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Judgment
Abhilasha Kumari, J.—Rule. Mr. Dipak R. Dave, learned advocate waives service of notice of Rule for the Respondents. On the facts and in the circumstances of the case, the petition is being heard and finally decided, today.
The present petition under Article 226 of the Constitution of India has been filed, with the following prayers:
8.(A) Quash and set aside the orders dated 15/09/2009; 23/09/2009 and 14/10/2009 (ANNEXURE A (Collectively), to this petition and also the communication dated 4/3/2010 and 12-14/05/2010 issued by Respondent No. 2 whereby his representations, made from time to time have been rejected. ANNEXURE B (Collectively) to this petition.
(B) Declare that the Petitioner is entitled to the benefit of the second Higher Grade as granted to the Petitioner by order dated 09/10/1998.
(C) Direct the Respondents not to recover/deduct any amounts in pursuance of the order dated 14/10/2009 and further direct the Respondents to restore the benefits of second Higher Grade scale granted to the Petitioner vide order dated 09/10/1998 and refund the amounts recovered/deducted from the Petitioner''s salary at the rate of Rs. 3530/- per month from December, 2009 till date.
(D) Pending admission and final hearing of the Petition, restrain the Respondents from deducting/recovering an amount of Rs. 3530/- from the salary of the Petitioner each month, henceforth till the final disposal of the Petition.
(E) Pass such other and further orders as may be deemed necessary and proper in the facts and circumstances of the case.
Briefly stated, the facts of the case are that the Petitioner is at present working as Senior Assistant in the Bhavnagar Office of Respondent-Board. He was granted first Higher Grade Scale of Rs. 1240-3260 with effect from 23-3-1987, revised to Rs. 4000-10025 (on completion of 9 years from 23/3/1978). The second Higher Grade of Rs. 5000-10525 was granted to the Petitioner with effect from 23-3-1996 (18 years from 23/3/1978), by order dated 9-10-1998. Thereafter, the Petitioner made a representation for grant of Third Higher Grade of Rs. 6500-11750 on completion of 30 years of service, on 23-3-2008. The Third Higher Grade Scale was not granted to the Petitioner. Thereafter, the Petitioner was served with order dated 14-10-2009, passed by Respondent No. 4, whereby the Second Higher Grade pay Scale granted to the Petitioner was withdrawn and recovery was sought to be effected from the salary of the Petitioner. The representations made by the Petitioner did not find favour with the Respondents. Aggrieved thereby, the Petitioner has invoked the extraordinary jurisdiction of this Court by filing the present petition.
Mr. Biren A. Vaishnav, learned advocate for the Petitioner has submitted that the impugned order dated 14-10-2009, whereby the Second Higher Grade Scale has been withdrawn and recovery has been directed to be effected, is without authority of law. That the Grade Pay has been granted after approval of the competent authorities. Moreover, it is not the case of the Respondents that the Petitioner is guilty of fraud or misrepresentation in any manner whatsoever, which may have led to the grant of the said benefit. It is further submitted that the Petitioner has continued to receive the Second Higher Grade Scale for a period of about 11 years when, suddenly, after a lapse of a long period of time, the Respondents have withdrawn the same, without giving the Petitioner an opportunity of hearing and without prior notice, which action is in total violation of the principles of natural justice.
The petition has been resisted by the Respondents by filing an affidavit-in reply. Mr. Dipak R. Dave, learned advocate for the Respondents has drawn the attention of this Court to certain averments made on merits in the said affidavit in-reply. However, on the ground of violation of the principals of natural justice, the learned advocate for the Respondents is unable to point out any notice or prior intimation that might have been given to the Petitioner before withdrawing the Second Higher Grade Scale, and effecting recovery, after a period of 11 years. In this view of the matter, as it is not denied that no opportunity of hearing has been afforded to the Petitioner before passing the impugned order, the averments on the merits of the case made in the affidavit-in-reply, need not be gone into.
Having heard the learned advocates for the respective parties and on perusal of the averments made in the petition and other documents annexed thereto, the following aspects emerge and have been considered:
(a) There is no material on record to indicate that before passing the impugned order dated 14-10-2009 any opportunity of hearing was afforded to the Petitioner or that a show cause notice was issued.
(b) There is no material on record to indicate, and neither it is the case of the Respondents, that the Petitioner is guilty of fraud, misrepresentation or of misleading the Respondents to grant the Second Higher Grade Scale.
(c) The benefit of Second Higher Grade Scale has been granted to the Petitioner on 9-10-1998 and has been continued till the passing of the impugned order, that is, for a period of about 11 years.
(d) The Petitioner would, no doubt, be adversely affected by the withdrawal of the benefit conferred upon him, since it has continued for such a long period of time. Therefore, withdrawal of the said benefit and recovery of the entire amount paid to him would entail civil consequences.
(e) It is a settled position of law that before passing any order that may be detrimental to the individual concerned, entailing civil consequences, the Respondents-authorities are bound to provide an opportunity of hearing to the person concerned. The opportunity of hearing should be a reasonable and proper one and only after the person concerned has been heard and the points raised by him considered, should an order be passed. Admittedly, in the present case, no such procedure has taken place before passing the impugned order.
In this regard, the observations of the Supreme Court in Bhagwan Shukla Vs. Union of India and others, are pertinent and are reproduced herein below:
We have heard learned Counsel for the parties. That the Petitioner''s basic pay had been fixed since 1970 at Rs. 190 p.m. is not disputed. There is also no dispute that the basic pay of the Appellant was reduced to Rs. 181 p.m. from Rs. 190 p.m. in 1991 retrospectively w.e.f. 18-12-1970. The Appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the Appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the (sic employee) concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25-7-1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the Appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17-9-1993 as well as the order (memorandum) impugned before the Tribunal dated 25-7-1991 reducing the basic pay of the Appellant from Rs. 190 to Rs. 181 w.e.f. 18-12-1970.
(emphasis supplied)
Applying the above principles of law to the facts and circumstances of the present case and as there is no manner of doubt that the impugned order has been passed in flagrant violation of the principles of natural justice, consequentially, the same cannot stand scrutiny of law, hence deserves to be quashed and set aside.
For the aforesaid reasons, the petition is partly-allowed. The impugned order dated 14-10-2009 is quashed and set aside. The Respondents are directed to offer an adequate and reasonable opportunity of hearing to the Petitioner before taking a fresh decision, and pass a reasoned order thereafter, in accordance with law. Till such time, as the decision is taken, the interim protection granted by this Court, staying further recovery, shall continue.
It is clarified that this order has been passed without entering into the merits of the matter and only on the ground of violation of the principles of natural justice.
Rule is made absolute to the above extent. There shall be no orders as to costs.