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2017 DIGILAW 249 (JK)

Munshi Ram v. State

2017-05-19

B.S.WALIA

body2017
JUDGMENT : B.S. WALIA, J. 1. Short grievance of the petitioner, who is engaged as Daily Wager on 01.05.1980 and retired as Class-IV employee on 30.06.2013, is of deduction of a sum of Rs. 1,62,512/- having been made from the pension account of the petitioner on 18.02.2016 by reflecting the same as PEN RECOVERY without compliance of the principles of natural justice. Learned Counsel states that the amount in question already stands deducted, therefore, the recovery twice over, that too, without compliance of the principles of natural justice is legally unsustainable. 2. Notice was issued in the writ petition on 30.04.2016 but till date, reply has not been filed. 3. Learned Counsel for the respondents very fairly states that no opportunity of hearing was given to the petitioner before ordering and effecting the recovery. 4. Learned Counsel for the petitioner contends that non-compliance with the principles of natural justice in itself is sufficient to vitiate the impugned order. 5. I find merit in the submission of learned counsel for the petitioner. Any order which financially prejudicially effects a person can be passed only after compliance of the principles of natural justice. Reference in this connection is made to the law laid down by the Hon'ble Supreme Court in case titled State of Orissa v. Binapani Dei & Ors. 1967 AIR (SC) 1269' relevant extract of the judgment is reproduced hereunder:- 'The first respondent held office in the Medical Department of the Orissa Government. She, as holder of that office had a right to continue in service according to the rules framed under Art. 309 and she could not be removed from office before superannuation except "for good and sufficient reasons." The State was undoubtedly not precluded merely because of the acceptance of the date of birth of the first respondent in the service register, from holding an enquiry if there existed sufficient grounds for holding such enquiry and for re-fixing her date of birth. But the decision of the State could be based upon the result of an enquiry in manner consonant with the basic concept of justice. 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 fairplay. But the decision of the State could be based upon the result of an enquiry in manner consonant with the basic concept of justice. 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 fairplay. The deciding authority, it is true, is not in the position of a judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies a like to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the functions intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.' In view thereof, writ petition is allowed. Impugned order (Annexure-C dated 10.02.2016) is quashed. However, liberty is granted to the respondents to take action for effecting recovery, if any, only after compliance with the principles of natural justice and giving opportunity of hearing to the petitioner. With the aforementioned directions, the writ petition along with connected MP(s), if any, is disposed of.