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CASE NO.:

Appeal (civil) 964 of 1991

PETITIONER:

KRISHAN LAL

RESPONDENT:

STATE OF JAMMU AND KASHMIR

DATE OF JUDGMENT: 25/02/1994

BENCH:

B.P. JEEVAN REDDY & B.L. HANSARIA

JUDGMENT:

JUDGMENT

1994(2) SCR 149

The Judgment of the Court was delivered by

HANSARIA, J. Procedure is hand-maid 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

reuntiare jiiri 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 & Kashmir High Court in CSA No. l of 1989 rendered on 19.4.90 by

which the High Court allowed the appeal of the respondent-State and set

aside the judgment of District Munsiff, Poonch by which a suit of the

appellant challenging the order of dismissal passed on 31.1.78 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 resjudicata.

4. Shri Mehta appearing for the appellant contends that as the order of

dismissal had come to be passed in violation of a mandatory require-ment,

the view taken that the civil court had no jurisdiction is untenable in

law. As to resjudicata 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. 23 of 1978, which gave, rise to LPA 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 setup" under the provisions of Jammu & Kashmir (Government

Servant) Prevention of Corruption Act, 1962 (hereinafter referred to as the

'Act'). The Commission vide its order dated 14.3.74, recommended to the

Governor the dismissal of the appellant from service. After receipt of this

recommendation the appellant was called upon on 4.7.74 to show cause as to

why he should not be dismissed from service. By communications of 13.8.74

and 4.1.76 the appellant approached the concerned officer to supply copy of

the proceedings of the inqury including the report of the Commission to

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enable him to submit his explanation. This not having been done, the

appellant challenged the action by approaching the High Court in W.P.

No.413 of 1978 which came to be disposed of on 15.3.78 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 31.1.78 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 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 26.7.80 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 25.4.85. 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 Swaup v. Shikar Chand, AIR

(1966) SC 893 in which case the Bench while considering 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 be 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 & Kashmir High Court in State

of Jammu & Kashmirk v. Abdul Ghani Patwari, AIR (1979) J & K 17, 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's case, 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:-

"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.

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(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 a invalid; and so. because of what was stated by

the Constitution Bench in Ram Swarup's case, civil court' 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 Corporation of Delhi, [1993] 3 SCC 161, 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

provision 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 MP., AIR (1969) SC 78 that exclusion of

jurisdiction of the 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, in as much there being violation of man-

datory 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. In so far as the second ground given by the High Court? the same being

bar of resjudicata- it clear from what has been noted above, that there was

no decision on merits as regards the grievance of the appellants; and so,

the principle of resjudicata 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 any

hypothesis other than the one that there is 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 resjudicata do not at all make out a case of

applicability of the principle of resjudicata. The conclusion of the High

Court on this score is indeed baffling to us, because, for resjudicata 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 aforesaid Writ Petition and, therefore, to take a view

that the decision in earlier proceeding operated as resjudicata was

absolutely erroneous, not 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. Karunakar, JT 1993 (6) SC 1, in which case it was held

that non-furnishing of a copy of inquiry officer's report would not make in

order of dismissal per se bad if that order had came to be passed before

20.11.90, which is the date of the decision of this Court in Ramzan Khan's

case. 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

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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's 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's case and

which aspect had come to be principally examined in ECIL's case. 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's

case in which the Bench accepted that the law laid down in Ramzan Khan's

case stating that the decision in that case was prospective would not apply

to those cases where the service rules with regard to disciplinary

proceedings has 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 having to disappoint the learned counsel

because, according to us, a view different from the one expressed in

paragraph 31 of ECIL 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 nullity

has been the subject matter of various decisions of this Court as well as

of courts beyond the seven seas. These 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. The Government of the Province of Madras, AIR(1947) PC

197, in which while accepting that section 80 of the Code of Civil

Procedure is mandatory, which was the view taken in Bhagchand v. Secretary

of State, 54 IA 338, 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 pre-condition for instituting the same as bad in the

eye of law, as such a detect can be waived. This view was taken by pointing

out that the protection provided by the section 80 is a protection given to

the concerned person 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 v. Shudhir Chandra, AIR (1964) SC 1300 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 Kirtania, ILR 35 Cal 61 at

page 72 and some other decisions of the Calcutta High Court alongwith one

of Patna High Court and it was hold that if a judgment debator, 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. Radhye Shyam, AIR

(1971) SC 2213, 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

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of policy, much less public policy being involved, the benefit or advantage

could always be waived.

19. What has been held in Indra Bai v. Nand Kishor, [1990] Supp 1 SCR

349. by a three Judge Bench speaking through Sahi, 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 Premption 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 Edition) 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 reuntiare 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 Edition. 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

concerned person.

23. We may also refer to the views expressed by Frances Bennion in his

"Statutory Interpretation" (1984), wherein this aspect has been dealt

with at pages 27 etc. 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 decisions in Toronto Corporation v. Russel,(1987)AC 493 and Stylo

Shoe Ltd. v. Prices Tailors Ltd.(1960)Ch. 396 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. HWR Wade's name is will known in the world of administrative law. He

has dealt with this aspect at page 267 of the sixth edition of his treatise

wherein he has quoted what Lord Denning, MR said in Wells v. Minister of

Housing-and Local Government, 1967 (1) WLR 1000, which is as below: -

"I take the law to be that a defect in procedure can be cured, and

irregularity can be waived, even by a public authority, so as to render

valid that which would otherwise be invalid."

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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 Volume 22A of

"Words and Phrases" (Permanent Edition) and of 'nullity' at pages 772 and

773 of Volume 28A 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 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 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 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 ECIL's case in this context would none-the-less apply. This is for the

reason that violation of natural justice which was dealt with in that case,

also renders and 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 Nawab Khan

v. State of Gujarat, AIR (1974) SC 1471 that (t) be only safe course until

simple and sure light is shed is to treat as void......any order made

without hearing the parties affected if the injury is to a constitutionally

guaranteed right. In other case....." As natural justice has since been

regarded as a part of Article 14 by two Constitutional Benches-see Para-

graph 72 of Union of India v. Tulsiram Patel, AIR(1985)SC 1416; and

paragraphs 109 and 110 of Chavan Lal Sahu v. Union of India, AIR(1990) SC

1480 - 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-fur-nishing 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.

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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. In so far as the present proceeding is

concerned, we make no order as to costs.