Ram Singh vs State Of U.P Thru Prin Secy Home Lko ...
2018 Latest Caselaw 1556 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R. 
 
Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 16542 of 2016
 

 
Petitioner :- Ram Singh
 
Respondent :- State Of U.P Thru Prin Secy Home Lko & Ors
 
Counsel for Petitioner :- Birendra Prasad Singh,Shrawan Kumar Verma,Siddhartha Srivastava
 
Counsel for Respondent :- C.S.C
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and Sri Suresh Singh, learned Standing Counsel for all the respondents.

2. By means of the present petition, the petitioner has prayed for the following reliefs:-

"(i) a writ or writs, direction or directions and/or order or orders in the nature of certiorari quashing the impugned order dated 16.03.2016 passed by State Police Motor Vehicle Officer, Sitapur, as contained in Annexure No.1 to the writ petition, and/or

(ii) a writ or writ, direction or directions and/or order or orders in the nature of mandamus restraining the respondents in deducting an amount of Rs.10,000/- per month from the salary of the petitioner, and/or

(iii) a writ or writ, direction or directions and/or order or orders in the nature of mandamus directing the respondents to refund the amount, which has already been deducted/recovered without any authority/order from the salary of the month of May and June 2016, and/or

(iv) a writ or writ, direction or directions and/or order or orders in the nature and manner which this Hon'ble Court may deem fit and proper in the circumstances of the case including an order of awarding costs of the instant writ petition in favour of the petitioner and against the respondents, hereto."

3. The case set forth by the petitioner, shorn of all the unnecessary details, is that he was initially appointed in the year 1979 as Carpenter. In the  year 1986 the nomenclature of the post of Carpenter was changed to one of Constable Technical in the then pay scale of 315-440. When the previous service of the petitioner was not counted from the year 1979, he preferred a claim petition in the year 2012 before the learned State Public Services Tribunal, Lucknow vide Claim Petition No.2025 of 2012, inter alia, praying for being granted all the service benefits like time scale, personal pay scale, additional increments and promotional pay scale taking into consideration his services from 18.4.1979. The learned Tribunal vide judgment and order dated 14.3.2014 allowed the claim petition and directed the respondents to grant the service benefits to the petitioner after computing his services from 18.4.1979 to 6.8.1986 towards his service period. Being aggrieved against the said judgment, the State-respondents preferred Writ Petition (S/B) No.950 of 2014 In re: State of U.P. and others vs. Ram Singh and another before this Court. In the meanwhile, the respondents taking into consideration the judgment of the learned Tribunal, refixed the pay scale and granted him the arrears thereof vide order dated 7.3.2015, a copy of which is Annexure-7 to the writ petition. A perusal of the said order would indicate that the said order was issued subject to decision of the pending writ petition before this Court filed by the State Government against the order of the learned Tribunal.

4. It transpires that subsequent thereto an Audit Inspection was conducted by the Audit Inspection Team which scrutinised the pay fixation and payment of salary to the petitioner in pursuance to the order passed by the learned Tribunal and arrived at a decision that the pay fixation of the petitioner has been done wrongly and consequently the impugned order dated 16.3.2016 was passed refixing the pay scale of the petitioner. A copy of the said order is Annexure-1 to the writ petition.

5. In the meanwhile, the writ petition preferred by the State Government namely Writ Petition (S/S) No.950 of 2014 came to be dismissed by this Court vide judgment and order dated 12.1.2017, meaning thereby that the said judgment of the learned Tribunal dated 14.3.2014 came to be affirmed.

6. The learned counsel for the petitioner, while indicating the aforesaid facts, has specifically contended that (a) the impugned order dated 16.3.2016 has been passed without affording any opportunity of hearing, (b) no misrepresentation or unfair act has been done by the petitioner in fixation of his pay, (c) re-fixation of his pay without affording any opportunity of hearing and directing for recovery therefrom is in gross violation of the principles of natural justice and (d) the impugned order is in the teeth of the law laid down by the Hon'ble Supreme Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer) and others reported in (2015)4 SCC 334. Thus, the learned counsel for the petitioner submits that the impugned order merits outright quashing on the aforesaid grounds alone.

7. Per contra, learned Standing Counsel, while taking this Court through the averments contained in the counter affidavit, contends that the pay scale of the petitioner has been fixed wrongly and consequently the impugned order has correctly been passed and once the petitioner was not found entitled for higher fixation of pay, consequently impugned order was passed and the higher salary drawn by him is sought to be recovered. So far as the non grant of opportunity of hearing is concerned, learned Standing Counsel has argued that once the refixation was itself done wrongly, as such there was no occasion for granting any opportunity of hearing to the petitioner. Learned Standing Counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh reported in (2016)14 SCC 267 to contend that even in case of wrong fixation of pay, correct fixation and recovery therefrom can be made particularly taking into consideration the fact that fixation of pay was in pursuance to the direction issued by the learned Tribunal which had been fixed wrongly.

8. This Court has heard the learned counsel for the contesting parties and perused the record.

9. It is an undisputed fact that the initial fixation had been done by the respondents taking into consideration the judgment of the learned Tribunal passed in the claim petition vide refixation order dated 7.3.2015. It is only on the basis of the inspection done by the Audit Inspection Team that the respondents arrived at a finding that refixation of the pay of the petitioner done in pursuance of the order of Tribunal, has been done wrongly and thereafter proceeded to pass the impugned refixation order dated 16.3.2016. The fact of the matter remains that prior to refixing the pay of the petitioner, no opportunity of hearing has been afforded to the petitioner per which the petitioner could have indicated the correct facts or could have justified the earlier fixation done by the respondents dated 7.3.2015 which was done in pursuance to the direction of the learned Tribunal and the said judgment of the learned Tribunal having been affirmed by this Court vide judgment and order dated 12.1.2017. Even otherwise, the fact that the judgment of the learned Tribunal attained finality in view of the dismissal of the writ petition filed by the State Government against the judgment and order of the Tribunal would also go to show that the judgment of the learned Tribunal and findings thereof having been affirmed by this Court and consequently the impugned order dated 16.3.2016 could not have been passed by the respondents refixing the pay of the petitioner without hearing the petitioner.

10. In this regard, the Court may consider the law laid down by the Hon'ble Supreme Court with regard to an order having civil consequence being passed without hearing the effected parties.

11. The Hon'ble Supreme Court in the case of Mahipal Singh Tomar vs. State of U.P.  reported in (2013)16 SCC 771 has held as under:-

15. In administrative law, the "rules of natural justice" have traditionally been regarded as comprising audi alteram partem and nemo judex in sua causa. The first of these rules requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation. The second rule disqualifies a person from judging a cause if he has direct pecuniary or proprietary interest or might otherwise be biased. The first principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of a fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and the right to argue. This has been used by the courts for nullifying administrative actions. The premise on which the courts extended their jurisdiction against the administrative action was that the duty to give every victim a fair hearing was as much a principle of good administration as of good legal procedure.

16. Under the European Convention on Human Rights and Fundamental Freedoms of 1950, it is provided that:

"6. Right to a fair trial.--(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

17. The rule of audi alteram partem was recognised in R. v. University of Cambridge R. v. University of Cambridge, 1723 1 Str 557. In that case, the University of Cambridge had deprived Bentley, a scholar, of his degrees on account of his misconduct in insulting the Vice-Chancellor's Court. The action of the University was nullified by the Court of King's Bench on the ground that deprivation was unjustified and, in any case, he should have been given notice so that he could make his defence. In that case, it was noted that the first hearing in human history was given in the Garden of Eden, in the following words: (ER p. 704)

"... I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve also."

18. In Capel v. Child 1832 2 C&J 558, the Court of Exchequer gave a lucid exposition of the rule of audi alteram partem. That was a case in which a Bishop had appointed a Curate, at the Vicar's expense, to perform the duties of the Vicar whom the Bishop considered to be negligent. While quashing the action of the Bishop, Bayley, J. said: (ER p. 244)

"... When the bishop proceeds on his own knowledge; I am of the opinion also that it cannot possibly, and within the meaning of this Act, appear to the satisfaction of the bishop, and of his own knowledge, unless he gives the party an opportunity of being heard, in answer to that which the bishop states on his own knowledge to be the foundation on which he proceeds."

19. In Cooper v. Wandsworth Board of Works Cooper v. Wandsworth Board of Works, 1863 14 CB NS 180, the action of the Local Board of Works in demolishing a building raised by a builder was declared to be void for want of hearing. The Board defended its action on the premise that it was purely administrative in character. Erle, C.J rejected this plea and observed: (ER pp. 417-18)

"... I think the Board ought to have given notice to the plaintiff, and to have allowed him to be heard. The default in sending notice to the Board of the intention to build, is a default which may be explained. There may be a great many excuses for the apparent default. The party may have intended to conform to the law. He may have actually conformed ... though by accident his notice may have miscarried ... I cannot conceive any harm that could happen to the District Board from hearing the party before they subjected him to a loss so serious as the demolition of his house; but I can conceive a great many advantages which might arise in the way of public order, in the way of doing substantial justice, and in the way of fulfilling the purposes of the statute, by the restriction which we put upon them, that they should hear the party before they inflict upon him such a heavy loss. I fully agree that the legislature intended to give the District Board very large powers indeed: but the qualification I speak of is one which has been recognised to the full extent. It has been said that the principle ... is limited to a judicial proceeding, and that a District Board ordering a house to be pulled down cannot be said to be doing a judicial act. I do not quite agree with that.... I think the appeal clause would evidently indicate that many exercises of the power of a District Board would be in the nature of judicial proceedings...."

Willes, J. said: (Cooper case, ER p. 418)

"I am of the same opinion, I apprehend that a tribunal which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds: and that the rule is of universal application, and founded upon the plainest principles of justice. Now, is the Board in the present case such a tribunal? I apprehend it clearly is...."

Byles, J. said: (Cooper case, ER p. 420)

"... It seems to me that the Board are wrong whether they acted judicially or ministerially. I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions, beginning with Bentley case, and ending with some very recent cases, establish that, although there are no positive words in a statute, requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature."

The same principles were applied in Smith v. R. 1878 LR 3 AC 614 PC involving cancellation of a Crown lease and in Queensland Hall v. Manchester Corpn. 1915 84 LJ Ch 732 involving condemnation of a house in Manchester as unfit for human habitation.

20. In Board of Education v. Rice 1911 AC 179 HL, the question which arose for consideration before the House of Lords was whether the Board of Education properly determined a dispute between a body of school managers and the local education authority of Swansea. The local authority had refused to pay teachers in church schools at the same rate as teachers in the authority's own schools. The teachers gave notice to leave, and the managers complained that the local authority was failing to keep the schools efficient as the Education Act required. A public inquiry was held before a Barrister who made a report in favour of the managers, but the Board of Education decided in favour of the local authority. The Court of Appeal upheld the award of certiorari and mandamus to quash the decision of the Board of Education. The House of Lords confirmed the decision of the Court of Appeal. Lord Loreburn observed that although the action of the Board of Education might be administrative, in such cases it will have to ascertain the law and also the facts, and even though the Board may not be required to act judicially and was free to obtain information in any manner it liked, what was necessary for it was to give a fair opportunity to those who are parties to the controversy for correcting or contradicting anything prejudicial to their view.

21. In Errington v. Minister of Health 1935 1 KB 249, the Jarrow Corporation made a clearance order under the Housing Act, 1930 in respect of an area which included the properties owned by the appellants. This order was objected to by the owners on the ground that the houses in question were fit for human habitation. The Minister held a public inquiry. At the conclusion of the inquiry some more information was sent by the Corporation to the Minister. The owners were not heard thereafter and were not invited to the discussion between the Ministry and the Council representatives. The order was confirmed by the Minister. The Court of Appeal reversed the decision. Greer, L.J observed: (KB pp. 261 & 264)

"... I am satisfied that there was nothing wrong in the Minister receiving those communications from the Council. It was a matter on which the Council were entitled to stress the view that was already implied in the clearance order that they had made in the first instance, but I think it would have been a wise precaution on the part of the Minister when he received those further communications from the Council pressing for the confirmation of the order to communicate those letters or verbal persuasions to the other side, the objectors, and ask whether they had anything further to say on the matter.

***

... the Ministry were acting in a quasi-judicial capacity they were doing what a semi-judicial body cannot do, namely, hearing evidence from one side in the absence of the other side, and viewing the property and forming their own views about the property without giving the owners of the property the opportunity of arguing that the views which the Ministry were inclined to take were such as could be readily dealt with by means of repairs and alterations to the buildings."

Similar view was expressed by the House of Lords in Fairmount Investments Ltd. v. Secy. of State for the Environment 1976 1 WLR 1255.

22. In Ridge v. Baldwin 1964 AC 40, the Chief Constable of Brighton had been tried and acquitted on a criminal charge of conspiracy to obstruct the course of justice. Two other police officers were convicted, and the Judge twice took the opportunity to comment adversely on the Chief Constable's leadership of the force. Thereupon the Brighton Watch Committee, without giving any notice or offering any hearing to the Chief Constable, unanimously dismissed him from the office. The appeal filed by him was also dismissed. His claim against the dismissal was rejected by the High Court and the Court of Appeal. The House of Lords however reversed the decisions of the High Court and the Court of Appeal. In his judgment, Lord Reid observed:

"The mere fact that the power affects rights or interests is what makes it 'judicial', and so subject to the procedures required by natural justice. In other words, a power which affects rights must be exercised 'judicially' i.e fairly, and the fact that the power is administrative does not make it any the less 'judicial' for this purpose."

23. In Attorney General v. Ryan 1980 AC 718, the Privy Council said: (AC p. 727 D)

"... the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority; and if he fails to do so, his purported decision is a nullity."

24. In R. v. Commission for Racial Equality, ex p Hillingdon London Borough Council 1982 AC 779Lord Diplock observed: (AC p. 787 F)

"Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision."

25. In Chief Constable of North Wales Police v. Evans 1982 1 WLR 1155, a police probationer was removed by the Chief Constable on account of allegations about his private life but he was not given any fair opportunity to refute the material collected against him. The House of Lords declared the action of the Chief Constable as unlawful.

26. In R. v. Asstt. Commr. of Police of Metropolis, ex p Howell 1986 RTR 52 CA, refusal to renew licence of a taxi driver on the ground of an adverse medical report was quashed because the medical report was not disclosed to him.

27. In Kanda v. Govt. of Malaya 1962 AC 322, the dismissal of the police officer was declared void because the adjudicating officer was in possession of a report of inquiry which was not made available to the officer concerned. While holding that the rules of natural justice have been violated, Lord Denning observed: (AC p. 337)

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them."

28. In Shareef v. Registration of Indian and Pakistani Residents Commr. 1966 AC 47, a decision of the Industrial Injuries Commissioner was set aside because he had relied on some report which was not available to the parties and no opportunity was given to them to offer their comment on the report before the decision was taken.

29. The question whether even in the absence of statutory provisions requiring compliance with natural justice, the court could invoke those principles was answered in Wiseman v. Borneman 1971 AC 297 in the following words: (AC p. 308 C)

"... For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

30. In Lloyd v. McMahon 1987 AC 625, Lord Bridge said: (AC pp. 702 H-703 B)

"... In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

12. Likewise, the Hon'ble Supreme Court in the case of State of Orissa vs. Binapani Dei reported in A.I.R. 1967 SC 1269 has held as under:-

"12. ... We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State...."

13. In another case reported in (1969)2 SCC 262 In re: A.K. Kraipak vs. Union of India, the Hon'ble Supreme Court has held as under:-

"13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate, if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power."

14. Again the issue of opportunity of hearing came up before the Hon'ble Supreme Court in the case of Sayeedur Rehman vs. State of Bihar reported in (1973)3 SCC 333 wherein the Hon'ble Supreme Court held as under:-

"11. ... This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties. ... The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order dated 22-4-1960, is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties."

15. Likewise the Hon'ble Supreme Court in the Constitution Bench judgment in the case of Maneka Gandhi vs. Union of India reported in (1978)1 SCC 248 held as under:-

"8. ... '... although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.' (Cooper case, p. 420)

The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. ...

9. ... Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. ... The inquiry must, therefore, always be: does fairness in action demand that an opportunity to be heard should be given to the person affected?"

16. Again the Hon'ble Supreme Court in its famous judgment in the case of Mohinder Singh Gill vs. Chief Election Commissioner reported in (1978)1 SCC 405 held as under:-

"76. Fair hearing is thus a postulate of decision making cancelling a poll, although fair abridgement of that process is permissible. It can be fair without the rules of evidence or form of trial. It cannot be fair if apprising the affected and appraising the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law.

77. ... The silence of a statute has no exclusionary effect except where it flows from necessary implication."

17. Once again the issue of natural justice came up for consideration before the Constitution Bench of the Hon'ble Supreme Court in the case of Union of India vs. Tulsiram Patel reported in (1985)3 SCC 398 wherein the Hon'ble Supreme Court held as under:-

"72. The principles of natural justice are not the creation of Article 14. Article 14 is not their begetter but their constitutional guardian.

***

95. ... The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially."

18. In an issue pertaining to applicability of rule of natural justice in the absence of any such provision in the statutory rules or regulations, the Hon'ble Supreme Court in the case of U.P. Warehousing Corporation vs. Vijay Narayan Vajpayee reported in (1980)3 SCC 459 held that the principles of natural justice are still required to be follows. The relevant observations of the Hon'ble Supreme Court are reproduced as under:-

"14. ... Even if at the time of the dismissal [of respondent employee of U.P State Warehousing Corporation], the statutory regulations had not been framed or had not come into force, then also, the employment of the respondent was public employment and the statutory body, the employer, could not terminate the services of its employee without due enquiry in accordance with the statutory regulations, if any in force, or in the absence of such regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi-judicial character. ... The court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the appellant Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment."

19. Keeping in view the aforesaid facts and circumstances of the case and the law laid down by the Hon'ble Supreme Court in the aforesaid cases, this Court is of the view that the impugned order dated 16.3.2016 is patently bad in the eyes of law the same having been passed without affording any opportunity of hearing to the petitioner and being in gross violation of principles of natural justice apart from the fact the order of the Tribunal on the basis of which the fixation was done has been affirmed by this Court with the dismissal of the writ petition preferred by the respondents.

20. Consequently, the writ petition is partly allowed. A writ of certiorari is issued quashing the impugned order dated 16.3.2016 (Annexure-1 to the writ petition).  The matter is remitted back to the competent authority for passing a fresh order after affording due opportunity of hearing to the petitioner by issue of a show cause notice indicating as to how the earlier fixation order dated 7.3.2015 is bad. The competent authority shall thereafter proceed to pass an order after considering the objections/reply of the petitioner. Consequences to follow. Let the aforesaid exercise be completed by the respondents within a period of two months from the date a certified copy of this order is presented before them.

Order Date :- 17.7.2018

Rakesh

(Abdul Moin, J.)