ORDER
Shanker Raju, Member (J)
1. Legal representative of the deceased retired Railway employee assails respondents’ order dated 25.7.2006 and 16.10.2006, whereby pay of the deceased has been reduced from retrospective effect, as a result of which retiral dues have been reduced.
2. The deceased was appointed as a casual clerk in the year 1967 and was put to officiate in Group ‘C’ on ad hoc basis w.e.f. 21.4.1968 till 3.11.1972 in the Parcel Office, where he earned two increments under Rules 2017 and 2018 by respondent No. 2 in terms of letter dated 16.12.1977. The aforesaid benefit of fixation of pay was re-examined and on the ground that the officiating post was not in the cadre, the matter was sorted out and no action was taken. Applicant retired as Chief Enquiry-cum-Reservation Clerk on 31.07.2006 but on 25.07.2006 the pay of applicant was reduced retrospectively from 1976 from Rs. 360/- to Rs. 340/- and accordingly pay was reduced with a ripple effect on the objection taken by the FA&CAO.
3. Learned Counsel for applicant states that before such a decision was taken to reduce the salary of the applicant’s husband and reduction in pensionary benefits, no opportunity has been accorded to him and it is stated that a proposal has gone to the Railway Board, as admitted by the respondents. It is further stated that without the final decision the impugned action of the respondents is not in accordance with the principles of natural justice.
4. On the other hand, Learned Counsel for respondents vehemently opposed the contentions and stated that at the time of final settlement FA&CAO pointed out that the pay of the applicant was not correctly fixed. Accordingly, the mistake was rectified and on re-fixation the action taken is in consonance with law.
5. On careful consideration of the rival contentions of the parties, on the information sought by applicant under the Right to Information Act, and even from the reply of the respondents it is an admitted position that before such reduction and re-fixation in pay has been done by the respondents, civil consequences have ensued upon applicant’s husband, yet it is not preceded by reasonable opportunity to show cause, which contravenes principles of natural justice. It is also an admitted position that the claim of applicant regarding realization of pay has been referred to Railway Board and despite additional information on 30.05.2007, no decision has been arrived at. The Apex Court in Shekhar Ghosh v. Union of India 2007 (1) SCC (L&S) 247 regarding rectification of mistake held as follows :
14. A post decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. Such a post-decisional hearing in a case of this nature is not contemplated in law. The result of such hearing was a foregone conclusion.
15. In K.I. Shephard v. Union of India , this Court opined:
…It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.
[See also V.C. Banaras Hindu University and Ors. v. Shrikant ].
16. We are, however, not oblivious of the fact that there is some shift in the concept of principles of natural justice which has been noticed by this Court in P.D. Agrawal v. State Bank of India and Ors. in the following terms:
The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula_
17. It is not denied or disputed that even when a mistake is sought to be rectified, if by reason thereof, an employee has to suffer civil consequences ordinarily the principles of natural justice are required to be complied with. It was so held in Ram Ujarey v. Union of India in the following terms:
17. There is yet another infirmity in the impugned order of reversion. The appellant had been allowed the benefit of service rendered by him as Coal Khalasi in the Loco Department from 1964 to 1972 as that period was counted towards his seniority and it was on that basis that he was called for the trade tests which the appellant had passed and was, thereafter, promoted to the posts of Semi-skilled Fitter and Skilled Fitter. If the benefit of service rendered by him from 1964 to 1972 was intended to be withdrawn and promotion orders were to be cancelled as having been passed on account of mistake, the respondents ought to have first given an opportunity of hearing to the appellant. The appellant having earned two promotions after having passed the trade tests, could not have been legally reverted two steps below and brought back to the post of Khalasi without being informed that the period of service rendered by him from 1964 to 1972 could not be counted towards his seniority and, therefore, the promotion orders would be cancelled. In a situation of this nature, it was not open to the respondents to have made up their mind unilaterally on facts which could have been shown by the appellant to be not correct but this chance never came as the appellant, at no stage, was informed of the action which the respondents intended to take against him.
18. Curiously Respondents in their counter-affidavits filed before the Tribunal and the High Court did not raise any plea of rectification of any mistake. It was also not stated in the show cause notice issued to the appellant. Only a plea of mistake was taken for the first time before the Tribunal, but no plea was taken that it was entitled to rectify the same or his order impugned before it was capable of being rectified. Thus, it was not a case where an opportunity of hearing was given to Appellant on the premise that a mistake had been committed by the authorities of the first respondent and the same was required to be rectified.
19. If a mistake is to be rectified the same should be done as expeditiously as possible. [See Board of Secondary Education, Assam v. Mohd. Sarjumma ]
20. We are not oblivious that in Ram Chandra Tripathi v. U.P. Public Services Tribunal IV and Ors. , an order passed by way of a mistake was permitted to be corrected as the same was done in violation of the order of injunction. In such a situation only, this Court held that an opportunity of being heard for correcting such mistake would not arise because there would not have been any occasion to take one view or the other in the matter on the basis of representation to be made by the affected employee.
21. It is also not a case where a mistake was apparent on the face of the records and, thus, compliance of the principles of natural justice would not have made any difference as was in the case of Smt. Ratna Sen nee Roy v. The State of West Bengal and Ors. [1995 (1) Cal. LT 462].
22. Requirements to comply with the principles of natural justice would, therefore, vary from case to case. If upon giving an opportunity of hearing to an affected employee, it is possible to arrive at a different finding, the principles of natural justice must be complied with. We may notice that recently in Union of India and Ors.v. Bikash Kuanar , a Division Bench of this Court opined:
It is now trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance of the principles of natural justice. It is only in a case where the mistake is apparent on the face of the records, a rectification thereof is permissible without giving any hearing to the aggrieved party.
23. In this case, Respondents accept that Appellant was entitled to a hearing. All the necessary ingredients of principles of natural justice were thus required to be complied with. Appellant as noticed hereinbefore had not been given adequate opportunity of hearing inasmuch as: (i) the hearing was sought to be given was a post-decisional one, which is bad in law; (ii) a copy of the complaint was not supplied to Appellant at furtherance if not proposed that a mistake was sought to be rectified; (iii) No charges were framed; (iv) no witness was examined; and (v) no Inquiry Officer arrived at any finding that Appellant was guilty of the charges levelled against him.
6. In the above light and also keeping light the decision of the Apex court in the case of Bhagwan Shukla v. Union of India , as no prior opportunity before re-fixation was accorded to the deceased employee, re-fixation and reduction of pay and consequent reduction in retiral dues cannot be legally sustained, as reduction in pay is in violation of principles of natural justice.
7. Accordingly, OA is allowed to the extent that the respondents are directed to restore the pay of applicant’s husband and thereafter work out his retiral dues, arrears of which shall be paid to applicant within a period of two months from the date of receipt of a copy of this order. No costs.