Chattisgarh High Court
U S Jain vs Madhya Pradesh Rajya Van Vikas Nigam Ltd ... on 9 March, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION S No 6344 of 2007
U S Jain
...Petitioners
Versus
Madhya Pradesh Rajya Van Vikas Nigam Ltd & Others
...Respondents
! Shri P S Koshy Advocate for the petitioner ^ Shri Sourabh Sharma Advocate with Shri Sanjay K Agrawal Advocate for the respondent No 1 & 2 Shri A S Kachhwaha Advocate fo CORAM: Honble Shri Satish K Agnihotri J Dated: 09/03/2010 : Judgement ORAL ORDER Passed on 09th day of March 2010 WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
1. By this petition, the petitioner seeks to challenge the action of the respondents whereby the benefit of increment granted to the petitioner has been withdrawn and an order to recover an amount of Rs. 4000/- per month from the salary of the petitioner has been passed.
2. The brief facts, in nutshell, are that the petitioner joined his services with the respondent No. 1 as Assistant Manager (Accounts) on 30.01.1983. In the year 1987, the petitioner acquired the qualification of Charter Accountancy. Pursuant to the decision taken by the respondent No. 1 and 2 in the meeting of Board of Directors, the officers who had passed examination of Chartered Accountancy were granted two advance increments. Accordingly, the petitioner was also granted two advance increments on 4.4.1996. Thereafter, the petitioner was promoted to the post of Deputy Manager (Accounts) and his pay was fixed accordingly. All of a sudden, the order dated 28.11.2006 (Annexure P/3) was passed whereby the pay of the petitioner was ordered to be re-fixed and vide order dated 31.1.2007 (Annexure P/1) it was held that the two advance annual increment granted to the petitioner was wrongly fixed and it was withdrawn. It was also ordered to recover an amount of Rs. 92,969/- already paid to the petitioner pursuant to fixation of two advance increments. Against the said action, the petitioner made representations to the respondent authorities which was rejected vide order dated 7.5.2007 (Annexure P/2).
3. Shri Koshy, learned counsel appearing for the petitioner submits that the punitive order of recovery has been passed without affording an opportunity of hearing to the petitioner. He further contends that the issue asto whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice is no longer res integra. The same has been settled by Hon'ble Supreme Court in various decisions. This Court, relying on the said decisions has passed several orders, directing refund of the amount, if any, recovered from the employees, where the employees were not given any opportunity to explain about the excess payment, if any, made to them.
4. Learned counsel appearing for the respondent No. 1 and 2 submits that out of Rs. 92969/-, only Rs. 20,000/- has been recovered by the respondent No. 1 and 2. Shri Kachhwaha, learned counsel appearing for the respondent No. 3 submits that after bifurcation of the State of Madhya Pradesh, the services of the petitioner was transferred to the State of Chhattisgarh. The petitioner joined his services in the State of Chhattisgarh on 01.06.2007. According to the last pay drawn certificate, the respondent No. 3 has recovered the balance amount of Rs. 72,969/-.
5. It is a trite law that no order prejudicing the interest of an employee can be passed without affording an opportunity of hearing. It is not the case of respondents that opportunity of hearing was afforded to the petitioner, and the present case is such wherein show cause notice of hearing has been dispensed with.
6. The Supreme Court, in Rajasthan State Road Transport Corporation & another v. Bal Mukund Bairwa (2)1, observed as under:
"35. 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 this Court held: (SCC 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."
47. The purpose of the 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.).
7. Accordingly, the impugned order dated 31.01.2007 (Annexure P/1) and the order dated 07.05.2007 (Annexure P/2) directing recovery of Rs. 92,969/- as excess payment made to the petitioner, are hereby quashed. The respondent No. 1 and 2 are directed to refund the amount of Rs. 20,000/- which has been recovered from the petitioner before transferring the service of the petitioner to the respondent No. 3. The balance amount of Rs. 72,969/-, if has already been recovered, the same shall be refunded back to the petitioner by the respondent No. 3. The aforesaid amount shall be refunded alongwith simple interest at the rate of 6% per annum.
8. However, on the request of learned counsel appearing for the respondents, liberty is reserved to the respondent authorities to take appropriate steps, if so advised, in accordance with law after affording proper opportunity of hearing to the petitioner.
9. The petition is allowed to the extent indicated above.
10. There shall be no order asto costs.
JUDGE