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2022 Supreme(Pat) 696

IN THE HIGH COURT OF JUDICATURE AT PATNA
HARISH KUMAR, J.
CWJC No.11325 of 2021
(28.11.2022)
Lakshmi Choudhary ... Petitioner
vs.
State of Bihar & Ors. ... Respondents

Advocates:
For the Petitioner: Mr. Suneil Kumar Thakur.
For the Respondent: Mr. Sanjay Prasad.
For the Accountant : Mrs. Ritika Rani.
General

Headnote:

Natural Justice – Generally, principles of natural justice require that opportunity of hearing should be given to person against whom administrative order is passed – Application of principles of natural justice and its sweep depend upon nature of rights involved, having regard to setting and context of statutory provisions – Where a vested right is adversely affected by administrative order, or where civil consequences ensue, principles of natural justice apply even if statutory provisions do not make any express provision for the same. (Para 15)

Service Law – Recovery – No reduction in pay scale or any action which has adverse consequence in respect of a person, can be taken without person being heard – This is basic cardinal principles of administrative law and an integral part of principles of natural justice – Any action taken to prejudice of a person without hearing him, would be a nullity – No person shall be condemned unheard – If excess amount was not paid on account of any misrepresentation or fraud on part of employee or if such excess payment was made by employer by applying a wrong principle for calculating pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, no recovery can be made in such a situation – Impugned order of reduction/recovery set aside. (Paras 12, 13, 16, 17 and 18)

Syed Abdul Qadir vs. State of Bihar, (2009) 3 SCC 475; State of Punjab vs. Rafiq Masih (White Washer), (2015) 4 SCC 334; Union of India vs. E.G. Nambudiri, AIR 1991 SC 1216 – Relied.

Harish Kumar, J.—Heard Mr. Suneil Kumar Thakur, learned counsel for the petitioner, Mr. Sanjay Prasad, learned AC to AAG-4, for the State and Mrs. Ritika Rani, learned counsel for the Accountant General, Bihar, Patna.

2. The present writ application has been filed for the following reliefs:—

“(A) For issuance of a writ in the nature of Certiorari for quashing of the office order as contained in Memo No. Pen-8-Sa-646 dated 18.07.2012 issued by and under the signature of the Assistant Accounts Officer, whereby and whereunder the pensionary benefit of the petitioner has been disposed of by fixing the payable salary after withholding one of the two A.C.Ps. granted to him earlier.

(B) For issuance of a consequential writ in the nature of Mandamus commanding and directing the respondent authorities to redetermine the payable salary of the petitioner i.e. the very basis of the pension fixation after granting / adding the withheld one of the two A.C.Ps., granted to him earlier and thereby to make payment of the differential amount in respect thereof, payable to the petitioner as also for making payment of the amount, what was deducted from the pensionary benefit of the petitioner on account of the withdrawal of one of the two A.C.Ps. granted to the petitioner through Annexure-5 to the instant writ application.

(C) For issuance of a writ in the nature of Mandamus commanding and directing the respondent authorities to make payment of the differential amount payable to the petitioner pursuant to the pay fixation in revised pay structure pursuant to the Resolution No. 630 dated 21.1.2020 of the Department of Finance, Bihar, Patna as contained in office order being No.- 1/Est-05-01/2008-325 Patna dated 24.11.15.

(D) For granting of such other relief/reliefs for which the petitioner may be found legally entitled to be in the facts and circumstances of the case.”

3. The short facts, which led to the filing of the present writ application is that vide Office Order dated 07.02.1972, as contained in Annexure-1, the writ petitioner came to be appointed as Aakasmik Bhritya/Casual Peon and he joined in the River Valley Scheme, Secretariat, Patna on 07.02.1972 itself. Vide Memo No. 4/Est.(Hq)7- 1020/72-4056 dated 18.08.1972, subsequently after having been found eligible, he was promoted to the post of Routine Clerk on temporary basis vide office order dated 30.05.1973 (Annexure-3 to the writ petition). The promotion of the petitioner was confirmed, as routine clerk with effect from 01.04.1981 (Aannexure-4 to the writ petition).

4. It is further contended that on being introduced the Assured Career Progression Scheme Rule, 2003, the petitioner has been extended the benefit of financial progression vide office order dated 31.05.2005 and, accordingly, he has been extended the benefit of 1st and 2nd ACPs. with effect from 09.08.1999. Later on vide office order dated 06.05.2010, issued under the signature of the Deputy Secretary to the Government, Department of General Administration, Government of Bihar, the petitioner was promoted to the post of Assistant under Bihar Secretariat Service and posted in the department of Water Resources from where he retired on 31.08.2010. Thereafter all of a sudden vide Memo no. Pen. 8 S.646 dated 18.07.2012, issued under the signature of Assistant Accounts Officer, the salary of the petitioner was determined by deducting one of the two ACPs. granted to him vide office order dated 31.05.2005 in course of fixation of the pensionary benefits. It is vehemently contended that before making deduction of the amount paid to him, earlier granted to him by way of benefit of the one of the two ACPs., was actuated without the petitioner being heard and any show-cause to be served upon him and, in fact, in complete defiance of the principles of the natural justice.

5. He next contended that in the meantime office order dated 24.11.2015, Annexure-8 to the writ petition, came to be issued under the signature of Additional Secretary to the Go

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