) of the J&K Prevention of Corruption Act and has been sentenced to undergo sentence for a period ranging upto twenty years. The trial Court has also imposed heavy fine in addition to the sentence of imprisonment. It also cannot be disputed that the offences for which the petitioner has been convicted are serious offences and that the petitioner has been held guilty of grave misconduct. The offences for which the petitioner has been convicted cannot, by any stretch of reasoning, be called minor or trivial in nature constituting no moral turpitude." The Court relied on Dharmpal Satyapal Limited v. Dy. Commissioner of Central Excise, Guwahati wherein it was held that principles of natural justice in particular principle of audi alteram partem is not a straightjacket rule having universal application. There may be situations where it is felt that a fair hearing would make no difference - meaning that hearing would not change the ultimate conclusion reached by decision maker. In such situations fair procedure appear to serve no purpose since the right can be secured without according such treatment to the individual. The validity of any such order passed without hearing is to be adjudged on the touchstone of prejudice. Court said that in ordinary course administrative authority proposes to take action adverse to the interest of a person, it would adhere to the principles of natural justice and provide an opportunity of being heard to the person concerned irrespective of whether the statute governing such action specifically provides for such notice of hearing or not. As observed above, like many other legal provisions and principles, this rule is also not absolute and is subject to well defined exceptions. Useless formality theory is one such exception but must not be readily resorted to in all cases. It is only where an exceptional case is made out for its exercise, this theory can be resorted to, to uphold the action even if it is taken without affording an opportunity of being heard to the person affected by such action. The Court further said that the petitioner was a public servant and was convicted under Prevention of Corruption Act. The offences under Prevention of Corruption Act constitute grave misconduct and are always treated as...

Rule Of 'Audi Alteram Partem' Not Mandatory Where Opportunity Of Hearing Would Make No Difference In The Outcome: J&K&L High Court

Zeb Hasan

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