Yogendra Singh vs State of U.P. and Others

Sudhir Agarwal, J.—Heard learned Counsel for the parties and perused the record.

The orders impugned in the writ petitions have been passed by the District Cooperative Service Tribunal cancelling promotion orders of the Petitioners and directing recovery of the amount already paid to them pursuant to the said promotion orders.

Since the facts in these writ petitions are similar, therefore for the purposes of placing facts on record, the writ petition No. 26192 of 2006 (Yogendra Singh v. State of U.R and Ors.) is being taken as the leading case.

The Petitioner was appointed as daily wager Slip Distributor in 1982 and on 15th January, 1986 he was appointed as Slip Distributor by the Secretary, Zonal Sugarcane Service Tribunal, Bilari, District Moradabad. On 24th October, 1997 his promotion to the post of Seasonal Clerk was proposed and he was required to appear for interview. Thereafter, he was actually promoted on 17.12.1997. After almost 9 years, a show cause notice was issued on 8th February, 2006 stating that there was no post of Seasonal Clerk, which was duly replied by the Petitioner. Thereafter, by the impugned order, which is wholly non-speaking and unreasoned, promotion of the Petitioner been cancelled and recovery of the salary, already paid to the Petitioner on the promoted post, has been ordered. All other Petitioners have also been promoted in 1997.

Evidently all these Petitioners have worked for a sufficiently long time on the post in question wherefrom their promotion is sought to be cancelled. The Respondents have not given the details of the post available and the vacancies existing and the occupancy thereof. It may also happen on a particular day the vacancy may not have existed but later on it could have been available and if that be so the question of cancellation of promotion for the period subsequent thereto would not remain valid. This aspect also has not been considered by the Respondents as nothing is apparent from the order impugned in these writ petitions. In a mechanical way after almost a decade the impugned orders have been passed in a cyclostyle manner canceling promotions and ordering for recovery. If an order has been obtained by playing fraud or misrepresentation something may be said that the incumbent that is the beneficiary may not have any right to the post as fraud vitiates everything and therefore on the application of principles of natural justice something could have been argued but where this is not the fact, the authorities are under an obligation to pass an order in a manner which may show application of mind by such an authority to every possible aspect of the matter which may otherwise could have been pleaded by the employee in his favour.

Unfortunately, the orders impugned in the writ petition are apparently non-speaking and unreasoned. Though it is said that the same are being passed after considering the reply received from the Petitioners but how and what manner the facts stated by the Petitioners have been considered remains a speculation for want of such discussion in the order. The order gives the narration of various transactions and thereafter the conclusion of the authority but it is bereft of ''reasons''. Distinction between ''reasons'' and ''conclusions'' is well known. In Union of India (UOI) Vs. Mohan Lal Capoor and Others, it was held that the ''reasons'' are the links between the material on which certain conclusions are based and the actual conclusions.

In Woolcombers of India Ltd. Vs. Woolcombers Workers Union and Another, the Court said "The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimize the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations."

A Constitution Bench in S.N. Mukherjee Vs. Union of India, said that recording reasons guarantee consideration by the authority; introduce clarity in the decisions; and minimise chances of arbitrariness in decision-making. This was also reiterated by the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others, . In Prasad @ Hari Prasad Acharya Vs. State of Karnataka, referring to an English case the Apex Court observed that giving of reasons is one of the fundamentals of good administration and failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made: in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.

This is what has also been reiterated in U.P.S.R.T.C. Vs. Jagdish Prasad Gupta, I need not to bother this decision by loading a catena of decisions on the subject since proposition is well settled and no exception taking an otherwise view has been placed before me. It is well settled that an order which causes civil consequences must be a reasoned and speaking order.

So far as the recovery is concerned, it is not in dispute that pursuant to the order of promotion, the Petitioners have actually worked and rendered service and there is no fraud or misrepresentation on the part of the Petitioners. In the circumstances the recovery of the amount paid to the Petitioners cannot be permitted in view of the law laid down in B.N. Singh v. State of U. P. and Anr. 1979 ALJ 1184 , Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, Gabriel Saver Fernandes and Ors. v. State of Karnataka and Ors. 1995 Suppl. (1) SCC 149 , Mahmood Hasan and others, etc. etc. Vs. State of U.P. and others, The State of Karnataka and Another Vs. Mangalore University Non-Teaching Employees Association and Others, Surya Deo Mishra v. State of UP 2006(1) ADJ 476 (FB): 2006(1) ESC 379 (AII)(FB) and Purushottam Lal Das and Ors. v. State of Bihar and Ors., 2006(10) SCALE 1999.

In Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, the Apex Court has observed:

Such relief, restraining recovery back of excess payment, is granted by Courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, Courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

In the present case also it has not been shown that the Petitioners had knowledge that they were given something which was not due to them or which was illegal or which was not permissible in law and therefore one of the exceptions which is referred to in Col. (Retd.) B.J. Akkara (supra) does not exist in these cases. In my view the exception of law laid down in the above cases is sparely applied to the facts in dispute involved in these writ petitions.

In the circumstances, the writ petitions are allowed. The impugned orders are quashed. The Petitioners shall be entitled for all consequential benefits. However, this judgment shall not preclude the competent authority to pass a fresh order strictly in accordance with law.