Ashish Kumar Jha v. The Director of Public Prosecution

Judgment

1. The petitioner, who is a Assistant District Public Prosecution Officer, has filed this petition challenging the impugned order dated 9.12.2002 (Annexure P/l), whereby the order dated

16.7.2002 (Annexure P/6), granting benefit of two advance increments, was cancelled on the ground that the petitioner was not having two years professional experience in legal practice.

The brief facts, in nutshell, necessary for disposal of this case are the petitioner was selected through Public Service Commission and was appointed on the post ofAssistant District Public Prosecution Officer (ADPO) by order dated 17.6.1996 (Annexure P/3). In the light of the order dated 26.3.1994 (Annexure P/4), passed by the Madhya Pradesh State Administrative Tribunal, Bench Gwalior in Original Application No. 742/88 (Anand Kumar Bohare Vs. State of M.P. 8& others) the Deputy Secretary, Home (Police) Department, Government of Madhya Pradesh issued a general order on 29.3.1995(Annexure P/5) to extend the benefit of grant of two advance increments to the ADPOs. Thereafter, petitioner submitted a representation on 2.12.2000 (Annexure P/2A) for grant ofbenefit of two advance increments on the ground that he has obtained experience of legal practice for 4V2 years. While the petitioner was posted at Kanker, by endorsement dated 29.6.2001 (Annexure P/2) the petitioner was granted two advance increments. By endorsement dated 16.7.2002 (Annexure P/6) the benefit was given w.e.f. 1.7.1996.

3. Shri Rahul Jha, learned counsel assisted by ShriAnand Kesherwani, learned counsel appearing for the petitioner submits that the issue involved herein, asto whether any right accrued to the petitioner can be taken away without issuing a show cause notice or granting an opportunity of hearing to put forward his case. He further submits that the similar issue, whether any amount granted to an employee can be recovered without affording an opportunity of hearing is no longer res integra, Q.S the same has been considered and decided by this Court in the matter of Vidhyadhar Tiwari Vs. State of Chhattisgarh SB others. The petitioner is having four years experience vide certificate (Annexure P/7), issued by the District 85 Sessions Judge, Rajnandgaon. At the time of appointment vide sub-clause (c) of clause 4 of the advertisement (Annexure P/8) it was provided that the candidates should have a degree in law and -3 two years professional experience. Hence, at the time of appointment itself the petitioner was having the professional experience of two years. Thus, the impugned order dated g?

9.12.2002, withdrawing benefit of grant of two advance increments on the ground that the petitioner does not have two years professional experience is not sustainable. Shri M. P. S. Bhatia, learned counsel appearing for respondents/State submits that the increments once granted do not become the salary. If the same is withdrawn on account of anydecision, no principles of natural justice are necessary to be followed. The reduction salary cannot granted subsequently. Learned counsel appearing for the petitioner submits that withdrawal of increment amounts to reduction of salaiy, as the salary includes increments. I have heard learned counsel appearing for the parties and perused the pleadings and documents appended thereto. It appears that the respondent-authorities have not followed the principles of natural justice and the impugned action has been taken without affording an opportunity of hearing to the petitioner. The practice of passing order involving civil (evil) consequences, without show cause notice or without affording an opportunity of hearing, is condemned. Thus, this action of withdrawing the benefit of monetary benefit is bad on the simple ground that no show cause notice was issued and the petitioner was not afforded any opportunity of hearing before the impugned action was taken. ^^%^^ j111^^ -^t- It is well settled principle of law that an order visiting with civil consequences cannot be passed without affording proper opportunity of hearing. Their Lordships of the Hon'ble Supreme Court in the matter of Shrawan Kumar Jha fis Others vs. State of Bihar & Others1, wherein the appointment of teachers was cancelled without giving them an opportunity of hearing, observed as under : "It is not necessary to go into all these questions. and circumstances of this case we are of the view that the appellant should have been given an opportunity of hearing before canceling their appointments. Admittedly, no such In the facts opportunity was afforded to them. order to the detriment of the appellant could be passed without complying with the rules of naturaljustice.?? It is well settled that no

9. The Hon?ble Supreme Court in the case of D.K. Yadav vs. J.M.A. Industries Ltd. & Others2, considering the concept of opportunity of hearing observed as under : is whether "The cardinal point that has to be borne in mind, in every the person concerned should have a case, reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. In other words application of the principles of natural justice that no man should be condemned unheard intends to the authority from acting arbitrarily affecting the prevent rights of the concerned person. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. Therefore, fair play in action request that the procedure adopted must be just, fair and : AIR1991SC310 (1993) 3 SCC 259 --r- reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be inconformity with the principles of natural justice.??

10. The Hon'ble Supreme Court in the matter of Sahib Ram Vs. State of Haryana and others3 , in para 5 held, as under: "5. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant/'

11. The said principle is reaffirmed by the Supreme Court in the matter of Basudeo Tiwary vs. Sido Kanhu University & others4, wherein Their Lordships observed that: (<The law is settled that non-arbitrariness is essential facet of Article 14 fonvarding the entire realm of State action governed It has come to be established, as a further by Article 14. corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for, natural justice is the antithesis of public employment, it is well settled that any action taken by the of arbitrariness. In the sphere employer against an employee must be fair, reasonable which are components of fair treatment. just and The |»><iaii^ conferment of absolute power to terminate the ser^ices of an employee is antithesis to fair, just and reasonable treatment." The Hon'ble Supreme Court in the matter of P. Tulsidas and

12. others Vs, Governinent of A.P. and others5, observed that the benefit accrued earlier by way of grant of higher pay or revised pay, cannot be taken away as the same is violative of Article 14 and 16 of the Constitution of India being arbitrary, unreasonable and expropriatory. 3 { 1995 Supp (l) SCC 20} 4AIR 1998 SC 3261 5 {A.I.R. 2003 SC 43} Further, in the matters of Canara Bank & others vs. Debasis Das & others6 and Canara Bank vs. V.K. Awasthy7, the Hon'ble Supreme Court obser^ed as under : "The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so asto enable him to In the absence of a notice of the make his representation. kind and such reasonable opportunity, the order passed become wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order It is after all an approved rule of fair is passed against him. play and one of the most important principles of natural justice.w

14. This Court in the matter of Vidhyadhar Tiwari Vs. State of Chhattisgarh & others8, held that for the excess payment if any, made to the petitioner, he was not at fault and the amount received by him might have been used by adjusting himself accordingly treating the same as his salary. At this stage, directing recovery of the alleged excess amount from the pensionary benefits of the petitioner will not be just and proper.

15. Learned counsel appearing for the petitioner, relying on a ^UN» decision of this Court in Sukhdev Malakar Vs. State of C.G. & others9, submits that once a right of a particular pay scale has been granted to the petitioner in accordance with law, the same cannot be withdrawn, without affording an opportunity of hearing. The petitioner has acquired the right to the fixed