1- Heard Sri M.K.Dixit, learned Counsel for the petitioner and Sri Rajesh Kumar, learned Standing Counsel for the State-respondents.
2- By means of the present writ petition, the petitioner has challenged the office memorandum dated 13.09.2000 (Annexure no. 1 to the writ petition) whereby his representation with regard to recovery of Rs. 7020.50/-, has been rejected. The petitioner has also challenged the recovery order/letter dated 12.05.1999, pursuance to which the process of recovery was initiated against the petitioner.
3- Brief facts of the case are that the petitioner was initially appointed on the post of Seenchpal (Patrol), in the Irrigation and Planning Division of Irrigation Department at Barelli. Thereafter in the year 1969, the petitioner was promoted on the post of lhap i;Zos{kd (Amin) at Balrampur. In the year 1974, the petitioner was transferred from Balrampur to Tubewell Division, Bahraich and he remained posted at Bahraich till 1983. Thereafter, he was transferred from Tubewell Division Bahraich to Tubewell Division, Faizabad and he remained posted at Faizabad till November 1990. In the month of December 1990, the petitioner was promoted on the post of Ziledar and on the said post, at different places the petitioner worked till the age of superannuation i.e. 31.07.2000.
4- While the petitioner was working under opposite party no. 4 i.e. The Executive Engineer, Minor Lift Canal, Sub Division Barabanki (Division Lucknow), the audit inspection was carried out and in audit, an amount to the tune of Rs. 7020.50/- was found due against the petitioner.
5- Pursuant to the audit report/objection, opposite party no. 2 i.e. Executive Engineer, Tubewell Division, Bahraich, issued a letter dated 12.05.1999 in relation to recovery of the amount from the petitioner with copy to the Assistant Engineer, Minor Lift Canal, Sub Division Barabanki (Division Lucknow) for necessary action.
After receiving the letter 12.05.1999, the petitioner submitted a reply dated 07.06.1999 and thereafter another representation dated 12.07.1999 was submitted by the petitioner with regard to the recovery in question. From the aforesaid document on record, as Annexure Nos. 4 and 5 to the writ petition, it appears that in the same the petitioner has specifically stated that (i) recovery should be imposed on tubewell operator, (ii) proceedings of recovery are ex-parte, (iii) no document was provided in relation to recovery of Rs. 7020.50/- (iv) no amount is due against the petitioner (v) he is not liable to pay the amount. Thereafter, the opposite party no. 4 sent the letters dated 28.02.1999 and 07.04.2000, in relation to recovery of amount from the petitioner, to the Executive Engineer, Tubewell Khand, Bahraich stating therein that no reply has been received in regard to recovery of Rs. 7020.50/- from the petitioner and also requested thereby to dispose of the issue of recovery of Rs. 7020.50/- from the petitioner. It appears that letters were written keeping in view the date of retirement of the petitioner i.e. 31.07.2000. A copy of the said letter dated 07.04.2000 was also given to the petitioner on 13.04.2000.
On 20.7.2000, the petitioner submitted a representation through proper channel. In the representation dated 20.07.2000 the petitioner reiterated his stand taken in the representation dated 07.06.1999 and 12.07.1999.
The opposite party no. 2 i.e. Exeuctive Engineer, Tubewell Khand, Bahraich vide order dated 13.09.2000 rejected the representation of the petitioner dated 07.06.1999 preferred against the recovery of Advance Misc. of Rs. 7020.50/-. In the order dated 13.09.2000, the petitioner has been held guilty for not performing his duty.
Assailing the order dated 12.05.1999 and office memorandum 13.09.2000, the petitioner has filed the present writ petition.
6- Learned Counsel for the petitioner submits that prior to passing of the recovery order dated 12.05.1999, no show cause notice was issued to the petitioner as well as no departmental proceedings was initiated against the petitioner. Learned Counsel for the petitioner further submitted that audit report cannot be made the basis of the recovery of the amount mentioned in the impugned order.
With regard to the office memorandum and under challenged dated 13.09.2000, learned Counsel for the petitioner submits that the same has been passed without considering the contents of the representation of the petitioners dated 07.06.1999 and 20.7.2000 in it true spirit and in view of the same, the order of recovery dated 12.05.1999 and office memorandum dated 13.09.2000, are unreasoned and non speaking order and which are liable to be interfered. Further submitted that in the order dated 13.09.2000 the petitioner has been held guilty for not performing his duties and before holding the same, no inquiry was conducted nor any reasonable opportunity was provided to the petitioner.
7- In support of his contention, learned Counsel for the petitioner has placed reliance upon the judgment in the case of Ram Sewak Gupta vs State Of U.P. and Others reported in 2015(33)LCD 940. The relevant portion of the judgment is quoted below:-
"16. The question, thus, is as to whether without holding any departmental inquiry and without determining the responsibility of the petitioner for the alleged loss, solely on the basis of audit report, can any recovery from the petitioner be made.
17. It is well established that audit report cannot be used as substantive evidence of the genuineness or bonafide nature of the transactions referred to in the accounts. As has been held by this Court in the case of Dilip Singh Rana vs State of U.P. reported in 1993 (7) SLR 706, audit is only official examination of the accounts in order to make sure that the accounts have been properly maintained according to prescribed mode and further that audit report is a statement of facts pertaining to the maintenance of accounts coupled with the opinion of the auditor and thus it can only give rise to reasonable suspicion of commission of a wrong. Merely on the basis of said audit report without the charge of causing loss being established in a full-fledged departmental inquiry, no recovery of alleged loss caused to the State Exchequer can be made.
18. In similar circumstances, recovery sought to be made from the gratuity of a retired government employee on the basis of some audit report was not approved by a Division Bench of this Court in the case of Radhey Shyam Dixit vs State of U.P. and others, reported in 2006 (110) FLR 101."
8- Per contra, learned State Counsel Sri Rajesh Kumar, submits that the amount in question i.e. 7020.50/- has already been recovered by the authority concerned and recovery has been made on the basis of audit report, which is just and proper. In regard to the office memorandum/order under challenged dated 13.09.2000, learned Standing Counsel submits that after considering the relevant facts and seeing the audit report, the order has been passed and being so, does not require any interference in the matter.
9- In rebuttal, the learned Counsel for the petitioner submits that recovery of Rs. 7020.50/- has been made in a very illegal and arbitrary manner as the same is solely based on audit report/objection, which cannot be done. Further submitted that no regular departmental enquiry was conducted nor proper opportunity of hearing was given to the petitioner before holding the petitioner responsible for the amount in issue and making petitioner liable to pay the amount in issue i.e. Rs. 7020.50/- and being so the action of the opposite parties is liable to be interfered by this Court. Learned Counsel for the petitioner further submits that the process of recovery has been initiated after lapse of about 16 years and accordingly interference is required.
10- Considered the submissions made by learned Counsels for the parties and perused the records.
11- The admitted position of the case is that the impugned orders dated 12.05.1999 and 13.09.2000, in relation to recovery of amount of Rs. 7020.50/- have been passed, without holding proper regular departmental enquiry and affording proper opportunity of hearing to the petitioner. It is also admitted that even relevant documents, were not given to the petitioner. This fact is also not disputed by learned Standing Counsel. This impugned orders are based on audit report/objection.
12- It is settled principle that even administrative order which involve civil consequences must be passed after following the principle of natural justice and providing opportunity of hearing and the orders which have been passed against settled principle and are unsustainable. The basic idea of observing principles of natural justice is to secure justice or to put in another way to prevent miscarriage of justice.
Further any order either passed by court/tribunal or authority, which leads to civil consequences must be passed after giving an opportunity of hearing and the procedure adopted must be just, fair, reasonable, unarbitrary and impartial.
A seven-Judges' Bench of the Hon'ble Apex Court in the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597) has held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14 of the Constitution. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic, otherwise they would cease to be reasonable. The procedure prescribed must be just fair and reasonable, even though there is no specific provision in a statute or rules, made thereunder, for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action in-volving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done hut manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of the natural justice.
In Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : (AIR 1978 SC 851), the Apex Court reiterated the same view.
In the case of D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259, the Apex Court observed that an order which involves civil consequences, must be just, fair, reasonable, unarbitrary and impartial and meet the principles of natural justice. Same view has been reiterated in the cases of Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 : (AIR 2005 SC 2090); Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, (2007) 6 SCC 668 : (AIR 2007 SC 2276); and Devdutt v. Union of India, 2008 (3) ESC 433 (SC) : ((2008) 8 SCC 725 : AIR 2008 SC 2513). In the case of Erusian Equipment and Chemicals Ltd. v. State of West Bengal and another A.I.R. 1975 SC 266; Raghunath Thakur v. State of Bihar and others A.I.R. 1989 SC 620; and Gronsons Pharmaceuticals (P) Ltd. v. State of Uttar Pradesh and others A.I.R. 2001 SC 3707 and the decisions of the Division Bench of this Court in Smt Rajni Chauhan v. State of U.P and others 2010 (6) AWC 5762 (All.) also it has been held that an order which leads to civil consequences cannot be passed without affording an opportunity of hearing and the same must be passed in conformity of principles of natural justice.
It is also settled principle that an order must contain reasons so that the aggrieved person can know why the adverse decision has been taken. Recording of reason in the order is one of the statutory requirements of natural justice. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision.
13- In view of settled Principle of Law and considering the facts of the case and reasoning given for interfering in the impugned order as well as the judgment relied upon by the petitioner, this Court feels that the impugned orders are liable to be interfered.
14- Accordingly, the impugned orders dated 12.05.1999 and 13.09.2000, are hereby quashed and the writ petition is allowed.
15- Consequently the opposite parties are directed to refund the amount in question i.e. 7020.50/- to the petitioner within three months from the date of production of a certified copy of this order. Keeping in view of the meagre amount and age of the petitioner, this Court is not giving any liberty to the opposite parties to reanimate the issue.
Order Date :- 27.08.2019 Jyoti/-