IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.6383 of 2010
1. Ajay Kumar Sinha S/O Late Jay Prakash Narayan R/O
Moh White House Compound , P.S.Rampur In The District Of
Gaya
2. Nageshwar Paswan S/O Sri Buttu Ram R/O Kandi, P.S.
Chandauti, In The District Of Gaya
Versus
1. The State Of Bihar Through The Chief Secretary
Government Of Bihar, Patna
2. The Director, Social Security, Labour Resources
Department Govt. Of Bihar, Patna
3. The Divisional Commissioner Magadh Division, Gaya
4. The District Magistrate Gaya
5. The Sub-Divisional Officer Sahrghati, Distt-Gaya
6. The Block Development Officer Khijarsarai, Distt-Gaya
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For the Petitioners:- Mr. Dinu Kumar, Adv.
Mr. Arvind Kr. Sharma, Adv.
Mr. Shiv Kr. Prabhakar, Adv.
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3. 13.09.2011 Heard learned counsel for the petitioners
and the State.
The petitioners are aggrieved by the order
dated 2.7.2009 by which the benefit of A.C.P granted
on 30.11.2007 and 5.1.2009 has been amended
reducing the pay scale. Consequent directions have
also been given for recovery of payments made under
the old scale.
Learned counsel for the petitioners make a
limited submission that the order having adverse
civil consequences not only by reducing the pay
scale but also when it directs recovery has been
issued in violation of the principles of natural justice
without a show cause notice prior to the same as
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specifically asserted in Paragraph-13 of the writ
application.
Counsel for the State sought to persuade
the Court to go into the merits of the reasons for the
correction but is unable to demonstrate from the two
counter affidavits filed that a show cause notice was
given to the petitioners and their point of view
considered only whereafter the impugned order has
been passed.
The Court in exercise of its powers of
judicial review under Article 226 of the Constitution
of India is not so much concerned with the merits of
the order, but is primarily concerned with the
decision making process. Any order adverse to a
person affecting his pay scale and directing recovery
cannot be passed in violation of the principles of
natural justice, behind their back, without an
opportunity to defend. Such order on the face of it is
arbitrary and prejudice is not required to be
demonstrated.
The Supreme Court in (1994) 6 SCC 154
(Bhagwan Shukla v. Union of India) held at
Paragraph-3 as follows:-
“3. ………The appellant has
obviously been visited with civil
consequences but he had been
granted no opportunity to show cause
against the reduction of his basic pay.
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He was not even put on notice before
his pay was reduced by the
department and the order came to be
made behind his back without
following any procedure known to law.
There has, thus, been a flagrant
violation of the principles of natural
justice and the appellant has been
made to suffer huge financial loss
without being heard. Fair play in
action warrants that no such order
which has the effect of an employee
suffering civil consequences should be
passed without putting the (sic
employee) concerned to notice and
giving him a hearing in the
matter……”
Only for that reason the impugned order
dated 2.7.2009 is set aside but without prejudice to
the rights of the respondents to proceed afresh in
accordance with law, if so advised.
The writ application stands allowed.
P. Kumar ( Navin Sinha, J.)