Court No. - 34
Case :- WRIT - A No. - 23914 of 2004 Petitioner :- Suresh Chandra Dubey Respondent :- State Of U.P. & Others Counsel for Petitioner :- Ved Byas Mishra Counsel for Respondent :- C.S.C.,A.C. Tiwari
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ved Byas Mishra, learned counsel for petitioner, Sri A.C. Tiwari, learned counsel for respondents and learned Standing Counsel for State.
2. This writ petition is directed against order dated 14.05.2004 (Annexure-1 to the writ petition) passed by respondent-2, Chairman/Commissioner, Ramganga Command Project, Kanpur directing to recover amount allegedly paid in excess to petitioner on the ground that said order was passed in utter violation of principles of natural justice and without giving any show-cause notice or opportunity.
3. Court's attention has been drawn to averments contained in paras 16, 17 and 18 to the writ petition which read as under :-
"16. That prior to passing of the order dated 14.5.2004 no any opporotunity of hearing has been given to the petitioner.
17. That at any point of time alleged report on the basis of which the impugned order has been passed has not supplied to the petitioner.
18. That in passing of the impugned orders no opportunity of hearing has been given to the petitioner, therefore, the principles of natural justice has been violated as such the impugned orders are liable to be quashed."
4. In counter affidavit, reply of said paras has been given in paras 16 and 17 which read as under :-
^^16- ;g fd ;kfpdk ds izLrj la[;k&16 o 17 eas of.kZr ;kph ds dFku ds izfrmRrj eas ;g dguk gS fd ;kph dks xyr vuqeU; djk;s x;s orus dks vf/k"Bku iqujh{k.k C;qjks ds funsZ'kkuqlkj la'kksf/kr fd;k x;k rFkk vf/kd Hkqxrkfur /kujkf'k ds olwyh vkns'k ikfjr fd;k x;kA pawWfd izdj.k vf/kd Hkqxrku dh x;h /kujkf'k ds olwyh dk gS] uk fd xcu @ vuq'kklfud dk;Zokgh dk gSA vr,o ;kph dks lquokbZ dk volj iznku djus dk dksbZ iz'u gh ugha mBrk gSA tSlk fd vU; rF; iwoZ izLrjksa eas Li"V gSA 17- ;g fd ;kfpdk ds izLrj la[;k&18 eas of.kZr ;kph ds dFku Lohdkj ugha gSaA rFkk izfrmRRj esa ;g dguk lehphu gksxk fd vf/k"Bku iqujh{k.k C;qjks ds funsZ'k ds dze eas ;kph dks xyr vuqeU; djk;s x;s orus dks l'kka f/krs fd;k x;k gS rFkk vf/kd Hkqxrku dh x;h /kujkf'k ds olwyh vkns'k fuxZr fd;k x;k gS] tks U;k;laxr gSA bl izdkj ;kph ds lkFk fdlh Hkh izdkj ds izkd`frd U;k; dk guu ugha fd;k x;k gSA** “16. In response to averments made by the petitioner in paras 16 & 17 to the petition, it is to say that the salary wrongly made admissible to the petitioner has been revised as per the direction of the Establishment Revision Bureau and order has been passed for recovery of excess payment. Since the matter relates only to recovery of the amount paid in excess, but not to embezzlement/disciplinary action; hence, there arises no question to give any opportunity to the petitioner for hearing, as is clear from the facts disclosed in the previous paras.
17. That the statement made by the petitioner in para 18 to the petition is not accepted; and in response to the same, it shall be proper to say that pursuant to the direction of the Establishment Revision Bureau, the salary made admissible to the petitioner has been revised; and an order has been passed for recovery of the amount paid in excess; which is justifiable. In this way, natural justice of any sort has not been infringed upon in case of the petitioner.”
(English Translation by Court)
5. Thus, denial of opportunity is admitted and reason given by respondents is that there was no allegation of embezzlement and, therefore, no notice was necessary. This presumption on the part of respondents is illegal.
6. It is well settled that no order adverse to interest of any person ought to have been passed in violation of principles of natural justice. It cannot be disputed that the impugned order has affected petitioner's civil rights and the same has been done in utter violation of principles of natural justice. In State of Orissa Vs. Dr. (Miss) Binapanni Dei and others 1967 AIR 1269, Court said:
"It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State."
7. In Bhagwan Shukla Vs. Union of India & others AIR 1994 SC 2480, Court has held that “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.”
8. In view thereof, order impugned in writ petition cannot be sustained. Writ petition is allowed. Impugned order dated 14.05.2004 is hereby set aside. However, this order shall not preclude respondents from passing a fresh order after giving opportunity to concerned parties in accordance with law.
Order Date :- 20.12.2018 Siddhant Sahu