Before

THE HONBLE HIGH COURT OF JHARKHAND AT RANCHI

W.P. No-_____/2015
In the Matter of

Mr Surya Kant Dubey.................................................................................Petitioner

versus
Ex-Officio Chairman & Anr. .....Respondent

Name: Veera Mehra

Roll No :194
Semester: VI A

-Table of Contents-

Memorial On Behalf of the PetitionerPage 1

TABLE OF CONTENTS

Content

Page Number

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

STATEMENT OF ISSUES

SUMMARY OF ARGUMENTS

PLEADINGS AND AUTHORITIES

10

PRAYER

17
-Index of Authorities &

AbbreviationsINDEX OF AUTHORITIES & ABBREVIATIONS

A. Cases:
SL. NO.

CASE NAME

CITATION

PG. NO.

1.

R.K. Jain v Union of India

AIR 1993 SC 1769

2.

Maneka Gandhi v Union of India

(1978) 1 SCC 248

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3.

Cooper v Board of Works

(1063) 14 C.B. 180

11

4.

NPT Corp v NST Corp

(1957) SCR 1957

11

5.

BALCO Employees Union v Union of

India

(2002) 2 SCC 333

11

6.

SBI v S.K. Sharma

(1996) 3 SCC 364

13

7.

S.L. Kapoor v Jagmohan

(1980) 4 SCC 379

13

8.

M.S. Nally Co. Ltd. v State of Bihar

(1990) 2 SCC 48

13

9.

State of Orissa v Binapani

AIR 1967 SC 1269

13

10.

Haryana Financial Corp. v Kailash

Chandra

(2008) 9 SCC 31

14

11.

B.D. Gupta v State of Haryana

AIR 1972 SC 2472

14

12.

A.R. Antulay v R.S. Nayak

(1988) 2 SCC 602

14

13.

O.K. Bhardwaj v Union of India

(2 001) 9 SC 180

15

14.

HPRTC v Hukum Chand

(2009) 11 SC 222

15

B. Statutes:
The Constitution of India, 1950

C. Websites:
www.manupatra.com

D. Abbreviations:
1. &-

And
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2.
3.
4.
5.

AIRAnr.Co.Bom-

All India Reporter

Another
Company
Bombay

-Statement of Jurisdiction

STATEMENT OF JURISDICTION
The Petitioner humbly presents the case in front of the Honorable High Court of Jharkhand under
Article 2261 of the Constitution of India, 1950.

1 226. Power of High Courts to issue certain writs(1) Notwithstanding anything in Article 32 every High Court shall
have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part III and for any other purpose.

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-Statement of Facts-

STATEMENT OF FACTS
FACTS ABOUT THE PETITONER

The petitioner, Mr Surya Kant Dubey is an academic staff of the JTC.

FACTS ABOUT THE RESPONDENT

The Respondent is the Judges Training Centre (JTC) in Chhattisgarh is a premier

academic and training centre for all subordinate courts under auspices of the High Court
of the State.
FACTS LEADING TO THE CASE

Mrs X, a Fourth Class Employee of JTC made a complaint of sexual harassment before

the Director against the petitioner.

The Director forwarded the matter to the Anti-Sexual Harassment Committee that was
formed as per the Vishaka Guidelines.

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The Committee did not find any allegation against the petitioner but the complainant

repeatedly urged for removal of Mr. Dubey.

The Internal Committee which consisted of two lady advocates and a retired judicial
officer also could not prove any allegations against the Petitioner. Same was with the

external Committee.
The Director then reconstituted the Anti Sexual Harassment Committee on July, 2013 as
per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013 which was enforced by government.

But meanwhile, the complainant went to the Chief Justice of the High court and the
Registrar passed an order that debarred the petitioner without salary.
For a period of one and half year, the Petitioner has been running for his job and salary.
Hence, the present writ petition in the High Court of Jharkhand.
-Statement of IssuesSTATEMENT OF ISSUES

THE FOLLOWING QUESTIONS ARE PERSENTED BEFORE THE HONBLE COURT IN

THE PRESENT MATTER:
1. Whether the present petition is maintainable
2. Whether there has been any infringement of principles of natural justice in the
present case?

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-Summary of Arguments-

SUMMARY OF ARGUMENTS
1. Whether the present appeal is maintainable
It is the humble contention of the petitioners that the present petition is not maintainable as there
is violation of fundamental right of the petitioner under Article 21 of the Constitution.

2. Whether there has been any infringement of principles of natural justice in the
present case?
It is humbly contended before this Honorable Court that there has been violation of the principle
of Audi Alteram Partem of natural justice as the petitioner has not been afforded the right to be
heard.

-Pleadings and Authorities-

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PLEADINGS AND AUTHORITIES

1. WHETHER THE PRESENT PETITION IS MAINTAINABLE
1.1 It is the humble contention on behalf of the petitioners that the present petition is
maintainable under Art.226 of the Constitution of India.
The Petitioners approach the Honble Court to obtain the writ of mandamus as there has been a
violation of Art.14 and Art.21 of the Constitution of India.
1.2 Blacks Law Dictionary defines mandamus as A writ issued by a Court to compel
performance of a particular act by any body, to correct a prior action of that body.
Thus, the petitioners have approached the Honble Court to obtain the above writ as the decision
by the office of Chief Justice in ousting the petitioner from his office without giving him an
opportunity of being heard is against natural justice.
1.3 In R.K. Jain v. Union of India 2, this Court reiterated vide para73 that any authority is not
accountable to the courts for the choice made but they are accountable to the courts in respect of
the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction.
1.4 It has been held in the case of Maneka Gandhi v Union of India3, that right to life and liberty
under Art. 21 includes right to live with dignity.
The exercise of power by the authority is arbitrary as it violated Art. 21 of the Constitution of
India as this removal derogate the dignity of the petitioner. In the present case, as the removal is
arbitrary in nature without any proper cause, the petition under Art. 226 is maintainable.
1.5 Non- arbitrariness is an essential facet of Art.14. pervading the entire realm of State action
governed by Art. 14. It has come to be established, as a further corollary that the audi alteram
partem facet of natural justice is also a requirement of Art.14, for natural justice is the antithesis

2 A.I.R. 1993S.C. 1769

3 Infra.

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of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the
employer must be fair, just and reasonable which are components of fair treatment.
1.6 Reasoned decisions involve a question of procedural fairness. A law which allows any
administrative authority to take a decision affecting the rights of the people without assigning
any reason cannot be accepted as laying down a procedure which is fair, reasonable and just,
hence would be violative of Art.14 and Art.21 of the Constitution.4
Thus, the petition is maintainable.

2. Whether there has been any infringement of principles of natural justice in the
present case?
4 Maneka Gandhi v Union of India (1978) 1 SCC 248

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It is the humble contention of the petitioners that there has been a violation of the principles of
natural justice.
2.1 MEANING
Audi alteram partem means that no man shall be condemned unheard. The rule is not confined
to strictly legal tribunals, but is applicable to all tribunals or body of persons invested with
authority to adjudicate upon matters involving civil consequences to individuals. 5 The right of
fair hearing, known as Audi Alteram Partem means that no one can be condemned unheard. The
norms of fair hearing are elastic and uncrystallised and are not rigid.
Hence, any tribunal, judicial or administrative, 6which is invested with power to affect the status
of a citizen is bound to give him an opportunity of being heard before it proceeds. It leads to the
result that no man is to be deprived of his status without having an opportunity of being heard7
2.2 LEGISLATIVE INTENT
The main objective of having audi alteram partem as a principle of natural justice is to see
that an illegal action or decision does not take place. Any wrong order may adversely affect a
person, and it is essentially for this reason that a reasonable opportunity may have to be granted
before passing an administrative order.8
The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an
order is required to be passed or whose rights are likely to be affected adversely must be granted
an opportunity of being heard. Secondly, the authority concerned should provide a fair and
transparent procedure. And lastly, the authority concerned must apply its mind and dispose off
the matter by reasoned or speaking order.

5 Lapointe & L Association, (1906 ) A.C. 535 (539)

6 Cooper v. Board of Works (1063) 14 C.B. (N.S.) 180
7 N.P.T Corp. v. N.S.T. Corp (1957) S.C.R. 1957
8 BALCO Employees Union v. Union of India (2002) 2 SCC 333

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2.3 There are certain essential requirements which must be complied with, by any body or
authority who is vested with quasi judicial powers. Thus, in Board of education v. Rice 9, Lord
Loreburn observed
In such cases they must act in good faith and fairly listen to both sides, for it the duty
lying upon everyone who decides anything. But I do not think they are bound to treat
such a question as though it were a trial. They can obtain information in any way they
think best always giving a fair opportunity to those who are parties in the controversy fir
correcting or contradicting any relevant statement prejudicial to their views.
2.4 The opportunity satisfying the intent of the legislators has not been made in the present case.
There was no guilt on the part of the petitioner as can be proved from the following facts1. One preliminary enquiry was conducted by the Anti Sexual Harassment Committee
which was formed as per the Vishaka Guidelines and the Committee had reached the
conclusion that no allegations could be found to be proved against the petitioner.
2. The Internal Committee which consisted of two lady advocates and a retired judicial
officer also could not prove any allegations against the petitioner.
3. Moreover, an Anti Sexual Harassment Committee on July, 2013 as per the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 which was enforced by government had been formed by the Director. But Mrs.
X meanwhile, approached the office of Chief Justice without waiting for the above
said committee to go on with the investigation.
The humble contention of the petitioner is that no chance was given to the petitioner to make his
representation in the said allegation.
2.5 Any wrong order may adversely affect a person and it is essentially for this reason that a
reasonable opportunity may have to be granted before passing an administrative order.10

9 Supra
10 BALCO Employees Union v Union of India (2002) 2 SCC333.

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It is not merely of some importance but is of fundamental importance that justice should not only
be done, but should manifestly and undoubtedly be seen to be done.11
2.6 In State Bank of India v. S.K. Sharma12 , the Supreme Court rightly observed that where an
inquiry is not convened by any statutory provision and the only obligation of the administrative
authority is to observe the principles of natural justice, the court/ tribunal should make a
distinction between a total violation of the rule of fair hearing and violation of a facet of that
rule. In other words, a distinction must be made between no opportunity and no adequate
opportunity in case of the former, the order passed would undoubtedly be invalid and the
authority may be asked to conduct proceedings afresh according to the rule of fair hearing but in
the latter case, the effect of violation of a facet of the rule of fair hearing has to be examined
form the standpoint of prejudice. In other words, the court/ tribunal has to see whether in the
totality of circumstances the person has suffered a prejudice. If the answer is in the affirmative,
the action shall be invalid. The sole purpose of the rule of fair hearing is to avoid failure of
justice. It is this purpose which should be a guide in applying the rule of fair hearing. To varying
situations that may arise.
2.7 In the instant case, the petitioner has not been given the right to represent himself or a right to
be heard. While the investigation was going on by the committees, the decision was taken solely
on the basis of allegation made by Mrs. X. This has caused prejudice to the petitioner as he has
lost his job as an academic staff and also has lost his salary. Also, the non-observance of natural
justice principles is itself a prejudice caused. Thus, there has been a failure of justice.
2.8 In S.L. Kapoor v Jagmohan13 the rule was that the principles of natural justice shall apply
only where an administrative action has caused some prejudice to a person, meaning thereby
that he must have suffered some civil consequences. The non-observance of natural justice is

11 R v Sussex Justices (1924) 1 KB 256

12 (1996) 3 SCC 364
13 (1980)4 SCC 379

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in itself a prejudice caused. The Supreme Court has given expansive meaning to it and covers
everything that affects a citizen in his civil life inflicts a civil consequence.14
2.9 The Supreme Court in the case of M.S. Nally Bharat Engg. Co. Ltd. v State of Bihar 15 held
that fairness is the basic principle of good administration. In this case, the government had
transferred the case of a workman from one authority to another without any notice and hearing
to the employer. The Court set aside the order on grounds of violation of natural justice and lack
of fairness.
Also, in the instant case, the facts nowhere mention that the petitioner had been given the notice
of his removal from office.
2.10 In Haryana Financial Corp v Kailash Chandra Ahuja16 the Supreme Court emphasized that
the prejudice doctrine makes it obligatory on the part of the workman to show that he had been
prejudiced by reason of not being given the chance to be heard.
It is a fundamental principle of fair hearing incorporated in the doctrine of natural justice and as
a rule of universal obligation that all administrative acts affecting right of individuals must
comply with the natural justice and person sought to be affected must be afforded not only an
opportunity of hearing but a fair of hearing.
2.11 In the matter of dismissal from service of a government servant, Art. 311(2) of the
Constitution comes into play according to which, before a civil servant is dismissed, there should
be an enquiry in which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges.17
2.12 The Court in B.D. Gupta v State of Haryana 18 the Court had granted all the pay and
allowances to the employee who had been removed from office without giving him a chance to
14 State of Orissa v Binapani AIR 1967 SC 1269
15 (1990) 2 SCC 48
16 (2008) 9 SCC 31
17 D.T.C V D.T.C. Mazdoor Congress AIR 1991 SC 101

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show that the allegations against him were unjustified. The rules of natural justice can operate
only in areas not covered by any law validly made. 19
A decision of the Supreme Court in A.R. Antulay v R.S. Nayak20 favored the proposition that any
action in violation of the principles of natural justice is a nullity.
2.13 Natural justice is infringed when an adjudicatory body decides a matter on the basis of
material gathered through confidential enquiries conducted behind the back of the concerned
party.21
2.14 DETERMINATION OF FAIR HEARING
Whether a fair hearing has been given in a particular case is a justiciable question and the
Supreme Court has to determine two question:22
a) Whether an opportunity of hearing was given by the inferior tribunal;
In this case, no opportunity at all was given to the petitioner.
2.15 Compliance with the principles of natural justice, either by holding an enquiry or by giving
the employee an opportunity of hearing or showing cause is necessary where an employee
proposes to punish an employee on a charge of misconduct which is denied or when any term or
condition of employment is proposed to be altered to the employees disadvantage without his
consent. 23
18 AIR 1972 SC 2472
19 Ibid.
20 (1988) 2 SCC 602
21 Khagendra Nath v Calcutta University AIR 1974 Cal 187
22 Indru v. Union of India (1988) 4 SCC 1 (para. 20)
23 Himachal Pradesh Road Transport Corporation v Hukum Chand (2009) 11 SCC 222

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2.16 A case provided that an employee may be discharged from service by the competent
authority on three month notice and the authority may give an opportunity to the employee
concerned for explaining himself before coming to a decision. The apex court observed that the
word may has to be construed as shall so that the principles of natural justice are complied
with when the competent authority considers the question of discharge of an employee.24
2.17 In O.K. Bhardwaj v Union of India25 the Supreme Court held that even in the case of a
minor penalty, an opportunity has to be given to the delinquent employee to have his say or to
file his explanation with respect to the charges against him. Such requirement cannot be
dispensed with.
2.18 In Maneka Gandhi v Union of India26 the court observed that it is well established that even
where there is no specific provision in a statute or rules made there under for showing cause
against action proposed to be taken against an individual, which affects the rights of that
individual, the duty to give reasonable opportunity to be heard will be implied from the nature of
the function to be performed by the authority which has the power to take punitive or damaging
action.
2.19 Thus, in the instant case, the petitioner was not given any notice of his removal and he was
also not provided the right of hearing or to present his case. Thus, the act of the administrative
authority is in violation of the principles of natural justice.

24 UPTRON India Ltd. v Shammi Bhan (1998) 6 SCC 538

25 (2001) 9 SCC 180 (para 2)
26 AIR 1978 SC 597

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-Prayer-

PRAYER
Wherefore in the light of issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Honble Court may be pleased to hold adjudge and declare that:
1. That the current petition to be allowed.
2. That the decision of the Chief Justice does not follow the principles of natural justice.
3. That the petitioner should be given back his job and paid his salary.

And pass any other order(s) it may deem fit.

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For this Act of kindness, the Respondent shall duty bound forever pray.
All of which is humbly prayed,
Counsel for the petitioner

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