WA No. 584 of 2008 (Against the Judgment in WPC 7250/2008 dated 04/03/2008)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 WA.No. 584 of 2008() -------------------AGAINST THE JUDGEMENT IN WPC.7250/2008 Dated 04/03/2008 .................... APPELLANT: 3RD RESPONDENT: -------------------------- N. VASUDEVAN NAIR, HSA (NS), CATHOLICATE HSS, POTHUKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM SRI.T.R.RAVI RESPONDENTS: PETITIONER & RESPONDENTS 1, 2 AND 4: ------------------------------------------------- 1. SUSAN GEORGE, HSA (NATURAL SCIENCE), ST.STEPHEN'S HIGH SCHOOL, PATHANAPURAM P.O., KOLLAM. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CORPORATE MANAGER, SOST, MOUNT TABO, PATHANAPURAM, KOLLAM DISTRICT, PIN-689 695. 4. SR.ANNAKUTTY, HSA (NS), MTD HS MALOOR, PATHANAPURAM, KOLLAM DISTRICT. BY GOVT. PLEADER SRI.K.SANDESH RAJA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K.BALAKRISHNAN NAIR & ## P.N.RAVINDRAN, JJ. ----------------------------------------- W.A. NO. 584 OF 2008 ----------------------------------------- Dated 11[th] March, 2008. ## JUDGMENT ## Balakrishnan Nair, J. The appellant is the 3[rd] respondent in the writ petition. The 1[st] respondent was the writ petitioner. She filed the writ petition, challenging Ext.P4 order of the Government dated 6.2.2008, which was rendered without hearing her. She also challenged Ext.P5 consequential order passed by the Manager, in the light of Ext.P4 G.O. The learned single Judge interfered with those orders, on the ground that Ext.P4 order was passed without hearing the writ petitioner. The appellant attacks the said judgment of the learned single Judge, contending that the principles of natural justice have been stretched to breaking point. The result of hearing is obvious from the start. No amount of hearing would change the outcome. Therefore, hearing is only an empty formality or a futile exercise and the learned single Judge ought not to have interfered with the order passed by the Government on the ground of not hearing the writ petitioner and the WA 584/2008 2 consequential order of the Manager. 2. The brief facts of the case are the following: The 3[rd] respondent runs a few schools. One of them is in Malappuram district. As a result of Ext.P1 staff fixation order for the academic year2007-08 in M.T.D.M.H.S., Maloor, which is one of the schools managed by the 3[rd] respondent Manager, there was a reduction of one class division. Accordingly, one post of H.S.A (Natural Science) was reduced. So, one of the H.S.As was reverted as U.P.S.A. The reduction of one post of H.S.A. (Natural Science) necessitated re-arrangement of the H.S.As in that subject and also consequential transfer. By Ext.P2, the Manager issued transfer order, by which the appellant was transferred out to the school in Malappuram district. He challenged the same by filing a revision before the Director of Public Instruction. The revision was allowed and as per Ext.P3 order, Ext.P2 transfer order was set aside and the Manager was directed to revise the transfer order by posting the junior teachers with immediate effect. The relevant portion of the said order reads as follows: “In the above circumstances the request of the petitioner to set aside the order of the Corporate Manager as Ext.P3 in W.P.(C) is genuine and hence the order No.38/2007-08 dated 17.8.07 is set aside and the Corporate Manager is directed to revise the transfer order by posting the junior teachers with immediate effect.” WA 584/2008 3 The aggrieved Manager filed a revision before the Government. The Government passed Ext.P4 order, modifying Ext.P3. The relevant portion of the order reads as follows: “In the above circumstances, Government are pleased to order that Sr.Annakutty be retained at MTDHS, Maloor, Pathanapuram on humanitarian grounds and Sri.Vasudevan Nair be transferred to St.Stephen's H.S., Pathanapuram by shifting the junior most teacher from that school to Catholicate High School, Pothukal, Malappuram Dist. The orders of the Director of Public Instruction read as 2[nd] paper is set aside accordingly and the Corporate Manager, SOST is directed to issue formal orders as above with immediate effect.” The appellant was directed to be transferred to St.Stephen's H.S., Pathanapuram and the junior most H.S.A in that school was ordered to be transferred to the school in Malappuram district. The junior most in the said school was the writ petitioner, who is the 1[st] respondent herein. The Manager passed consequential order Ext.P5, by which the writ petitioner/1[st] respondent was transferred out to C.H.S.S., Pothukal, Malappuram. Aggrieved by the said transfer, the 1[st] respondent filed the writ petition contending, inter alia, that Ext.P4 order has been passed without hearing her. The learned single Judge upheld her contention. It was noticed that the writ petitioner was not heard while the Government passed Ext.P4 order. So, it being an order issued in violation of the principles of natural justice, the same was quashed. The Government were directed to reconsider the WA 584/2008 4 matter in accordance with law after affording an opportunity of being heard to the writ petitioner and other concerned parties. The appellant attacks the said judgment in this Writ Appeal. 3. The learned counsel Mr.George Poonthottam appearing for the appellant submitted that no amount of hearing will change the fate of the transfer of the writ petitioner. She being the junior most will have to be sent out. Therefore, re-hearing of the matter is an empty formality. Therefore, the learned single Judge ought not to have interfered with the matter. 4. If transfer is to be ordered strictly in accordance with the seniority only, the contention of the learned counsel for the appellant has to be upheld. But, we notice that there is a provision for variation from the seniority rule, to an extent of 25% of the transfers. But, the learned counsel for the appellant submits that the said discretion available to the Manager has already been exercised in favour of Sr.Annakutty. But, according to the learned counsel for the Manager, Sr.Annakutty is senior to the appellant. If that be so, even without the 25% relaxation, she is entitled to be retained in the present school in preference to the appellant. The appellant has serious dispute to the above seniority position mentioned by the Manager. Whatever be that, even if the writ petitioner is junior, she has got a right to have her claim considered under the 25% relaxation permissible from the WA 584/2008 5 seniority rule. Whether her claim will be accepted or not, is a different thing. But, she did not get a chance to urge that point. She could have contended that Sr.Annakutty is senior to Mr.N.Vasudevan Nair, the appellant herein and therefore, the said Sr.Annakutty does not require the relaxation and the same may be granted to her, having regard to the special circumstances in which she is placed. As stated earlier, whether that contention will be accepted or not is a different matter. But, it is not a case where the result is obvious from the start or the whole exercise is going to be an empty formality. In this context, we may refer to the decision of the Apex Court in **S.L.Kapoor v. Jagmohan** (AIR 1981 SC 136), wherein Chinnappa Reddy, J., speaking for the Bench, stated as follows: “18. In Ridge v. Baldwin, (1964) AC 40, one of the arguments was that even if the appellant had been heard by the watch committee nothing that he could have said could have made any difference. The House of Lords observed (at P.68): 'It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the respondents would, in my view, fail on the facts. It may well be that no reasonable body of men could have reinstated the appellant. But as between the other two courses open to the watch committee the case is not so clear. Certainly on the facts, as we know them, the watch committee could WA 584/2008 6 reasonably have decided to forfeit the appellant's pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course.' 19. Megarry J, discussed the question in John v. Rees, (1970)1 Ch 345. He said (at p.402): 'It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. 'When something is obvious', they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start'. Those who take this view do not think, do themselves justice. As everybody who has anything to do with the law well knows the path of the law is strewn with examples of open and shut cases which, some how, were not of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.' 20. In Annamunthodo v. Oilfields Workers' Trade Union, (1961)3 All ER 621 (HL), Lord Denning, in his speech said (at p.625): 'Counsel for the respondent union did suggest that a man could not complain of a failure of natural justice unless he could show that he had been prejudiced by it. Their Lordships cannot accept this suggestion. If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts. It is a prejudice to any man to be denied justice.' 21. In Margarite Fuentes et al. v. Robet L.Shevin, WA 584/2008 7 (1972) 32 L Ed 2d 556, it was said (at p. 574): 'But even assuming that the appellants had fallen behind in their instalment payments and that they had no other valid defences, that is immaterial here. The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. 'To one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defence upon the merits'. Xxxxx xxxxx xxxxx xxxxx 24. .................In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.” In the light of the principle laid down by the Apex Court, a person complaining of the principles of natural justice need not show in advance that if he was heard, his claim would have been upheld. The hearing would at least remove the frustration lingering in the mind of the person who thinks that if he was heard, he could have persuaded the decision maker to take a different view. So, the above principles explained by the Apex Court are relevant in this case. WA 584/2008 8 Further, we feel that once the learned single Judge has exercised the discretion to set aside the order, so that the writ petitioner gets a chance to place her grievance before the Government, we are not justified in interfering with the said judgment under Section 5 of the High Court Act. Accordingly, the Writ Appeal is dismissed. We make it clear that we have not expressed anything on the merits of the claim of the writ petitioner or regarding the seniority dispute between Sr.Annakutty and the appellant. ## **K.BALAKRISHNAN NAIR, JUDGE** . ## **P.N.RAVINDRAN, JUDGE.** Nm/