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                 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4348-4349 OF 2009 (Arising out of SLP(C) Nos. 3795-3796 of 2008)

Prakash Ratan Sinha                                                          ……….Appellant

Versus

State of Bihar & Ors.                                                         ……..Respondents

JUDGMENT  

H.L. Dattu,J.  

Delay condoned.

2) Leave granted.

3) These appeals by special leave have been filed against the judgment  

and order of the High Court of Judicature at Patna in L.P.A. No. 887  

of  2005  dated  7.9.2005,  wherein  and  whereunder,  the  Division  

Bench has set aside the order passed by the learned Single Judge in  

W.P. No. 1677 of 2001 dated 5.7.2004.

4) The facts which are not in dispute are, the appellant was appointed  

on daily wages on 31.12.1976 and he was made permanent in the  

work charge establishment  on 15.5.1989 along with several  other

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persons in the respondent – establishment.  It is the assertion of the  

appellant  that  though he was appointed as a daily wager,  he was  

asked  to  discharge  the  work  of  Accounts  Clerk  in  view  of  his  

qualification and experience.  It is also stated, that, he had filed an  

application  before  the  Circle  Promotion  Committee  for  his  

promotion or re-appointment to the post of Accounts Clerk and that  

request  was  considered  by  the  Committee  on  6.1.1998  and  

recommended his case for change of his nomenclature from daily  

wager to Accounts Clerk and on the recommendation so made, the  

Electrical Superintending Engineer, Department of Energy, Electric  

Works  Circle,  Patna,  issued  an  order  changing  his  nomenclature  

from labourer to Accounts  Clerk, subject to approval of the Chief  

Electrical  Engineer,  Department of Energy,  Government of Bihar,  

Patna.  The incharge Chief Electrical Inspector vide his order dated  

11.11.1998 approved the proposal of the Committee and had issued  

necessary orders in this regard.  However, subsequently, the Regular  

Chief Engineer on assumption of charge, having found that the order  

passed by the incharge Chief Electrical Engineer is contrary to the  

Rules  and the  Government  Orders  issued from time to  time,  has  

cancelled  the  earlier  order  dated  11.11.1998 vide  his  order  dated  

11.12.1998.   This  order  has been questioned by the  appellant  by

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filing a writ petition in No. 1677 of 2001.  The same was allowed by  

the learned Single Judge, mainly on the ground that the impugned  

order has been passed without affording an opportunity of hearing to  

the appellant.  The appeal filed by the respondents is allowed by the  

Division bench and has set aside the order passed by the learned  

Single Judge, primarily on the ground, that affording an opportunity  

of  hearing  before  passing  the  impugned  order  is  mere  empty  

formality  and even if  an opportunity  of  hearing was granted,  the  

result would have been the same.  The Court to  sustain its view, has  

placed reliance on the observations made by this Court in the case of  

State of Maharashtra and Others vs. Jalgaon Municipal Council and  

Others – (2003) 9 SCC 731 and Canara Bank and Others vs. Debasis  

Das  and  Others  –  (2003)  4  SCC  557.   In  Jalgaon  Municipal  

Council’s case, it was stated “there is also a situation which Prof.  

Wade  and  Forsyth  term  as  `dubious  doctrine’  that  right  to  fair  

hearing may stand excluded where the Court forms an opinion that a  

hearing would make no difference.  However, it was held that utter  

caution is needed before bringing the last exception into play”. In  

the case of Canara Bank and Others, it  was observed, that, where  

grant of opportunity in terms of principles of natural justice does not  

improve the situation, `unless formality theory’ can be pressed into

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service.  

5) The issue that requires to be decided in this civil appeal is, whether  

the order passed by Chief Electrical Engineer dated 11.12.1998 is  

amenable  to  judicial  review  on  the  touchstone  of  principles  of  

natural justice.  

6) The respondent is an instrumentality of the State, and therefore, all  

its  administrative  decisions  would  be  subject  to  the  doctrine  of  

equality and fair play, as incorporated in Articles 14 and 21 of the  

Constitution  of  India.   If  any  of  its  actions  or  administrative  

decisions result in civil consequences, the actions or decisions could  

be judicially reviewed or tested on the anvil of principles of natural  

justice.  This principle of law has been laid down by this Court in  

catena of cases.  In Canara Bank and Others Vs. Debasis Das and  

Others  reported  in  (2003)  4  SCC  557,  this  Court  has  held  in  

paragraph 19 that even an administrative order which involves civil  

consequences must be consistent with the rules of natural  justice.  

This  Court  has  elaborated  the  expression  `civil  consequence’  by  

observing that it encompasses infraction of not merely property or  

personal rights but of civil liberties, material deprivations and non-

pecuniary damages. This Court has further stated, that, in its wide  

umbrella comes everything that affects a citizen in civil life.

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7) The  decision  complained  against  in  the  instant  case  is  an  

administrative decision.  The decision is likely to have far reaching  

civil consequences for the appellant, as it has adversely affected his  

right to continue in the promotional post.  Therefore, in our view, the  

decision  concerning  the  promotion  makes  itself  available  for  

scrutiny  by  the  Courts  on  the  touchstone  of  well-established  

principles of natural justice.  

8) The  decision  that  was  questioned  before  the  Court  was  an  

administrative decision having civil consequences and is alleged to  

have been taken without affording an opportunity of hearing to the  

appellant.  The argument of the learned Counsel for the appellant,  

basically  is  that,  the  administrative  decision  taken  by  the  

respondents is  unfair,  unreasonable and in breach of principles of  

natural  justice.   The  administrative  decision  taken  by  the  

respondents  is  within  the  realm of  public  law and  therefore,  the  

decision ought to have been taken in a fair and reasonable manner.  

This  was  more  necessary  because  the  action  cancelling  the  

promotion of the appellant had civil consequences in the sense that it  

not only puts an end to the right of the appellant and also his further  

career  prospectus.   Therefore,  the  respondents  are  under  an  

obligation  to  take  all  decisions  in  a  fair  and  lawful  manner  by

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adhering to the rules of natural justice.  The law in this regard has  

been settled by several decisions of this Court.  The principle that  

emerge from the decisions of this Court is that, if there is a power to  

decide and decide detrimentally to the prejudice of a person, duty to  

act judicially is implicit in exercise of such a power and that the rule  

of natural justice operates in areas not covered by any law validly  

made.   Corollary principles  emanating from these cases are as to  

what particular rule of natural justice should apply to a given case  

must depend to an extent on the facts and circumstances of that case  

and that it is only where there is nothing in the statute to actually  

prohibit, the giving of an opportunity of being heard and on the other  

hand, the nature of the statutory duty imposed on the decision maker  

itself  implies an obligation to hear  before deciding.   These cases  

have also observed,  whenever an action of public body results  in  

civil  consequences  for  the  person  against  whom  the  action  is  

directed, the duty to act fairly can be presumed and in such a case,  

the  administrative  authority  must  give  a  proper  opportunity  of  

hearing to the affected person.  This Court in Canara Bank’s case  

(supra) has stated that “the adherence to principles of natural justice  

as recognized by all civilized states is of  supreme importance or  

when a quasi judicial body embarks on determining dispute between

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the  parties,  or  any  administrative  action  involving  civil  

consequences  is  an  issue.   Even  an  administrative  order,  which  

involves  civil  consequence  must  be  consisted  with  the  rules  of  

natural justice.  

9) In the instant, it is not in dispute between the parties that though the  

appellant was engaged as a daily wage worker, he was directed to  

discharge  the  work  of  Accounts  Clerk.  The  Circle  Promotion  

Committee had recommended the case of the appellant for change of  

nomenclature from labourer to Accounts Clerk. On the basis of the  

recommendations  made,  the  Electrical  Superintending  Engineer,  

Department of Energy changed his nomenclature from labourer to  

Accounts  Clerk,  subject  to  further  approval  by  Chief  Electrical  

Engineer, Department of Energy.  It so happens the incharge Chief  

Electrical Engineer approves the proposal of the Circle Promotion  

Committee and issue necessary orders in this regard.  Subsequently,  

the Regular Chief Electrical Engineer takes exception to the action  

of incharge Chief Electrical Engineer and cancels the earlier order  

passed by the impugned order dated 11.12.1998.  It is the case of the  

respondents  before  the  High  Court  that  the  appellant  was  not  

regularly  promoted  to  the  post  of  Accounts  Clerk,  but  only  the  

change of nomenclature from that  of labourer  to Accounts  Clerk.

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Therefore, we are not expressing any opinion in this regard.  In fact,  

the parties have proceeded before the various forums that though the  

appellant  was  promoted  as  Accounts  Clerk  from  the  post  of  

labourers in view of his qualification and experience, the same could  

not have been disturbed without affording an opportunity of hearing  

to the appellant.   There is no dispute between the parties that the  

personal  or  oral  hearing  was  not  granted  to  the  appellant  before  

passing the impugned order and therefore, the impugned order is in  

violation of principles of natural justice.  

10) The Division Bench of the Court does not dispute the fact of passing  

of the impugned order without hearing the appellant, but condones  

the procedural irregularity by bringing it under the “doctrine of futile  

exercise”.   According  to  the  Court,  even  if  an  opportunity  of  

showing cause was afforded to the appellant, it would not have made  

any  difference.  We  fail  to  understand  the  logic  adopted  by  the  

Division Bench. The reason being, that, it is the case of the appellant  

that on a recommendation made by Circle Promotion Committee, he  

was regularly promoted to the post of  Accounts Clerk, since he had  

necessary qualification and experience and it is his further case that  

though he was appointed as a daily wager, right from his induction,  

he was directed to discharge the work of Accounts Clerk. It is also

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his  case  that  on  the  recommendation  made  by  Circle  Promotion  

Committee,  the  incharge Chief  Electrical  Engineer  has  passed  an  

order approving the recommendation and granting promotion to the  

appellant to the post of Accounts Clerk.  However, it is the case of  

the  respondents  that  the  Circle  Promotion  Committee  had  only  

recommended the change of nomenclature from that of daily wager  

to  that  of  Accounts  Clerk  and  that  it  is  not  a  case  of  regular  

promotion.   It  is their  further case,  even assuming it  is  a case of  

promotion, the same has been done without following the prescribed  

procedure and also by ignoring the claim of several other employees  

and  therefore,  respondents  were  justified  in  cancelling  the  order  

passed by incharge Chief Electrical Engineer. In our view, these are  

all  disputed  facts  and  the  respondents  without  affording  an  

opportunity  of  hearing,  could  not  have  taken  any  administrative  

decision unilaterally.   Therefore,  the  Division Bench of  the  High  

Court is not justified in concluding “unless formality theory” need  

not have been followed by the respondents.   

11) In view of the above discussion, we cannot sustain the order passed  

by  the  High  Court  in  L.P.A.  No.  887  of  2005  dated  7.9.2005.  

Accordingly, we allow these appeals and set aside the order passed  

by  Chief  Electrical  Engineer,  Department  of  Energy,  dated

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11.12.1998.  Liberty  is  reserved  to  the  respondents  to  initiate  

appropriate  proceedings  against  the  appellant  in  accordance  with  

law, if they so desire.  In the facts and circumstances of the case,  

parties are directed to bear their own costs.  

                                                                                     …………………………………J.                                                                                        [TARUN CHATTERJEE]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ] New Delhi, July 14, 2009.