TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 1715
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....erty to proceed against the appellant in accordance with law, following the principles of natural justice. 3. According to the appellant, when he was aged about 16 years, he along with his father by name Hariananda Dutta, came to India from East Pakistan (now Bangladesh) and his father was issued with a Migration Certificate being No.D/65/69 dated 19.05.1969 by the authority concerned. Subsequently, the appellant joined Bangabasi College, Calcutta and passed the Pre-University Examination in Science in May, 1971 under the University of Calcutta. Thereafter, he got admission in Regional Institute of Ophthalmology, Calcutta and successfully completed Ophthalmic Assistant Course in 1984. Later, he participated in the selection process and was appointed as Para Medical Ophthalmic Assistant by the Director of Health Services, Government of West Bengal, vide order dated 21.02.1985 and in terms of the said appointment order, the appellant joined at Kadambini Block Primary Health Centre, Monteswar, Burdwan on 06.03.1985. The Department received satisfactory report of the medical examination and Police Verification Roll from the concerned authorities. He continued in service and was gran....
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....and in violation of the principles of natural justice. 4.1. The learned counsel for the appellant also emphatically submitted that it is mandatory on the part of the police authority to submit the police verification report within a period of three months from the date of appointment. Whereas, in the present case, though the appellant joined the service on 06.03.1985, the verification report was communicated by the police to the department only on 07.07.2010, that too, just two months prior to the date of retirement of the appellant. Hence, there was inordinate delay on the part of the police authority for submission of verification report to the appointing authority. 4.2. Ultimately, the learned counsel for the appellant submitted that considering the facts and circumstances of the case, the Tribunal rightly set aside the order of termination. However, the High Court erred in allowing the writ petition filed by the State by setting aside the order of the Tribunal. Therefore, the learned counsel prayed for allowing this appeal by setting aside the order of the High Court. 5. On the contrary, the learned senior counsel for the respondent(s) submitted that except the migrati....
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....ld be given to the concerned person and the same would not necessarily imply oral hearing', the learned senior counsel for the respondent(s) submitted that merely because the appellant was not given an opportunity of hearing, that by itself is not sufficient to quash the proceedings, unless and until it is pointed out by him that he was prejudiced by the order, which was passed behind his back and therefore, the denial of personal hearing before passing the termination order would not amount to violation of the principles of natural justice. 5.3. Adding further, the learned senior counsel for the respondent(s) submitted that police verification is essential for joining any service and it is a settled principle of law that any act contrary to law cannot be given the sanctity of being legal under law by mere passage of time and hence, the delay in submission of the verification report, cannot be a ground to quash the termination order passed against the appellant. 5.4. Therefore, the learned senior counsel for the respondent(s) submitted that the High Court correctly set aside the order of the Tribunal and restored the termination order passed against the appellant herein, ....
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....d the order of termination passed by the authority concerned, by the order impugned herein. 10. The contentions raised by the learned counsel for the appellant, assailing the order of termination passed by the authority concerned, as affirmed by the High Court, are three-fold, though interlinked and intertwined. Firstly, the appellant claimed his nationality as Indian on the strength of the migration certificate dated 19.05.1969 issued in favour of his father. Secondly, in the show cause notice, there was no mention as to why the appellant was declared as 'unsuitable' for employment to the Government service; the alleged secret police verification report was not served on the appellant; and no opportunity of personal hearing was provided to the appellant to defend his stand and hence, there was total violation of the principles of natural justice. Thirdly, the appellant joined the service in the year 1985, but the police verification report, which was supposed to have been filed, within a period of three months from the date of appointment, was submitted to the department only in the year 2010 and thus, there was inordinate and unexplained delay on the part of the police....
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.... and as per 5(1)(b), a person of Indian origin who is an ordinary resident of any country or place outside undivided India is entitled to citizenship. "Undivided India" has been defined in Section 2 (h) as "India, as defined in the Government of India Act, 1935" as originally enacted. The intention of the Central Government to award citizenship to minorities from neighboring countries has been spelled out by way of amendment to Section 2, by introducing Proviso in Section 2 vide Amendment Act No. 47 of 2019 with effect from 10.01.2020, which states that the persons like the appellant herein are not be treated as "illegal migrants". Once an application has been submitted, the authority concerned has to take appropriate decision within a reasonable time by taking into consideration all the applicable laws and the documents produced by the appellant. However, no decision has been taken against the appellant. Therefore, we answer the first contention in favour of the appellant. 12. Qua the second contention, we have carefully considered the documents placed before us. Vide Memo No. 944-P.S. dated 25.05.2010, the Assistant Secretary to the Government of West Bengal, Home (Political) ....
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....nd condition laid down in the order of appointment bearing No. A 6012 dated 21-02-1985 and also declaring Shri Basudev Dutta "UNSUITABLE" for employment to the Government service; And as such, on going through the relevant papers / documents in respect of the case of Shri Basudev Dutta and applying my full mind on to it, I, the D.H.S., West Bengal, being the appointing and disciplinary authority in respect of the post held by Shri Basudev Dutta, Ophthalmic Assistant, hold the view that the said Shri Basudev Dutta does not have any right to continue further in Government service and accordingly propose that the service of Shri Basudev Dutta may be terminated with immediate effect; Shri Basudev Dutta is hereby directed to say, if any, in his defence within 10 (ten) days from the date of receipt of the memorandum through the C.M.O.H., Burdwan, positively failing which it may be presumed that he has nothing to say and decision will be taken against him without any further reference to him." 12.1. Curiously, in all these documents, including the show cause notice, no reason was mentioned as to why the appellant was considered as 'unsuitable' for employment t....
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....iji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Deptt. [(1979) 4 SCC 642 : 1980 SCC (Tax) 16 : AIR 1980 SC 1] while giving the majority judgment Y.V. Chandrachud, C.J. referred to (SCC p. 658, para 29) Broom's Legal Maxims (1939 Edn., p. 97) where the principle in Latin runs as follows: "Cessante ratione legis cessat ipsa lex." 30. The English version of the said principle given by the Chief Justice is that : (H.H. Shri Swamiji case [(1979) 4 SCC 642 : 1980 SCC (Tax) 16 : AIR 1980 SC 1], SCC p. 658, para 29) "29. ... 'reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself'." (See AIR p. 11, para 29.) ............ 33. In Star Enterprises v. City and Industrial Development Corpn. of Maharashtra Ltd. [(1990) 3 SCC 280] a three-Judge Bench of this Court held that in the present day set-up judicial review of administrative action has become expansive and is becoming wider day by day and the State has to justify its action in various fields of public law. All these necessitate recording of reason for executive actions including the rejection of the highest offer. Th....
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....w by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision- ....
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....the services of an officer or servant were to be determined on the ground of his unsuitability, they must be given an opportunity of personal hearing by the Committee. The whole purpose of the personal interview was that, when it was proposed to declare an official unsuitable for absorption, the Committee had to afford him an opportunity to appear before it and clear up his position. Since it is nobody's case that such an opportunity was afforded to the appellant, we would hold that the order dated August 26, 1967 (of termination of his services passed by the State) suffers from a serious legal infirmity and must be quashed. He will, therefore, have to be treated as having continued in service till the age of superannuation and entitled to all the benefits incidental to such a declaration. 12.4. In S.Govindaraju v. Karnataka State Road Transport Corporation [(1986) 3 SCC 273] again, this Court held thus: "7 ..... There is no dispute that the appellant's services were terminated on the ground of his being found unsuitable for the appointment and as a result of which his name was deleted from the select list, and he forfeited his chance for appointment. Once a can....
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.... any adverse decision, the aggrieved person must be given an opportunity of personal hearing. In the light of the same, we have no hesitation to hold that the order of termination passed against the appellant is arbitrary, illegal and violative of the principles of natural justice and it cannot be sustained. 12.7. Though we are in agreement with the proposition laid down in the decisions cited on the side of the respondent(s), the same does not apply to the present case, which factually differs. 12.8. Thus, in the ultimate analysis, we find that the Tribunal was right in observing that without following the principles of natural justice and without affording any opportunity to explain his case before the authority, the appellant was terminated and hence, his termination order cannot be sustained in the eye of law; and accordingly, set aside the order of termination. However, the High Court erroneously allowed the writ petition filed by the State and set aside the order of the Tribunal by observing that the action of the authorities in issuing a show cause notice and inviting a reply therefrom and the availing of such opportunity by the appellant, is in adherence with the prin....