Court No. - 18
Case :- WRIT - A No. - 830 of 2019 Petitioner :- Smt. Poonam Sharma Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Awadh Narain Rai Counsel for Respondent :- C.S.C.,Shivam Yadav
Hon'ble Prakash Padia,J.
Heard Sri Awadh Narain Rai, learned counsel for the petitioner, learned standing counsel accepted notice on behalf of respondent Nos.1 and 2 and Sri Shivam Yadav, Advocate accepted notice on behalf of respondent No.3. No notice is required to be sent to respondent No.5. In view of the order passed today in the present case.
It is contended by the petitioner in the writ petition that the Institution in question namely Ram Laxman Sugar Mill, Junior High School Muhiuddinpur, District Meerut is run and controlled by the U.P. Basic Education Board, Allahabad. The institution in question is imparting education to the students from classes 6 to 8. The petitioner was initially appointed as Assistant Teacher on 1.7.1997 in Saraswati Gyan Mandir Girls Vidyalaya Bhopal Bihar Road, District Meerut. The appointment of the petitioner was also approved by the District Basic Education Officer, Meerut vide order dated 17.08.1999. Subsequently, the petitioner was transferred from Saraswati Gyan Mandir Girls Vidyalaya Bhopal Bihar Road Meerut to Ram Laxman Sugar Mill Junior High School Muhiuddinpur District Meerut vide letter dated 20.02.2016. It is contended in paragraph 6 of the writ petition that by the order passed by the competent authority, the salary of the petitioner duly fixed from time to time and the petitioner was also granted selection grade from the year 2007. Nothing has been misrepresented by the petitioner before the authorities at any point of time. Now the petitioner is aggrieved by the order dated 26.12.2018 passed by the respondent No.3 namely District Basic Education Officer Meerut. By the aforesaid order, selection grade earlier granted to the petitioner on 1.7.2017 has now been corrected by mentioning the date on 1.12.2016 by the order impugned, not only the salary of the petitioner has been reduced but order for recovery was also passed against him. It is contended by the petitioner in paragraph 17 that the impugned order was passed without giving proper 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 petitioner has also relied upon a judgment in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. M/s Shukla and Brothers reported at 2010 AIR SCW 3277. The Hon'ble Supreme Court in the aforesaid case laid down the consequences of an order passed in violation of principles of natural justice in the following terms as para 9 of the said judgement:-
"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 same, the order passed is being in violation of natural of principles of natural justice is liable to be quashed and is hereby quashed. The respondent No.2 is directed to pass appropriate fresh order in accordance with law.
Order Date :- 21.1.2019/saqlain