Delhi High Court
H.S. Dhiman vs Ndmc on 24 September, 2007
Author: Hima Kohli
Bench: Hima Kohli
JUDGMENT Hima Kohli, J.
1. The present writ petition has been filed by the petitioner assailing the order dated 16th December, 1988 passed by the respondent/NDMC refixing the pay of the petitioner to the post of Junior Drawing Teacher in supercession of the earlier Office Order dated 29th November, 1984.
2. In a nutshell, the facts of the case are that the petitioner was appointed with the respondent, as Junior Drawing Teacher Grade-III on 8th December, 1996. The Government of India, Ministry of Education and Social Welfare issued an Office Order dated 27th July, 1978 wherein it was provided that the post of Drawing Teacher Grade III would be upgraded to and merged with the post of Drawing Teacher Grade II. The scale of pay for the post of Junior Drawing Teacher III, at the relevant time, was Rs. 425-640. This was proposed to be upgraded in terms of the aforesaid Office Order dated 27th July, 1978 to the scale of Grade II, i.e. Rs. 440-750. Vide Office Order dated 26th September, 1980, the respondent adopted an Office Order issued by the Government of India upgrading the Grade III post to Grade II post. After upgradation of the post from Grade III to Grade II, the respondent issued an Office Order dated 29th November, 1984 in favor of the petitioner whereunder the petitioner was informed of the upgradation of the post of Junior Drawing Teacher in the scale of Rs. 440-20-750 with effect from 27th July, 1978 with corresponding Selection Grades of the two scales of Rs. 600-25-750 and Rs. 740-35-880 respectively. By the aforesaid Office Order, the petitioner was further conveyed that his basic pay was fixed with effect from 1st July, 1984 at Rs. 950/- in the scale of Rs. 740-880.
3. Pursuant to the aforesaid fixation of pay of the petitioner and upgrading his post, he was granted arrears of pay of the selection grade which fell due to him with effect from 27th July, 1978. Consequent to the adoption of the recommendations of the Fourth Pay Commission, with effect from 1st January, 1986, the basic pay of the petitioner was fixed at Rs. 2600/- in the scale of Rs. 1640-2900 and the same was conveyed to the petitioner vide Office Order dated 17th November, 1986 stating that his basic pay in the scale of Rs. 1640-2900 was fixed at Rs. 2825/- with effect from 1st January, 1986 and at Rs. 2900/- with effect from 1st January, 1987.
4. Thereafter, suddenly the respondent served upon the petitioner an Office Order dated 16th December, 1988 wherein it was stated that in supercession of the earlier Office Order dated 29th November, 1984 the pay of the petitioner was fixed at Rs. 750/- in the selection grade of Rs. 600-750 instead of Rs. 750/- in the scale of Rs. 740-880, being the corresponding selection grade in the upgraded scale of Rs. 440-750, with effect from 27th July, 1978. It was further conveyed to the petitioner that pursuant to the revision of the pay scale of Teachers under the Fourth Pay Commission, revised scale of the petitioner was fixed at Rs. 1400-2600 with effect from 1st January, 1986. From 1st January, 1986, the basic pay of the petitioner was fixed at Rs. 2420/- instead of Rs. 2825/- as conveyed earlier. Further, the basic pay of the petitioner with effect from 1st January, 1987 was fixed at Rs. 2480/- instead of Rs. 2900/- and with effect from 1st January, 1988, the same was fixed at Rs. 2540/- instead of Rs. 2900/-. Immediately on receipt of the aforesaid Office Order, the petitioner protested and made a representation to the respondent. However, as the respondent ignored the representation of the petitioner, he filed the present writ petition challenging the Office Order dated 16th December, 1988.
5. The justification offered by the counsel for the respondent was that an error was committed by the respondent in implementing the Office Order dated 27th July, 1978. As a result thereof, even though the petitioner was not eligible to be granted selection grade of Rs. 740-880/-, after upgradation of the post of Junior Drawing Teacher from Grade III to Grade III, he was granted the said selection grade. The error was sought to be explained by stating that the same occurred as the Government of India, vide Office Order dated 27th March, 1982 stipulated that the number of selection grade posts were to be fixed at 20% of sanctioned posts as on 1st April, 1981. Thus 1/5th of all the sanctioned posts were to be granted selection grade. While implementing the aforesaid order dated 27th March, 1982, the respondent committed the said error. Counsel for the respondent submitted that prior to the merger/upgradation, there were four posts in Grade II Drawing Teacher and eight posts in Grade III Drawing Teacher. Prior to the merger/upgradation, the petitioner was working as Grade III Drawing Teacher and was junior to four teachers who were in pre-merger Grade II. On the merger of Grade II with Grade III, the total posts in Grade II became 12 in number. By calculating 20% of the sanctioned posts, only two senior most teachers were to be granted selection grade in terms of the Government of India Office Order dated 27th March, 1982, but the respondent granted selection grade to one senior most teacher in the pre-merged grade II and one senior most in the pre-merged Grade III. Thus he submitted that though the petitioner was not entitled to be granted selection grade and was only eligible for upgraded scale of Rs. 440-750 being in pre-merged Grade III, he was instead granted a selection grade of Rs. 740-880 by the Office Order dated 29th November, 1984. As soon as the department detected the aforesaid error, the same was corrected by issuing the impugned Office Order dated 16th December, 1988.
6. Counsel for the respondent further submitted that the aforesaid correction in the error that occurred in the year 1984 could have been carried out by the respondent on the basis of the note inserted at the bottom of the Office Order dated 29th November, 1984 which stipulated as below:
Note: The above pay fixation is subject to the condition that the individual concerned will have to refund to the Committee any amount that may on subsequent check or audit be found to have been paid to him in excess.
7. It was contended that as per the computation of the respondent, a sum of Rs. 33,184/- is due and recoverable from the petitioner as the excess amount paid to him with effect from 27th July, 1978 to 31st December, 1988.
8. Counsel for the respondent also relied on the following judgments to state that notice to show cause in such circumstances was not required to be given:
(i) R.P. Bahri v. Life Insurance Corporation of India 1973 (1) SLR 192
(ii) Madan Gopal Singh v. Union of India and Anr. 1976 (2) SLR 353
(iii) S. Thiruvallavan and Ors. v. Union of India and Ors. 1995 Supp.(3) SCC 436
(iv) State of Karnataka v. Mangalore University Non-teaching Employees Association and Ors.
9. Counsel for the petitioner, on his part, stated that the aforesaid action of the respondent was grossly illegal, arbitrary and unjustified, more so when the same was done behind the back of the petitioner and without issuing a notice to show cause to the petitioner before issuing the impugned Office Order. In support of his contention that it was not permissible for the respondent to take a unilateral decision where the vested rights of the petitioner were being affected, without following the principles of natural justice and without affording an opportunity of being heard by the respondent, the said action could not be sustainable in law, he referred to the following judgments:
(i) U. Raghavendra Acharya and Ors. v. State of Karnataka and Ors. .
(ii) Munna Ram v. Union of India 2004 (5) AD (Delhi) 580.
10. Reliance was also placed on a Circular dated 5th September, 1973 issued by the Directorate of Education, Delhi to state that the selection grade once given cannot be withdrawn by the department.
11. I have heard the counsels for the parties and have also perused the judgments referred to and relied upon by them.
12. It is settled law that wherever an order resulting in depriving an employee of a vested right is passed, principles of natural justice demand that an employee be granted an opportunity of hearing and be given a notice to show cause. In this regard, reference has been rightly made by the counsel for the petitioner to the judgment rendered by a Division Bench of this Court in the case of Munna Ram (supra) wherein it was held as under:
That re-designation of the petitioners and adjusting them in the pay-scale of Rs. 4000-Rs. 6000 after re-designating them as Assistant Sub-Inspectors, created vested right in favor of the petitioners and if such vested right is sought to be taken away from the petitioners, the same can be done after following the rules of principles of natural justice. The petitioners were entitled to a show cause notice whereupon the petitioners could have represented and shown to the respondents that the adjustment of the petitioners in the pay-scale of Rs. 4000- Rs. 6000 and re-designating them as Assistant Sub-Inspectors, was legal and valid. They have admittedly been deprived of such right without giving them an opportunity of hearing. Their vested rights are being sought to be taken away vide the impugned order dated 27th December, 2001.
In our considered opinion, taking a unilateral decision on a subject as the present one whereby the vested right of the petitioners is being affected is not permissible without following the principles of natural justice and without affording an opportunity to represent and being heard to the petitioners. The said action cannot be sustained....
13. Also, it is now settled position of law that the old distinction between a judicial act and an administrative act has withered away and now even an administrative order, if involves civil consequences, must comply with the rules of natural justice. The term 'civil consequences' in its comprehensive connotation would include everything that affects a citizen in his civil life. Since reduction of pay also involves civil consequences, the petitioner deserved an opportunity to show cause before his basic pay was reduced. Reliance in this context may be placed on the judgment of the Supreme Court in the case of Bhagwan Shukla v. UOI reported at wherein it was held as under:
Para 3: We have heard leraned Counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs. 190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. 181 p.m. from Rs. 190 p.m. in 1991 retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the (sic employee) concerned to notice and giving him a hearing in the matter....
14. It is not disputed that at the time of recalling the earlier Office Order dated 29th November, 1984 and before passing the impugned Office Order dated 16th December, 1988, the petitioner was not issued any notice to show cause or afforded an opportunity of hearing by the respondent. It is also undisputed that by visiting the petitioner with the impugned Office Order, the respondent proposed to implement the same by making it retrospective in operation with effect from 1984, thus causing great prejudice to the petitioner not only by refixing his pay but also by making deductions from the emoluments received by him in the past four years.
15. While the judgment referred to by the counsel for the respondent in the case of S. Thiruvalluvan (supra) has no applicability to the facts of the present case, the judgment in the cases of R.P. Bahri (supra) is peculiar to the facts of the said case and no law has been laid down therein for being cited as a precedent by the counsel for the respondent.
16. In the case of State of Karnataka (supra), the Supreme Court while considering the question as to whether the Government orders impugned in the writ petition are liable to be quashed on account of infraction of principles of natural justice, observed that though the employees therein were not afforded an opportunity of hearing by the Government, the university authorities themselves espoused the cause of the employees while corresponding with the Government. Therefore, it was concluded that no real prejudice was caused to employees on account of non-affording the opportunity to make a representation. This is not so in the present case as admittedly, the petitioner was not afforded any opportunity of hearing whatsoever by the respondent before passing the impugned Office Order. The case of Madan Gopal Singh (supra) is also distinguishable for the reason that in the said case it was observed by the court that the pay scales of the petitioner therein had not been reduced with retrospective effect and the amendment order passed by the Government substituting one pay scale with the other was to operate prospectively only, unlike the present case, where reduction has been done with retrospective effect and recoveries are sought from the petitioner.
17. In view of the aforesaid facts and circumstances, it is held that the respondent has violated the principles of natural justice by seeking to take away the vested rights that had accrued in favor of the petitioner at the time of passing the Office Order dated 29th November, 1984 and before passing the earlier impugned Office Order dated 16th December, 1988. Refixing the pay scale of the petitioner with retrospective effect amounted to depriving the petitioner of his valuable rights. Before visiting the petitioner with such civil consequences, he was entitled to a notice to show cause. Thereupon the petitioner could have represented and shown to the respondent as to how and why the earlier Office Order dated 29th November, 1984 ought not to have been recalled. Such an opportunity, however, was never afforded to the petitioner in view of the unilateral decision taken by the respondent in the present case and thrust on the petitioner. It is also pertinent to note that there is no explanation offered in the impugned Office Order with regard to the purported error in calculation that finds reference in the averments made in the counter affidavit on behalf of the respondent. In fact a perusal of the impugned Office Order shows that the same is completely silent on the said aspect.
18. Support is sought to be drawn by the counsel for the respondent on the note which occurs at the bottom of the earlier Office Order dated 29th November, 1984 to the effect that the pay fixation done in terms of the aforesaid Office Order was subject to the condition that the individual concerned will have to refund to the respondent any amount that may on subsequent check or audit be found to have been paid to him in excess, is of no assistance in the present case as the said note is more in the nature of standard error or omission note which could have at best entitled the respondent to rectify/correct any error or omission in the nature of calculation error or typographical error in disbursement of amounts on the basis of the pay fixation in terms of the Office Order dated 29th November, 1984. The impugned Office Order dated 16th December, 1988 can certainly not be termed as an order in the nature of rectification of any error or omission so as to permit the respondent to invoke the said note. Refixation of pay of the petitioner can be of no stretch of imagination be called an 'error or omission' so as to attract the aforesaid note. Lastly, the clarificatory Circular dated 5th September, 1973 issued by the Directorate of Education, Delhi with regard to implementation of selection grades of teachers also advances the case of the petitioner, as the said Circular stipulates that selection grades once given cannot be withdrawn.
19. For the aforesaid reasons, and primarily for the reason that the respondent/NDMC has violated the principles of natural justice while passing the impugned Office Order dated 16th December, 1988, the same is set aside and the writ petition is allowed. In view of the fact that the petitioner has already retired from service during the pendency of the present petition, he shall be entitled to all the monetary benefits in respect of his salary and consequential reliefs, emoluments including pension, that shall follow on implementation of the earlier Office Order dated 29th November, 1984, along with costs quantified at Rs. 5,000/-.