Bhupal Singh Jalal vs Uttarakhand Forest Development Corporation And Others

Sudhanshu Dhulia, J

This is an extremely old matter pertaining to the year 2009. Counter affidavit was given to the petitioner as far back in the year 2009. The matter is now listed before this Court.

Learned counsel for the petitioner prays for three weeks time to file rejoinder affidavit. Request is declined.

The petitioner before this Court is a class IV employee in the Uttarakhand Forest Development Corporation. He is presently working on the post of Scalar. The petitioner was inducted in the regular service of the erstwhile U.P. Forest Corporation on 08.05.1990. On 20.09.1995, he was dismissed from his service on disciplinary ground, after an inquiry. The order of dismissal from service was challenged by the petitioner before the High Court of Judicature at Allahabad, from where the writ petition was transferred to this Court under Section 35 of the U.P. Reorganisation Act, 2000. The writ petition of the petitioner was heard and allowed by a learned Single Judge of this Court vide judgment dated 21.08.2003, whereby the order dated 20.09.1995 passed by the Divisional Logging Manager, U.P. Forest Corporation, Nainital was set aside, but with the proviso that the petitioner shall be entitled for only 50% of the back wages.

Meanwhile, the State of Uttarakhand had formed its own Forest Corporation known as Uttarakhand Forest Development Corporation. The judgment of the learned Single Judge dated 21.08.2003 was challenged by the respondents in special appeal. The special appeal was partly allowed by the Division Bench of this Court vide order dated 19.12.2006, on the following terms:

As far as the reinstatement of the petitioner in service was concerned, the same was not interfered with. The petitioner was to be reinstated but not with 50 % of the back wages (as directed by the learned Single Judge), but with 25 % of the back wages, and moreover the appellant i.e. the Forest Corporation was given liberty to hold a fresh inquiry against the present petitioner by appointing another inquiry officer as learned Single Judge had allowed the writ petition mainly on ground of technicality that the inquiry officer Sri R.P. Katiyar could not have been appointed as an inquiry officer as he was one of the witnesses.

Subsequent to the order of the Division Bench dated 19.12.2006, the petitioner was reinstated in service with 25% of the back wages. Thereafter an inquiry was held. There were five charges against the petitioner. All the charges primarily spring from a single charge which is that the petitioner has not joined the transferred place of posting and thereafter made false allegation against the superior officers and misbehaved with them. For this, ultimately the petitioner was awarded punishment and he was put to the lower scale of pay, vide order dated 28.01.2008. Pursuant to this order, an order dated 09.04.2008 was passed for recovery of an amount of Rs. 29,987/- from the petitioner. Aggrieved, the petitioner preferred a representation against the order dated 28.01.2008 before the respondent authorities. The representation of the petitioner was disposed by the authorities and the petitioner was directed to be paid full salary from the period 25.08.2003 onwards apart from 25% of the salary for the period of absence. Thereafter vide order dated 03.10.2008, the orders for recovery passed against the petitioner were cancelled.

The Regional Manager, Uttarakhand Forest Development Corporation, however, passed an order on 24.01.2009 whereby the petitioner was again put to lower scale of pay and pursuant thereto vide order dated 28.01.2009 recovery of an amount of Rs. 61,470/- is being made from the petitioner, which has been stayed by this Court vide order dated 04.05.2009.

The Forest Development Corporation in its counter affidavit has justified the lowering of the pay-scale of the petitioner, as the pay-scale of the petitioner which was fixed earlier was not approved by the audit department and subsequently the matter was sent to the accounts department and it was the accounts department which has reduced the pay-scale of the petitioner in pursuance to which a recovery is being made from the petitioner.

What have been the parameters in fixing the pay-scale, whether they were correctly applied and whether the impugned order dated 24.01.2009 lowering the pay-scale of the petitioner and the order of recovery dated 28.01.2009 were wrongly passed, on this aspect no arguments have been raised before this Court. However, the recovery being made from the petitioner pursuant to the order dated 28.01.2009, which is a recovery of Rs. 61,470/- would definitely cause hardship to the petitioner considering that he is a class IV employee and has already undergone long period of litigation in the department, in view of the judgment of the Hon'ble Apex Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334.

It is an admitted position that before passing the impugned order, no opportunity of hearing was given to the petitioner.

Consequently, writ petition is allowed. The impugned orders dated 24.01.2009 and 28.01.2009 are hereby quashed. No recovery shall be made from the petitioner. However, in case the salary of the petitioner was wrongly fixed in the first instance and since it has financial implications to the State Government as well, the Forest Development Corporation would be well within its right to issue a fresh notice to the petitioner asking him to show cause as to why his salary is being reduced. In case such a notice is given to the petitioner, the petitioner shall promptly give a reply within two weeks thereafter on which the respondents shall pass an appropriate order. It is made clear that respondents shall not be required to give personal hearing to the petitioner in the matter.