é @/ W V575 ]/~ $mg§e Bench IN THE HIGH COURT OF CHHATrISGARH AT BILAsPUR (c.G.) .w.P. S NO. m5? 2009 K“ Sukh Ram Dhruwa S/o— late B. R. Dhruwa, aged about 6O years, R/o— Bangalipara, Sarkanda, District— Bilaspur (C.G.) PETITIONER VERSUS RESPONDENTS 1. South Eastern Central Raiiway, Through the Chief Security Commissioner, Rail Protection Force, south Eastern Central Railway, Bilaspur (C.G.) Staff Officer, Office of the Chief Security Commissioner, Rail Protection Force, South Eastern Central Railway, Bilaspur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVAJ. PETITIONER RESPONDENTS WRIT PETITION (S) NO.41 57/2009 Sukh Ram Dhurwa Versus South Eastern Central Railway through the Chief Secutity Commissioner, Bilaspur and Another Sd/- an shrivastaVa Manindra M0“ Judge FOR PRONOUNCMENT OF ORDER HIGH COURT OF CHHATTISGARH : BILASPUR ’ Sukh Ram Dhuwva Versus RESPONDENTS ai South Eastern Central Rlway through the Chief Security Commissioner, Biiaspur and Another Present: - Shri F. S. Khare, counsel for the petitioner. n Ms. Noushina Afri Ali. counsel for respgndents. (Passed on 10““ uly, 2010) By this petitian, the petitioner has challenged the order dated 14-07-2009 (Annexure P-1) and another order of even date (Annexure P-2) passed by the respondent No.2. By order dated 14-07-2009 (Annexure P-1), period from 22-01- 2008 to 29-01 -2009 has been treated as period of absence and the period from 30-01-2009 to 30—04-2009 has been regularized as leave without pay. By order of Annexure P-2 of even date, an amount of Rs.1,54,353l- has been ordered to be recovered from Death-cum-retiral gratuity payable to the petitioner upon his retirement. / (2) Facts necessary for adjudication of controversy involved in this petition are that the petitioner'while working as Assistant Sub Inspector in Railway Protection Force was granted ad hoc promotion to the rank of Sub Inspector by order dated 28-1 2-2005 (Annexure R-5). Later on. the petitioner could not qualify for regular promotion in the selection for promotion to the post of Sub Inspector held in the year 2006 on medical grounds. The petitioner was de-categorized from medical category B-1 and B-2 and he was declared fit in medical category C-1 & below with glasses vide order dated 24-08-2007 (Annexure R-1 0). In the meantime, Single Bench: Honble Shri Manindra Mohan Shrivastava, J. WRIT PETITION (S) No.41 5712009 PETlTlONER WRIT PEIITION UNDER ARTICLE 226 OF THE CONSITUTION OF INDIA ' ORDER J ’ vide order dated 27-04-2006(Annexure R-6), the petitioner was reverted and thereafter another order was passed. Vide order dated 01 -O5-2006 (Annexure R- 7). the petitioner was again given ad hoc promotion, and thereaiter from time to time such ad hoc arrangement was made, Lastly, he was reverted to his substantive grade as Assistant Sub Inspector/REF. Vide order dated 19—09- 2007 (Annexure R-9). The petitioner raised his dispute against his de- categorization. The petitioner was finaiiy retired from service upon attaining the age of superannuation with effect from 3004—2009. Aggrieved by his de- categorization, the petitioner preferred departmental remedies. As his appeal was not decided, he preferred Writ Petition No.71 34 of 2008, wherein direction was issued to the respondents to dispose of the- departmental appeal of the petitioner. lt is the case of the petitioner that as the appeal was not decided as ordered by this Court. a contempt petition was filed subsequently. When the petitioner did not get any relief on his claim against de-categorization as also claim for promotion to the post of Sub inspector, another writ petition was filed by the petitioner registered as W.P.No.4248 of 2009, where the petitioner, as stated by him in this case, has challenged the action of de-categorization and non- promotion to the post of Sub inspector on regular basis. WK (3) Learned counsel for the petitioner assailed two orders dated 14-07-2009 (Annexure P-1) and Annexure P-2 on the ground that without affording any opportunity of hearing whatsoever, respondents have treated the period from 22- 01-2006 to 29-01 -2009 as period of absence and period from 30-01-2009 to 30- 04-2009 as leave without pay and have further proceeded to pass an order for recovery of huge amount of Rs.1,54,353/- from the retirement gratuity of the petitioner. ln so far as period from 22-01-2008 to 29-01-2009 is concerned, submission of learned counsel for the petitioner is that the petitioner continuously attended his duties throughout and he never remained absent. Learned counsel submits that though the petitioner was attending the office, he was not being '2 allowed to perform his duties for none of the fault of the petitioner. As the petitioner attended duties and did not remain absent, he was duly paid salary for the intervening period in dispute. but‘now by the impugned order. the period from 22-01-2008 to 29~01-2009 has been treated as period of absence. Thereafter. by another impugned order of even date, an amount of Rs.1.54.353/- has been ordered to be recovered from the retirement gratuity of the petitioner. lt is further submitted that as leave balance of the petitioner according to leave account is 861 days, the respondents were not justified in treating the entire period in dispute as period of absence. Learned counsel for the petitioner in support of his submrsston seeks to draw support from the decrsron of the Supreme Court In the case of Sahib Ram vs State of Haryana & Others 1995 Supplementary (1) _ SCC 18 (4) On the other hand. learned counsel for the respondents would submit that the petitioner was not found fit for grant of regular promotion on the post of Sub Inspector, though he was aiiowed to continue on ad hoc promotion post until he was finally reverted vide order dated 19-09-2007 (Annexure R-9). it is submitted that as per. records, the petitioner never attended the ofdce of the Chief Security .CommissionerfR.P.F,, S.E.C.R./ IVG Cell during the period in dispute. A letter was also issued to the petitioner on 26-11-2008 stating that petitioner is not attending omce and was adyrsed to attend the oft'ce farting which monthly salary would be stopped forthwrth lt rs also submitted that letters were also issued to the petitioner on 30-03-2009 followed by reminder dated 08-M2009 to report to Senior Divisional Medical Officer for verification of medical certificate dated 30-04-2009, but the petitioner did not comply with this direction also. Learned counsel for the respondents’next submitted that the respondents are entitled to recover the amount due upon hrs retirement in exercise of powers conferred under Para-15 Chapter-ll of Rariway Servrce (Pensron) Rules, 1993 (Annexure R-20). According to the respondents, there are 300 days of LAP & 362 days LHAP in the remaining balance of the leave account. As the petitioner was absent from duties, the period from 22-01-2m8 to 29-01-2009 has been treated as period of absence and the period from 30-01 .2009 to 30-04-2009 has been treated as regularized as leave without pay. It is aiso submitted that the petitioner was absent from duties from 22-01 -2008 to 29-01-2009 and was under private medical treatment from 30-01—2009. lmpugned order dated 14-07-2009 (Annexure P-1) has been issued to regularize the period of absence by the competent authority namely Staff Officer to the Chief Security Commissioner/Railway Police Force, South Eastern Central Railway, Bilaspur, who is empowered to decide the period of absence under provisions contained in Schedule ll of R.P.F. Rules, 1987. Learned counsel for the respondents argued that the petitioner is not entitled to get any relief only on the ground of violation of principles of natural justice before issuing the impugned order dated 14—07-2009 (Annexure P-1 & Annexure P-2), as there is overwhelming evidence on record that the petitioner is not attending duty during the period in dispute and it would be an empty formality. It is submitted that as no other view or conciusion is possible, only on the ground of principles of natural justice, the petitioner is not entitled to get any reliefand the petition is liable to be dismissed. Petitioner received salary knowing fully well that he was not entitled. therefore. recovery is permissible under the law. Reliance has been placed on the decision of the Supreme Court in the case of Syed Abdul Qadir and Others Versus State of Bihar and Others, 2009 (3) SCC 475, Registrar, Co-operatr've Societies, Haryana Vs. lsrail Khan & Others, 2009(13) Scale 484. ’\\ (5) In so far as respondents' objection with regard to availability of remedy of appeal against the order of recovery is concerned, l am not inclined to throw this petition on this ground as the action of recovery has been challenged primarily on the ground that recovery has been ordered in complete violation of principles of natural justice. It is well settled in catena of decisions that in exceptional s circumstances. one of them being challenge on the ground of violation of principles of natura! justice, Coun may not insist upon first availing alternative remedy. (Please see Harbanslal Sahnia and Another vs. lndian Oil Corporation Limited and Others, reported in 2003 (2) S.C.C. 107). The aforesaid objection£s therefore no merit and is therefore rejected. (6) In so far as period from 22-01-2008 to 29-01-2009 is concerned, impugned order dated 14-07-2009 has been passed by the respondent No.2, seeking to recover salary paid in respect of the period of absence, i.e. an order which proceeds on the basis that the petitioner was absent and did not attend his duties during the period in dispute. By the aforesaid Order dated 14-07-2009 (Annexure P-2). the salary which was paid to the petitioner in respect of the disputed period is sought to be recovered, as the authority held that the petitioner was actually absent from duties during the period in dispute and he was wrongly paid his salary for that period. Two orders impugned in this petition have been passed on the basis that the petitioner was absent durin the disputed period whereas the petitioner claims that he' actually attended the office during that ' period and he was not absent. lt is thus clear that absence of the petitioner is not an admitted position. On the other hand. the petitioner assem that he not only attended the duties during the/disputed period but was also paid his salary forthe said period. (7) Present is not a simple case of regularization of period of absence where absence is not disputed. In the present case, petitioner was actually paid salary for the entire disputed period, but later on. the respondent No.2 formed an vopinion, presumably on the basis of the certain records, that the petitioner / actually did not work and was wrongiy paid his salary during the period in dispute, leading to an order of recovery. (8) In the considered opinion of this Court, once the petitioner was paid saiary for the entire disputed period, if at all authority later on sought to form an opinion that the petitioner did not work during the disputed period, and therefore, salary paid to him, is liable to be recovered, principles of natural justice required an opportunity of hearing to be afforded to the petitioner to show cause against the proposed recovery alleging absence during the disputed period, for which, salary was paid to him. Though in an ordinary case, where absence is admitted and not disputed, the competent authority would have enough power to pass appropriate orders with regard to the period of absence and regularize them as leave with or without pay. ln such case, employee normally moves leave application claiming leave of one kind or the other to regularize his period of absence whereupon the ew competent authority takes a decision according to the applicable leave rules. ln such a case, no prior opportunity of hearing is required to be given, as it is well settled that leave cannot be claimed as of right and it is always be open for the competent authority to pass appropriate orders with respect to the period of absence according to the leave rules. Principles of natural justice are not applicable in such case. However, in a case like the present one, where the petitioner asserts that he attended his duties and he has also been paid his salary, it would be unfair and unjust to take a decision behind the back of the petitioner that he was absent, and therefore, not entitled to salary already paid to / him and consequent recovery. (9) Respondents have sought to justify their action of recovery by taking recourse to the provisions contained in Rule-15, Chapter-ll of Railway Services (Pension) Rules, 1993, relevant part of which has been placed on record as ’Annexure R-20. Referring to provisions contained in Rule-1 5, Sub Rule 3 (b) and Sub Rule 4 (I) (b) & (ii), it has been argued that over payment on account of pay and allowances is recoverable as government dues from the death-cum- retirement gratuity. Learned counsel for the respondents submitted that such a rule permits the respondents to make such recovery and there is no provision requiring any notice or opportunity of hearing, I am unable to accept this submission. Adherence to the principles of natural justice, an opportunity of hearing is dependant on the nature of action. If the action resuits in adverse and serious civil consequences, principles of natural justice and fair play required that the person ought to be afforded an opportunity of hearing before taking adverse and prejudicial action against him. Even in case where the source of power and authority is derived under statute or rules & regulations having statutory force. as in the present case, if the result of such exercise of authority and power is an adverse action resulting in civil consequences and prejudicial to the interest of the person affected, compliance of principles of natural justice by affording opportunity of hearing is implicit requirement under the said statute/miss or regulations, even though not expressly stated in that provision. in the case of Canara Bank and Others vs. Debasis Das and Others, reported in 2003 (4) SCC 557, the Supreme Court expounded the aforesaid principle in following ' words- “19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed m.. thereunder. They may be implied from the nature of the duty to be performed under a statute, What particular rule of natural justice should be/implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away.,Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression “civil consequences“ encompasses infraction of not merely property or / personai rights but of civil liberties, the material deprivations and non-pecuniary damages. ln its wide umbrella comes everything that affects a citizen in his civil life.“ m/. ‘!l . Therefore, contention of learned counsel for the respondents is rejected. (1 0) Submission of learned counsel for the respondents that there is no need of enquiry in the present case. as it is a foregone conclusion that the petitioner was absent. cannot be accepted for more than one reason. Firstly, the submission of respondents is founded on letter dated 26-1 1-2008 (Annexure P-4) wherein it was alleged that the petitioner is not attending the office. There is an endorsement on the said letter by the petitioner himself that he is attending the office everyday. Respondents have also placed a copy of the aforesaid letter on record along with Annexure R-7 containing such endorsement of the petitioner. This would mean that the petitioner disputed such an allegation as and when the letter was served upon him. Secondly, it is an admitted position that the petitioner was paid salary for the entire intervening period which is now sought to be treated as period of absence and in respect of which recovery has been ordered. lt is quite unusual. Respondents have not come out with a case whatsoever as to under what circumstance, the petitioner was being paid salary, if he was absent for such a long period. On the contrary. it raises strong presumption in favour of the petitioner that he was worked. Respondents have also averred in their return that the muster roll prepared by the lncharge, l.V.G. Cell for the period from 22- 01 -2006 to 30-04-2009 shows that the petitioner was absent. lt is averred that the same has been tiled in Wtit Petition No. 4248 of 2009. However, the fact remains that the petitioner was actually paid salary for the entire intervening period in dispute. (1 1) ln so far as period from 30-01-2009 to 30-04-2009 is concerned, it is not in dispute that the petitioner claims to be under treatment of private Doctor and he himself submitted a Private Medical Certificate claiming leave on medical grounds in respect of the period from 30-01 -2009 to 30-04-2009. The aforesaid period has been regularized as leave without pay by impugned order dated 14- z 07-2009. The petitions! himself has clearly stated in para 6 of the rejoinder that he was sick. in the return, the respondents have categorically stated that on O7- 05-2009, the petitioner submitted his sick and tit certificate issued by a Private Doctor. It wouid thus be clear that in so far as period from 30-01-2009 to 30-04- 2009 is concerned, the petitioner himself submitted a medical certificate seeking regularization of the period as leave on medical grounds. ln such a situation, if the respondents have decided petitioner's claim for grant of leave and regularize the same as leave without pay during that period, petitioner is not entitled to challenge the same on the ground of violation of principles of natural justice. ln so far as period from 30-01-2009 to 30-04-2009 is concerned. petitioner‘s absence has been regularized by a competent authority. if on account of that; salary paid during that period, has not been paid, it could not be challenged on the ground that before passing an order of regularization of period of absence as leave without pay, an opportunity of hearing ought to be given to the petitioner. Though it is petitioner's submission that he had leave balance in his leave account, and therefore. order of grant of leave without payin respect of the period from 30-01-2009 to 30-04-2009, was illegai, the petitioner could not bring to the notice of this Court any provisions contained in the relevant ieave rules ( with regard to petitioner‘s right to claim salary for the said period of absence. we A; Merely because the petitioner had leave to his credit in the leave account, order / of regularization of the aforestated period of absence as leave without pay by a competent authority, could not be challenged. As far as the decision of the respondents in respect of the period from 30-01-2009 to 30-04-2009 granting ' r leave without pay is concerned, this Court does not find any illegality. (1 2) Grant of leave is a discretionary exercise by the employer and it cannot be claimed as of right. Respondents have relied upon the provisions contained in Rule-272 of Railway Protection Force Rules, 1987 and the Raiiway Board instructions dated 18-05-1987, incorporated in Rule 538 of lndian Railway 10 Medical Manual, Volume-l (Annexure R-21) to contend that as the petitioner was posted and residing at Bilaspur where Railway Hospital is available. ordinarily, he ought to have taken a sick memo from his controlling officer and should have reported to Railway Board, which he did not do. it is not in dispute that the petitioner never reported to Railway Board for verification and reguiarization of his private medical certificate. Moreover, it is seen from the return of the respondents that petitioner was asked to attend the office vide memo dated 30- 03-2009 (Annexure R-22) followed by reminder dated 08-04-2009 to report to Senior Divisional Medical Officer, O.P.D., Central Hospital. South Eastern Central Railway, Bilaspur for verification of private medical certificate dated 30- 01 -2009 but that was also not obeyed by the. petitioner. The petitioner was cailed g personally by the Chief Security Commissioner, Railway Protection Force. but the petitioner also did not act on the advice. The contention of the respondents that the petitioner submitted private medical certificate without mentioning anything for regularization _of his absence/sick (PMC) period either as leave on Average Pay/Leave of Half Average Pay has not been disputed. in such a background and circumstances, the exercise of discretion to regularize the period f of absence as leave without pay cannot be said to be so outrageous or arbitrary as to warrant interference by this Court under 'Article 226 of the Constitution of lndia. / (1 3) As an upshot of the above discussion, this petition is allowed in part. In so far as decision of treating the period with effect from 22-01-2008 to 29-01-200§ -\.\, as period of absence and consequent recovery in respect of that period is concerned, the same is declared illegal being in violationof principles of natural justice, and therefore impugned orde'r dated 14-07-2009, in so far as declaring /the period from 22-01-2008 to 29-01-2009 is concerned, as period of absence and impugned order dated 14-07-2009 (Annexure P-2) ordering recovery are hereby set aside. However, it would be open for the respondents to take appropriate decision in opportunity of hearing. Tumane