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Himachal Pradesh High Court · body

2011 DIGILAW 2382 (HP)

Ravinder Singh v. State of H. P.

2011-08-10

SURINDER SINGH

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JUDGMENT Surinder Singh, J (oral): 1. An Original Application No.400 of 2004 was filed by the petitioner before the then State Administrative Tribunal and after its abolition, it was transferred to this Court and registered as CWP(T). 2. Precisely, the case of the petitioner is that he was engaged on 9.6.1984 as Helper on daily wages in the office of Fisheries department at Dada Siba. Later his services were regularized and as per his option, he was appointed as Chowkidar in the pay-scale of `7501440 (revised `2620-4140) on 13.3.1991 while he was posted as such at Dameta in the office of Fisheries Officer. He was also promoted as Field Assistant in the month of October, 1998. 3. The petitioner alleged that since he failed to oblige respondent No.3 to do non-official duties at his residence, therefore due to the circumstances created by him, he was forced to resign on 5.4.1999. When his resignation was under process, he was transferred to Pong Dam to the office of Fisheries Officer located at Sathana. He joined there in the month of August, 1999, but his woes did not end there and respondent No.3 continued to harass him. Later he withdrew his resignation on 9.4.1999 at the behest of respondents No.2 and 3, thinking that respondent No.3 would allow the petitioner, to settle down and serve the department. Thus, he continued in service, but again respondent No.3 insisted upon the petitioner to perform the duties at his residence to which he declined. Further even during the time when the construction work of Pong Fisheries Dam was being inspected on 29.11.2001 by higher authorities, the petitioner made certain allegations against respondent No.3 to the Inspecting Officers, which caused bad-blood and it became difficult for him to continue in service, ultimately, he submitted his resignation (Annexure A-1) on 3.10.2003. There was no intimation with respect to acceptance of the resignation, as such the petitioner vide Annexure A-1 dated 3.10.2003 withdrew his resignation and made request for ‘voluntary retirement’ vide Annexure A-2 dated 6.11.2003, and vide office order dated 2.12.2003 (Annexure A-4), the request of the petitioner was acceded to. He was ordered to be retired voluntarily w.e.f. 29th February, 2004 (F.N.), Pension papers were directed to be submitted to respondent No.3. He was ordered to be retired voluntarily w.e.f. 29th February, 2004 (F.N.), Pension papers were directed to be submitted to respondent No.3. When the petitioner was likely to comply with the aforesaid orders, a corrigendum (Annexure A-7) was issued on 21.7.2004 that voluntary retirement be read as resignation. It reads as under:- “OFFICE OF THE ASSISTANT DIRECTOR OF FISHERIES POND DAM DIVISION, PONG DAM, DISTT.KANGRA, H.P. ‘Corrigendum’ In partial modification of this office order No.122/2003 dated 2.12.2003, pertaining to the retirement of Shri Ravinder Singh, Fisheries Field Assistant, Sathana the word ‘voluntary retirement; may be read as ‘resignation’ since the official has neither completed twenty years of qualifying service nor has crossed the age of fifty years, hence under rule 48-A of C.C.S. (Pension) Rules, 1972, the official is not entitled for voluntary retirement as well as other pensionary benefits. Asstt. Director of Fisheries Pong Dam Reservoir Division Pong Dam Distt.Kangra, H.P. Endst.No.FSH/Pong/1-132/95(E)2803-07 dated 21.7.2004 Copy forwarded to:- 1. Office order file. 2. Director-cum-Warden of Fisheries, H.P.Bilaspur. 3. Deputy Accountant General (A&E) H.P. Shimla. 4. Sh.Ravinder Singh S/o Sh. Balwant Singh, V & P.O. Rail, Teh.Jaswan Kotla, Distt. Kangra, H.P. 5. Fisheries Officer, Sathana, Distt. Kangra, H.P. Sd/- Asstt. Director of Fisheries Pong Dam Reservoir Division Pong Dam Distt.Kangra, H.P.” 4. The aforesaid corrigendum has been 5. The respondents No.1 to 3 resisted and contested the claim of the petitioner and specifically contended that the petitioner did not complete the qualifying service of twenty years and crossed the age of fifty years as per rules, therefore, he was not entitled for pre-mature/ voluntary retirement. They also denied the allegations made against respondent No.3 in the petition, thus justified the issuance of corrigendum Annexure A-7. 6. Respondent No.4-Accountant General, Himachal Pradesh though filed the reply to the petitioner, but Shri Sandeep Sharma, Assistant Solicitor General of India submitted that the case of the petitioner for pension was not forwarded to them and in case the pension case is received, it shall be dealt with on priority. 7. I have considered the rival contentions of the learned counsel for the parties and have examined the provisions relevant to the case. 8. 7. I have considered the rival contentions of the learned counsel for the parties and have examined the provisions relevant to the case. 8. As a matter of fact, pending resignation submitted by the petitioner (Annexure A-1) dated 3.10.2003 to the respondents, vide letter Annexure A-2/A addressed to the Assistant Director, Fisheries Pong Dam Division dated 6.11.2003, the petitioner made a prayer to consider it a request for ‘retirement’ and on 6.11.2003 the petitioner moved another representation (Annexure A-3) addressed to the same Officers and submitted that he is to look after his land in Rajasthan and is unable to remain in Government service, due to these reasons, he may be ordered to be retired. Thus, his request was for retirement which could be premature and voluntary, but it was accepted by the respondents vide Annexure A-4 dated 2.12.2003 as voluntary retirement, as stated above. 9. In other words, the resignation already submitted by the petitioner is superseded by his subsequent request for retirement. Now the question arises Whether the impugned corrigendum (Annexure P-7) modifying the order of the voluntary retirement could have challenged by the petitioner in the present petition and the relief has been sought to release his pension been issued without hearing the petitioner which has civil consequences? 10. The law on the point is not in doubt. In the instant case, the principle of natural justice audi alterm partem applies. It has been held in State of Punjab v. K.R. Erry and Sobhag Rai Mehta [ (1973) 1 SCC 120] by the Apex Court that where a body or authority is characteristically administrative, the principle of natural justice is also liable to be invoked if the decision of that body or authority affects individual rights or interests, and having regard to the particular situation, it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. In other words, an order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. 11. Further in Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central –I and another [(2008) 14 SCC 151], the Apex Court highlighted the underlying principle of natural justice in para-15 of the aforesaid judgment as follows:- “15. Rules of "natural justice" are not embodied rules. 11. Further in Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central –I and another [(2008) 14 SCC 151], the Apex Court highlighted the underlying principle of natural justice in para-15 of the aforesaid judgment as follows:- “15. Rules of "natural justice" are not embodied rules. The phrase "natural justice" is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly, i.e. fair play in action. As observed by this Court in A.K. Kraipak & Ors. Vs. Union of India & Ors. , the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. (Also see: Income Tax Officer & Ors. Vs. M/s Madnani Engineering Works Ltd. )”. 12. Further in para-17 of the aforesaid judgment, the Supreme Court held that even an administrative order or decision in matter involving civil consequences, has to be made consistent with the rules of natural justice, unless the statute, conferring power, excludes its application by express language. 13. Thus, any order passed in violation of the principles of natural justice save and except certain contingencies of cases, has been held to be a nullity by the Apex Court in Rajasthan State Road Transport Corporation and Another v. Bal Mukund Bairwa (2) [(2009) 4 SCC 299] as no prejudice need be proved for enforcing the fundamental rights, so also the principles of natural justice. 14. Therefore, in view of the above settled proposition of law, the corrigendum (Annexure A-7) dated 21.7.2004 issued by respondents No.1 to 3 is indefensible as it is violating the principles of natural justice, hence it is quashed and set-aside. 15. The resignation which was submitted by the petitioner (Annexure A-1) dated 3.10.2003 stands superseded and withdrawn by his subsequent prayer Annexure A-2 dated 6.11.2003 seeking retirement would not be affected. 15. The resignation which was submitted by the petitioner (Annexure A-1) dated 3.10.2003 stands superseded and withdrawn by his subsequent prayer Annexure A-2 dated 6.11.2003 seeking retirement would not be affected. Thus as a consequence, respondents No.1 to 3 are directed to consider the case of the petitioner either for giving relaxation to the petitioner under Rule 88 of CCS (Pension) Rules, 1972 or under F.R.56 (jj)(i) of the Fundamental Rules; or even alternatively under Rule 3(2) of the Himachal Pradesh Civil Services (Pre-Mature Retirement) Rules, 1976 as amended on 10.9.1987 as the petitioner had already completed 45 years after one year of filing the present petition and the respondents shall take a decision in a time bound manner i.e. preferably within four months from the date of production of the copy of this judgment, with all eligible consequences and benefits. 16. The petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stands disposed of.