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2006 DIGILAW 369 (HP)

HOSHIAR SINGH v. H. S. E. B.

2006-11-24

M.R.VERMA, VIJAY PAL SINGH

body2006
JUDGMENT M.R. Verma, Chairman.—The applicant has prayed for quashing orders Annexure PB dated 1.1.1994, PC dated 25.8.1993 and PF dated 12.9.1995 whereby a sum of Rs. 34,790/- has been ordered to be recovered from the applicant, his pay has been fixed and the representation {as the original application filed by the applicant was treated) has been rejected and to direct the respondents to refund recoverable amount of Rs. 34,790 to him with interest at the Bank rate. 2. The case of the applicant in brief is that he was working as a Foreman Special with the respondents and retired on 30.11.1993. His services were regularised on 3.10.1980 and he was given work charged status and as such he was entitled to the same scale of pay as regular employees vide Annexure PA. When the applicant retired the respondents recovered a sum of Rs. 34,790/- from his retiral gratuity on the ground that his pay was wrongly fixed which led to over payment to him. As this decision to recover the said amount has been taken and recovery has been affected without giving opportunity of being heard to the applicant, therefore, it is violative of the principle of natural justice. It is further claimed that the recovery has been effected from the applicant on the premise that scale of Rs. 800-1400/- was wrongly given to him from1980 whereas it should have been from 1987 which stand is wrong, illegal, arbitrary and against the principle of natural justice whereas the applicant in fact was entitled to this scale from 1.1.1978 being qualified and eligible to the same. The applicant served notice Annexure PD on the respondents but of no avail. Therefore, he had to file O.A. (M) 204/1995 which was ordered to be treated as representation to the Secretary, HPSEB who was to consider and dispose of such representation within two months and liberty was reserved to the applicant to approach the Tribunal again on the same cause of action. The said representation of the applicant had been rejected by the respondents illegally and unconstitutionally and further directions that the excess payment due to wrong fixation is required to be recovered from DCRG vide Annexure PF is also wrong and illegal and liable to be quashed, hence this original application. 3. The respondents contested the claim of the applicant and filed reply. 3. The respondents contested the claim of the applicant and filed reply. It has been averred in the reply that after due and careful consideration the claim of the applicant was found devoid of merits and it was rejected by the competent authority, therefore, the original application is not maintainable; that the applicant in fact was promoted as Foreman special on and w.e.f. 11.2.1987 and was then granted the scale of Rs. 800-1400 vide order dated 17.11.1987 vide Annexure RA/1, therefore, his pay fixation W.e.f. 1.1.1978 was made wrongly/erroneously as he was entitled to such pay scale only w.e.f. 11.2.1987. The mistake was pointed out by the audit therefore, a sum of Rs. 34,790/- was deducted from the DCRG of the applicant and the action of the respondents is just, proper and bona fide and requires no interference. 4. The applicant filed rejoinder wherein he denied the grounds of defence taken by the respondents in their reply and reiterated his claim as in the original application. 5. We have heard the learned Counsel for the parties and have also perused the material placed on record. 6. It is not in dispute that the respondents have deducted and recovered a sum of Rs. 34,790/- from the DCRG of the applicant. The legality of the recovery is sought to be supported on the plea that the applicant was wrongly fixed in the scale of Rs. 800-1400/- w.e.f. 1.1.1978 whereas he was entitled for such fixation w.e.f. 11.2.1987. When this mistake was pointed out by the audit the excess payment was recovered by deducting and recovering the aforesaid amount from the DCRG of the applicant in accordance with the provisions of the CCS (Pension) Rules 1972, (hereafter referred to as the Rules). At the time of arguments to support the action of the respondents reliance was laid on Rule 73(3) of the Rules which reads as under:— "73. Adjustment and recovery of dues other than dues pertaining to Government accommodation: (1) XXXXXXXXXXXX (2) XXXXXXXXXXXX (3) The dues as assessed under sub-rule (2) including those dues which come to notice subsequently and which remain outstanding till the date of retirement of the Government servant shall be adjusted against the amount of retirement gratuity becoming payable to the Government servant on his retirement." 7. However, even if the recourse is to be taken to the aforesaid provisions by the Government to effect the recoveries of due amount, it has to assess such amount. Evidently, such assessment resulting in directing recovery thereof is prejudicial to the interest of affected employee, therefore, before affecting the recovery the employer is duty bound to give a show cause notice or at least opportunity of being heard to the concerned employee before affecting the recovery. In case such notice or opportunity of being heard is not given the unilateral action of the employer in effecting the recovery from DCRG will be violative of the principle of natural justice and will thereby be rendered unsustainable. 8. In the case in hand, it is specifically claimed by the applicant vide Para 3(iv) (ii) of the application that the impugned action was taken without giving opportunity of hearing to the applicant and thus is against the principle of natural justice. While replying to this para the respondents have nowhere claimed that after the alleged error was pointed by the audit respondents proceeded to rectify the error and to recover the amount in question from the DCRG of the applicant after giving him a show cause notice or opportunity of being heard. Thus the claim of the applicant that the action as aforesaid was taken by the respondents without giving him an opportunity of being heard or serving him with a show cause notice remains unrebutted. It is well settled that any ground of attack/ defence if not disputed/denied/replied will be deemed to have been admitted. Thus, the case of the applicant that the impugned action against him was initiated and recovery was affected without any notice and opportunity of being heard was not granted to him is duly established. It is well settled that opportunity of hearing has to be given to a party before a decision is taken and implemented to the prejudice of such party and any opportunity of being heard granted after the action had already been taken is meaningless and not in conformity with the principles of natural justice. 9. In view of the above, the impugned action of the respondents in withholding the amount of Rs. 34,790/- from the DCRG of the applicant being violative of the principles of natural justice is not sustainable. 10. 9. In view of the above, the impugned action of the respondents in withholding the amount of Rs. 34,790/- from the DCRG of the applicant being violative of the principles of natural justice is not sustainable. 10. As a result, the respondents are directed to release the amount of Rs. 34,790/- to the applicant on his furnishing security to refund the said amount if after due inquiry into the matter in accordance with the rules and law it is found recoverable from him. The applicant shall furnish the requisite security lo the satisfaction of the Registrar of this Tribunal within one month and the respondents will release the amount as aforesaid within four weeks of the furnishing of the requisite security by the applicant. It may be clarified that nothing contained in this order shall debar the respondents from assessing and if found due, recovering the over paid amount from the applicant in accordance with the rules, law and the observations made hereinabove. The original application is disposed of in terms of the above orders. No order as to costs. -