Allahabad High Court
Dhirendra Nath Rai vs State Of U.P. Thru. Addl. Chief ... on 4 August, 2022
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- WRIT - A No. - 4605 of 2022
Petitioner :- Dhirendra Nath Rai
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko. And 4 Others
Counsel for Petitioner :- Sheshnath Bhardwaj Advoc,Amit Bhardwaj
Counsel for Respondent :- C.S.C.
with
Case :- WRIT - A No. - 4331 of 2022
Petitioner :- Dhirendra Nath Rai
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Civil Sectt. Lko. Up And 3 Others
Counsel for Petitioner :- Amit Bhardwaj,Sheshnath Bhardwaj Advoc
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
Heard Shri S.N. Bhardwaj, learned counsel for the petitioner as well as Shri Vivek Shukla, learned Additional Chief Standing Counsel appearing on behalf of opposite parties.
The petitioner in Writ Petition No.4331 of 2022 has assailed the order dated 24.6.2022 passed by the Commandant, 22 Battalion, PAC, Sitapur where after giving him show cause notice on 18.4.2022, the pay scale of the petitioner has been reduced on account of the fact that inadvertently and mistakenly the petitioner was granted higher pay scale and consequently by means of order dated 13.7.2022 passed by the Commandant, 22 Battalion PAC, Sitapur an amount of Rs.466046/- has been sought to be recovered which order has been assailed by the petitioner in Writ petition no.4605 (Writ A) of 2022. As the facts of both the petitions are common, both the petitions are being heard together and are disposed of by common order.
It has been submitted by the learned counsel for the petitioner that he was initially appointed on the post of Constable in U.P. PAC on 20.12.1982 and since then he is working on the said post. Presently he is posted in 27 Battalion, Sitapur. When the petitioner was previously posted at Gonda, disciplinary proceedings were initiated against the petitioner and also an FIR was lodged in case crime no.452/2004, under Sections ? 379, 411, 109, 114 IPC at police station - Dumariaganj, District - Siddharth Nagar. In the Criminal trial the petitioner was acquitted by means of the judgment and order dated 04.8.2012 passed by the learned Chief Judicial Magistrate while in the disciplinary proceedings the petitioner was punished with reduction into the lowest of the pay scale for one year by means of the order dated 05.10.2005. Against the order of reduction of pay scale the petitioner preferred a departmental appeal which was also rejected by the appellate authority on 31.12.2005. The petitioner again preferred a revision before the revisional authority which too was rejected vide order dated 17.12.2014 by the revisional authority.
Assailing the aforesaid two orders petitioner preferred a writ petition before this Court being writ petition no.3713 (SS) of 2015 [Dhirendra Nath Rai vs. State of U.P.] which has been allowed by this Court by means of judgment dated 23.02.2016. High Court while deciding the case set aside the revisional order and remanded the case before the appellate authority. In the second round the appellate authority reconsidered the previous order and allowed the appeal setting aside the punishment order. The appeal was allowed on 22.7.2016. It is submitted that after passing of the order dated 22.7.2016 there was no other adverse material on the service record of the petitioner.
Grievance of the petitioner commenced when he was issued a show cause notice on 18.4.2022 stating that there has been a wrong fixation of his pay and consequently recovery was proposed for the excess payment made to the petitioner. The petitioner responded to the said show cause notice by a simple denial pursuant to which the impugned order dated 24.6.2022 has been passed refixing the pay of the petitioner in the lower pay scale.
Learned counsel for the petitioner has submitted that a perusal of the show cause notice dated 18.4.2022 would indicate that only a proposal of reduction in his pay scale has been provided. No reason has been stated for the reduction of the pay scale apart from the fact that there is some Audit objection which has been received by the opposite party on 06.4.2022. It is noticed that neither Audit objection was ever given to the petitioner nor detail of the audit objection referred in the show cause notice. It is on account of this fact that the petitioner was disabled from replying to the audit objections as they were not within his knowledge nor were they disclosed along with show cause notice. It is submitted that the show cause notice itself was defective and consequently the impugned order passed on the basis of the show cause notice suffered from the same infirmity and is liable to be set aside.
Learned Standing Counsel on the other hand also could not indicate from the perusal of the show cause notice that the copy of the Audit objections have been given to the petitioner or even find mention in the said show cause notice.
Principle of natural justice provides that a person has to be given a due opportunity of hearing before he is visited with any adverse consequences. In the present case, it is true that the petitioner was given a show cause notice but the show cause notice did not contain the foundation on the basis of which the pay scale of the petitioner was sought to be reduced. In the show cause notice there was only mere mention that the said order is being passed on the basis of certain Audit objection but the detail of the Audit objection or the Audit objection themselves never formed part of the show cause notice disabling the petitioner from replying same.
Not disclosing the allegations on the basis of which show cause notice was given, itself amounts to violation of principle of natural justice and it cannot be said that the petitioner was afforded due opportunity of hearing prior to passing of the said order.
In light of the aforesaid, this Court is of the view that not mentioning detail of the Audit objection in show cause notice was an infirmity which itself renders the show cause notice illegal and arbitrary and consequently the said order is set aside.
It has been informed by the petitioner that in pursuance to the consequential order of recovery dated 13.7.2022 an amount of Rs.35,000/- has already been recovered from the salary of the petitioner.
Considering the facts this Court has already held that the show cause notice as well as the order of refixation of the pay of the petitioner are illegal, arbitrary and have been set aside, matter is remitted to the competent authority to issue a fresh show cause notice to the petitioner after giving him the details of all the Audit Objections or any other material on which the pay scale of the petitioner is sought to be reduced. After giving a show cause notice, the petitioner would reply to the same pursuant to which competent authority would be at liberty to pass necessary orders. Accordingly, let the said exercise be completed expeditiously, say within a period of three months from the date a certified copy of this order is produced before the competent authority. No further recovery shall be made from the petitioner in pursuance to the said order which have been set aside and the amount of Rs.35,000/- which has already been recovered shall be subject to the final order which would be passed by the competent authority pursuant to show cause notice to be given to the petitioner as directed by this Court.
Subject to the aforesaid observation, the writ petitions are allowed.
Order Date :- 4.8.2022
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