7 ^f^ fS.W %^ia-> ^ R "''Mfl- INTHE HIGH COURT OF CHHATTISGARH AT BILASPUR w (C.G.) .v.<s)]3^/:2009 (Service Matter Single Bench) PETITIONER y \ft> ..-•^ y. ^<a^r' ^s^-^^'^ ^•^^^ ^•" ^y^ '•>1 ^••••••"^^ Yeshwant Kumar Rawat Aged about 40 years S/o Late Shri Harish Chaiidra Rawat Assistaat Grade III OfGce of:- Supermtending Engineer, Shivnath Circle, Diirg Water Resources Department Durg(C.G.) R/OShankarNagar StreetNo. 4, Durg TaJi.&Distt.Durg(C.G.) VERSUS RESPONDENTS - l^\ ^'^'^ys?^.. :^^s^\^ ^; ' 3 . Sw"*l. 6"t9.l .'rii i^,.v'' "mS<l-v^nS'i'ol WsPsffa/i s^^^, ^!^----<o€ '•%iy"%T *> -^ AJ7^^0i:c-G- M°^'lN^^v '^g.Gl G^ State of Chhattisgarh Through - Principal Seeretary Water Resources Departinent Govt. of Clihatfisgarh SecretariateD.K.S.Bhawan Raipur (C.G.) Engineer - In - Chief Water Resoi.irces Department Govt. of Chhattisgarh, Sihawa Bhavvan, Civil Lines, Raipur 492001 (C.G.) ~tM- ^ID? 3. 4. ChiefEngineer,MahanadiGodavari Basin S.R.P, Chowk, Shankar Nagar, Raipur (C.G.) The Superintending Engineer, Shivnath Circle, Durg Water Resources Department Durg (C.G.) PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. te_- ~^\^° ^ /tp< HtGH COURT OF CHHATTISGARH : BILASPUR WRIT PETiTiON (S) N0.1954 OF 20)9 PET1TIONER Yeshwant Kumar Rawat RESPONDENTS Versus State of Chhattisgarh & ©thers (Writ Petition under Articles 226 ofthe Constitution of india) Singte Bench; Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri V.G. Tamaskar, counsel for the petitioner. Shri M.P.S. Bhatia, Dy. Govt. Advocate forthe State. ,(QRAL) (Passed onthis19 dayof January,2010) With the consent of leamed counset appearing fortheparties, the petition is heard fihaliy. Chattenge in this petition is to the order datsd 31-1-20ES (Annexure P/5), whereby th®order, granting beneflt of incremente, in respect of Assistant Sradei-til, who have not passed Hindi Typewrtting Examination, has been stayed. The facts, In nutshell, for adjudication of the case, are that the petitioner was appointed oh the post of Assistant Grade III subject to the condition ttiat he would have to passthe Hindi Typewritlng Examination.until then he wouid not be entitied to the annual increments and only the basic paypius admissible allowances wouid be paid. Thereafter, the petitioner Tiled wr'rt petition before ttiis Court being W.P. (S) No.3152 of 20g8, which was disposed of vide order dated 25-6-2008 (Annexure - P/1) with libsrty tothe petitioner to file a representaCon before the concerned authorities and ttie concerned authorities were directed fo eonsider and decjde the representation on its own merits, in accordance with Saw. By order dated 8-^-2008 •^^L^lr±^'-'^'~r^Mds;ri';=s^i:^L^&tf^^^ri iNlNN«»»' (Annexure - P/3) the petitioner was granted annual increment and the basic pay was fixed at Rs.4,350/-, which is evident from pay siip (Annexure — P/4). However, all of a sudden by order datect 31-1-2009 (Annexure - P/5) the increments granted !n favourofthe petitioner has been stayed and the basic pay of ihe petitloner was reduced to Rs.3,050/-, which is evident from pay slip (Annexure - P/6). The impugned order has been passed without affording an opportunity of hearing to the petitioner. Thus, this petition. Learned counsel appearing for the peUtioner submits that there is no fault on the part ofthe petitioner. The petitioner has not made any misreoresentation and the annual increments have been granted to him in accordance with the orders passed by the competent authority. The respondents cannot recover the amount, alresdy paid to the petitipner, for no fault of the employee, who has not made any misrepresentation or misSed to the employer. 1 have heard learned counsei appearing for the parties, perused the pieadings and the documents appendecithereto. The respondent-authorities have not followed the prineiples <rf natura! justice and the jmpugned action has been taken without affording an opportunity ofhearthg to the petitioner. The practtee of passing order, involving civil consequences, without show caus® notice or without affording an opportunity, is eondemned. The Supreme Court in Sahib Ram v. State of Haryana and others , heldasunder: ^ "5. However, it is not on account of any misrripresentation made by the appellant thatthe benefit of higher pay scale was given to him but by wrpng construction made by the Principal for .,1 {1895 Supp (1) SGC 20} ~3i ^ >1; 9. which the appellant cannot be held to be at fault. Under the circumstancss, Uie amount paid till date may not be recovered from the appeliant." The Supreme Cpurt in P. Tulsidas and others v. Govemment of A.P. and others , observed that the benefitaccrued earlier byway of grant of higher pay or revised pay, cannot be taken away as the same te violative of Article 14 and 16 of the Constitution of !ndia faeing arbitrary, unreasonable and expropriatory. in a similar issue, asto whether recovery of exeess payment for no fault of the employee can t?e made without foliowing the principles of natural justice, Supreme Court in Syed Abdul Qadir and others v. State of Bihar and others , having considered all the aspecls of ths matter and the decisions rendered by the Supreme Court in the past, observedas under: "57. This Court, in a catena of decisi6ns, has granted rellef against recovery of excess payment of emoluments/allowahces if (a) the excess amount was not paid on accpunt of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the emptoyer by apptying a wrong principle for calculating the pay/ailowance or pn the basis of a particular interpretatibn of ruie/order, which is^subsequeritly tound to be erroneous. 58. The reiief against recovery is grgnted by courts not because of any right in the employees, but in equity, exercising juciiciat discretion to relieve the employees from the hardship tt»at wiil be caused if recoverv is ordered. But, if irf a given case, it is proved that the smpioyee had knowledge that the _^ payment receivedwas in excess ofwhat was due or wrongly paid, or in eases where the en-or is detected or corrected within a short time of wrong payment, 2{A.I.-R.2003SC43} 3 (2009) 3 SCC 475 4 1 <L: the matter being in the realm ofjudiciat discretton, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State Of Haryana, Shyam Babu Verma v. Union of !ndia, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J.Aktora (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bankv. Manjeet Singh and BiharSEBv. Bijay Bhadur." 11. TheSupreme Court in Rajasttian State Road Transport Corporation and Another v. Bal Mukund Bairwa(2^, hled as under: .J" ./-^ "35. Any order passed in viol^tion of the principles of naturai justice save and exeept certain contingencies of cases, would be a nullity. In A.R. Antulay (supra), this Court held: (SCC p. 660, para 55) "55.....No prejudice need be pfQyed for enforcing the fundamentai rights. Vioiation of a fundamental right itsetf renders the impugned action void. So also the violation of the principles of natural justice renders Uie act anullity." - 47. The purpose of principies of natura! justice is prevention of miscamage of justice and hence the observance thereof is the pragmatic • requirement of fair piay in action. {See Sawai Singh v. State of Rajasthan and Narinder Mohan Arya v. United India InsuranceCo.Ltd." 12. This Court in Ashish Kumar Jha v. State of C.S.& Another^, he!d as under: 15. 1-earned counsel appearing the petib'oner.-relying OB a decision of this Court in Sukhdev Maiakar v. State of C.G. & Others. submitsthat oncea right of a partieular pay scale has been 4 (2009) 4SCC 299 52009(2)CGLJ160 ^ /:^b- '.^' f,' '%:.sy -iS^SSS^ ^t- granted to the petitioner in accordance ws'th iaw, ths same cannot be withdrawn, without affording an opportunify of hearing. The petitioner hasacquired the right tothe fixed monthiy pay scale as hisservice was reguiarized. Thus, the impugned order is bad and deserves to be quashed. Learned coynsel further relying on a decision <rf this Court in R.R. Tiwari v. State of C.G, & others, submits that ther®is no fault on the part of the petitioner and iwo advance increments were granted to him in accordance with law. The respondents cannot recover the amount of benefrt, aiready accrued to ths petitioner without foliowing the principles of naturat justice." 13. Appiying the well settled principles of law to the facte. 6f frie case on hand and for the reasons mentioned hereinabove, the impugned order dated 31-1-2009 (Annexure - P/5), whichwas passed withoyt foliowing principles of natural justice reducing the amount of salary, is quashed. However, liberty is reserved to the respondent 14. authorities to pass proper orders, if soadvised, in accordance witti taw after affording proper opportunity of hearing to the petitioner. In the resuit, the writ petition is ailowed to the extent indjcateci \ above. No order asto costs, ,- Gowri Sd/- Satish K. Agnihotri Judge .^Tv' .J