Madhya Pradesh High Court
D.S.Tiwari vs The State Of Madhya Pradesh on 5 October, 2017
1 W.P. No.14978/2012
HIGH COURT OF MADHYA PRADESH : JABALPUR
SB : HON'BLE MS. JUSTICE VANDANA KASREKAR.
Writ Petition No.14978/2012
D.S. Tiwari
Vs.
State of M.P. and Others
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Shri K.N. Pethia with Shri H.R. Upadhyay, learned counsel
for the petitioner
Shri Manoj Kushwaha, learned Panel Lawyer for the
respondents/State.
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ORDER
(05/10/2017) The petitioner has filed the present petition challenging the order dated 21.08.2012 passed by respondent no.2 thereby reducing the substantive pay of the petitioner as well as recovery of amount of Rs.82,158/-.
2. The petitioner was initially appointed as Lecturer in the School Education Department vide order dated 01.01.1968. In the year 2003, he was posted as Principal Baktra High School, District, Sehore and in the year 2006, the petitioner was retired 2 W.P. No.14978/2012 from the services on attaining the age of superannuation. At the time of his retirement, the substantive pay drawn by the petitioner was Rs.12,950/-, during his service period, the petitioner was granted Second Kramonati and he was fixed in the pay of Rs.12,000/- per month. The petitioner was promoted as Principal vide order dated 05.08.2003 and his pay scale was increased by Rs.400/- and thus making the substantive pay scale of the petitioner is to Rs.12,400/-. In the year 2004, the petitioner was given an increment of Rs.275 and his pay scale was increased to Rs.12675/- and at the time of retirement i.e. April, 2006 his pay scale was increased to Rs. 12,950/-. After his retirement an amount of Rs.50,810 was deducted from the gratuity amount of the petitioner as over payment and his substantive pay was fixed to Rs.11,850 and Rs.12,125/-. The petitioner has submitted the representation to the District Education Officer, but no action has been taken in the matter. Thereafter, respondent no.2 has issued an order dated 21.08.2012 thereby further reducing the basic pay of the petitioner to Rs.11,025 and issued a recovery notice of 3 W.P. No.14978/2012 Rs.82,158. The petitioner is getting the provisional pension since 31.01.2014 as the petition of the petitioner is pending thereafter vide letter dated 07.11.2015 issued to the Central Bank of India by respondent no.4. The additional secretary department of finance State of M.P. directed the bank that the petitioner is not entitle for the Provisional Pension and Dearness Allowance and accordingly, the revised PPO was issued to the petitioner. Being aggrieved by this action of the respondents, the petitioner has filed the present petition.
3. The respondents have filed their reply and in the reply they have stated that the petitioner was initially appointed as Lecturer in the School Education Department on 01.01.1968 thereafter he was posted as Principal and in the year 2006 he retired on attaining the age of superannuation. On the representation submitted by the petitioner it was found that the petitioner has been paid excess amount and, therefore, the recovery notice of Rs.82,158/- as excess payment of substantive pay and pension has been issued as per the Pay Revision Rules, 1998. The revised pay scale of the petitioner is of Rs.6500-200- 4 W.P. No.14978/2012 10500, while the petitioner has been given the pay scale of Rs.7500-12000. It is further submitted that the petitioner has been given 200/- per month after reaching at maximum of the pay scale i.e. Rs.10500/-. Thereafter, the petitioner was promoted in the pay scale of Rs.8000-13500/- against the provisions of law. It has further been submitted by the respondents that as the petitioner was paid substantive pay in excess to his entitlement, therefore, respondent no.2 has rightly issued a recovery notice of Rs.82,158/- as excess payment of the substantive pay and pension. It has further been submitted that even if the petitioner issued a show cause notice or given opportunity of hearing, he would not be in a position to reply the same because the pay scale which has been given to him is beyond the maximum limit of the pay scale. In light of the aforesaid, the respondents submits that the petition is liable to be dismissed.
4. The petitioner has filed rejoinder to the said reply. The petitioner has denied that he retired from the post of Principal High School. He submits that as per the order dated 5 W.P. No.14978/2012 05.07.2003 (Annexure P-11), the name of the petitioner is at serial no.119 in the list of promoted Lecturers. The petitioner has further denied that the maximum pay scale of the petitioner is Rs.6500-200-10500. The petitioner has filed the orders dated 24.02.2002 and 08.07.2002, these documents shows that the petitioner was given the pay scale of Rs.7500-250-12000. It is further submitted that the petitioner retired from the post of Principal Higher Secondary School with basic pay of Rs.12,950, D.A. Rs.8418/- and HRA Rs.324/-. Copy of the last pay certificate is enclosed as Annexure P-13.
5. Learned counsel for the petitioner argues that the entire action of the respondents in recovering amount of Rs.82,158 from the gratuity amount of the petitioner as well as reducing the basic pay of the petitioner is illegal and arbitrary. He submits that the impugned order of recovery has been passed without issuing any notice or giving any opportunity of hearing to the petitioner. Before reducing the basic pay of the petitioner, the respondents are bound to follow the principle of natural justice. He further argues that at the time of retirement 6 W.P. No.14978/2012 of the petitioner his substantive pay was Rs.12,950/-, last drawn pay certificate also shows that the substantive pay of the petitioner was Rs.12,950/-. The contention of the respondents that the petitioner has been wrongly given the said pay scale also cannot be accepted. Initially, the respondents have paid the provisional pension to the petitioner, however, thereafter vide order dated 07.11.2015, the respondents stopped the payment of Dearness Allowance to the petitioner and stating that the petitioner is not entitled to get the provisional pension. Thus, the entire action of the respondents in issuing the order of recovery as well as stopping the payment of dearness allowance to the petitioner is illegal and contrary.
6. I have heard learned counsel for the parties and perused the record. From perusal of the record, it reveals that the petitioner was initially appointed on the post of Lecturer on 01.01.1968. In the year 2003, he was posted as Principal and in the year 2006 he was retired on attaining the age of superannuation. At the time of retirement, the petitioner was getting a pay of Rs.12,950/-. During his service career, he was 7 W.P. No.14978/2012 extended the benefit of Second Kramonati also and accordingly, his pay was revised in the year 2003-2004. After his retirement, an amount of Rs.50,810 was recovered from the gratuity amount of the petitioner and his pay was fixed at Rs.11,850 and Rs.12,125/- and the substantive pay of the petitioner of Rs.12,950 was not considered for calculation of the pension. The petitioner, therefore, submitted a representation to the the respondents, in response to the said representation, the respondent no.2 and the Treasury Officer District Treasury Sehor issued an order dated 21.01.2012 thereby further reducing the pay of the petitioner to Rs.11,025/- and also issued a recovery notice of Rs.82,158. The said order has been passed by the respondents without issuing any notice or giving any opportunity of hearing. The Apex Court in the case of Union of India Vs. P.N. Natarajan, (2010)12 SCC 405 has held as under:-
15. We have considered the respective submissions and carefully scrutinized the records.
Although neither the learned Single Judge nor the Division Bench considered the issue of violation 8 W.P. No.14978/2012 of the rules of natural justice, having given serious thought to the entire matter, we are convinced that the retiral benefits payable to the respondents could not be revised to their disadvantage without giving them action-oriented notice and opportunity of hearing. By virtue of the option exercised by them under Section 12- A(4)(b) and consequential action taken by the competent authority to fix their pension, etc., the private respondents acquired a valuable right to accordingly receive the financial benefits and the same could not have been reduced without complying with one of the basic rules of natural justice that no one shall be condemned unheard. The rule of audi alteram partem has been treated as fundamental to the system established by rule of law and any action taken or order passed without complying with that rule is liable to be declared void-State of Orissa V. Dr. Binapani Dei3 and Sayeedur Rehman Vs. State of Bihar4. 9 W.P. No.14978/2012
16. It is not in dispute that before directing revision of the pension, etc., payable to the private respondents, the Central Government did not give them action-oriented notice and opportunity of showing cause against the proposed action. Therefore, it must be held that the direction given by the Central Government to revise the retiral benefits including the pension payable to the respondents was nullity.
7. Thus, the entire action of the respondents is violative of principle of natural justice. Consequently, the writ petition is allowed and the impugned order dated 21.08.2012 passed by the respondents is hereby set aside and the respondents are directed to refix the pay of the petitioner and accordingly revised his pension. The petitioner is also entitled to get the arrears of pension if any. The aforesaid exercise be carried out within a period of three months from the date of certified copy of the order.
10 W.P. No.14978/2012
8. The petition is, therefore, disposed of without any order as to costs.
Certified copy as per rules.
(MS. VANDANA KASREKAR) JUDGE Tabish 11 W.P. No.14978/2012