Allahabad High Court
Amar Nath Singh vs Division Director , Social ... on 19 July, 2018
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 17
Case :- WRIT - A No. - 14324 of 2018
Petitioner :- Amar Nath Singh
Respondent :- Division Director , Social Forestry, Forest Division And 3 Others
Counsel for Petitioner :- Indra Raj Singh, Dharmraj Chaudhary
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Vijay Lakshmi,J.
By means of this writ petition, the petitioner has challenged two orders, viz. no. 4491 dated 1.6.2018 and 4492 dated 1.6.2018 passed by Divisional Director, Social Forestry, Forest Division, Basti (Respondent no. 1). By the first order the Divisional Director of Forest Department, Basti has ordered to recover Rs. 3,41,938/- from the petitioner which, according to him, was wrongly paid to the petitioner as pay arrears. By the second order, the petitioner has been demoted from the post of Forest Guard to the post of Gardener (Mali).
Heard Shri Indra Raj Singh, assisted by Shri Dharmraj Chaudhary on behalf of the petitioner and Shri Vijay Pratap Singh, learned Standing Counsel representing all the respondents.
Initially the petitioner was engaged in the Forest Department by the State Government on daily wage basis on 26.12.1990 and continued to perform his duties as a daily wager. In the year 2007 he filed Civil Misc. Writ Petition No. 25153 of 2007 for regularisation of his service, which was allowed by this Court vide judgment and order dated 8.9.2008. Against the aforesaid order dated 8.9.2008, the State Government filed Special Appeal (Defective) No. 540 of 2009 which was dismissed by a Division Bench of this Court vide order dated 2.1.2013. Thereafter Forest Department regularised the petitioner's services on Class IV post but fixed his salary in the minimum pay-scale excluding all allowances and increments. Being aggrieved by the aforesaid order of Forest Department, the petitioner filed Contempt Application (Civil) No. 5012 of 2012 in which this Court directed the department to pay regular pay-scale and all admissible allowances alongwith arrears to the petitioner.
A four members Selection Committee headed by Divisional Director, Social Forestry held a meeting on 2.12.2016 for considering the promotions of Class IV employee to the post of Forest Guard against the existing vacancies. The petitioner was promoted to the post of Forest Guard vide order dated 21.12.2016 passed by Divisional Director on the basis of report submitted by the Selection Committee.
The petitioner was working on the post of Forest Guard since 21.12.2016, however, the respondent no. 1, the successor in office of the Divisional Director, Social Forestry, passed the impugned orders whereby directing to recover Rs. 3,41,938/- paid to the petitioner as arrears of salary for the period between 29.1.2009 to 3.3.2014 on the ground that the petitioner had not worked on regular basis of Class IV post of Mali from 29.1.2009 to 3.3.2014. The respondent no. 1 also demoted the petitioner from the post of Forest Guard to the post of Mali by cancelling the promotion order dated 21.12.2016 passed by his predecessor Director.
Learned counsel for the petitioner has challenged both the aforesaid orders on the following grounds :-
1. The petitioner was not afforded any opportunity of hearing. No notice was issued to him before passing the aforesaid orders by the department and all of a sudden and in a very surprisingly manner the impugned orders have been passed.
2. The petitioner is a State Government employee and his services are governed by the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 under which the demotion of an employee is a major penalty. As per Rule 3 it cannot be awarded without following the procedures prescribed under Rule 7. However, the department has not adopted any procedure as provided under the aforesaid Rules and has awarded the major penalty of reduction in rank to the petitioner in an absolutely arbitrary manner.
3. Under the U.P. Government Servant Rules, there is no provision of review. However, the impugned orders have been passed by the successor in office of the Divisional Director, Forestry Department, reviewing the orders of promotion and payment of salary and allowances passed by earlier Director, in favour of the petitioner.
On the aforesaid grounds it has been prayed that the impugned orders being violative of Articles 14 and 16 of the Constitution of India and being against the principle of natural justice, be quashed by issuing a writ of certiorari. Further prayer is made that a writ in the nature of Mandamus be also issued directing the respondents to reinstate the petitioner on the post of Forest Guard and to pay him the pay-scale and allowances accordingly.
Learned Standing Counsel who is representing all the respondents has placed before the court the instructions received by the Forest Department which is taken on record. It includes a letter of respondent no. 1 i.e. the Divisional Director, Social Forestry, Forest Division, Basti and the copies of both the impugned orders. A perusal of the documents filed by learned Standing Counsel clearly shows that no opportunity of hearing was ever given to the petitioner before passing the impugned orders. In the letter sent by respondent no. 1 it has been admitted that no opportunity of hearing was given to the petitioner before passing the impugned orders. Learned A.G.A. has fairly conceded the fact that opportunity of hearing has not given to the petitioner before demoting him which is a major punishment and also before passing the order for recovery of Rs. 3,41,938/- which is a huge amount for the petitioner, who was working as Class IV employee.
Supreme Court in Shridhar vs. Nagar Palika, Jaunpur and others, AIR 1990 SC 307 has held as under :-
"It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's Order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void. "
Again in Shrawan Kumar Jha and others Vs. State of Bihar and others, AIR 1991 SC 309 Court has held as under :
"In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice."
In view thereof, the writ petition is allowed. The impugned orders no. 4491 dated 1.6.2018 and 4492 dated 1.6.2018 passed by Divisional Director, Social Forestry, Forest Division, Basti are hereby quashed.
Order Date :- 19.7.2018
SB
