Full Judgment Text
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PETITIONER:
HARKISHAN LAL
Vs.
RESPONDENT:
STATE OF J & K
DATE OF JUDGMENT25/02/1994
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
JEEVAN REDDY, B.P. (J)
CITATION:
1994 SCC (4) 422 JT 1994 (2) 619
1994 SCALE (1)848
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
HANSARIA, J.-Procedure is handmaid of justice. That is a
trite saying. By the same token, procedural safeguard
cannot be placed at such high a pedestal as always to knock
down an order passed in violation of the same, if it be
otherwise legal. This is due to legal maxim "Quilibet
potest renunciare
426
juri pro se introducto", meaning, an individual may renounce
a law made for his special benefit.
2. The above is the keynote thought which would pervade in
the present cases, one of which is an appeal by special
leave against the judgment of Jammu and Kashmir High Court
in CSA No. 1 of 1989 rendered on April 19, 1990 by which the
High Court allowed the appeal of the respondentState and set
aside the judgment of District Munsif, Poonch by which a
suit of the appellant challenging the order of dismissal
passed on January 31, 1978 had been decreed, which order had
come to be upheld by District Judge, feeling aggrieved at
which the High Court had been approached by way of second
appeal. Another is a writ petition filed directly in this
Court making a grievance about illegal termination of
service and seeking a declaration that dismissal was void
and non est.
3. The High Court dismissed the suit of the appellant on
two grounds: (1) the civil court had no jurisdiction to
entertain the suit; and (2) the suit was barred by res
judicata.
4. Shri Mehta appearing for the appellant contends that as
the order of dismissal had come to be passed in violation of
a mandatory requirement, the view taken that the civil court
had no jurisdiction is untenable in law. As to res judicata
it is urged that the stand taken by the High Court that this
principle applied, because of earlier proceedings in the
High Court in Writ Petition No. 28 of 1978 which gave rise
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to LPA No. 43 of 1979 was misconceived.
5. Let us first deal with the question of jurisdiction.
To decide this, reference may be made to skeletal facts.
These are that the conduct of the appellant while serving as
a clerk in the Office of Commandant, Home Guards at Poonch
came to be enquired in the year 1972 by Anti-Corruption
Commission set up under the provisions of Jammu and Kashmir
(Government Servants) Prevention of Corruption Act, 1962
(hereinafter referred to as the ’Act’). The Commission vide
its order dated March 14, 1974, recommended to the Governor
the dismissal of the appellant from service. After receipt
of this recommendation the appellant was called upon on July
4, 1974 to show cause as to why he should not be dismissed
from service. By communications of August 13, 1974 and
January 4, 1976 the appellant approached the officer
concerned to supply copy of the proceedings of the inquiry
including the report of the Commission to enable him to
submit his explanation. This not having been done, the
appellant challenged the action by approaching the High
Court in WP No. 413 of 1978 which came to be disposed of on
March 15, 1978 with the direction to the authorities to make
available a copy of the proceedings of the inquiry. Before
that order had come to be passed, the appellant had been
dismissed from service by an order dated January 31, 1978
which came to be challenged in Writ Petition No. 23 of 1978.
That petition was dismissed by judgment dated June 1, 1979
on the ground that a very complicated question of fact was
involved. A Letters Patent Appeal being preferred the Bench
also took the
427
view that "a disputed question of fact of complicated nature
was involved". The Bench, however, observed that its order
will not "prevent the appellant from pursuing whatever other
remedy may be available to him under law".
6. Thereafter started the present proceeding which consists
of filing of a suit by the appellant on July 26, 1980
challenging the order of dismissal as void and illegal. The
trial court decreed the suit principally on the ground that
the appellant had not been supplied with a copy of enquiry
proceedings and the dismissal order was passed in violation
of the mandatory provision of Section 17(5) of the Act. The
District Judge dismissed the State’s appeal as being barred
by limitation. The High Court dismissed the revision
application, whereupon this Court was approached and it
directed the District Judge to hear the appeal on merits by
its order dated April 25, 1985. The District Judge
thereafter took the appeal on his file and upheld the decree
of the trial court on the ground that dismissal order having
been passed in Violation of Section 17(5) of the Act was
null and void. On the High Court being approached in second
appeal, it allowed the same on the grounds mentioned above.
7. Let us now examine whether the view taken by the High
Court that civil court’s jurisdiction was barred is tenable.
In taking this view the High Court has relied on Section 20
of the Act which has provided that: "Nothing done or
purporting to have been done under this Act shall be called
in question in any Court."
8. Shri Mehta urges that the finality given by Section 20 of
the Act could not have ousted the jurisdiction of civil
court in the present case inasmuch as the dismissal order
being a nullity, court’s jurisdiction did not get barred
because of the aforesaid provision. To bring home this
submission of law, we are referred by the learned counsel to
the Constitution Bench decision of this Court in Ram Swarup
v. Shikar Chand1 in which case the Bench while considering
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the effect of Section 3(4) of the U.P. (Temporary) Control
of Rent and Eviction Act, 1947 which had provided that "the
order of the Commissioner under sub-section (3) shall,
subject to any order passed by the Commissioner under
Section 7(F), be final", opined in paragraph 13 that the bar
created by the aforesaid provision would not operate in
cases where the plea raised before the civil court goes to
the root of the matter and this would be so where the
impugned order is a nullity.
9. Shri Mehta contends that as provision of Section 17(5) of
the Act was held to be mandatory by a Full Bench of Jammu
and Kashmir High Court in State of J & K v. Abdul Ghani
Patwari2 the dismissal order has to be regarded as nullity.
This submission is buttressed by referring to one of the
illustrations given in paragraph 13 of Shikar Chand case1
which is that if a statute were to grant permission to a
landlord to sue tenant after issuance of notice, non-
issuance of the notice would render the impugned order
completely invalid. It is urged that Section 17(5) of the
Act having provided:
1 AIR 1966 SC 893: (1966) 2 SCR 553
2 AIR 1979 J&K 17: 1978 Lab IC 1326: 1979 Kash LJ 46
428
"After the Commission submits its recommendation and after
the Governor arrives at a provisional conclusion in regard
to the penalty to be imposed, the accused shall be supplied
with the copy of proceedings of the inquiry and called upon
to show cause by a particular date why the proposed penalty
should not be imposed upon him." (emphasis supplied)
the order of dismissal passed without supplying copy of the
proceedings of the inquiry, which provision was held as
mandatory in the aforesaid Full Bench, has to be regarded as
invalid; and so, because of what was stated by the
Constitution Bench in Ram Swarup case’ civil courts’
jurisdiction cannot be held to have been barred.
10. In support of his submission, Shri Mehta has also
relied on Shiv Kumar Chadha v. Municipal Corpn. of Delhi3 in
which a three-Judge Bench of this Court speaking through
N.P. Singh, J., while examining the question of bar of civil
courts’ jurisdiction because of the provisions contained in
Delhi Municipal Corporation Act, 1957, held that the order
being nullity in the eye of law, the same amounted to
"jurisdictional error" because of which civil courts’
jurisdiction was not barred as the impugned order was
outside the Act.
11. We may not labour much on this point because of the
aforesaid legal proposition and also because of what was
pointed out by a Constitution Bench in Dhulabhai v. State of
M.p.4 that exclusion of jurisdiction of civil court should
not be readily inferred. So we agree with Shri Mehta that
the High Court erred in law in holding that the civil
courts’ jurisdiction was barred, inasmuch as there being
violation of mandatory provision as contained in Section
17(5) of the Act, it can well be said that the respondents
had no jurisdiction to pass the impugned order and by doing
so they committed a "jurisdictional error".
12. Insofar as the second ground given by the High Court -
the same being bar of res judicata - it is clear from what
has been noted above, that there was no decision on merits
as regards the grievance of the appellant; and so, the
principle of res judicata had no application. The mere fact
that the learned Single Judge while disposing of the Writ
Petition No. 23 of 78 had observed that:
"This syndrome of errors, omissions and oddities, cannot be
explained on any hypothesis other than the one that there is
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something fishy in the petitioner’s version......
which observations have been relied upon by the High Court
in holding that the suit was barred by res judicata do not
at all make out a case of applicability of the principle of
res judicata. The conclusion of the High Court on this
score is indeed baffling to us, because, for res judicata to
operate the involved issue must have been "heard and finally
decided". There was no decision at all on the merit of the
grievance of the petitioner in the
3 (1993) 3 SCC 161
4 AIR 1969 SC 78: (1968) 3 SCR 662: (1968) 22 STC 416
429
aforesaid writ petition and, therefore, to take a view that
the decision in earlier proceeding operated as res judicata
was absolutely erroneous, not to speak of its being
uncharitable.
13. In view of the aforesaid, the judgment of the High
Court cannot be sustained. The cases have presented no
difficulty to us so far. The head scratching important
question is what consequential order is required to be
passed, keeping in view the Constitution Bench decision in
Managing Director, ECIL, Hyderabad v. B. Karunakar5 in which
case it was held that non-furnishing of a copy of inquiry
officer’s report would not make an order of dismissal per se
bad if that order had come to be passed before November 20,
1990, which is the date of the decision of this Court in
Ramzan Khan case6. The dismissal order in present case had
been passed long before the aforesaid date. As per the
decision in ECIL, in such a case the matter has to be
referred back as indicated in paragraph 31 of the judgment
according to which on the matter being taken up again the
employee would be served with copy of the report and would
be given an opportunity to show as to how his or her case
was prejudiced because of the non-supply of the report.
Then, if after hearing the parties, the court/tribunal were
to come to conclusion that the non-supply of the report had
made no difference to the ultimate finding and the
punishment given, the court/tribunal should not interfere
with the order of punishment. The court/tribunal should not
mechanically set aside the order of dismissal on the ground
that the report was not given; resorting to short cuts were
desired to be avoided.
14. Shri Mehta has strenuously urged that this part of ECIL
decision would not apply to the facts of the present case
inasmuch as requirement to serve a copy of the proceedings
of the inquiry cannot be said to be part of natural justice
here, which was the view taken in Ramzan Khan case6 and
which aspect had come to be principally examined in ECIL
case5. The aforesaid requirement in case at hand owes its
origin to a statutory provision - the same being Section
17(5) of the Act. Learned counsel has drawn our attention
to what has been stated in paragraph 33 of the ECIL case5 in
which the Bench accepted that the law laid down in Ramzan
Khan case6 stating that the decision in that case was
prospective would not apply to those cases where the service
rules with regard to disciplinary proceedings had made it
obligatory to supply a copy of the report to the employee.
The present being such a case, Shri Mehta urges that the
dismissal order has to be set aside by us in this proceeding
itself, as the dismissal having been passed in violation of
mandatory provision was null and void and a void order has
no legs to stand.
15. We have duly considered the aforesaid submission and
because of what is being stated later we would have to
disappoint the learned counsel because, according to us, a
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view different from the one expressed in
5 (1993) 4 SCC 727: 1993 SCC (L&S) II 84: (1993) 25 ATC 704:
JT (1993) 6 SC 1
6 Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588:
1991 SCC (L&S) 612: (1991) 16
ATC 505
430
paragraph 31 of ECIL5 cannot be taken even in a case of the
present nature. This is for the reason that violation of
the mandatory provision at hand cannot be said to have per
se rendered the order a nullity.
16. As to when violation of a mandatory provision makes an
order a nullity has been the subject-matter of various
decisions of this Court as well as of courts beyond the
seven seas. This apart, there are views of reputed text
writers. Let us start from our own one time Highest Court,
which used to be Privy Council. This question came up for
examination by that body in Vellayan Chettiar v. Government
of the Province of MadraS7 in which while accepting that
Section 80 of the Code of Civil Procedure is mandatory,
which was the view taken in Bhagchand Dagadusa v. Secretary
of State for India in Council8 it was held that even if a
notice under Section 80 be defective, the same would not per
se render the suit requiring issuance of such a notice as a
precondition for instituting the same as bad in the eye of
law, as such a defect can be waived. This view was taken by
pointing out that the protection provided by the Section 80
is a protection given to the person concerned and if in a
particular case that person does not require the protection
he can lawfully waive his right. A distinction was made in
this regard where the benefit conferred was to serve "an
important purpose", in which case there would not be waiver
(see paragraph 14).
17. This point had come up for examination by this Court in
Dhirendra Nath Gorai v. Shudhir Chandra Ghosh9 and a
question was posed in paragraph 7 whether an act done in
breach of a mandatory provision is per force a nullity.
This Court referred to what was stated in this regard by
Mookherjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania10
at page 72 and some other decisions of the Calcutta High
Court along with one of Patna High Court and it was held
that if a judgment-debtor, despite having received notice of
proclamation of sale, did not object to the non-compliance
of the required provision, he must be deemed to have waived
his right conferred by that provision. It was observed that
a mandatory provision can be waived if the same be aimed to
safeguard the interest of an individual and has not been
conceived in the public interest.
18. The aforesaid view was reiterated in Lachoo Mal v.
Radhey Shyam11 in which it was stated, qua Section 1-A of
U.P. (Temporary) Control of Rent and Eviction Act, 1943,
that the same being meant for the benefit of owner of
buildings, if a particular owner did not wish to avail of
the benefit of the section, there was no bar in his waiving
the benefit. It was further observed in this connection in
paragraph 8 that no question of policy, much less public
policy being involved, the benefit or advantage could always
be waived.
7 AIR 1947 PC 197: 74 IA 223: (1947) 2 MLJ 208
8 54 IA 338
9 AIR 1964 SC 1300: (1964) 6 SCR 1001
10 ILR 35 Cal 61, 72:
11 CWN 101 1: 6 CLJ 320
11 (1971) 1 SCC 619: AIR 1971 SC 2213
431
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19. What has been held in Indira Bai v. Nand Kishore12 by a
three-Judge Bench speaking through Sahai, J. of this Court
is still more clinching inasmuch as in that case the right
conferred on a pre-emptee by Section 8 of the Rajasthan Pre-
emption Act, 1966 requiring a vendor to serve notice on
persons having right of pre-emption as a condition of
validity of transfer was held as amenable to waiver. It was
pointed out that the nature of the interest created by the
aforesaid section was a right of the party alone and not of
the public as such. It was then observed that if it be a
right of the party alone it is capable of being abnegated,
as such a right cannot be said to involve any interest of
community or public welfare so as to be in mischief of
public policy.
20. Having seen the pronouncements of judicial fora, we can
now inform ourselves as to the view of the reputed authors
on interpretation of statutes as well as administrative law.
We may start with what has been stated in Maxwell’s The
Interpretation of Statutes. This aspect has been dealt at
pages 328-330 (12th Edn.) and it has been stated that if the
benefit be for the protection of an individual in his
private capacity the same can be waived. To illustrate,
reference has been made about waiver of the benefit of the
Limitation Act. This is on the maxim of law "Quilibet
potest renunciare juri pro se introducto", meaning "an
individual may renounce a law made for his special benefit".
Maxwell then says that if the benefit be one which has been
imposed in public interest there can be no waiver of the
same.
21. Craies in his Statute Law has opined the same, as would
appear from what has been stated at page 269 of 7th Edn. By
drawing attention to the aforesaid maxim, it has been
observed that if the object of a statute is "not one of
general policy, or if the thing which is being done will
benefit only a particular person or class of persons, then
the conditions prescribed by the statute are not considered
as being indispensable". To illustrate this principle, it
has been stated that if the statutory condition be imposed
simply for the security or the benefit of the parties to the
action themselves, such condition will not be considered as
indispensable and either party may waive it.
22. Crawford in his Interpretation of Laws takes the same
view as would appear from pages 540-542 (1989 Reprint). The
learned author while quoting the aforesaid maxim states at
page 542 that requirement like giving of notice may be
waived as the same is intended for the benefit of the person
concerned.
23. We may also refer to the views expressed by Francis
Bennion in his Statutory Interpretation (1984), wherein this
aspect has been dealt with at pages 27 et seq and it has
been stated that if the performance of statutory duty be one
which would come within the aforesaid maxim, the person
entitled to the performance can effectively waive
performance of the duty by the person bound. As an
illustration mention has been made (at page 29) of
12 (1990) 4 SCC 668: 1990 Supp (1) SCR 349
432
decisions in Toronto Corpn. v. Russell13 and Stylo Shoes
Ltd. v. Prices Tailors Ltd. 14 wherein it was held that a
duty to give notice of certain matters can be waived by the
person entitled to notice, if there is no express or implied
indication that absence of notice would be fatal.
24. H.W.R. Wade’s name is well known in the world of
administrative law. He has dealt with this aspect at page
267 of the 6th Edn. of his treatise wherein he has quoted
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what Lord Denning, MR said in Wells v. Minister of Housing
and Local Government" which is as below:
"I take the law to be that a defect in procedure can be
cured, and an irregularity can be waived, even by a public
authority, so as to render valid that which would otherwise
be invalid."
25. We may end this journey into the field of law by
referring to the meaning of the words "irregularity" as
given at page 469 of Vol. 22-A of "Words and Phrases"
(Permanent Edition) and of ’nullity’ at pages 772 and 773 of
Vol. 28-A of the aforesaid book. As to "irregularity" it
has been stated that it is "want of adherence to some
prescribed rule or mode of proceeding"; whereas "nullity" is
"a void act or an act having no legal force or validity" as
stated at page 772. At page 773 it has been mentioned that
the safest rule of distinction between an "Irregularity" and
a "nullity" is to see whether "a party can waive the
objection: if he can waive, it amounts to irregularity and
if he cannot, it is a nullity".
26. Let it now be seen whether the requirement of giving
copy of the proceeding of the inquiry mandated by Section
17(5) of the Act is one which is for the benefit of the
individual concerned or serves a public purpose. If it be
former, it is apparent, in view of the aforesaid legal
position, that the same can be waived; if it be latter, it
cannot be. Though Shri Mehta has urged that this
requirement serves a public purpose, we do not agree.
According to us, the requirement is for the benefit of the
person concerned which is to enable him to know as to what
had taken place during the course of the proceedings so that
he is better situated to show his cause as to why the
proposed penalty should not be imposed. Such a requirement
cannot be said to be relatable to public policy or one
concerned with public interest, or to serve a public
purpose.
27. We, therefore, hold that the requirement mentioned in
Section 17(5) of the Act despite being mandatory is one
which can be waived. If, however, the requirement has not
been waived any act or action in violation of the same would
be a nullity. In the present case as the appellant had far
from waiving the benefit, asked for the copy of the
proceeding despite which the same was not made available, it
has to be held that the order of dismissal was invalid in
law.
28. The aforesaid, however, is not sufficient to demand
setting aside of the dismissal order in this proceeding
itself because what has been stated in
13 1908 AC 493: 24 TLR 908
14 1960 Ch 396: (1959) 3 All ER 901
15 (1967) 1 WLR 1000: (1967) 2 All ER 1041
433
ECIL case5 in this context would nonetheless apply. This is
for the reason that violation of natural justice which was
dealt with in that case, also renders an order invalid
despite which the Constitution Bench did not concede that
the order of dismissal passed without furnishing copy of the
inquiry officer’s report would be enough to set aside the
order. Instead, it directed the matter to be examined as
stated in paragraph 31. [Though there is some controversy,
as has been noted at pages 189 to 191 of B.L. Hansaria’s
Writ Jurisdiction under the Constitution (1992), on the
question as to whether violation of natural justice makes an
order void or voidable, it has been accepted by this Court
in paragraph 18 of Nawabkhan Abbaskhan v. State of Gujarat16
that: "[t]he only safe course, until simple and sure light
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is shed from a legislative source, is to treat as void ...
any order made without hearing the party affected if the
injury is to a constitutionally guaranteed right. In other
cases...... As natural justice has since been regarded as a
part of Article 14 by two Constitution Benches - see
paragraph 72 of Union of India v. Tulsiram Patel17 and
paragraphs 109 and 110 of Charan Lal Sahu v. Union of India"
- it can be stated as on today that an order made in
violation of natural justice is void.]
29. According to us, therefore, the legal and proper order
to be passed in the present case also, despite a mandatory
provision having been violated, is to require the employer
to furnish a copy of the proceeding and to call upon the
High Court to decide thereafter as to whether non-furnishing
of the copy prejudiced the appellant/petitioner and the same
has made difference to the ultimate finding and punishment
given. If this question would be answered in affirmative,
the High Court would set aside the dismissal order by
granting such consequential reliefs as deemed just and
proper.
30. The appeal and writ petition are allowed accordingly.
As the dismissal order relates back to 1978, we would
request the Division Bench of the High Court to dispose of
the matter within a period of three months from the date of
the receipt of this order. Insofar as the present
proceeding is concerned, we make no order as to costs.
16 (1974) 2 SCC 121: 1974 SCC (Cri) 467: AIR 1974 SC 1471
17 (1985) 3 SCC 398: 1985 SCC (L&S) 672: AIR 1985 SC 1416
18 (1990) 1 SCC 613: AIR 1990 SC 1480
434