PORBANDAR MUNICIPALITY THRO PRESIDENT MANJULABEN RAMJIBHAI & Ors. v. STATE OF GUJARAT THRO PRINCIPAL SECRETARY

Mr.N.D.Nanavaty, learned Senior Counsel for the petitioners, has taken this Court to the factual matrix arising in the present petition. It was submitted that the impugned notice issued by the respondent authority itself is not in accordance with law as the same is not issued to the Municipality. Relying upon the provisions of Article 243U of the Constitution of India it was vehemently submitted that before taking any steps to dissolve an elected Municipality, the authorities are required to give “reasonable opportunity”. It was submitted that the show cause notice was served upon the petitioners on 22/23.07.2012 and that too upon the councillors and even six clear days were not given. It was C/SCA/10446/2012 CAV JUDGEMNT further pointed out that no opportunity of hearing was as such given to the petitioners as even the applications for adjournment filed by the petitioners before respondent No.2 authority were not even dealt with by the said authority and without giving opportunity of being heard to the petitioners the authority has passed the impugned order. It was submitted that as enshrined under Article 243U of the Constitution of India read with Section 263 of the Act, opportunity of being heard has to be a “reasonable opportunity” and should not be illusory. It was further contended that the impugned order indicates that president, vice president and councillors were called upon to show cause and it was further contended that the impugned order actually records that oral request for adjournment was made, whereas, in reality, two applications for adjournment were made, which were not dealt with by the authority and no order is passed either rejecting or allowing the said applications for adjournment and straightway on the same day, the impugned order has been passed, without giving opportunity of being heard, much less “reasonable opportunity”, as enshrined under Article 243U of the Constitution of India. It was further submitted that no notice as such has been issued to the municipality and, therefore, the manner in which the impugned order is passed indicates that the same is passed without C/SCA/10446/2012 CAV JUDGEMNT affording reasonable opportunity. Relying upon provisions of Section 51 of the Act it was submitted that as the notice under Section 263 of the Act is also to be given to a municipality, proper time should have been given by the authority to the municipality so that a meeting of councillors could have been called and appropriate decision could have been taken by the municipality to give reply to such show cause notice. It was further submitted that even if it is considered that a special general meeting could have been convened by the municipality 03 (three) clear days notice would be required under the relevant provisions of the Act and even that opportunity has been denied. It was reiterated that as such no opportunity of explanation has been given by the municipality to the petitioners and on the same day the impugned order is passed. It was urged that such an exercise of powers is not bona fide but is in fact arbitrary and hence, the impugned order deserves to be quashed and set aside. Following judgments of Division Bench of this Court were relied upon on behalf of the learned senior advocate for the petitioners: (i) Mohanlal Nathubhai Vs. R.M. Desai, Development Commissioner, Gujarat, 1968 G.L.R. 991; (ii) Anjar Municipality & Ors. Vs. J.M. Vyas, 1999 (3) G.L.R. 1892; C/SCA/10446/2012 CAV JUDGEMNT (iii) Jyotiben R. Pathak & Ors. Vs. Rafiqsa Chammansa Fakir & Ors., 2000 (3) GLR 2049. It was submitted that Division Bench of this Court even while examining vires of Section 263 of the Act has clearly provided that a “reasonable opportunity” of being heard should be given to the municipality before its dissolution. It was further submitted that the authority has not only denied right of hearing to the petitioners but has committed an error by recording a finding that an oral request was made, whereas, in reality, two applications were filed by the petitioners for adjournment, however, no orders have been passed upon such applications. It was therefore submitted that the petition deserves to be allowed and the impugned order deserves to be quashed and set aside. (6) Per contra Mr.P.K.Jani, learned Government Pleader appearing for respondent Nos.1 to 3, has relied upon the affidavit-in-reply filed by Shri Shivshankar Ganpatram Bhatt, Deputy Collector, Urban Development and Urban Housing Department i.e. authorized officer of respondent No.2. It was submitted that show cause notice dated

21.07.2012 was given to the president, vice president and all members of the municipality. It was submitted that as provided under Section 76 of the Act the municipality owes statutory C/SCA/10446/2012 CAV JUDGEMNT duty to see that the budget proposals are passed so that it would be competent to spend amount and generate income for the said financial year. It was submitted that it is evident from the record of the petition itself that firstly on

12.03.2012 a meeting was held wherein budget could not be passed and in another meeting, which was held on the same date, in fact the budget proposals came to be rejected by the majority. It was further submitted that again an attempt was made in the meeting held on

26.04.2012, however, by majority, the budget proposals were rejected. It was therefore submitted that these proceedings go to show that the municipality could not pass the budget and thereby has failed to perform its statutory duties which attracts Section 263 of the Act. It was further submitted that because of these undisputed facts a show cause notice came to be issued, as provided under Section 263 of the Act. It was submitted that such show cause notice is served upon all 42 councillors and in response to the same, 23 councillors i.e. majority members have filed affidavits before the authority and have in fact taken a stand that the proposals of the budget could not be passed and majority of the members therefore, submitted that even though earlier three attempts were made the budget could not be passed and at the time of hearing before the authority 23 members i.e. majority of the C/SCA/10446/2012 CAV JUDGEMNT councillors reiterated that they did not intend to pass the budget but wanted dissolution and, therefore, the authority has passed order of dissolution of the municipality as provided under Section 263 of the Act. Following judgments were relied upon on behalf of the learned Government Pleader: (i) Pariya Gram Panchayat & Anr. Vs. Development Commissioner and Ors., 2005 (2) G.L.R. 1092; (ii) Manishbhai Vinodbhai Patel, Sarpanch Vs. State Gujarat, 2005 (2) GCD 1780 (Guj.); (iii) Ashok Kumar Sonkar Vs. Union of India, (2007) 4 S.C.C. 54; (iv) M.C. Mehta Vs. Union of India & Ors., (1999) 6 S.C.C. 237; (v) Vivek Nand Shethi Vs. Chairman, J & K Bank Ltd., & Ors., (2005) 5 SCC 337; (vi) Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board & Ors., (2010) 13 SCC 216. It was submitted that in the facts of the present case hearing of the councillors, more particularly the petitioners, would be an empty and useless formality and, therefore, it cannot be said that principles of natural justice were required to be followed. It was therefore submitted that in light of the undisputed fact that the budget could not be passed, the impugned order is legal and proper and the authority has not committed any error, much less any error on face of record which requires interference of this Court in its extraordinary jurisdiction under Article 226 and/or 227 of the Constitution of India. C/SCA/10446/2012 CAV JUDGEMNT (7) Mr.Nanavaty, learned Senior Counsel for the petitioners, in reply to the contentions raised by the learned Government Pleader submitted that as provided under Article 243U of the Constitution of India read with Section 263 of the Act before dissolution “reasonable opportunity” has to be given to the municipality. It was contended that there is difference between observance of the principles of natural justice and constitutional mandate of providing hearing. It was submitted that therefore, by no stretch of imagination, it can be termed as empty or useless formality as the same would tinker with an anarchy. It was further submitted that chance to defend can never said to be a formality and the constitutional safeguard, which is enshrined under Article 243U of the Constitution of India, cannot be diluted and the respondent authorities cannot be permitted to take shelter of the doctrine of “empty formality”. (8) As stated hereinabove, as Mr.P.K.Jani, learned Government Pleader, has also relied upon the affidavit-in-reply filed on behalf of the respondent authorities, it would be appropriate to refer to the said affidavit-in-reply. It has been stated in Paragraph No.4 thereof that in fact and in reality the petitioners were issued show cause notice dated 21.07.2012 by the respondent authority and by way of issuance of C/SCA/10446/2012 CAV JUDGEMNT notice the petitioners were given an opportunity to represent their case on 27.07.2012. It was further stated that the said notices were duly served upon the petitioners on 22/23.07.2012 and even though opportunity was given to the petitioners to represent their case, they did not do so on that day and on the contrary prayed for adjournment. It is categorically mentioned in the affidavit-in-reply that the petitioners had prayed for two weeks’ time by way of an application for adjournment and the respondents have thus contended that the petitioners were not serious in their attempt to represent their case and, therefore, the petitioners are not entitled to grant any equitable relief and the present petition requires to be rejected. It has been further stated that there is no violation of principles of natural justice. The respondents in their affidavit have also reiterated the stand taken by the learned Government Pleader, more particularly as regards requirement of Section 76 of the Act and have narrated what has happened in the meetings held on 12.03.2012, 26.04.2012 and 05.07.2012. It is also stated in the affidavit-in-reply that in response to the show cause notice a letter dated

26.07.2012, signed by 23 members of the municipality, was submitted praying for dissolving the municipality, which constitutes majority of the municipality. It is further stated that the impugned order is legal and C/SCA/10446/2012 CAV JUDGEMNT proper. Relying upon the provisions of Section 263(1) of the Act it was contended in the affidavit-in-reply that the respondent authorities can pass order of dissolving the municipality “after giving the municipality an opportunity to render an explanation”. However, it has been contended that the petitioners appeared through their advocate and prayed for adjournment and did not render any explanation, as they were called for by way of show cause notice and it was therefore contended that reasoned order dated 27.07.2012 was passed, after giving opportunity of hearing to the petitioners as provided under law. It is also stated that the show cause notice dated

21.07.2012 was served upon the petitioners and they had sufficient time to represent their case and have denied the contention raised by the petitioners to the effect that it was mala fide exercise of powers and have also denied that there was the grossest violation of principles of natural justice. The respondents have also denied that the impugned order in the petition is violative of Articles 14 and 19 of the Constitution of India and have thus, supported the impugned order and contended that the petition deserves to be dismissed. (9) Mr.C.B.Upadhyay, learned advocate appearing for the private respondent Nos.4 to 7, has supported the impugned order and has adopted the arguments C/SCA/10446/2012 CAV JUDGEMNT made by the learned Government Pleader and submitted that the petition deserves to be dismissed. (10) Before reverting to the submissions made by the learned counsel appearing for the parties it would be appropriate to note that Article 243U of the Constitution of India provides as under: “243-U. Duration of Municipalities, etc.- (1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer : Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1). (3) An election to constitute a Municipality shall be completed,- (a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution : Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. (4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved." C/SCA/10446/2012 CAV JUDGEMNT (11) Section 263 of the Act reads as under: “263. (1) If, in the opinion of the State Government a Municipality is not competent to perform or deliberately makes default in the performance of the duties imposed on it by or under this Act, or otherwise by law or exceeds or abuses, its powers, the State Government may, after giving the municipality an opportunity to render an explanation, by an order published, with the reasons therefor, in the Official Gazette declare the municipality to be incompetent or in default, or to have exceeded or abused its powers, as the case may be and may dissolve such municipality. (2) When the municipality is so dissolved, the following consequences of dissolution shall ensue :- (a) all councillors of the municipality shall in the case of dissolution as from the date specified in the order of dissolution, vacate their offices as such councillors; (b) all powers and duties of the municipality shall, during the period of dissolution , be exercised and performed by such officer as the Director from time to time appoints in this behalf; (3)Constitution of Municipality after dissolution. - (a) An election to constitute a municipality shall be completed before the expiration of a period of six months from the date of its dissolution. Provided that where the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the municipality for such period; (b) A municipality constituted upon the dissolution of municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved municipality would have continued had it not been so dissolved." (1) On perusal of the show cause notice dated

21.07.2012 (at Annexure-I to the petition), it appears that the same was issued in exercise of powers under Section 263 (1) of the Act whereby the municipality was asked to show cause for the alleged misuse as the municipality had failed to C/SCA/10446/2012 CAV JUDGEMNT pass the budget. In the appendix appended to the show cause notice it is stated that under provisions of Section 67(1) of the Act the municipality is duty bound to pass the budget and as it has failed to pass such budget by

31.03.2012 the same has affected working of the municipality and the municipality has failed to even provide primary and basic necessities. As averred in the petition as well as in the affidavit-in-reply filed by the respondent authorities, the said notice dated 21.07.2012 came to be served upon the petitioners as well as upon the other councillors on 22/23.07.2012 and hearing was kept on 27.07.2012. It further transpires from the record of the petition, which is also borne out from the original record and proceedings of the show cause notice, which were made available for perusal of the court on earlier occasion, that on 27.07.2012 two applications signed by the learned advocate for the petitioners were filed before the authority. It appears that in the first application it is mentioned by the petitioners’ advocate that the said show cause notice has been served on or around 22.07.2012 and it took 2-3 days for the councillors to contact each other and thereafter they decided to engage advocate to enable them to give reply to the show cause notice. It appears from the record that another application filed by the learned advocate for the petitioners, who appeared before respondent No.2 C/SCA/10446/2012 CAV JUDGEMNT authority on 27.07.2012 prayed for an adjournment. It was also mentioned that no time was granted and that the authority has refused to record an order on the application of adjournment. (2) It further transpires from the impugned order that the authority has not considered the applications for adjournment and on the contrary has observed in the order that an oral request for adjournment was made. It is further recorded that respondent No.2 authority enquired from the learned advocate for the petitioners whether during that time they intend to pass budget or only want to make submission before the authority. However, learned advocate for the petitioners did not give any clarificatory reply. From further perusal of the order it transpires that the authority has noted that except 10 parties no officer i.e. collector or chief officer of the municipality were present and considering the recommendation / opinion of Collector, Porbandar and Chief Officer, Porbandar Municipality the authority has passed the order. It further transpires from the record that the authority has noted that as provided under Section 76(1) of the Act the municipality was required to pass budget for F.Y. 2012-13 between 10.01.2012 to 15.03.2012 and it has not been done within the time limit. It has further been recorded that out of 42 members, 36 members C/SCA/10446/2012 CAV JUDGEMNT were present in the meeting held on 12.03.2012 and 17 councillors disapproved and 19 councilors approved the budget and on the basis of the same the authority has come to the conclusion that the municipality has not been able to perform the duties as provided under Section 87 of the Act and has committed default of not passing the budget within time prescribed under the Act and has therefore come to the conclusion that the municipality is incapable to perform its duties and has come to the conclusion that the municipality deserves to be dissolved under Section 263 (1) of the Act. It has no doubt recorded the fact that 23 councillors have submitted notarized statements to the effect that the elected wing has failed to perform its duties and, therefore, has submitted to dissolve the municipality. (3) Considering the submissions made by the learned advocate for the petitioners therefore it transpires from the impugned order that the petitioners were given an opportunity of being heard. Article 243U of the Constitution of India clearly provides that before dissolving an elected municipality the municipality is required to be given a “reasonable opportunity” of being heard. Similarly even as provided under Section 263 of the Act if the State Government is of the opinion that the municipality is not competent to perform or deliberately makes C/SCA/10446/2012 CAV JUDGEMNT default in performance of its duties imposed upon it or abuses its powers the State Government may, after giving the municipality an opportunity to render an explanation by an order published with reasons thereafter in the official gazette declared the municipality incompetent or in default or abuses powers, as the case may be and may dissolve such municipality. However, from the impugned order it is clearly borne out that the applications for adjournment were not even dealt with by the authority while passing the order and on the contrary in the order it is observed that the learned advocate for the petitioners made “oral request for adjournment”, which is de hors the record of respondent No.2 itself. It further transpires from the record of the petition that on 12.03.2012 Resolution No.369 has been passed by the municipality and also on the same day i.e. on 12.03.2012, after the said meeting was over, another meeting was held and by the same Resolution No.369 the budget came to be disapproved. It further transpires that thereafter in the subsequent two meetings on

26.04.2012 and 05.07.2012 the budget proposals were disapproved. It is further pertinent to note that in the show cause notice dated

21.07.2012 the notice speaks of abuse of power as well as not competent to perform and the impugned order is passed after noting this factual aspect only. C/SCA/10446/2012 CAV JUDGEMNT (4) Division Bench of this Court in the case of Anjar Municipality & Ors. (supra) while examining the vires of Section 263 of the Act after amendment of the constitution, more particularly after the provisions of Part IX-A of the Constitution were amended as observed thus in Paragraph No.15: “15. We are unable to uphold the said argument. Looking to the phraseology used in Art. 243U, it is clear to us that the said provision saves the power of competent Legislature of dissolution of a municipality in accordance with law. It is clear from the language of Article 243U which states that every municipality shall continue for five years from the date appointed for its first meeting "unless sooner dissolved under any law for the time being in force."It was no doubt contended that the expression "unless sooner dissolved under any law for the time being in force" would not apply to a municipality which has come into power after the expiration of one year from the date of commencement of the Constitution (Seventy-fourth Amendment) Act, 1992 as mentioned in Article 243ZF. In our considered opinion, however, the language of Article 243U is clear and unambiguous. It applies to all municipalities. Article 243ZF on the other hand, is a transitory provision for continuance of existing laws and municipalities. It, therefore, cannot successfully be contended that the provisions of Art. 243U would not apply to the present case. The legal position, in our view, is that ordinarily a municipality shall continue for five years from the date appointed for its first meeting, unless sooner dissolved "under any law for the time being in force". Reading Art. 243U, it can be said that if a municipality has come into existence in accordance with law, it must be allowed to complete its statutory term of five years, provided it is not subject to dissolution sooner under any law for the time being in force. There is a further safeguard in the nature of Proviso to clause (1) of Article 243U which enacts that before a municipality is dissolved, it shall be afforded a reasonable opportunity of being heard. From the conjoint reading of Art. 243U of the Constitution and Section 263 of the Act, it is amply clear that normally C/SCA/10446/2012 CAV JUDGEMNT every municipality must be allowed to complete its term of five years. Section 263 of the Act, however, authorises the State Government to take an appropriate action of dissolution on the grounds mentioned therein. Before taking such action, a municipality must be given reasonable opportunity of being heard. A bald assertion by the learned Counsel for the petitioners that there should be no dissolution of municipality notwithstanding misfeasance, nonfeasance, breach of duties imposed by a statute or failure to perform statutory obligations cannot be countenanced by a Court of law in any legal system governed by Rule of Law . Such a view, in our judgment, is neither favoured by the Legislature under Section 263 of the Act nor by Parliament under Art. 243U of the Constitution.” From the aforesaid observations of Division Bench of this Court therefore it is clear that powers under Section 263 of the Act can be exercised by the Government but the municipality must be given a reasonable opportunity of being heard. (5) It further transpires that in the instant case notice was given to the president, vice president and the councillors. Even in the affidavit-in-reply filed by the respondent authorities it is not stated that the notice came to be issued to the municipality. Division Bench of this Court in the case of Jyotiben R. Pathak (supra) has held thus (in Paragraph No.9): “9. So far as power of the State Government of dissolution of a municipality under Section 263 of the Act is concerned, the provision is held to be intra vires and constitutional by a Division Bench of this Court in Anjar Municipality vs. J.M.Vyas AIR 1999 Guj 298 : (1999 (3) GLR 1892). In that case, constitutional validity of Section 263 was challenged inter alia on the ground that it violated Part IXA of the Constitution of India as C/SCA/10446/2012 CAV JUDGEMNT inserted by the Constitution (74th Amendment Act), 1993). Negativing the contentions and upholding the validity of Section 263 of the Act, the Division Bench speaking through one of us (C.K.Thakker, Actg. C.J.) observed in paras 15 and 29 thus: "15. We are unable to uphold the said argument. Looking to the phraseology used in Art. 243U, it is clear to us that the said provision saves the power of competent Legislature of dissolution of a Municipality in accordance with law. It is clear from the language of Art. 243U which states that every Municipality shall continue for five years from the date appointed for its first meeting "unless sooner dissolved under any law for the time being in force". It was no doubt contended that the expression "unless sooner dissolved under any law for the time being in force" would not apply to a Municipality which has come into power after the expiration of one year from the date of commencement of the Constitution (Seventy Fourth Amendment) Act, 1993 as mentioned in Art. 243ZF. In our considered opinion, however, the language of Art. 243U is clear and unambiguous, it applies to all municipalities . Article 243ZF on the other hand is a transitory provision for continuance of existing laws and Municipalities. It, therefore, cannot successfully be contended that the provisions of Art. 243U would not apply to the present case. The legal position, in our view, is that ordinarily a municipality shall continue for five years from the date appointed for its first meeting, unless sooner dissolved "under any law for the time being in force". Reading Art. 243U, it can be said that if a municipality has come into existence in accordance with law, it must be allowed to complete its statutory term of five years, provided it is not subject to dissolution sooner under any law for the time being in force. There is a further safeguard in the nature of Proviso to clause (1) of Art. 243U which enacts that before a municipality is dissolved, it shall be afforded a reasonable opportunity of being heard. From the conjoint reading of Art. 243U of the Constitution and Section 263 of the Act, it is amply clear that normally every municipality must be allowed to complete its term of five years. Section 263 of the Act, however, authorises the State Government to take an appropriate action of dissolution on the grounds mentioned therein. Before taking such action, a municipality must be given a reasonable opportunity of being heard. A bald assertion by the learned counsel for the petitioners that there should be no dissolution of municipality notwithstanding misfeasance, non-feasances breach of duties imposed by a statute or failure to perform statutory obligations cannot be countenanced by a court of law in any legal system governed by Rule of Law. Such a view, in our judgment, is neither favoured by the Legislature under Section 263 of the C/SCA/10446/2012 CAV JUDGEMNT Act nor by Parliament under Art. 243U of the Constitution." "29. For the reasons recorded hereinabove, in our opinion, the provisions of section 263 of the Act cannot be held ultra vires, unconstitutional or violative of Art. 14, 19, 21 or 243U of the Constitution and the said challenge must fail. Since we are not entering into the correctness or otherwise of the allegations of the petitioners, we dismiss the petition by observing that it is open to the petitioners to take appropriate proceedings in accordance with law, if they are aggrieved by issuance of notice. We may state that as we have refused to decide that question,as and when such question is raised before an appropriate forum, it will be decided on its own merits, without being influenced in any manner by the observations made by us hereinabove. The petition is accordingly dismissed. No costs." (6) Mr.Nanavaty, learned Senior Counsel for the petitioners, has also relied upon judgment of Division Bench in the case of Mohanlal Nathubhai (supra) wherein it is held that the petitioner sarpanch without putting show cause notice before the panchayat in its general meeting cannot file a reply and such a reply would be without any authority of law and was not a reply of the panchayat rendering the explanation of the panchayat in respect of various charges mentioned in the show cause notice. (7) On the other hand learned Government Pleader has harped upon that even if it is considered that reasonable opportunity was not given hearing would be only a mere empty formality as it is an admitted position that the municipality could not pass the budget and as the majority members i.e. 23 members supported dissolution, hearing C/SCA/10446/2012 CAV JUDGEMNT to be given to the petitioners, who are 19 in members, would be an empty and useless formality. (8) The Apex Court in the case of Viveka Nand Shethi (supra) in Paragraph No.22-25 has observed thus.: “22 The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. 23 The contention raised at the Bar appears to be squarely covered by two decisions of this Court relied upon by Mr. Alex. in Syndicate Bank (supra) Wadhwa, J. speaking for the Division Bench observed : "14. Two principles emerge from the decisions: (1) principles of natural justice and duty to act in a just, fair and reasonable manner have to be read in the Certified Standing Orders which have statutory force. These can be applied by the Labour Court and the Industrial Tribunal even to relations between the management and workman though based on contractual obligations; and (2) where domestic inquiry was not held or it was vitiated for some reason the Tribunal or court adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other material on record.

15. In the present case action was taken by the bank under cl. 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from work for a period of 90 or more consecutive days. It was thereafter that the bank served a notice on him calling upon him to report for duty within 30 days of the notice stating therein the grounds for the bank to come to the conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the C/SCA/10446/2012 CAV JUDGEMNT notice period the bank passed orders that Dayananda had voluntarily retired from the service of the bank." It was further held : "18. The bank has followed the requirements of cl. 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the bank. Under these circumstances it was not necessary for the bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the bank or contended that he did report for duty but was not allowed to join by the bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in cl. 16 of the Bipartite Settlement." 24 The aforementioned legal position was reaffirmed by a decision of three-Judge Bench in Punjab & Sind Bank (supra), wherein it has been held : "Under this rule the employee is given an opportunity to rejoin duty within a stipulated time or explain his position to the satisfaction of the management that he has no intention of not joining duty, and a presumption will be drawn that the employee does not require the job any more and will stand retired from service. Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of an employee from work with no satisfactory explanation thereto...". In the fact situation obtaining therein it was held that there had been sufficient compliance for principle of natural justice. 25 In Syndicate Bank (supra), this Court noticed the decision of three-Judge Bench of this Court in D.K. Yadav V/s. J.M.A. Industries Ltd., 1993 3 SCC 259 whereupon the Industrial Tribunal had placed strong reliance. In D.K. Yadav (supra) admittedly no opportunity was given to the workman and no inquiry was held. In that situation, it was observed : C/SCA/10446/2012 CAV JUDGEMNT "8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person." The Apex Court has examined the bi-parte settlement between the employees and the employer and on facts has come to the conclusion that there was sufficient compliance of principles of natural justice and as the facts were admitted an inquiry would be an empty formality. (9) Similarly, in the case of Ashok Kumar Sonkar (supra) the Apex Court (in Paragraph Nos.26 and 28) has observed thus: “26 This bring us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillar of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing. 28 A court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in C/SCA/10446/2012 CAV JUDGEMNT view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.” Even in the said case the Apex Court was concerned with the applicability of the principles of natural justice and prejudice, if any, caused to the employees while determining the eligibility condition in a recruitment process. (10) Similarly the Apex Court in the case of Municipal Committee, Hoshiarpur (supra) (in Paragraph Nos.31-36) has observed thus: “31 The principles of natural justice cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. Thus, they cannot be put in a strait-jacket formula. "13. ... Natural justice is not an unruly horse, no lurking landmine, 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 procedural propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of." The two rules of natural justice, namely, nemo 32 judex in causa sua, and audi alteram partem now have a definite meaning and connotation in law and their contents and implications are well understood and firmly established; they are nonetheless non- statutory. The court has to determine whether the observance of the principles of natural justice was C/SCA/10446/2012 CAV JUDGEMNT