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2018 DIGILAW 351 (UTT)

RAM SINGH GUSAIN v. KUMAUN UNIVERSITY

2018-07-03

MANOJ K.TIWARI

body2018
JUDGMENT Hon'ble Manoj K. Tiwari, J. (Oral) 1. By means of this petition, petitioner has sought following reliefs: (a) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 23.5.2018 (Annexure-10) passed by respondent no. 1 & 2 and order dated 30.05.2018 (Annexure-11) passed by respondent no. 3 (b) Issue a writ, order or direction in the nature of Mandamus commanding and directing the respondents to pay the entire arrears of salary w.e.f 15.2.1986 to 25.1.2017 including the 80% remaining amount of VI Pay Commission and the entire arrears of VI Pay Commission within the stipulated time as this Hon'ble Court may deem fit and proper along with 18% interest of the petitioner. 2. During the course of argument, learned counsel for the petitioner submits that he is not pressing relief Clause No. (b) and he further seeks permission to withdraw the said relief with liberty to file fresh, at an appropriate stage. 3. In the interest of justice, permission granted with the aforesaid liberty. 4. According to the petitioner, he was appointed as a Lab Assistant in Kumaun University, Nainital (from hereinafter referred to as “University") on 15.02.1986 and he is thereafter serving continuously on the said post. It is the case of the petitioner that his pay scale was revised in terms of Government Order dated 21.05.1980 vide order dated 25.01.2017 passed by the University and petitioner's basic pay scale was fixed at Rs. 19,690/- as on 01.01.2016. However, by means of subsequent order dated 23.05.2018, issued by the Registrar of the University, benefit of pay revision granted to the petitioner has been withdrawn and by consequential order dated 30.05.2018, passed by Assistant Accounts Officer of D.S.B. Campus, Nainital, basic pay of the petitioner has been reduced to Rs. 18,300/-. Thus, aggrieved, petitioner has filed this petition challenging the order passed by the Registrar on 23.05.2018 and the consequential order dated 30.05.2018 passed by Assistant Accounts Officer. 5. The first and foremost contention of learned counsel for the petitioner is that he was not heard before passing the impugned orders and this aspect has been mentioned in para 18 of the writ petition, which is extracted below:- “18. That by virtue of order dated 23.05.2018 and refixation order dated 31.05.2018 the salary of the petitioner has been reduced from about Rs. 70,000/- to Rs. That by virtue of order dated 23.05.2018 and refixation order dated 31.05.2018 the salary of the petitioner has been reduced from about Rs. 70,000/- to Rs. 52,000/- that too without any notice, show cause or without providing any opportunity of hearing to the petitioner. Reduction of a pay in lower pay scale is amounts to major penalty and the major penalty cannot be imposed on the employee without holding the regular inquiry, notice/show cause and without providing the opportunity of hearing. Here in the instant case the salary of the petitioner has been reduced without following the aforesaid procedure hence it is in violation of principal of natural justice and is hit by Article 311 (2) of Constitution of India." 6. This Court vide order dated 02.07.2018 directed learned counsel for the University/respondents to seek instructions in the matter. Today Mr. B.D. Upadhyay, Senior Advocate assisted by Ms. Mamta Joshi, learned counsel for the University submits that although petitioner was not personally heard, however, all the employees, including the petitioner, were heard through Employees Union of which petitioner is also a member. He further submits that office bearers of the Employees Union were heard, before withdrawing the revised pay scale. 7. In the opinion of this Court, withdrawal of benefit of pay revision entails civil consequences, therefore, before passing any order adversely affecting the petitioner, he was required to be heard. The contention of learned counsel for the respondent is that petitioner was heard through a Union, which cannot be sustained in the eyes of Law. When petitioner is personally present in the University campus, then there was no occasion not to provide opportunity of personal hearing to him. He alone can defend the earlier order, whereby his pay scale was revised and office bearers of the Union may not have knowledge about the facts and circumstances of petitioner's case. 8. Since, the impugned orders have been passed in disregard of the principles of natural justice, which goes to the root of the matter, therefore, impugned orders dated 23.05.2018 and 30.05.2018 are liable to be quashed. 9. Accordingly, the writ petition is allowed. The impugned order dated 23.05.2018 and order dated 30.05.2018, passed by Registrar, Kumaun University, Nainital and Assistant Accounts Officer, DSB Campus, Nainital, respectively, are hereby quashed. 10. However, University shall be at liberty to pass appropriate orders afresh, after giving personal hearing to the petitioner. 11. 9. Accordingly, the writ petition is allowed. The impugned order dated 23.05.2018 and order dated 30.05.2018, passed by Registrar, Kumaun University, Nainital and Assistant Accounts Officer, DSB Campus, Nainital, respectively, are hereby quashed. 10. However, University shall be at liberty to pass appropriate orders afresh, after giving personal hearing to the petitioner. 11. No order as to costs.