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Himachal Pradesh High Court · body

2007 DIGILAW 337 (HP)

KRISHANA SHARMA v. STATE OF H. P.

2007-08-14

NARINDER SINGH THAKUR

body2007
JUDGEMENT Narinder Thakur, Vice Chairman:- The applicant in the present original application are mainly praying for the two reliefs: "(a) Quash the impugned orders A-1 issued arbitrarily, mala-fidely and illegally by the respondents and release Entire pensionary benefits of the applicant immediately with interest @ 18% till the date of realization of the amount. (b) Direct the respondents to keep on paying the proficiency increments/salary to the applicant as heithertofore with arrears and interest thereon @ 18% PA from the date of amount falling due till the date of realization with all the consequential benefits; (c) Direct the respondents to pay pensionary benefits to the applicant on the basis of last pay drawn before illegal re-fixation by the applicant with all consequential benefits. (d) Direct the respondents to produce all the relevant documents along with their reply for perusal by this Tribunal 2. The applicant is aggrieved by the impugned orders dated 16.3.2007 Annexure-A/1 issued by the respondents whereby they have arbitrarily re-fixed the salary of the applicant to her dis-advantage and resultantly are going to make the recovery from her. 3. The case of the applicant is that the applicant was initially appointed on 9.10.1967 as untrained JBT and thereafter she was regularized on 6.8.1978 after imparting on the job training. 4. It is averred that at the relevant point of time, the appointments of JBT Teacher used to be made first and then appointed incumbents used to be given on the job training with full pay and allowances due to the reasons that there were not many JBT Teacher training centers available. However, the respondent department used to arbitrarily and illegally depute the incumbents for training without having any regard to the date of appointment and the respondent department used to select the teachers for training on the presumption that sending on training at random order will not affect the service conditions, more particularly the seniority of the teachers adversely. 5. On 1.9.1979 and 28.12.1979 the applicant and similarly situated teachers were given running grade w.e.f. the date of initial appointments by the respondent department, meaning thereby that the initial date of appointment is determinative factor for all purposes, including for grant of proficiency increments etc. 6. On 1.12.1986 the Punjab Govt. granted seniority to the untrained teachers to its State w.e.f. the date of their appointment. 6. On 1.12.1986 the Punjab Govt. granted seniority to the untrained teachers to its State w.e.f. the date of their appointment. Similar principal was adopted by the respondent department and accordingly on 6.6.1990 the seniority was granted to the incumbents from their respective initial appointments irrespective of their being sent for training. However, this decision was on later date changed without observing principles of natural justice to the disadvantage of the applicant and the other similarly situated persons and as such the same is not sustainable in the eyes of law. 7. The respondent department vide letter dated 13.5.1983 and 12.4.1990 has directed to count the period of training of the teachers as duty for all intents and purpose. Thus the respondent department took conscious decision to grant revision of pay scales to the teachers vide notification dated 5.5.1989 and sanction of additional increment by way of proficiency set-up. Accordingly, the applicants an other teachers were granted proficiency set up w.e.f. 1.1.1986. 8. The respondent department vide impugned order dated 16.3.2007 has ordered to recover the said amount as well as to re-fix the salary of the applicant arbitrarily and illegally without affording an opportunity of hearing to the applicant. The applicant has since retired on 31.1.2007 and his pensionary benefit have not been paid as yet. 9. Respondent/State has not filed the reply despite opportunity. Vide order dated 13.4.2007, the respondents were directed to file the reply within four weeks and it was also observed that if the reply is not filed within four weeks, right to file the same will be closed. Despite this no reply has been, by respondent/State Right to file the same is closed. 10. Reply has been filed by respondent No.5. 11.I have heard the matter with the consent of the parties as it pertains to retiree and her dues are withheld, the arguments were heard at length, record and pleadings were perused. 12. The fact remains that the impugned order Annexure-A1 has been issued without affording an opportunity of hearing to the applicant thus the principle of natural justice have been violated. The parties with respect to this issues are not at variance, nor could it be found out from the pleadings that the applicant was afforded any opportunity of hearing by the respondent department before having resorted to impugned Annexure-A-1. 13. The parties with respect to this issues are not at variance, nor could it be found out from the pleadings that the applicant was afforded any opportunity of hearing by the respondent department before having resorted to impugned Annexure-A-1. 13. Admittedly the applicant has been receiving the benefits, now sought to be withdrawn, vide Annexure-A/1 itself. The parties are not at variance to the position that the benefits were given by the respondent department itself and there was no misrepresentation of facts on the part of the applicant. The benefits were given in pursuant to certain instructions issued by the department itself. Now, the department is seeking to withdraw the said benefits, more so after the applicant has retired, which cannot be permitted to be done in view of the well settled legal position in this regard. 14. From the pleadings and the arguments advanced by the learned counsel for the respective parties, it remains to be seen whether respondent department has rightly resorted to the impugned action against the applicant after retirement without affording any opportunity of being heard. 15. So far as the question of none observation of principle of natural justice is concerned, it leaves no doubt to my mind, that same has been violated. Salary, pension, gratuity etc. are the property of an individual under article 300-A of the Constitution of India. The said article provides that no person shall be deprived of his property save by authority of law. Therefore, it was not essential but also mandatory on the part of respondents to issues show cause notice to the applicant before having resorted to their impugned action. The Honble Apex Court in AIR 1994 SC 2480 Bhagwan Shukla vs. Union of India and others has held that:- "3. We have heard learned counsel for the parties. That the petitioners 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/- P.M. 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. 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/- P.M. 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, beep 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." 16. In fact similar observation have been made by the Honble High Court of HP. title as Mahavir Singh vs. Union of India 1997 (2) Shimla Law Cases 385. 17. Similarly the Honble Apex Court has restrained the department from effecting the recovery in the case reported in 1995 (2) SCT 421 titled as State of Orissa vs. Ad wait Charan Mohanty, 1994 (2) SCC 521 title as Shyam Babu vs. Union of India and 1995 Suppl 1 SCC 18 titled as Sahib Ram vs. State of Haryana. 18. Admittedly, there was no misrepresentation on fraud on the part of the applicant in getting the excess payment. It will not only be unfair but also unjust if what has been paid to the applicant about two decades ago is taken back from her after her retirement. 18. Admittedly, there was no misrepresentation on fraud on the part of the applicant in getting the excess payment. It will not only be unfair but also unjust if what has been paid to the applicant about two decades ago is taken back from her after her retirement. The impugned order visits upon the applicant civil consequences and will lave to undue financial hardships and as such cannot be sustained in the eyes of law. 19. In Ashish Taru Gosh. Vs. State of West Bengal 2005 (2) SLR 390 Calcutta High Court while dealing with the similar question held that in case where the employee has been getting higher scale and had been enjoying the benefits thereof, those have created vested right in such employee and, therefore, before curtailing their vested right, the petitioners should have been given the show case notice and in the absences of such notice act of reducing the pay scale is render illegal and as such order is liable to be set aside. 20. The learned counsel for the applicant has cited case law Rameshwar Lal Panwar. Vs. State of Rajasthan reported in 2005 (4) SLR 49 para 32 and Inder Jit Kaur Chahal vs. State of Punjab and others 2005 (4) SLR 247 para 5 and 24 and Deen Dayal Sharma vs. State of Haryana and Punjab 2005 (5) SLR 506 para 5,6 and 24. 21. This view was subsequently followed by the Division of this Court in case of Virender Chawala vs. Chandigarh Administration reported in 1984 (1) P&H 452. I am also fortified in my view by the observation of the Apex Court in case of Sahib Ram (Supra). In the aforesaid case the Honble Supreme Court observed as under- "Admittedly, the appellant does not posses the required education qualifications. Under these circumstances, the appellant would to be entitled to relaxation. The principle erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on revised scale. However, it is not on account of any misrepresentation made by the appellant, that the benefit of higher pay scale was given to him but by wrong construction made by the principal for which the appellant cannot be held to be at fault. Under these circumstances, the amount paid till date may not be recovered from the appellant. However, it is not on account of any misrepresentation made by the appellant, that the benefit of higher pay scale was given to him but by wrong construction made by the principal for which the appellant cannot be held to be at fault. Under these circumstances, the amount paid till date may not be recovered from the appellant. The principle for equal pay for equal work would not apply to the scales prescribed by the University Grant Commission. The appeal is allowed partly without any order as to costs. In view of the settled law, we have no hesitation in holding that the entire action of the respondents is arbitrary, being violative of rules of natural justice, and therefore, contrary to article 14 of the constitution of India. The petitioner had joined the respondent department on 28.10.1971. We find it a little difficult to accept that wrong fixation of the pay could not be recovered for a period of almost 40 years. We are also satisfy that the petitioner cannot be held responsible for having made any misrepresentation to the respondents which resulted in wrong fixation of his pay. Now the petitioner has retired it would be wholly injustice to permit the respondent to recover the amount allegedly over paid to the petitioner. In our opinion the matter it securely covered by the observation made by the Supreme Court in case of Sahib Ram Supra." 22. A similar view has been taken by this Tribunal in Brij Bhushan Aggarwal vs. State of H.P. and others, OA 2982/2002 decided on 30.3.2005 and Mohinder Singh vs. State of H.P. reported in 2006 (1) Latest HLJ 349.ln the above factual backdrop and the well settled legal position, I am of the considered view that the present Original Application deserves to be allowed and same is allowed with direction that the illegal action of the respondents whereby they have re-fixed the pay of the applicant w.e.f. 1.1.1986 is quashed along with the impugned order contained in Annexure A-1 qua the applicant and as a result, the respondents are directed to release all the pensionary benefits of the applicant and repay the recovered sum. The respondent/department is restrained from making any recovery from the applicant of any amount paid to her. The respondents will also not be justified now in re-fixing the salary of the applicant as the applicant has since been retired. The respondent/department is restrained from making any recovery from the applicant of any amount paid to her. The respondents will also not be justified now in re-fixing the salary of the applicant as the applicant has since been retired. So far as the payment of interest on account of pensionary dues is concerned, I allow the same on the analogy of Govt. charges from an individual in case of refund of pension as per Gl department of Pen. and PW OM No. F 7/1/1993-P & PW (F) dated 25.8.1994 and 31.8.1995 published in Swamy Pension Compilation 14th Ed. 1998 at 40-41 wherein it is laid down that it has been decided that wherever the employees are required to refund the pensionary benefit received by them for service already rendered by them under the Central Govt and the State Govt. or autonomous bodies in order to avail of benefit of counting of past service for pension purposes in terms of the provisions of Rule 17 to 20 of CCS (Pension) Rules, 1972 and the department of Pension and pensioners welfare OM No. 28/1084-PU dated 29.8.1984 as amended from time to time, the rate of interest will be rate applicable on GPF accumulation from time to time, from the period from the date of receipt of pensionary benefit to the date of their refund to the Govt. / autonomous body. The interest will be calculated in the same manner as is done in respect of GPF balances. The above directions will be complied with by the respondents within a period of two months from this order. With these observation the Original Application stands finally disposed of.