notice not required for surprise inspection
Simi.A.C. vs The Secretary
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY, THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936
WP(C).No. 27162 of 2014 (U)
----------------------------
PETITIONER:
SIMI.A.C., AGED 26 YEARS, D/O.LATHA,
ANANYA BHAVAN, T C 20/265, CRA 216,
PATHIRAPPILLY, MUKKOLA P.O.,
THIRUVANANTHAPURAM
BY ADV. SRI.P.ANOOP (MULAVANA)
RESPONDENTS:
1. THE SECRETARY,GENERAL EDUCATION
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE DISTRICT COLLECTOR, COLLECTORATE,
CIVIL STATION, THIRUVANANTHAPURAM-695 001.
3. THE DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM.
4. DEPUTY DIRECTOR OF EDUCATION,
THIRUVANANTHAPURAM-695 001.
5. DISTRICT EDUCATIONAL OFFICER,
THIRUVANANTHAPURAM-695 001
6. ASSISTANT EDUCATIONAL OFFICER
THIRUVANANTHAPURAM(NORTH)-695 004.
7. THE PRINCIPAL, JAWAHAR ENGLISH MEDIUM SCHOOL,
PATHIRAPPALLY,KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM-695 043.
8. THE MANAGER, JAWAHAR ENGLISH MEDIUM SCHOOL,
PATHIRAPPALLY, KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM-695 043.
ADDL. RESPONDENTS 9 AND 10 ARE IMPLEADED
9. SHIHI A.G.NAIR, TEACHER, JAWAHAR ENGLISH MEDIUM
SCHOOL, KUDAPPANAKKUNNU VILLAGE, PATHIRAPPALLY,
MUKKOLA P.O., TRIVANDRUM-5 RESIDING AT KUZHIVILA
PUTHEN VEEDU, NETTAYAM, MANIKANTESWARAM P.O.,
THIRUVANANTHAPURAM-13.
Impleaded as per order dated 23.10.2014 in IA 14366/2014
10. THULASI.S., AKASH BHAVAN, TGRA-58
PATHIRAPPALLY, KUDAPPANAKKUNNU,
PRESIDENT, PTA, JAWAHAR ENGLISH
MEDIUM SCHOOL, PATHIRAPPALLY.
Impleaded as per order dated 30.10.2014 in IA 14558/2014
R1 TO R6 BY SPL.GOVT. PLEADER SRI.T.T.MUHAMOOD
R7&R8 BY ADVS. SRI.M.P.ASHOK KUMAR
SMT.BINDU SREEDHAR
SMT.R.S.MANJULA
ADDL.R9 BY ADV. SRI.THOMAS ABRAHAM
SMT.MERCIAMMA MATHEW
SRI.ASWIN.P.JOHN
SRI.T.S.PRASANNAKUMAR
ADDL.R10 BY ADV. SRI.S.MANU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PRINCIPLES OF NATURAL JUSTICE:
38. The learned counsel for the respondents 7 to 10 have raised very serious objections about the third respondent not observing the principles of natural justice while passing Exts.P1 and P4 orders. It is trite that the principles of natural Justice cannot be examined in vacuum without reference to the fact situation in the case, and when the facts of the case are admitted, an enquiry would be an empty formality. (vide Viveka Nand Sethi v. Chairman, J&K Bank Ltd. ((2005) 5 SCC 337). Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter. (vide Board of Mining Examination and Chief Inspector of Mines v. Ramjee ((1977) 2 SCC 256)).
39. In M.C. Mehta v. Union of India ((1999) 6 SCC
237), M. Jagannatha Rao, J., speaking for a Division Bench of the Supreme Court, in his Lordship's characteristic erudition, has surveyed the theory of `useless formality' in its entire gamut and has held thus:
21. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of the principles of natural justice.
22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice, do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of real substance or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed... Thus, in relation to cases other than those relating to admitted or indisputable facts, there is considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitle to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is considerable unanimity that the courts can, in exercise of their discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v.S.K. Sharma, (1996) II LLJ 296 SC, Rajendra Singh v. State of M.P., AIR 1996 SC 2736, that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it can be waived.
(emphasis added)
40. In Manohar Lal Sharma v. Medical Council of India and others ((2013) 10 SCC 60), the Apex Court has, in the context of powers of Medical Council of India and Medical Colleges, held that to inspect the availability of proper facilities or infrastructure, it is not required to issue prior notice to the educational institution. It is further held that any such unannounced inspection does not offend the principles of natural justice.
41. The exhortation of the Hon'ble Supreme Court in NCTE v. Venus Public Education Society ((2013) 1 SCC
223), commends both reiteration and repetition. Taking note of the indiscriminate admissions into educational institutions, at a higher level though, the Court has bemoaned thus:
3. It is to be clearly stated that an institution that is engaged or interested in getting involved in imparting a course for training has to obey the command of law in letter and spirit. There cannot be any deviation. But, unfortunately, some of the institutions flagrantly violate the norms with adamantine audacity and seek indulgence of the court either in the name of mercy or sympathy for the students or financial constraint of the institution or they have been inappropriately treated by the statutory regulatory bodies.
None of these grounds justify deviation. The case at hand graphically depicts deviations but the High Court, putting the blame on the statutory authority has granted relief to the respondent institution which is impermissible.
4. The factual exposition of the present litigation demonstrably reflects the combat between the truth and falsehood, battle between justice and injustice, the contestation between the accord and discord, the collision between fairness and manipulation, the scuffle betwixt the sacrosanctity of the majesty of law and its abuses and the clash between the mandated principles and invocation of sympathy. Such a controversy emerges because the majesty, sanctity and purity of law have been corroded and truth, however relative it may be in the mundane world, has its own command and the same has been deliberately guillotined forgetting the fundamental fact that none can afford to build a castle in Spain in the realm of truth. It is worthy to note that justice in its connotative expanse engulfs the liberalism of an ocean, the magnanimity of the sun, the sternness of a mountain, the simplicity of a saint, the austerity of a Spartan and the humility of a river. The concept of justice has to remain embedded in spite of adversities. It should remain unshaken, unterrified, unperturbed and loyal to the rule of law. In the case at hand, as a maladroit effort has been made to give an indecent burial to the command of law and pave the path of injustice, the same has to be dealt with sternly sans sympathy.
(emphasis added)
42. In Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM BEd College v. National Council For Teachers' Education ((2012) 2 SCC 16), the Supreme Court has quoted with approval its earlier observations in Bhagwan Budh Primary Teachers Training College v.
State of Bihar (1990 Supp. SCC 722), wherein it is held:
2. It is not possible to grant any such permission as prayed for because the granting of such permission would be clearly violating the provisions of the Education Act...
43. To the same effect is the observation in State of T.N. v. St. Joseph Teachers Training Institute ((1991) 3 SCC 87), which reads thus:
6. The practice of admitting students by unauthorised educational institutions and then seeking permission for permitting the students to appear at the examination has been looked with disfavour by this Court. ... In A.P. Christians Medical Educational Society v. Govt. of A.P.8 a similar request made on behalf of the institution and the students for permitting them to appear at the examination even though affiliation had not been granted, was rejected by this Court. The court observed that any direction of the nature sought for permitting the students to appear at the examination without the institution being affiliated or recognised would be in clear transgression of the provision of the Act and the regulations. The court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law. The Full Bench noted these decisions and observations and yet it granted relief to the students on humanitarian grounds. Courts cannot grant relief to a party on humanitarian grounds contrary to law. Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education Department of the Government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law.
Since the Division Bench issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law.
(as emphasised in Shri Morvi supra)
44. Given the statutory scheme concerning the inspection of schools, coupled with the above authoritative judicial pronouncements, in my considered view of lack of notice prior to inspection, which in fact has an element of surprise check, does not offend the principles of natural justice.