K. v. Ajith Kumar VS State of Kerala represented by its Secretary To Government, Power Department
2017-06-19
NAVANITI PRASAD SINGH, RAJA VIJAYARAGHAVAN V.
body2017
DigiLaw.ai
JUDGMENT : Navaniti Prasad Singh, J. 1. The appellant is aggrieved by the judgment of the learned Single Judge dated 22.2.2017 passed in W.P.(C) No.29622 of 2011, whereby, the writ petition filed by him was dismissed. 2. We have heard learned counsel for the appellant and learned counsel for the Kerala State Electricity Board (for short, the 'Board') at length and with their consent, we are disposing of this appeal at this stage itself. 3. The facts are not in dispute. The appellant was a lineman under the Board. Three years' prior to his superannuation, he was temporarily promoted to the post of Cashier with a clear stipulation that he must clear the departmental examination for this purpose or else he would be reverted. He was also asked to give Ext.P2 undertaking as per the promotion order, clearly stating that the temporary appointment gives him only a right to draw pay in the scale of Junior Assistant/Cashier “during the period that I am holding that post”. The promotion order also had clause 12, which clearly stated that where temporary appointments were made and subsequent reversions are effected, a person would be entitled to pay fixation at the normal scales and would not be eligible for pay protection or pay receipt in the temporary post of Cashier. The writ petitioner/appellant was so promoted/appointed on 24.8.2007 and continued to work as temporary cashier till 30.11.2010. It is not disputed that he did not clear the departmental examination. He superannuated while working as a temporary cashier. When his retiral dues were calculated, there was an objection. The objection was that since he had not passed the departmental examination, he would not be entitled to remuneration for the temporary post held by him and hence, the same had to be recovered. His retiral dues were calculated on the basis of his reverted position. Accordingly, the impugned order was passed and consequently recovery was also effected. It is not in dispute that the impugned order had significant adverse civil consequences. If recovery of money from his retiral dues was effected, the same will down grade his pensionary benefits. No opportunity was granted to the writ petitioner/appellant to explanation or defend himself. On the above facts, writ petition was filed assailing the actions of the Board.
It is not in dispute that the impugned order had significant adverse civil consequences. If recovery of money from his retiral dues was effected, the same will down grade his pensionary benefits. No opportunity was granted to the writ petitioner/appellant to explanation or defend himself. On the above facts, writ petition was filed assailing the actions of the Board. The learned Single Judge did not go into the question of violation of principles of natural justice, but, decided the writ petition on merits and dismissed the same. 4. We would not do the same. For, once an order is passed or an action is taken in violation of the principles of natural justice, such an order cannot be sustained. Such an order would be void ab initio. If that be so, then, the proper relief to be granted to a litigant is to relegate him to the position prior to the impugned order, giving liberty to the authorities to take a decision, after hearing the party, in accordance with law. An appeal would not be an adequate remedy against an order, which is in violation of the principles of natural justice, for, the law does not contemplate an unfair proceeding followed by a fair appeal. It would almost amount to taking away one jurisdiction by unfair practice. Refer to the case of Institute of Chartered Accountants of India v. L.K. Ratna and others [ AIR 1987 SC 71 ], and in particular, what is stated in paragraph 17 thereof. Once it is found that any order or action suffers from the violation of principles of natural justice, it would be inadvisable for this Court to go into any other matter. It would be open to the authorities to hear the writ petitioner/appellant and then take a decision in the matter. Thus, the actions taken have to be set aside and the authorities have to be directed to reconsider the matter at the very inception. 5. However, this does not apply to recoveries sought to be made. We have already referred to the undertaking given as well as clause 12 of the promotion order, Ext.P2. The writ petitioner/appellant did not commit any fraud or misrepresentation nor did he persuade the authorities to pay him the remuneration of temporary cashier. He was duly promoted under the 20% quota subject to passing of departmental examination.
We have already referred to the undertaking given as well as clause 12 of the promotion order, Ext.P2. The writ petitioner/appellant did not commit any fraud or misrepresentation nor did he persuade the authorities to pay him the remuneration of temporary cashier. He was duly promoted under the 20% quota subject to passing of departmental examination. The fact remains that he worked as a cashier. The undertaking clearly stipulated that upon reversion he was entitled only to the higher remuneration for the time for which, he had so worked. This being so, the Board having asked the appellant to discharge the duties of Cashier cannot, for the said period, reduce his remuneration to that of the Lineman. That would also be against the principles enunciated by the Apex Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) [ (2015) 4 SCC 334 ], wherein, it has been clearly held that recoveries cannot be made from employees after their superannuation in such situations. Thus, we have no option but to allow the appeal, setting aside the judgment of the learned Single Judge as also the order as contained in Ext.P4, being order of the Chief Engineer (HRM) dated 5.7.2011 and direct him to hear the petitioner/appellant before taking any decision in the matter. With the aforesaid observation, the writ appeal stands allowed. The authorities must hear and decide the matter at the earliest, preferably, within three months from the production of a copy of this judgment before them.