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SCA/16734/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16734 of 2010
=========================================================
KANAIYALAL
DAHYABHAI PATEL - Petitioner(s)
Versus
ORIENTAL
BANK OF COMMERCE - THROUGH GENERAL MANAGER & 1 - Respondent(s)
=========================================================
Appearance
:
MR
DG CHAUHAN for
Petitioner(s) : 1,
MR KM PARIKH for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 27/06/2011
ORAL
ORDER
1. Heard
learned advocate Mr. D. G. Chauhan appearing on behalf of petitioner
and learned advocate Mr. K. M. Parikh appearing for
respondent-Oriental Bank of Commerce.
2. In
present petition, petitioner has challenged order of removal dated
24/7/2007 and order passed by Appellate Authority dated 30/12/2009.
The affidavit in reply is filed by respondents against which no
rejoinder is filed by petitioner. However, when the matter is taken
up for hearing, learned advocate Mr. Chauhan appearing on behalf of
petitioner has raised contention that against removal order dated
24/7/2007, a departmental appeal under revised rules is preferred by
petitioner on 24/11/2009 which has been decided by Appellate
Authority on 5/12/2009 without even issuing notice to petitioner and
even without giving any reasonable opportunity of hearing. Learned
advocate Mr. K. M. Parikh appearing for respondents raised contention
that appeal is available to petitioner under Rule-17 of Oriental Bank
of Commerce Officers’ Service Regulation, 1982 and Officer Employees’
(Discipline and Appeal) Regulation, 1982 where there is no provision
has been made which requires reasonable opportunity of hearing to
petitioner at the time of deciding appeal preferred by petitioner
before Appellate Authority.
3. Learned
advocate Mr. D. G. Chauhan submitted before this Court that in case
if any decision if it is adverse has to be taken up by Appellate
Authority while deciding appeal then it having adverse civil
consequences then reasonable opportunity of hearing must have to be
given by Appellate Authority to petitioner. Such view has been taken
by Division Bench of this Court in Letters Patent Appeal No.562 of
1996 dated 11/3/2005. The said order is quoted as under:
“In
State of Orissa v. Dr.(Miss) Binapani Dei, AIR 1967 SC 1269,
the Supreme Court recognised the applicability of the rules of
natural justice in purely administrative matters and laid down
the following propositions:
I. The
rule that a party to whose prejudice an order is intended to be
passed is entitled to a hearing applies alike to judicial
tribunals and bodies of persons invested with authority to
adjudicate upon matters involving civil consequences. It is
one of the fundamental rules of our constitutional set-up that
every citizen is protected against exercise of arbitrary
authority by the State or its officers. Duty to act judicially
would, therefore, arise from the very nature of the function
intended to be performed: it need not be shown to be super-added.
If there is power to decide and determine to the prejudice of a
person, duty to act judicially is implicit in the exercise of such
power. If the essentials of justice be ignored and an order to the
prejudice of a person is made, the order is a nullity. That is a
basic concept of the rule of law and importance thereof transcends
the significance of a decision in any particular case.
II. It
is true that the order is administrative in character, but
even an administrative order which involves civil consequences,
as already stated, must be made consistently with the rules of
natural justice after informing the first respondent of the case of
the State, the evidence in support thereof and after giving an
opportunity to the first respondent of being heard and meeting or
explaining the evidence.
In
A.K.Kraipak v. Union of India, AIR 1970 SC 150, the Supreme Court
held that thin line of distinction between administrative and quasi
judicial function is gradually diminishing and that the rule of
fairness/rule of hearing must be read as implicit in
every administrative action which results in an adverse order
against an affected person.
In
Sayeedur Rehman v. State of Bihar, AIR 1973 SC 239, the Supreme
Court treated the unwritten right of hearing as a part of the concept
of rule of law by making the following observations:
“This
unwritten right of hearing is fundamental to a just decision by
any authority which decides a controversial issue affecting
the rights of the rival contestants. This right has its roots in
the notion of fair procedure. It draws the attention of the
party concerned to the imperative necessity of not overlooking the
other side of the case before coming to its decision, for nothing
is more likely to conduce to just and right decision than the
practice of giving hearing to the affected parties. The
omission of express requirement of fair hearing in the rules or
other source of power claimed for reconsidering an other is
supplied by the rule of justice which is considered as an
integral part of our judicial process which also governs quasi
judicial authorities when deciding controversial points affecting
rights of parties.”
In
Swadesi Cotton Mills v. Union of India, AIR 1981 SC 818,
S.L.Kapoor v. Jagmohan and others, AIR 1981 SC 136, Smt. Maneka
Gandhi v. Union of India, AIR 1978 SC 597, Olga Telis v. Bombay
Municipal Corporation, AIR 1986 SC 180 the Supreme Court reiterated
and emphasized that every administrative action which visits a
person with adverse civil consequences must be preceded by a
notice and opportunity of hearing.
We
have prefaced the disposal of this appeal by making reference to
the above noted judicial precedents because the only legal
issue which calls for determination by the Division Bench
is whether the learned Single Judge erred in quashing the action
taken by the appellant for revising the pay scale of the
respondent and effecting recovery from his pay on the ground of
violation of rules of natural justice.
A
perusal of the record shows that the respondent joined service as
Sales Tax Inspector on 1.2.1973. In furtherance of Resolution
dated 5.7.1991 passed by State Government, Commissioner of Sales Tax,
Ahmedabad issued order dated 7.11.1992 and fixed the respondent’s
pay in the higher scale. After two years and about nine months the
State Government vide Resolution dated 16.8.94 amended the
earlier resolution and revised the criteria for grant of higher
grade. As a sequel to the last mentioned resolution,
Commissioner, Sales Tax, passed order dated 11.12.95 for
re-fixing the pay of the respondent and recovery of the alleged
excess paid to him.
The
respondent challenged the re-fixation of his pay and consequential
withdrawal of higher grade in Special Civil Application No.3/96
on various grounds, including the one that the action taken by
non-applicants (appellants herein) is vitiated due to violation of
the rules of natural justice.
In
the reply affidavit on behalf of the appellants it was
not disputed that the pay of the respondent had been re-fixed
without giving him notice and opportunity of hearing, but an
attempt was made to justify the impugned action on the basis of
revised policy decision taken by the State Government.
The
learned Single Judge held that the action taken by the
competent authority to re-fix the respondent’s pay was
vitiated due to violation of the rules of natural justice. He,
accordingly, quashed the revised fixation of the respondent’s pay
with liberty to the appellants to pass fresh order after complying
with the rules of natural justice.
We
have heard Shri A.Y.Kogje, learned Assistant Government Pleader,
and with his assistance gone through the records.
Since
it is an undisputed position that before re-fixing the
respondent’s pay and ordering recovery of the alleged excess amount
paid to him, the appellants did not give any notice or opportunity of
hearing, we have no hesitation to hold that the appellants had
violated rule of audi alteram partem and the learned Single Judge
did not commit any illegality by quashing order dated
11.12.95.
In
Sayeedur Rehman’s case (Supra), a somewhat similar question was
considered by the Supreme Court in the backdrop of the fact that
the management of the school had, after giving financial
benefits to the appellant for the period during which he remained
under suspension reviewed its decision without giving him
notice and opportunity of hearing. Their Lordships held that even
though action taken by the management was purely administrative
in nature, the appellant was required to be heard before
being deprived of the financial benefits given to him in
pursuance of the earlier decision.
In
the present case, it can not be denied that as a result of grant of
higher grade the respondent had acquired the right to
receive higher emoluments. Therefore, no order adversely affecting
his right to be paid salary in the higher grade and/or for
recovery of the amount already paid to him could have been passed
without issuing him notice incorporating the basis of the proposed
action and giving him a reasonable opportunity to put forward his
defence. This having not been done, the learned Single Judge,
in our opinion, rightly nullified the action taken by the
appellant.”
4. I
have considered all submissions made by both learned advocates
appearing for respective parties. The order of Appellate Authority
is at page-36 of present petition wherein appeal has been decided by
Appellate Authority without even issuing notice to present
petitioner. This facts are not in dispute after considering
contentions raised by learned advocate Mr. Parikh appearing for
respondents relying upon Rule-17 as referred above. Therefore,
considering a basic principles of natural justice which requires
reasonable opportunity of hearing to concerned person, if any adverse
order having civil consequences is passed then said concerned person
must have been given opportunity of hearing otherwise such order is
considered to be violative of basic principles of natural justice as
decided by Division Bench of this Court in aforesaid decision. If no
provision is made in Rule-17 then also it should be read as
incorporated principle of natural justice must have to be complied
before passing any order adverse to petitioner while deciding a
departmental appeal.
5. In
light of this order passed by Appellate Authority dated 5/12/2009
rejecting appeal preferred by petitioner is only hereby quashed and
set aside as it violated basic principle of natural justice and it is
directed to Appellate Authority, General Manager, HRD to give
reasonable opportunity of hearing to petitioner and issue notice to
petitioner so he may remain present on date on which hearing is taken
place and he may also file additional submission if he so desire and
thereafter fix matter for hearing and then to examine appeal
preferred by petitioner dated 24/11/2009 and then pass appropriate
reasoned order in accordance with rules and regulations as referred
above and in law within a period of three months from receipt of copy
of present order and thereafter communicate decision to petitioner
without fail. In case if appeal is rejected by Appellate Authority,
then it is open for petitioner to challenge the same before
appropriate forum filing appropriate proceedings in accordance with
law. As and when Appellate Authority issues notice to petitioner let
he give some reasonable time so he may remain present before
Appellate Authority and it is directed to petitioner to cooperate
with hearing of appeal and not to remain absent without having
unavoidable circumstance. This Court is also directed to Appellate
Authority to give reasonable opportunity of hearing to petitioner and
then only decide appeal.
5. In
view of above observations made by this Court, present petition is
disposed of without expressing any opinion on merits.
(H.K.RATHOD,
J.)
(ila)
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