Court No. - 37
Case :- WRIT - A No. - 15768 of 2001 Petitioner :- Dhanush Raj Sharma Respondent :- Dy. I.G.P., Gorakhpur & Others Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C.
Hon'ble Abhinava Upadhya,J.
Heard Sri Hari Prasad Gupta, learned counsel for the petitioner and the learned Standing Counsel appearing for the State-respondents.
The petitioner is an Assistant Sub Inspector Ministerial and was appointed as such on 12.6.1998 in Police Training College, Gorakhpur. The petitioner was paid one month extra salary per year on account of working on Second Saturday, Sunday and Gazetted holidays and suddenly by means of an order dated 28th September, 2000, an order has been passed holding that since in the Police Training College the petitioner enjoys holiday on Second Saturdays, Sundays and Gazetted holidays and like other police constables he is not entitled to one month extra salary and the same be recovered. The petitioner at that stage filed this writ petition and this Court by interim order dated 26.4.2001 stayed the recovery pursuant to an order dated 28.9.2000.
In the counter affidavit a stand has been taken that with regard to such ministerial Assistant Sub Inspectors, the matter is under consideration before the State Government. The other ground in the counter affidavit is that since the petitioner enjoys holiday on second Saturdays, Sundays and Gazetted holidays, he is not entitled to one month extra salary and, therefore, the recovery is in accordance with law.
Learned counsel for the petitioner submits that the order has been passed without following the principles of natural justice. Had he been given an opportunity, he would have explained the authority that he was entitled to one month extra salary as the other Police Officers are getting but that opportunity having not been given, and unilaterally an order has been passed for recovery and, therefore, such an order is against the principles of natural justice as has been held by the learned Single Judge of this Court in the case of Ramashraya Ram Sharma Vs. The Dy.I.G.P.and others (Writ A No.15769 of 2001) vide judgment and order dated 18.12.2013.
Paragraphs No.25 and 26 of the aforesaid judgment are quoted here-in-below:
"25. Now coming to the second question regarding application of principles of natural justice, it cannot be doubted that whenever an employer takes a view, or from the record, finds, that certain amount has been paid to an employee, in excess to what he was not entitled, before issuing an order of recovery of the same, he must give an opportunity to the employee concerned to show cause, whether such amount should be recovered from him or not. If this opportunity is given to an employee, he can always show that what was paid to him, he was entitled therefor, and, there is neither any excess payment, nor any payment for which he was not entitled. An order passed directly without giving any show cause notice or opportunity to the employee, in my view, would suffer the vice of non observance of principles of natural justice. In a case where there is a dispute as to whether the employee has been paid an amount rightly or not, before passing any order, having civil consequences, the employer must afford an opportunity to the employee, else, such an order would be in violation of principles of natural justice. The Apex Court in Bhagwan Shukla Vs. Union of India & others 1994 (6) SCC 154, is similar circumstances, has held that an order passed in violation of principles of natural justice cannot be sustained. In para 3 of the judgment, the Apex Court observed as under: "The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause ...Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him hearing in the matter.
26. The second question, as a proposition of law, therefore, is answered in favour of petitioner."
Considering the law laid down by this Court in the aforesaid case, the order of recovery having been passed, without affording any opportunity to the petitioner, cannot be sustained and it is hereby quashed with the liberty to the authorities to pass a fresh order after giving due opportunity to the petitioner.
The writ petition to the aforesaid extent is allowed.
Order Date :- 30.3.2018 SKM