!-< / AMENDED PETITION IN'THE HIGH COUI?T OP CHHAmSGARHAT BILASPUR W.P. (S) N0. 6344 OF 2007 PETITIONER RESPONDENT(S) U. S. Jain, S/o Shri S.N. Jain Aged about 51 years, R/oH-5, RajivNagar, Raipur (C.G.) VERSUS 1) Madhya Pradesh Rajya Van Vikas Nigam Ltd., Through - Its Secretary (Administration), "Panchanan" 5tb Floor, Malviya Nagar, Bhopal (M.P.) 2) Managing Director, Madhya Pra.desh Rajya Van Vikas Nigain ^Ltd., Panchanan" 5fh Floor, Malviya Nagar, Bhopal (M.P.) 3) Managing Director, Chhattisgarh Rajya Van Vikas Nigam Ltd., Lokash Plaza, Shankar Nagar, Raipur (C.G.) WRIT PETITION UNDER ARTIGLE 226 OF THE CONSTITUTION OF mDIA SEEKING A WRIT OF MANDAMOUS 1. PARTICULARSOF THE PETITION]^,: As shown in the cause title. 2. PARTICULARS OF THE RESPONDENTS : As shown in fhe cause title. AFK. HIQH_CQURT OF CHHATTISGARH AT BILASPUR TT~~ PETmONER WRTT PETmON (S) No. 6344 of2007 U.S.Jain. VERSUS RESPONDENTS Madhya Pradesh Rajya Van Vikas Nig^ffl Ltd.&Others. 4i WMT PETmON UNDER ARTICLE 226 QF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aanihotri, J. Present: ShriP.S.Koshy, Advocateforthepetitioner. Shri Sourabh Shanna, Advocate withShri Sanjay K. Agrawal, Advocate forthe respondent No. 1 & 2. Shri A.S.Kachhwaha, Advocate forthe respondent No. 3. ORALOKDER (Passed on 09U' day of March, 2010) By this petition, the petitioner seeks to challenge the action of fhe respondents whereby the benefit ofincrement granted to the petitioner has been withdrawn and an order to recover an amount ofRs. 40QO/- per month fi-om the salary ofthe petitioner has been passed. 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. Infhe year 1987,the petitioner acquiredthe qualification of Charter Accountancy. Pursuant to the decision taken by the respondent No. 1 and 2 in the meeting ofBoard ofDirectors, theofGcers who had passed exanrination of Chartered Accountancy were granted two advanee increments. Accordingly, the petitioner was also granted two advance mcrements on 4.4.1996. Thereafter, the petitioner was promoted to tfae 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(Annexure P/l) it was heldthatthelwo advance annual increment grantedto fhe petitioner was wrongly fixed and it was withdrawn. It was also ordered to recover an amount of Rs. 92,969/- ah-eady paidto the petitioner pursuant to 4^1 ^- 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, leamed counsel appearing for the petitioner submits that the punitive order of recovery has been passed without affording an opporfunity 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 fhe priaciples of natural justice is no longer res integra. The same has been settled by Hon'ble Supreme Court in various decisions. This Court, relving on the said deeisions has passed several orders, directing refund offhe amount, if any, recovered from the employees, where the employees were not given any opportunityto explamabout the excess payment, ifany,made to them. 4. Leamed counsel appearing for the respondent No. 1 and 2 submits that out of Rs. 92969/-, oiily Rs. 20,000/- has been recovered by the respondentNo. 1 and 2. Shri Kachhwaha, leamed counsel appearmgfor the respondent No. 3 submits that after bifureation of tlie State of Madhya Pradesh, tfae services of the petitioner was transferred to the State of Chhattisgarh. The petitioneTJoined his services in the State of Chhattisgarh on 01.06.2007. Accordmgto the last pay drawn certificate, the respondent No. 3 has recovered the balance amount ofRs. 72,969/-. 5 . Itis atrite lawthatno order prejudicing the interest ofan employee can be passed without afFording an opportunity ofhearing. It is not the case of respondents that opportunity of hearing was afforded fo the petitioner, and the present case is suchwherein show cause notice of hearing has been dispensed with. 6. The Supreme Court, in Rajasthan State Road Trcmsport Corporation & anotherv.BalMuhindBwrwa (2) , chserved asunder: "35. Any order passed in violation offhe principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.RAntulay-Ods Court held: (SCC p. 660,para 55) "55. No prejudice need be proved for enforcing the fundamental rights. Violation 1 (2009) 4 SCC 299 JSJE ^^ ^•\ 7. 8. 9. 10. of a fimdamental right itself renders the impugned action void. So also the violation ofthe principles of natural justice renders the act a nullity." 47. The purpose oftheprinciples ofnaturaljustice is prevention of miscamage ofjustice and hence theobservaiicethereofisthepragmaticrequirement offair play in action. (See Sawai Singh v. State of Raj'asthan and Narinder Mohan Arya v. Umted India Insurance Co. Ltd.). Accordingly, the impugned order dated 31.01.2007 (Annexure P/l) 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 ofthe petitioner to the respondent No. 3. The balance amount ofRs. 72,969/-, ifhas already been recovered, the same shall be refunded back to the petitioner by the respondent No. 3. The aforesaid amount shall be refiinded alongwith simple ititerest at the rate of6% per aimum. However, on the request of leamed counsel appearing for the respondents, liberty is reserved to tfae respondent authorities to take appropriate steps, if so advised, in accordance with law afler afFording proper opportunity ofhearing to the petitioner. The petition is allowed to the extent indicated above. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge Amit