Punjab-Haryana High Court
Ram Parshad vs State Of Haryana Etc on 22 November, 2023
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2023:PHHC:149121
CWP-12939-2015 -1- 2023:PHHC:149121
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
209
CWP-12939-2015
Decided on : 22.11.2023
Ram Parshad
. . . Petitioner
Versus
State of Haryana and others
. . . Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
PRESENT: Mr. Surender Pal, Advoate
for the petitioners.
Mr. Saurabh Mohunta, DAG, Haryana.
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HARSIMRAN SINGH SETHI, J. (ORAL)
1. In the present petition, the grievance of the petitioner is that vide
order dated 23.08.2014, copy of which has been appended as Anneuxre P-11, the
pay of the petitioner has been re-fixed in the cadre of the Lab Attendant by
withdrawing the earlier order passed in favour of the peititoner dated 25.07.2011
(Annexure P-5) as well as re-fixation of his salary as done vide order dated
05.08.2011 (Annexure P-8).
2. Learned counsel for the petitioner argues that the petitioner was
appointed on Class IV post of peon on 09.03.1986. Another employee namely Om
Parkash was appointed in the Class IV cadre on 28.02.1987. As Om Parkash was
belonging to the reserved category of Scheduled Caste, on the basis of the
reservation, he was granted further promotion as Lab Attendant on 23.08.1990,
which promotion was extended to the petitioner according to his own seniority on
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29.11.1997. Learned counsel submits that the petitioner caught Sh. Om Parkash in
the cadre of Lab Attendant, meaning thereby that he again regained his seniority
in the cadre of Lab Attendant and also became entitled for the salary which Om
Parkash was getting. In order to give the said benefit, the respondents passed an
order dated 25.07.2011 (Annexure P-5), by which the date of the promotion of the
petitioner as a Lab Attendant was also deemed to be given w.e.f. 23.09.1990 i.e.
from the date Sh. Om Parkash was given the said promotion and he was also
given all the consequential benefits such as seniority, fixation of pay etc. but
arrears of the pay was only to be admissible from the date, he actually worked as a
Lab Attendant i.e. 29.11.1997.
3. Consequent to the order dated 25.07.2011 (Annexure P-5), the pay of
the petitioner was also re-fixed vide order dated 05.08.2011, copy of which has
been appended as Annexure P-8.
4. The said benefit was allowed to be continued with the petitioner
when vide impugned order dated 23.08.2014, without giving any opportunity of
hearing, the benefit which was extended to the petitioner vide Annexure P-5 as
well as as Annexure P-8, the same was withdrawn in order to re-fix the salary of
the petitioner once again in the cadre of the Lab Attendant. The said order dated
23.08.2014 is under challenge in the present petition.
5. Learned counsel for the petitioner submits that once a detailed order
was passed granting the petitioner the promotion to the post of Lab Attendant
from the date, person junior to the petitioner was granted i.e. Om Parkash and the
petitioner was also given the consequential fixation of salary, the same could not
have been withdrawn later after a period of 3 years of grant of the same and that
too without giving any show cause notice to the petitioner.
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6. Learned counsel submits that the said order is liable to be set aside as
the same has been passed violating the rules of natural justice.
7. Learned State counsel submits that the petitioner had been granted
the benefit of three financial up-gradations, hence, his salary could not have been
fixed equivalent to Om Parkash but concealed the fact that the order dated
23.08.2014 (Annexure P-11) was passed without giving any show cause notice to
the petitioner.
8. I have heard learned counsel for the parties and have gone through
the record with their able assistance.
9. It is a settled principle of law that no order can be passed which
causes civil consequences such as financial reduction or recovery of the amount
and the same cannot be passed without giving appropriate opportunity to defend
qua the said proposal.
10. As per the settled principle of law settled by the Hon'ble Supreme
Court of India in Civil Appeal No. 2265 of 2011 titled as Chamoli District Co-
operative Bank Ltd through its Secretary/Mahaprandhak and another vs.
Raghunath Singh Rana and others, 2016(12) SCC 204, decided on 17.05.2016
and in Civil Appeal No. 9417 of 2019 titled as M/s Daffodills Pharmaceuticals
Ltd. and another vs. State of U.P. and another 2019 (12) JT 283, decided on
13.12.2019, it was held that where any order passed by the authority concerned
causes prejudice to an employee, especially financial liability, an opportunity of
hearing is must and no order causing prejudice to an employee can be passed by
an employer unilaterally. The relevant para of Daffodills Pharmaceuticals's case
(supra) is as under:-
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"15. In the present case, even if one assumes that Surender
Chaudhary, the accused in the pending criminal case was involved
and had sought to indulge in objectionable activities, that ipso facto
could not have resulted in unilateral action of the kind which the
State resorted to- against Daffodils, which was never granted any
opportunity of hearing or a chance to represent against the
impugned order. If there is one constant lodestar that lights the
judicial horizon in this country, it is this: that no one can be
inflicted with an adverse order, without being afforded a minimum
opportunity of hearing, and prior intimation of such a move. This
principle is too well entrenched in the legal ethos of this country to
be ignored, as the state did, in this case.
16. The High Court, in the opinion of this court, fell into
error in holding that in matters of award of public contracts, the
scope of inquiry in judicial review is limited. Granted, such
jurisdiction is extremely circumscribed; no doubt the court had
refused to grant relief to Daffodils against its plea of wrongful
rejection of its tender. However, what the impugned judgment
clearly overlooks is that the action of the state, not to procure
indefinitely, on an assumption of complicity by Daffodils, was in
flagrant violation of principles of natural justice."
11. The relevant paragraph of the Chamoli's case (supra) is as under:-
"19. The compliance of natural justice in
domestic/disciplinary inquiry is necessary has long been
established. This Court has held that even there are no specific
statutory rule requiring observance of natural justice, the
compliance of natural justice is necessary. Certain ingredients have
been held to be constituting integral part of holding of an inquiry.
The Apex Court in Sur Enamel and Stamping Works Pvt. Ltd. v.
Their Workmen reported in (1964) 3 SCR 616 has laid down
following:-
"... An enquiry cannot be said to have been properly held
unless, (i) the employee proceeded against has been informed
clearly of the charges levelled against him, (ii) the witnesses are
examined - ordinarily in the presence of the employee - in respect
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of the charges, (iii) the employee is given a fair opportunity to
cross-examine witnesses, (iv) he is given a fair opportunity to
examine witnesses including himself in his defence if he so wishes
on any relevant matter, and (v) the inquiry officer records his
findings with reasons for the same in his report."
12. From the perusal of the abovesaid principle of law, it can be very
well said that in case any order causing prejudice to an employee is to passed,
opportunity of hearing is must, which process is missing in the present case as the
salary of the petitioner has been reduced by withdrawing earlier order granting the
same benefit and by re-fixing the salary and that too without giving any
opportunity of hearing to the petitioner. Even the recovery has been made from
the petitioner without giving any opportunity to him. Hence, not only the order re-
fixing the salary, copy of which has been appended as Annexure P-11 dated
23.08.2014, is set aside but even the recovery which has been done in pursuance
to the said order is also set aside being contrary to the settled principle of law.
Further, the argument which has been raised by learned counsel for the
respondent is that the petitioner has been granted three upgradations, hence, his
salary could not have been stepped up equivalent to his junior Om Parkash, it may
be noticed that in the present case, the petitioner is not claiming step up of his pay
but was claiming that after the promotion to the post of Lab Attendant, the
petitioner again became senior to Om Parkash as he was superseded by Om
Parkash earlier on the basis of representation and in view of the judgment of the
Hon'ble Superme Court of India in Ajit Singh Januja and others Vs. State of
Punjab and others, 1996(2) SCC 715, petitioner is to be treated as senior to Om
Parkash in the cadre of Lab Attendant, hence, the grant of upgradation will have
no relevance in the facts and circumstances of the present case. Therefore, the
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argument on the basis of which the respondent actually re-fixed the salary of the
petitioner is not applicable in the facts and circumstances of the present case.
13. At this stage, learned counsel for the respondent submits that as the
present order is being passed on the basis of the technicality, fresh opportunity is
being given to the respondents to pass appropriate order.
14. This prayer has to be considered in view of the fact that petitioner has
already retired from the service in March 2015 i.e. approximately 8 years ago.
Further, the present order is not being passed only on the basis of technicality of
violation of the rules of natural justice but even rejecting the ground, which has
been taken by the respondents to reduce the salary, as the impugned order is being
held to be invalid as the reasons given for the reduction of the pay are not
applicable in the facts and circumstances of the present case. Therefore, no fresh
opportunity is liable to be given to the respondents to disturb the salary of a
retired employee that too after a period of 8 years of retirement.
15. The writ petition is allowed as prayed.
16. The re-fixation of salary is set aside. The recovery made from the
petitioner is also directed to be refunded to him. Further, the retiral benefit of the
petitioner will be re-assessed on the basis of the salary which the petitioner will
get upon setting aside of the impugned order and the difference in the retiral
benefits as well as in the salary be also paid to the petitioner within a period of 2
months.
17. As the order, Annexure P-11 was bad in law and the petitioner was
restrained from using the amount, the petitioner is also held entitled for the
interest @ 6% on the amount which will be given to the petitioner keeping in
view the judgment of the Coordinate Bench of this Court in J.S. Cheema Vs.
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State of Haryana, 2014(13) RCR (Civil) 355 according to which, in case, any
amount belonging to an employee has been retained by the department and used,
the employee will be entitled for interest. Hence, all the arrears which the
petitioner will be held entitled for, will also carry 6% interest from the date, the
said amount became admissible to the petitioner upto the date when the actual
amount is paid to the petitioner.
(HARSIMRAN SINGH SETHI)
JUDGE
22.11.2023
Mehak
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
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