R.S. Solanki vs State of C.G. and Another

S.K. Agnihotri, J.—With the consent of learned counsel for the parties, the petition is heard finally.

Learned counsel appearing for the petitioner would submit that the petitioner has retired from service on 31-07-2003 on attaining the age of superannuation while working as Deputy Ranger, Forest Division, Narayanpur District Bastar. The petitioner was issued a show cause notice on 03-10-2000 (Annexure P/1) calling upon him to submit his response as to why he may not be held responsible for the alleged loss of forest produce found at Nistar/ Consumer Depot, Kapsi. The petitioner submitted his reply to the show cause notice on 08-11-2000 (Annexure P/2). The petitioner has also submitted an application on 25-11-2002 (Annexure P/3) to the respondent authority with a request to enquire the matter immediately, as he was not responsible for the alleged loss, the respondent authority, according to learned counsel for the petitioner, found the reply of the petitioner unsatisfactory and vide impugned order dated 30-12-2005 (Annexure-P/4) directed recovery of Rs. 1,62,019/- from his retiral dues.

On a query, as to whether liability can be fastened on any officer without holding proper enquiry, Shri Thakur, learned Deputy Advocate General appearing with Shri Bhaduri, learned Panel Lawyer would submit that no enquiry in such a case was necessary and recovery from his retiral dues can be made even if the person concerned has retired from service.

This is a case where alleged loss of forest produce has been found on the basis of spot inspection. Thereafter, no enquiry was conducted to determine as to who was responsible for the loss. It is a clear case of the petitioner that the petitioner was not posted at that point of time when the alleged loss has taken place. Thus, the petitioner cannot be held liable without proper enquiry and without affording an opportunity of hearing to the petitioner.

It is well settled principle of law that no punitive order can be passed without affording an opportunity of hearing to the person/employee concerned. The petitioner completed his service tenure in the concerned depot by giving charge to another officer. Physical verification was got done by the forest officer on 30-06-1999 and on that particular date all the forest produce have been there, and as such, petitioner is not responsible for the same. It appears that the respondent authorities have done nothing and the order has been passed imposing financial liability on the petitioner.

The Supreme Court in D.K. Yadav Vs. J.M.A. Industries Ltd., , considering the concept of opportunity of hearing observed as under:

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. 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. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. Therefore, fair play in-action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be inconformity with the principles of natural justice.

The said principle is reaffirmed by the Supreme Court in Basudeo Tiwary Vs. Sido Kanhu University and Others, , wherein it is held that:

The law is settled that non arbitrariness is essential facet of Article 14 forwarding the entire realm of State action governed by Article 14. it has come to establish, as a further corollary, that the audi alterm partem facet of natural justice is also a requirement of Article 14, for, natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well Settled that any section taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment.

Further, in Canara Bank and Others Vs. Shri Debasis Das and Others, , and Canara Bank Vs. V.K. Awasthy, the Supreme Court observed as under:

The first and foremost principle is what is commonly known as audi alterm partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that party should be put on notice of the case before any adverse order is passed against him. It is after all an approved rule of fair play and one of the most important principles of natural justice.

This is not a case where the facts are admitted and holding an enquiry would be an empty formality. (See Viveka Nand Sethi Vs. Chairman, J and K Bank Ltd. and Others, , and P.D. Agrawal vs. State Bank of India & Others (2006) 8 SCC 776).

Having regard to the facts situation of the case. Wherein there is a clear violation of principal of natural justice and fair play in action, the impugned order passed by the respondent authorities is unsustainable in law and as such illegal, hence, the same is quashed.

In view of the foregoing, the petition is allowed to the extent indicated above. However, liberty is reserved to the respondent authorities to hold proper enquiry in the matter and pass appropriate orders, in accordance with law and on its own merits, if so advised.