4F^ K:l R-3 K?S HIGH COURT OF CHHATTISGARH : B1LASPUR WRiT PETiTION N0.1146/2008 R.S.Soiankl Versus State of Chhattisgarh and another RESPONDENTS (Writ Petition under Article 226/227 ofthe Constitution of India) Sinale Bench: Hon'ble Shri Satish K. Aanihotri, J. Shri V. G. Tamaskar, counsei for the petitioner. Shri N. Naha Roy, Panel Lawyer for the State. >nd (Passed on this 02'"' day of December, 2009} With the consent of learned counsei for the parties, the petition is heard finaliy. (2) Learned counsei appearing for the petitioner would submit that the petitioner has retlred from service on 31-07-2003 on attaining the age of superannuation while working as Deputy Ranger, Forest Division, Narayanpur, District Bastar. The petitloner was issued a show cause notice on 03-10-2000 (Annexure P/1) caiiing upon him to submit his response asto why he may not be held responsible for ihe aileged ioss of forest produce found at Nistar/Consumer Depot, Kapsi. The petitioner submitted his reply to the show cause notice on 08-11-2000 (Annexure P/2). The petitioner has also submitted an application on 25-11-2002 (Annexure P/3) to the respondent authority with a request to enquire the matter immediateiy, as he was not responsibie for the alleged ioss. The respondent authority, according to learned counsei for the petitioner, found the repiy of the petitioner unsatisfactory and vide impugned order dated 30-12-2005 (Annexure-P/4) directed recovery of Rs.1,62,019,'- from his retirai dues. ^"*?" '^ ^s-: • •J>, (3) On a query, asto whether liability can be fastened on any officer without holding proper enquiry, Shri Thakur, learned Deputy Advocate General appearing with Shri Bhaduri, tearned Pane! Lawyer would submit that no enquiry in such a case was necessary and recovery from his retirai dues can be made even ifthe person concerned has retired from service. (4) This is a case where alleged loss of forest produce has been found on t'ne basis of spot inspection. Thereafter, no enquiry' was conducted to determine asto who was responsible for the loss. It is a ciear case of the petitioner that the petitioner was not posted at that point of time when the aiieged ioss has taken piace. Thus, the petitioner cannot be held iiable without proper enquiry and without affording an opportunity of hearlng to the petitioner. (5) It is weil settled principie of law that no punitive order can be passed without affording an opportunity of hearing to the person/employee concerned. The petitioner completed his sen/ice tenure in the concerned depot by giving charge to another officer. Physica! verification was got done •by the Forest Officer on 30-06-1999 and. on that particuiar date ali the forest produce have been there, and as such, petitjoner is not responsibte for the same. !t appears that the respondent authorities have done nothing and the order has been passe4 imposing financiai !iability on the petitioner. (6) The Supreme Court in D. K. Yadav Vs. J.i'tfS.A. Industries Ltd., & others , considering the concept of opportunity of hearing obseived as under: "The cardinat point that has to be borne in mind, In every case, is whether the person concemed should have a reasonabie opportunity of presenting his case and ths authority shouid act fairly, justly, i 1993.:' 3 SCC259 ^{-^..fet.. reasonably and impartialiy. in other words appiication of the principles of naturai justice that no man should be condemned unheard intends to prevent the authority from acting arbitrariiy affectinj the rights of the concerned person. It is a funa'amentai ruie of lav>/ that no decision must be taken which wil! affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistentiy with the rules of naturai justice. Therefore, fair play In-action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected wou!d be inconformity with the principles of naturaf justice." (7) The said principle is reaffirmed by the Supreme Court in Basudeo Tiwary Vs. Sido Kanhu University & others , wherein it is held that: "The law is settied that non arbitrariness is essential facet of Article 14 forwarding the entire realm of State action governed by Article 14. It has come to establish, as a further coroiiary, that the audi aiterm partem facet of natural justice is aiso a requirement of Artic!e 14, for, naturai justice is the antithesis of arbitrariness. in the sphere of pubiic employment, it Is weii settied that any action taken by the employer against an empioyee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute povver to terminate the services of an employee is antlthesis to fair, just and reasonab!e treatment." > (8) Further, in Canara Bank & others Vs. Debasis Das & Others , and Canara Bank vs. V. K. Awasthy, the Supreme Court observed as under: "The first and foremost principie is what is commonly known as audi alterm partem rule. It says that no one shouid be condemned unheard. Notice is the firsi limb of this principie. it must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose shouid be adequate so as to enabie him to make hls representation. In the absence of a notice of the kind and such reasonabie 2AIR1998SC3281 3 (2003) 4 SCC 557 4 (2005} 6 SCC 321 Tumane opportunify, the order passed becomes whoily vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. !t is after a!i. an approved rule of fair piay and one of the most important principles of naiural justice." (9) This is not a case where the facts are admitted and holding an enquiry would be an empty formality. (See Viveka Nand Ssthi vs. Chairman, J & K Bank Ltd. and others and P. D. Agrawa! vs. State Sank of india & Others ). (10) Having regard to the facts situation of the case, wherein there is a ciear viotation of principal of natural justlce and fair play in action, the impugned order passea' by the respondent authorities is unsustainabie in law and as such illegal, hence, the same is quashed. (11) In view of the foregoing, the petition is allowed to the extent indicated above. However, iiberty is resen/ed to the respondent authorities to hold proper enquiry in the matter and pass appropriate orders, in accordance with law and on its own merits, if so advi?&a.. Sd/- satishK.Agnihotn Judge (2005) 5 SCC 337 (2006) 8 SCC 77S ^