Civil Writ Petition No.8900 of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8900 of 1996 Date of Decision:31.10.2011 Harchand Singh ......Petitioner Versus Punjab Mandi Board and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Kasturi Lal, Advocate, for the petitioner. Mr.Ashok Jindal, Advocate, for respondent Nos.1 and 2. Mr.Balwinder Singh, Advocate, for respondent No.3. **** M EHINDER S INGH S ULLAR , J.(oral) The epitome of the facts, culminating in the commencement, relevant for disposal of the present writ petition and emanating from the record is that, petitioner-Harchand Singh was appointed as Village Supervisor on temporary basis, for a period of 89 days, by the Market Committee, Khamanon-respondent No.2(for brevity “the respondent-Committee”) vide appointment letter dated 23.04.1976(Annexure P-1). Keeping in view his qualification, work & conduct, the respondent-Committee appointed him on regular basis, before the expiry of 89 days on the indicated post, by way of order/Resolution dated 19.07.1976(Annexure P-2). The services of the petitioner and other employees were regularised and the benefit of PF etc. was granted to them, by virtue of Resolution dated 04.07.1979 (Annexure P-4). Respondent No.3, who was stated to be of over-age and ineligible, was appointed as Auction Recorder, as a Stop-Gap arrangement, for a Civil Writ Petition No.8900 of 1996 2 period of one month, only on purely temporary basis, by means of Resolution dated 18.03.1976(Annexure P-5). Subsequently, although respondent No.3 was not eligible, but still he was appointed as a Stop-Gap arrangement, as Auction Recorder on regular basis with effect from 21.05.1976, after giving break in his earlier service. 2. The case set-up by the petitioner, in brief, insofar as relevant was that, he was appointed on regular basis against a permanent post, whereas respondent No.3 was appointed in a Stop-Gap arrangement and since, he was senior, but respondent No.3 was shown senior to him(petitioner) in the seniority- list. It necessitated the petitioner to file the civil suit, challenging the seniority- list. 3. The respondents contested the suit and filed the written statements (Annexures P-9 and P-10). The petitioner filed the replication. No doubt, the civil suit filed by the petitioner was dismissed by the trial Court, by virtue of judgment and decree dated 23.08.1985, but the appeal was accepted and his suit was decreed by the first Appellate Court, through the medium of judgment and decree dated 03.05.1988(Annexure P-12). The Regular Second Appeal bearing No.1995 of 1988 filed by respondent No.3 was also dismissed by this Court, by way of judgment dated 07.06.1990(Annexure P-13). The review petition filed by him was dismissed as well by this Court, vide order dated 15.03.1991. 4. Dissatisfied with the dismissal of the Regular Second Appeal/review petition, Sukhdev Kumar-respondent No.3 filed SLP No.5659 of 1991, which was also dismissed by the Hon'ble Supreme Court, by means of order dated 18.08.1994 (Annexure P-14). 5. Thereafter, in pursuance of the decree of the civil(Appellate)court, the petitioner was promoted as Mandi Supervisor-cum-Fee Collector, w.e.f. 30.03.1983 by the respondent-Committee, vide office order dated 12.09.1994 (Annexure P-15). Civil Writ Petition No.8900 of 1996 3 6. Having lost the civil litigation, Sukhdev Kumar-respondent No.3 filed Civil Writ Petition bearing No.12887 of 1994, which came to be disposed of and a Division Bench of this Court directed the official respondents, to pass appropriate order on his representation, by virtue of order dated 14.09.1994 (Annexure P-16). 7. The Administrator of the respondent-Committee, ignoring the civil court decree, without issuing any notice, providing any opportunity of being heard to the petitioner and by adjusting the break in his earlier service, accepted the representation of respondent No.3, vide impugned order dated 25.08.1995 (Annexure P-18). The respondent-Committee affirmed the impugned order of the Administrator, vide Resolution No.159 dated 05.09.1995(Annexure P-20). The seniority of respondent No.3 was again ordered to be fixed, by means of letter dated 06.06.1996(Annexure P-21). Resultantly, again without issuing any show- cause-notice or opportunity of being heard, the petitioner was reverted from the post of Mandi Supervisor-cum-Fee Collector to the post of Auction Recorder, in a very routine fashion, on promotion of respondent No.3, by the Administrator by way of impugned order dated 19.06.1996(Annexure P-23). 8. Aggrieved by the action of the respondents, the petitioner preferred the present civil writ petition, challenging the impugned orders/Resolution (Annexures P-18, P-20, P-21 and P-23). 9. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that, the respondents have wrongly ignored the civil court decree(Annexure P-12), which was upheld by the Hon'ble Supreme Court and have illegally reverted him, without issuing any notice or providing any opportunity of being heard. The aforementioned impugned orders were stated to be illegal, arbitrary and without jurisdiction. On the basis of aforesaid allegations, the petitioner challenged the impugned orders, in the manner depicted hereinabove. Civil Writ Petition No.8900 of 1996 4 10. The respondents contested the writ petition. Respondent Nos.1 and 2 filed their joint written statement, whereas respondent No.3-Sukhdev Kumar filed his separate written statement, inter alia, pleading certain preliminary objections of, maintainability of the writ petition, cause of action and locus standi of the petitioner. According to the respondents, that since the Administrator has rightly assigned the seniority of adhoc service to respondent No.3, by adjusting the break in service, so, he(respondent No.3) was promoted and the petitioner was rightly reverted. The remaining factual matrix with regard to the filing of civil litigation between the parties and their consequences, as pleaded in the plaint, have been admitted. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 11. Controverting the allegations, further explaining the position and reiterating the pleadings contained in the written statement, the petitioner filed the replication. 12. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, as the indicated impugned orders/Resolution cannot legally be sustained, therefore, the instant writ petition deserves to be accepted in this respect. 13. As is evident from the record that, the petitioner filed the civil suit (Annexure P-8) for a decree of declaration, challenging the inter se seniority between the parties. The suit was contested and written statements were filed by the respondents. No doubt, the trial Court dismissed the suit of the petitioner, by virtue of judgment and decree dated 23.08.1985, but in the wake of acceptance of the appeal, his suit was decreed and the impugned seniority-list was quashed by the first Appellate Court, vide judgment and decree dated 03.05.1988(Annexure P-12), which in substance is as under:- Civil Writ Petition No.8900 of 1996 5 “It is ordered that the appeal be and the same is hereby accepted. The judgment and decree of the trial court are set aside. The suit of the plaintiff is decreed for declaration to the effect that the seniority-list, Annexure-A forming part of the plaint is illegal and that the plaintiff is senior to defendants Nos.4 to 8, for all intents and purposes and the defendants are restrained from interfering in his seniority and further restrained the defendants Nos.4 to 8 from promoting any one by superseding the seniority of the plaintiff. The parties are left to bear their own costs.” 14. It is not a matter of dispute that, the Regular Second Appeal bearing No.1995 of 1988 filed by respondent No.3 was dismissed by this Court, by way of judgment dated 07.06.1990(Annexure P-13). The review petition filed by him was dismissed as well by this Court, vide order dated 15.03.1991. Admittedly again, the SLP filed by respondent No.3 was dismissed by the Hon'ble Apex Court, vide order dated 18.08.1994(Annexure P-14). In pursuance of the civil court decree, which had already attained the finality, the petitioner was promoted from the post of Village Supervisor to the post of Mandi Supervisor-cum-Fee Collector, w.e.f. 30.03.1983 by the respondent-Committee, vide office order dated 12.09.1994 (Annexure P-15). 15. Strange enough, the Administrator of the respondent-Committee, decided the representation of respondent No.3 and declared him senior, without issuing any show-cause-notice, or affording any opportunity of being heard to the petitioner, vide impugned order dated 25.08.1995(Annexure P-18). The respondent-Committee approved the impugned order, by means of Resolution No.159(Annexure P-20). 16. Not only that, the petitioner was reverted from the post of Mandi Supervisor-cum-Fee Collector to the post of Auction Recorder, in a very casual manner, without issuing any show-cause-notice, or providing any opportunity of being heard, on promotion of respondent No.3, by the Administrator, as per order dated 19.06.1996(Annexure P-23). 17. In this manner, the Administrator and the respondent-Committee did Civil Writ Petition No.8900 of 1996 6 not issue any show-cause-notice, or provide any opportunity of being heard to the petitioner, before deciding the representation, placing respondent No.3 senior to him and before reverting the petitioner from the post of Mandi Supervisor-cum- Fee Collector to the post of Auction Recorder on 19.06.1996. So much so, the decree of the civil(Appellate)court, which has already attained the finality, determining the inter se seniority between the parties, has been ignored by respondent Nos.1 and 2 with impunity in this context. 18. What is not disputed here is that, the petitioner has worked on the promoted post of Mandi Supervisor, w.e.f. 12.09.1994, till he was reverted on the lower post on 19.06.1996. All this was done by the respondents, completely violating the doctrine of audi alteram partem and the rule of natural justice, which vitiates and renders the impugned order(Annexure P-18), subsequent proceedings in pursuance thereof and order Annexure P-23, as illegal. This matter is no more res integra and is well settled. 19. An identical question came to be decided by the Hon'ble Apex Court in case Indu Bhushan Dwivedi Versus State of Jharkhand and another, (2010) 11 Supreme Court Cases 278 and it was ruled as under:- “One of the basis canons of justice is that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause. As a general rule, an authority entrusted with the task of deciding lis between parties or empowered to make an order which prejudicially affects rights of any individual or visits him with civil consequences is duty-bound to act in consonance with basis rules of natural justice including the one that material sought to be used against person concerned must be disclosed to him and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of concept of rule of law. This right has its roots in notion of fair procedure. It draws attention of authority concerned to imperative necessity of not overlooking cause which may be shown by the other side before coming to its decision. The employer is not only required to make the employees aware Civil Writ Petition No.8900 of 1996 7 of specific imputations of misconduct but also to disclose material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If the employer uses some material adverse to the employee about which the latter is not given notice, final decision gets vitiated on the ground of violation of rule of audi alteram partem. Even if there are no statutory rules which regulate holding of disciplinary enquiry against a delinquent employee, employer is duty-bound to act in consonance with rules of natural justice.” 20. Therefore, the ratio of the law laid down in the aforesaid judgment “mutatis-mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. Meaning thereby, the impugned orders are not only arbitrary and illegal, but against the principle of natural justice as well, which cannot legally be maintained in the obtaining circumstances of the case. 21. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 22. In the light of aforesaid reasons, the instant writ petition is accepted with costs. Consequently, the impugned order(Annexure P-18), subsequent proceedings in pursuance thereof and the reversion order(Annexure P-23) are hereby set aside. 23. Needless to mention here that, the respondents would be at liberty, to decide the matter of inter se seniority, after issuing notices and providing adequate opportunity of being heard to all the affected/aggrieved parties, in case, any cause of action still survives, in this relevant connection. October 31, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter?Yes/No