Om Prakash Pathak vs State Of U.P. Through The Secy. ...
2023 Latest Caselaw 13763 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED ON 7.4.2023
 
						             DELIVERED ON 2.5.2023
 

 
Court No. - 12
 

 
Case :- WRIT - A No. - 8878 of 2011
 

 
Petitioner :- Om Prakash Pathak
 
Respondent :- State Of U.P. Through The Secy. Revenue Deptt. And Ors.
 
Counsel for Petitioner :- Umesh Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard Shri Umesh Kumar Srivastava, learned Counsel for the petitioner and learned Standing Counsel for the respondent/State.

2. The petitioner, Om Prakash Pathak, has approached this Court under Article 226 of the Constitution of India with the following main prayers:-

"(i) That by means of a writ in the nature of Certiorari or any other suitable writ, order or direction in the said nature, the impugned order dated 27.7.1994/ 1.8.1994, passed by the opposite party No.3 and the order dated 13.5.2011, passed by the opposite party No.2, and contained in Annexure Nos.1 and 2 to the writ petition, may kindly be quashed.

(ii) That by means of a writ in the nature of Mandamus or any other suitable writ, order or direction in the said nature, the opposite party No.3 be commanded to count the entire period from 1.12.1989 to 17.5.1993, amounting to three years five months and seventeen days in the total period of service rendered by the petitioner on the post of Amin in the Land Acquisition Department as well as to pay him his entire arrears of salary of the aforesaid period along with interest @ 12% per annum till its actual payment.

(iii) That by means of a writ in the nature of Mandamus or any other suitable writ, order or direction in the said nature, the opposite party No.3 be commanded to re-calculate the pensionary benefits of the petitioner including the Pension and Gratuity after including the service rendered between 1.12.1989 to 17.5.1993 in the total service rendered by him on the post of Amin in the Land Acquisition Department and to pay all arrears of such Pension and Gratuity etc., along with 12% interest on such amount from the date it become due till its actual payment."

Brief facts

(3) The petitioner was working in the office of Special Land Acquisition Unit (Joint Organisation), Lucknow. Vide an order dated 11.7.1984 the petitioner along with other employees were transferred to the office of Special Acquisition Unit (Joint Organisation), Rae Bareli. The transfer order dated 11.7.1984 was challenged before this Court by preferring a Writ Petition No.3448 of 1984. An interim order was granted to the petitioner to continue in his parent department Land Acquisition Unit. Ultimately the said writ petition was dismissed vide order dated 23.9.1988. Thereafter the petitioner had challenged the judgment and order dated 23.9.1988 before the Hon'ble Supreme Court bearing Special Leave to Appeal No.2189 of 1989.

(4) During pendency of Special Leave to Appeal, the petitioner was again transferred to the office of Special Acquisition Unit (Joint Organisation), Rae Bareli vide transfer order dated 23.6.1989. Hon'ble Supreme Court has passed an interim order dated 22.1.1990 in S.L.P. No.2189 of 1989 staying the transfer of petitioner, a copy of which has been annexed as ANNEXURE No.3 to the writ petition. Hon'ble Supreme Court vide order dated 12.10.1990 had adjourned the matter for four weeks and the petitioners of the aforesaid Writ Petition No.3448 of 1984 were allowed to join at the transferred places and the opposite parties were directed to pay salary to the petitioner. Ultimately the Special Leave to Appeal was disposed of by Hon'ble Supreme Court vide judgment and order dated 13.1.1995 with the direction to the petitioner either to approach the State Government or the State Tribunal.

(5) As directed by Hon'ble Supreme Court vide order dated 12.10.1990, the petitioner was neither relieved from the office of Special Land Acquisition Unit (Joint Organisation), Lucknow so that he may join at the transferred place nor paid his salary and because the post of Amin at the transferred place was filled in the meantime, it was not possible for the petitioner to join at the transferred place of District Rae Bareli. Considering the said administrative difficulty, respondent No.3 vide order dated 18.5.1993 attached the vacant post of Amin in the Special Land Acquisition Unit, Kheri with the Land Acquisition Directorate and attached the petitioner with the Directorate itself and the same order further directed to regularise the intervening period of service of the petitioner from 1.12.1989 to 17.5.1993, the date of which he was attached with the Directorate. It was further ordered to pay the salary to the petitioner of the aforesaid period.

(6) The order dated 18.5.1993 was never implemented. As a consequence the intervening period in question was not regularised nor the petitioner was paid his salary for the said period. After one year from the date of aforesaid order dated 18.5.1993, respondent No.3 in an arbitrary and illegal manner passed the impugned order dated 27.7.1994/1.8.1994, whereby it was held that the period of service between 1.12.1989 to 17.5.1993 i.e. three years five months and seventeen days will be treated as break in service and no service benefit of such period shall be paid to the petitioner. A perusal of the aforesaid order dated 27.7.1994/1.8.1994 would further show that the same is said to have been passed in continuation of the order dated 18.5.1993.

(7) The petitioner remained on medical leave from 1.7.1989 to 5.2.1990. He submitted his joining before the Officer Incharge, District Election Office, Lucknow where he was temporary assigned the work of Election Office. The petitioner submitted the joining report dated 5.2.1990 along with Medical Certificate. No orders were passed on the joining report dated 5.2.1990 hence the petitioner submitted a representation dated 6.9.1990 to the Special Land Acquisition Officer. In the representation dated 6.9.1990, the petitioner has furnished the requisite relieving certificate to enable him to join at transferred place however, no relieving certificate was given to the petitioner. The petitioner feeling aggrieved by the impugned order dated 27.7.1994/1.8.1994, preferred a representation dated 22.11.1994 to the respondent No.1. The representation given by the petitioner was kept pending for about 18 years despite several reminders given by the petitioner for its expeditious disposal. However, by the impugned order dated 13.5.2011, the representation was rejected endorsing the order of punishment dated 27.7.1994/1.8.1994 holding that since the petitioner was not engaged in duty for the period 1.12.1989 to 17.5.1993, hence he was not entitled for any salary on the principles of 'no work no pay'. It has been further held in the impugned order dated 13.5.2011 that since the order dated 27.7.1994/1.8.1994 does not fall in the category of punishment, as such, no appeal is entertainable against the same.

Submission of learned Counsel for the petitioner

(8) Learned Counsel for the petitioner submits that respondent no.3 in an arbitrary and illegal manner has reviewed his earlier order dated 18.5.1993 in an unilateral manner.

(9) No show-cause notice was given to the petitioner before passing the impugned order dated 27.7.1994/1.8.1994.

(10) The petitioner was not heard before passing the aforesaid order. The order has been passed in utter contravention of the principles of natural justice.

(11) It is contended that respondent no.3 was not having any power of review, hence, the order dated 27.7.1994/1.8.1994 passed by the respondent no.3 is without jurisdiction.

(12) Respondent No.3 while passing the impugned order dated 27.7.1994/1.8.1994 had ignored the findings recorded in the order dated 18.5.1993 and in a most cryptic and cursory manner. The petitioner did not work either at Lucknow or at Rae Bareli between the intervening period 1.12.1989 to 17.5.1993, therefore, he could not be treated on duty during the aforesaid period.

(13) It is submitted that respondent no.3 has not applied its mind to the fact that the petitioner was never relieved from the office of Special Land Acquisition Unit (Joint Organisation), Lucknow, and he has been simply treated as relieved from the office after another incumbent Badri Nath Misra Amin was permitted to join in the said office on 1.12.1989. Therefore, neither the petitioner was relieved from the said office nor any relieving certificate was given to him to enable him to submit his joining at the transferred place. The application regarding joining report was forwarded by the Special Land Acquisition Officer Lucknow to respondent no.3 for appropriate orders, however, no decision has been taken by the respondent no.3 on the aforesaid joining of the petitioner. It is submitted that respondent no.1 has committed manifest error in holding that the break in service and non-payment of any salary of the intervening period does not fall in the category of any punishment. Non-payment of salary amounts to forfeiture of salary, which is one of the punishment provided under Rule 49 of The Civil Services (Classification, Control and Appeal) Rules, 1930 (in short hereinafter referred to as 1930 Rules) which reads as under:-

"49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in Rule 14, namely :

(i) Censure.

(ii) Withholding of increments including stoppage at an efficiency bar,

(iii) Reduction to a lower post or time scale, or to a stage in a time-scale,

(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders,

(v) Suspension,

(vi) Removal from the civil service of the State which does not disqualify from future employment,

(vii) Dismissal from the civil service of the State which ordinarily disqualifies from future employment."

(14) He submits that legal position in this regard is settled that before taking any adverse decision by any authority of the Government against the Government Servant he is duty bound to comply the principle of natural justice which includes show cause notice and opportunity of hearing.

(15) He submits that the impugned order dated 27.7.1994/ 1.8.1994 is punitive in nature creating break in the service of petitioner depriving him of his entire salary which amounts to a punishment and which could not be passed without complying the principle of natural justice as well as statutory Service Rules i.e. 1930 Rules, quoted above.

(16) He further submits that the impugned orders are also violative of Article 14,16 and 311(2) of the Constitution of India. The finding recorded by the respondent no.1 in the impugned order dated 27.7.1994/1.8.1994 are contradictory to his earlier order dated 18.5.1993.

Submission of learned Counsel for the State

(17) Learned Standing Counsel submits that pursuant to the order passed by Hon'ble Supreme Court dated 23.9.1988 in Special Leave to Appeal No. 2189 of 1989 (supra) the petitioner ought to have joined at the transferred place but he did not join there and tried to remain at Lucknow. His application was considered sympathetically and he was attached at Lucknow to the Directorate of Acquisition, Lucknow vide order dated 18.5.1993. However, while passing the impugned order it was considered and was found that the petitioner was not on duty in the aforesaid period, hence, finally it was concluded that the said period would be treated as break in service. The orders dated 27.7.1994/1.8.1994 and the order dated 15.3.2011 perfectly legal and valid and are liable to be upheld.

Finding

(18) A perusal of the order dated 18.5.1993 shows that the petitioner was attached with the Directorate Land Acquisition and the intervening period was directed to be regularized and after such regularization he was further directed to be paid salary. The relevant part of the order dated 18.5.1993 passed by respondent no.3 as contained in Annexure-6 to the writ petition is extracted below:-

"उपरोक्त परिस्थितियों में विशेष भूमि अध्याप्ति इकाई, खीरी में रिक्त अमीन के पद को भूमि अध्याप्ति निदेशालय से सम्बद्ध करते हुये श्री पाठक को तात्कालिक प्रभाव से भूमि अध्याप्ति निदेशालय से सम्बद्ध किया जाता है और यह आदेश दिये जाते हैं कि श्री पाठक के वर्ष1989 में किये गये स्थानांतरण को अब तक की अवधि में इनकी शासकीय कार्य से अनुपस्थिति की गणना करके प्रश्नगत अवधी को नियमानुसार विनियमित किया जाये और इस प्रकार विनियमतीकरण के पश्चात प्रश्नगत अवधि का नियमानुसार वेतन दिया जाये।"

(19) It is also not disputed between the parties that this order was never complied with, however, by the impugned order, contained in Annexure-1, dated 27.7.1994/1.8.1994 respondent no.3 has reviewed his earlier order dated 18.5.1993. Admittedly under the relevant rule there is no power of review. By the order impugned the period from 1.12.1989 to 17.5.1993 i.e. three years five months and seventeen days was treated as break in service and further directed that no salary shall be payable to the petitioner for the intervening period.

(20) The impugned order dated 13.5.2011, by which the representation of the petitioner given on 22.11.1994, has been passed without application of mind and keeping in view that the representation was pending for several years. Respondent no.1 has simply endorsed the finding recorded in the punishment order dated 27.7.1994/1.8.1994. No independent application of mind is reflected from the perusal of the aforesaid order as by the impugned order, the period from 1.12.1989 to 17.5.1993 has been treated as break in service and salary for the aforesaid period has been denied/forfeited.

(21) The impugned orders entail civil consequences. They are punitive in nature which creates break in service of the petitioner, depriving him of his entire salary, pertaining to such broken period, which amounts to punishment, hence, could not have been passed without complying the principle of natural justice. Admittedly no show case notice or opportunity of hearing was given to the petitioner while passing the impugned order.

(22) Hon'ble Supreme Court in the case of Allwyn Housing Colony Welfare Association vs. Government of Andhra Pradesh and others reported in 2009 (27) LCD 1258 has held that no adverse order to a party can be passed without hearing him. Relevant portion from the judgment Allwyn Housing Colony Welfare Association (supra) paragraph 6 is extracted below:-

"In our opinion, natural justice required that the persons in whose favour respondent No.5 allotted plots in the property and to whom possession had also been handed over should have been impleaded in the writ petition and they should have been heard by the High Court. We have recently held in Fertilizers & Chemicals Travancore Ltd. vs. Regional Director, ESI & Others reported in 2009 (11) SCALE 766 that no order adverse to a party should be passed without hearing him......."

(23) Likewise, Coordinate Bench of this Court in the case of Thakur Prasad vs. Additional Commissioner, Devi Patan Mandal, Gonda and others reported in 2012(30) LCD 2385 has held that an order having civil consequences shall be passed after providing adequate opportunity to the parties concerned. While relying on the several judgments of Hon'ble Supreme Court, this Court in paragraph 17 of the judgment has held as under:-

"In addition to the above said settled law that if any order has a civil consequence the same shall be passed after providing adequate opportunity of hearing to the parties concerned/ a person who is aggrieved by the said order. However, if the same is passed ex parte behind the back of person who is aggrieved then the same will be arbitrary as well as in contravention to the principles of natural justice, cannot be sustained under law."

Conclusion

(24) The impugned orders, which have, admittedly, been passed without complying the principle of natural justice and entail civil consequences having adversely affected the petitioner, could not have been passed without complying the principle of natural justice, hence, cannot be sustained and are liable to be set aside.

(25) This Court has noticed that the petition was filed in the year 2011. At that time the petitioner was retired from service and was aged about 63 years. During pendency of the petition the petitioner has passed away and he was substituted by petitioner no.1/1 and 1/2, hence, in the peculiar facts and circumstances, I do not feel it appropriate to remand the matter after such a long period having been passed coupled with the fact that it is respondent no.1 who has kept the representation of the petitioner pending for a period of about 18 years and has passed the impugned order on 13.5.2011.

(26) In view of the above, the petition succeeds and is ALLOWED. The impugned orders dated 27.7.1994/ 1.8.1994, passed by the opposite party No.3 and the order dated 13.5.2011, passed by the opposite party No.2, as contained in Annexure Nos.1 and 2 to the writ petition, are set aside.

(27) The respondents are directed to count the entire period from 1.12.1989 to 17.5.1993, which is three years five months and seventeen days, in total period of service on the post of Amin in the Land Acquisition Office as well as pay him entire arrears of salary of the aforesaid period. They are further directed to recalculate the pensionary benefits of the petitioner on the basis of last pay drawn after counting aforesaid intervening period. They shall pay post retrial dues to the petitioner (petitioner no.1/1 and 1/2) including the pension and gratuity after including the intervening period from 1.12.1989 to 17.5.1993 as well as all consequential benefits.

Order Date :- 2.5.2023

Madhu