Yeshwant Kumar Rawat vs State of Chhattisgarh and Others

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

Challenge in this petition is to the order dated 31-1-2009 (Annexure P/5), whereby the order, granting benefit of increments, in respect of Assistant Grade-III, who have not passed Hindi Typewriting Examination, has been stayed.

The facts, in nutshell, for adjudication of the case, are that the petitioner was appointed on the post of Assistant Grade-III subject to the condition that he would have to pass the Hindi Typewriting Examination, until then he would not be entitled to the annual increments and only the basic pay plus admissible allowances would be paid.

Thereafter, the petitioner filed writ petition before this court being W.P.(S) No. 3152 of 2008, which was disposed of vide order dated 25-6-2008 (Annexure-P/1) with liberty to the petitioner to file a representation before the concerned authorities were directed to consider and decide the representation on its own merits, in accordance with law. By order dated 8-8-2008 (Annexure-P/3) the petitioner was granted annual increment and the basic pay was fixed at Rs. 4,350/-, which is evident form pay slip (Annexure-P/4). However, all of a sudden by order dated 31-1-2009 (Annexure-P/5) the increments granted in favour of the petitioner has been stayed and the basic pay of the petitioner was reduced to Rs.3,050/- which is evident form pay slip (Annexure-P/6). The impugned order has been passed without affording an opportunity of hearing to the petitioner. Thus this petition.

Learned counsel appearing for the petitioner submits that there is no fault on the part of the petitioner. The petitioner has not made any misrepresentation and the annual increments have been granted to him in accordance with the orders passed by the competent authority. The respondents cannot recover the amount, already paid to the petitioner, for no fault of the employee, who has not made any misrepresentation or misled to the employer.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

The respondent-authorities have not followed the principles of natural justice and the impugned action has been taken without affording an opportunity of hearing to the petitioner. The practice of passing order, involving civil consequences, without show cause notice or without affording an opportunity, is condemned.

The Supreme Court in Punjab State Electricity Board and Another Vs. V.N. Sharma, , held as under:

However, it is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered form the appellant.

The Supreme Court in P. Tulsi Das and Others Vs. Govt. of A.P. and Others, observed that the benefit accrued earlier by way of grant of higher pay or revised pay, cannot be taken away as the same is violative of Article 14 and 16 of the Constitution of India being arbitrary, unreasonable and expropriator.

In a similar issue, as to whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice, Supreme court in Syed Abdul Qadir and Others Vs. State of Bihar and Others, having considered all the aspects of the matter and the decisions rendered by the Supreme Court in the past, observed as under:

This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/ allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay / allowance or on the basis of a particular interpretation of rule / order, which is subsequently found to be erroneous.

The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V Gangaram v. Director, Col. B. J. Akkara (Retd.) v. Govt. of India, Purushottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur.

The Supreme Court in Rajasthan State Road Transport Corporation and Another Vs. Bal Mukund Bairwa, held as under:

Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R. Antulay (supra), this Court held: (SSC p. 660. Para 55)

55........ No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity.

The purpose of principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is the pragmatic requirement of fair play in action. {See Sawai Singh v. State of Rajasthan and Narinder Mohan Arya v. United India Insurance Co. Ltd.

This Court in Ashish Kumar Jha Vs. State of C.G. and Another, held as under:

Learned counsel appearing for the petitioner, relying on a decision of this Court in Sukhdev Malakar v. State of C.G. & Others, submits that once a right of a particular pay scale has been granted to the petitioner in accordance with law, the same cannot be withdrawn, without affording an opportunity of hearing. The petitioner has acquired the right to the fixed monthly pay scale as his service was regularized. Thus, the impugned order is bad and deserves to be quashed. Learned Counsel further relying on a decision of this Court in R.R. Tiwari v. State of C.G. & others, submits that there is no fault on the part of the petitioner and two advance increments were granted to him in accordance with law. The respondents cannot recover the amount of benefit, already accrued to the petitioner without following the principles of natural justice.

Applying the well settled principles of law to the facts of the case on hand and for the reasons mentioned hereinabove, the impugned order dated 31-1-2009 (Annexure-P/5), which was passed without following principles of natural justice reducing the amount of salary is quashed. However, liberty is reserved to the respondent authorities to pass proper orders, if so advised, in accordance with law after affording proper opportunity of hearing to the petitioner.

In the result, the writ petition is allowed to the extent indicated above. No order as to costs.