Court No. - 37
Case :- WRIT - A No. - 15831 of 2021
Petitioner :- Manoj Kumar
Respondent :- State Of U.P. Through Additional Chief Secretary And 2 Others
Counsel for Petitioner :- Prabhakar Awasthi,Dinesh Mishra
Counsel for Respondent :- C.S.C.,Saroj Kumar Yadav
Hon'ble Chandra Kumar Rai,J.
Order on Impleadment Application No.2 of 2021 Heard learned counsel for the applicant and learned Standing Counsel. There is no good ground to allow the impleadment application.
Accordingly, it is rejected.
Order on Writ Petition Heard Mr. Prabhakar Awasthi, assisted by Mr. Dinesh Mishra, learned counsel for the petitioner, Learned Standing counsel for the respondent Nos. 1, 2 and 3 and Mr. Saroj Kumar Yadav, Advocate who sought his impleadment although he has not been impleaded in the writ petition.
The writ petition has been filed with the following prayers:
"i. Issue a writ, order or direction in the nature of Certiorari calling for the record of the case and to quash the impugned order dated 20.10.2021 passed by respondent No.3 (Annexure No.9 to the writ petition) ii. Issue a writ,order or direction in the nature of Mandamus commanding the respondents not to recover the salary which has been paid to the petitioner on the post of Accountant w.e.f. 25.02.1998 and to continue him to pay salary which is admissible to the Treasury Accountant with all consequential benefits."
Learned counsel for the petitioner states that in identical facts and circumstances a writ petition bearing writ A No. 15696 of 2021 has been filed and same was allowed vide order dated 01.12.2021 passed by this Court. The order passed in writ petition 15696 of 2021 is reproduced hereunder:
"Heard learned counsel for the petitioner and learned Standing Counsel for the contesting respondents.
The petitioner has preferred the present writ petition with the prayer to quash the order dated 22.10.2021 passed by the respondent No.3/Director, Treasury, U.P. Lucknow.
On 23.11.2021 following order was passed:-
"Heard Sri Prabhakar Awasthi, learned counsel for the petitioner. Learned Standing Counsel has accepted notice on behalf of respondent nos. 1 to 3.
The petitioner has preferred the present writ petition challenging the order dated 22.10.2021 passed by the respondent no.3.
It is stated in paragraph 16 of the writ petition that the order passed by the respondent no.3 is without jurisdiction. Further in paragraph 18 of the writ petition it is stated that the order was passed without providing opportunity of hearing. The paragraphh 18 is reproduced hereinbelow:-
"18. That impugned order even otherwise is nullity in the eyes law as same has been passed without putting the petitioner to hearing as not even show cause notices were issued to the petitioner."
As prayed, a week's time is granted to learned Standing Counsel to seek instructions in the matter specially in respect of paragraph 16 and 18 of the present writ petition.
Put up as fresh on 01.12.2021. Till then no recovery should be made against the petitioner. "
Pursuant to the same instructions received from office of the respondent No.3 dated 27.11.2021 is placed before the Court, the same is taken on record.
From perusal of the same, it is clear that in the aforesaid instruction, nothing has been stated as the information has been sought for by this Court vide order dated 23.11.2021.
In this view of the matter and From perusal of the order dated 22.10.2021, this court is of the opinion that aforesaid order is passed without providing any notice or opportunity of hearing. It is settled law by the Apex Court that before passing any order of recovery, notice and opportunity is required to be given to him. The petitioner has relied upon a judgment delivered by the Supreme Court in the case of Bhagwan Shukla Vs. Union of India and others reported in (1994) 6 SCC 154 relevant paragraphs of the same is quoted below:-
"3. We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs. 190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. 181 p.m. from Rs. 190 pan. in 1991 retrospectively w.e.f. 18.12.1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not, even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. 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 a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.7.1991. which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17.9.1993 as well as the order (memorandum) impugned before the Tribunal dated 25.7.1991 reducing the basic pay of the appellant From Rs. 190 to Rs. 181 w.e.f. 18.12.1970."
The Supreme Court in case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. M/s Shukla and Brothers reported at 2010 AIR SCW 3277 dealt with the principles of law while exercising power of judicial review on administrative action. It was held by the Supreme Court in the aforesaid case that the doctrine of audi alteram partem has three basic essentials-
i) A person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard.
ii) The concerned authority should provide a fair and transparent procedure.
iii) The authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order.
"9. The increasing institution of cases in all Courts in India and its resultant burden upon the Courts has invited attention of all concerned in the justice administration system. Despite heavy quantum of cases in Courts, in our view, it would neither be permissible nor possible to state as a principle of law, that while exercising power of judicial review on administrative action and more particularly judgement of courts in appeal before the higher Court, providing of reasons can never be dispensed with. The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order. This has been uniformly applied by courts in India and abroad."
In view of the above discussion, the writ petition is allowed. The order dated 22.10.2021 passed by the respondent No.3 is liable to be set aside and the same is hereby quashed.
The respondent No.3 is free to pass appropriate orders in accordance with law after providing opportunity of hearing to the petitioner."
Learned counsel for the petitioner contended that impugned order has been passed without affording opportunity of hearing to the petitioner even show cause notice was not issued to the petitioner. Learned Counsel further submitted that impugned order tentamounts to demoting the petitioner by bringing down the salary of the petitioner, as such writ petition be allowed and impugned orders be set aside.
It is material to state that instruction which was sought in writ petition No.15696 of 2021 regarding opportunity of hearing it has come that opportunity of hearing has not been afforded to the parties concerned, as such no useful purpose will be serve by inviting counter affidavit from State-respondents.
In view of the facts and circumstances stated above, this writ petition is allowed. The order dated 20.10.2021 passed by respondent No.3 (annexure 9 to the writ petition) is hereby quashed. The respondent No.3 is free to pass appropriate orders in accordance with law after affording opportunity of hearing to the petitioner.
Order Date :- 17.12.2021 Pr/-