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Uttarakhand High Court · body

2008 DIGILAW 232 (UTT)

Ram Nath Sharma v. State of Uttaranchal

2008-05-16

B.LAL, K.R.BHATI

body2008
JUDGMENT. Hon'ble Sri B. Lal, Chairman: 1. The claim petition has been filed for setting aside the order dated 28.3.2003, 19.9.2005 and 23.9.2005, Annexure Nos. A-1, A-2 and A-3 respectively Petitioner also claimed that the benefit of second promotional pay scale be restored and a sum of Rs. 1,43,498/ - be refunded to him with interest @ 12% per annum form 23.9.2005 till date. 2. Facts giving rise to this claim petition are that the petitioner was initially appointed as Lekhpal and subsequently promoted to the post of Assistant Registrar Qanoongo w.e.f. 14.8.1975. The petitioner was subsequently confirmed w.e.f 14.8.1977 the petitioner due to is seniority in the department was entitled to be promoted as Registrar Qanoongo, however he was not promoted to the post and therefore he had to file a clam petition No. 160/1990 before - Public Services Tribunal at Luc-know. His claim petition was allowed On the basis of the judgment of the Tribunal, petitioner was allowed selection grade benefits of one increment on his completion of 10 years' service in the cadre of Registrar Qanoongo w.e.f. 14.8.1984. He was given first promotional post of Assistant Land Record Officer w.e.f. 14.8.1991. In accordance with the Government order dated 12.3.2001 referred to in Para4 (10) of the claim petition, petitioner was allowed second promotional pay scale of Rs. 8000/- after continuous service of 24 years to the post of Tehsildar on 14.8.2000. Collector fixed his pay at Rs. 8000/- and after annual increment his basic pay was fixed to Rs. 8275/- per month. In the meanwhile during 2003, an inspection was conducted by Addl. Commissioner, Revenue and .the report of the inspection dated 28.3.2003 is Annexure-1A which was forwarded to Collector by Chief Commissioner Dehradun wherein it was alleged that the pay of the petitioner was wrongly fixed while granting second promotional pay scale of Rs. 8000/- and therefore a recovery of Rs. 1,43,498/- was imposed on the petitioner. The amount was recovered from the petitioner after his retirement. 3. Respondents filed their written statement and stated that the second promotional pay scale was wrongly fixed and therefore petitioner was asked to refund the amount. Petitioner on 27.7.2005 filed an affidavit stating that a sum of Rs. 1,43,498/- be recovered from his pension and gratuity and he has no objection, if recovery is made from him. 3. Respondents filed their written statement and stated that the second promotional pay scale was wrongly fixed and therefore petitioner was asked to refund the amount. Petitioner on 27.7.2005 filed an affidavit stating that a sum of Rs. 1,43,498/- be recovered from his pension and gratuity and he has no objection, if recovery is made from him. On the willingness of the petitioner which he expressed by way of filing an affidavit, the above sum was recovered from the petitioner, therefore the petitioner cannot disown the affidavit. As regards fixation of the pay of second promotional scale, it has been stated that the petitioner was entitled only for amended pay scale of Rs. 6500-10500/ - in accordance with the Government order dated 31.12.1997 and not entitled for the scale of Rs. 8000-135000/- and therefore petitioner was wrongly placed in the scale of Rs. 8000-13500/-. 4. Heard learned counsel for the petitioner Sri JP.Kansal and Sri Umesh Dhaundiyal, learned Assistant Presenting Officer for the respondents. 5. Admittedly, petitioner was allowed second promotion after completing continuous and satisfactory service of 24 years. On perusal of the "pay fixation office order dated 1.9.2001", Annexure-A-9, it is observed that the pay scale was fixed by Addl. District Magistrate from 14.8.2000 in the scale of Rs. 8000-13500/- on 1.8.2001. Petitioner had no role in fixation of his pay. However, after receiving inspection note of the Addl. Commissioner Revenue (Annexure-A1), an excess payment of Rs. 1,43,498/-was worked out against the petitioner. 6. Aggrieved with the inspection report, petitioner made representation dated 19.6.2003, Annexure-10(A), wherein petitioner claimed that he was rightly allowed second promotional pay scale of Rs. 8000-13500/- vide office order dated 1.9.2001 and inspection report has no basis. The said representation was forwarded to State Government by District Collector vide his letter dated 19.3.2003 and reminder dated 17.7.2004, but no decision was taken by the Government on the representation of the petitioner. The petitioner also filed complaint against the alleged recovery before Lokayukta, Dehradun. In the absence of any final decision of the Government, the petitioner was asked to file an affidavit and admit that his pay was wrongly fixed and also asked to file his consent for recovery of Rs. 1,43,498/- so that he may get his retrial benefits. Ld. Counsel for the petitioner submitted that in these circumstances, petitioner was forced to file such affidavit on 2.7.2005 as he was retiring on 21.7.2005. 1,43,498/- so that he may get his retrial benefits. Ld. Counsel for the petitioner submitted that in these circumstances, petitioner was forced to file such affidavit on 2.7.2005 as he was retiring on 21.7.2005. Therefore such affidavit being taken under duress has no legal implications. 7. It is apparent on the face of record that pay fixation was done by the competent authority on second promotion of the petitioner by office order dated 1.9.2001, (Annexure-9) and he continued to receive the pay and allowances at the same rate. His pay scales were reduced to Rs.4000-6000/- on the basis of inspection report dated 28.3.2003 (not audit report) issued from the office of Chief Revenue Commissioner, Uttarakhand (Annexure-A1) to Collector Dehradun. It is well settled principle of service jurisprudence that the reduction of pay is a major punishment which cannot be awarded without proper enquiry and affording reasonable opportunity of explaining the circumstances to the delinquent employee. In the matter of Bahgwan Shukla Vs. Union of India 1994 LADIC pg. 2493, Hon'ble supreme Court held that, "In cases where pay is 'recovered, the employees must be afforded an opportunity to show cause. In the absence of such show cause notice, the principles of natural justice are violated." The petitioner not only made representation to the Collector but also filed a complaint before Lokayukta of the State. 8. The arguments of Ld. A.P.O. that since petitioner has accepted the recovery on account of wrong fixation of pay scale, therefore there was no need to issue any notice to the petitioner and there is no violation of any natural justice, cannot be accepted. It may be stated that though the inspection report was prepared on 28.3.2003 and petitioner filed his objection on 9.7.2003, however no decision was taken by the appointing authority till the date of his superannuation Ld. Counsel for the petitioner vehemently argued that instead of deciding the controversy, the petitioner was forced to file an affidavit and accept the wrong fixation of the' pay scale. 9. In view of the facts and circumstances of the case, the appointing authority of the petitioner was required to issue a notice to the petitioner along with the copy of the inspection report but there is no such notice on the record. 9. In view of the facts and circumstances of the case, the appointing authority of the petitioner was required to issue a notice to the petitioner along with the copy of the inspection report but there is no such notice on the record. It appears that neither any enquiry was made nor any opportunity was afforded to the petitioner regarding wrong fixation of the higher pay scale. The inspection note has been made sole basis for the recovery which is against the principle of natural justice. The Government to whom the representations were referred by the Collector for decision, have been sleeping over the matter for two years i.e. till his retirement. No speaking order regarding wrong fixation has been made nor the order dated 1.9.2001 regarding fixation of pay has been modified by the competent authority. In these circumstances, admission of the petitioner cannot be taken with freewill or without coercion. In our opinion, there has been gross violation of natural justice and therefore the recovery made against the petitioner after his retirement from his retrial benefits, is against the law and procedure and cannot be sustained. 10. In view of the aforesaid discussion, we are of the view that the petitioner is entitled to receive back Rs. 1,43,498/- recovered from the retrial benefits of the petitioner with simple interest @ 6% per annum till the payment is made to the petitioner. 11. Respondents, in their discretion may proceed against the petitioner on the basis of the inspection note of the Revenue Commissioner and after undergoing proper procedure, may pass appropriate order deemed fit in the circumstances. ORDER The petition is allowed partly. The respondents/State shall refund sum of• Rs. 1,43,498/- with simple interest @ 6% per annum till payment is made. The respondents, in their discretion may proceed with the matter •from the stage inspection note was forwarded to the Collector. The appointing authority of the petitioner may pass speaking order regarding excessive payment to the petitioner as a result of wrong fixation of pay on second promotion after hearing the petitioner.