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SCA/14857/2010 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14857 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MUKESHBHAI
JASWANTRAI JOSHI - Petitioner(s)
Versus
BHAVANGAR
MUNICIPAL CORPORATA-ION - Respondent(s)
=========================================================
Appearance
:
MS
VIRAJ S FOZDAR for
Petitioner(s) : 1,
MR HS MUNSHAW for Respondent(s) :
1,
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 20/06/2011
ORAL
JUDGMENT
1. Rule.
Mr. H.S. Munshaw, learned advocate, waives service of Rule for the
respondent Corporation. On the facts and in the circumstances of the
case and with the consent of the learned counsel for the respective
parties, the petition is being heard and finally decided today.
2. This
petition, under Article 226 of the Constitution of India, has been
filed with the following prayers:-
“(A) Your
Lordships be pleased to issue a writ of certiorari or any other
appropriate writ, order or direction to quash and set aside the order
dated 28.10.2010 (Annexure-A) passed by the Commissioner, Bhavnagar
Municipal Corporation, respondent herein;
(B) Your
Lordships be pleased to declare that the petitioner is entitled to
and is rightly given pay scale of Rs.8000-13500(pay scale of the post
of Deputy Chief Auditor) with effect from 1.8.2005 and that no
correction is required to be made in the same;
(C) Your
Lordships be pleased to pass a cease and desist order to permanently
restrain the respondent herein from revising the petitioner’s extant
pay scale of Rs.8000-13500 to Rs.6500-10500 with effect from 1.8.2005
and from effecting any recovery from the petitioner in this respect.
(D) Pending
admission and final disposal of the present petition, Your Lordships
be pleased to stay the operation and implementation of the impugned
order dated 28.10.2010 (Annexure-A) passed by the Commissioner of
Bhavnagar Municipal Corporation, respondent herein, and to stay
recovery of any amount from the petitioner in pursuance of grant of
higher pay scale of Rs.8000-13500 with effect from 1.8.2005; and
(E) Your
Lordships be pleased to pass any other appropriate order, as deemed
fit, in the interest of justice.”
3. Briefly
stated, the facts of the case are that the petitioner was appointed
as Sub Auditor on 01.06.1989, in the Audit Department of the
respondent Municipal Corporation. On 01.08.1996, the petitioner was
promoted to the post of Senior Auditor, in the pay scale of
Rs.5500-9000. According to the petitioner, there are three
departments in the respondent Corporation, viz. Commissionerate,
Audit and Secretariat, which represent separate streams, and no inter
se transfers are made from one department to the other. It is averred
by the petitioner that separate seniority lists are maintained by
each department. It is the case of the petitioner that after
completion of nine years on the post of Senior Auditor, he was
entitled to be considered for promotion to the post of Deputy Chief
Auditor. In lieu of promotion, the respondent Municipal Corporation
considered him for grant of pay scale of the next promotional post
(Deputy Chief Auditor). By order dated 05.04.2007, the petitioner was
granted the higher pay scale of Rs.8000-13500 (pay scale of a Deputy
Chief Auditor) with effect from 01.08.2005, as per Government
Resolution dated 16.08.1994. Arrears of pay, with effect from
01.08.2005, were also paid to the petitioner in the year 2007. The
petitioner was given the benefit of the higher pay scale for more
than three years. Thereafter, after adoption of the recommendations
of the 6th Central Pay Commission by the respondent
Corporation, order dated 28.10.2010 was issued, directing that the
pay scale which was revised from Rs.5500-9000 to Rs.8000-13500 in
respect of all employees who had been given said benefit, is required
to be corrected. The impact
of the impugned order dated 28.10.2010 is that the employees,
including the petitioner, would now be
entitled to the higher pay scale of Rs.6500-10500, and not the
pay scale of Rs.8000-13500. Consequent directions have also been
issued to effect recovery of the excess amount from the petitioner,
from the date the pay scale of Rs.8000-13500 was given to him.
Aggrieved thereby, the petitioner has approached this Court by filing
the present petition.
4. Mr.
Shalin Mehta, learned advocate for Ms. Viraj Fozdar, learned
advocate for the petitioner submits that the impugned order dated
28.10.2010 has been passed without issuance of prior show-cause
notice or affording an opportunity of hearing to the petitioner,
which is against the settled principles of law. It is further
submitted that the said order is violative of the principles of
natural justice and on this ground alone, the same may be quashed and
set aside.
5. An
affidavit-in-reply has been filed by the respondent Corporation,
wherein it is stated that as per the Government Resolution dated
16.08.1994, as against the pay-scale of Rs.5500-9000, the higher pay
scale to which the petitioner would be entitled is Rs.6500-10500, and
not Rs.8000-13500, which was wrongly given to the petitioner.
6. It
is not denied by the respondent Corporation that no opportunity of
hearing has been granted to the petitioner before passing the
impugned order, though the learned advocate for the respondent
Corporation has submitted that no representation has been made by the
petitioner, after passing of the impugned order.
7. When
the matter is taken up today, Mr. H.S. Munshaw, learned advocate for
the respondent Corporation states, upon instructions from Mr. R.M.
Jogarana, Legal Officer, Bhavnagar Municipal Corporation, that as the
petitioner has not been granted an opportunity of hearing before
passing order dated 28.10.2010, he shall be granted such an
opportunity by the respondent Corporation, and a fresh order shall be
passed thereafter.
8. In
view of the above statement made by the learned advocate for the
respondent Corporation, the Court does not find it necessary to go
into the merits of the case. It is a settled position of law that no
order resulting in infliction of civil consequences should be passed
against a person without affording him, or her, a reasonable
opportunity of hearing. In the present case, admittedly, the
petitioner has not been heard before passing the impugned order. It
is not the case of the respondent Corporation that the petitioner is
guilty of fraud or misrepresentation, which may have led to the
passing of the impugned order. As such, the impugned order dated
28.10.2010 deserves to be quashed and set aside, being violative of
the principles of natural justice.
9. In
this regard, the observations of the Supreme Court in Bhagwan
Shukla Vs. Union of India and Others, (1994)6 SCC 154 are
relevant, and are reproduced hereinbelow:-
“3. We
have heard learned counsel for the parties. That the petitioner’s
basic pay had been fixed since 1970 at Rs 190 p.m. is not disputed.
There is also no dispute that the basic pay of the appellant was
reduced to Rs. 181 p.m. from Rs. 190 p.m. in 1991 retrospectively
w.e.f. 18-12-1970. 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. 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. Since,
that was not done, the order (memorandum) dated 25-7-1991, which was
impugned before the Tribunal could not certainly
be sustained and the Central Administrative Tribunal fell in error in
dismissing the petition of the appellant. The order of the Tribunal
deserves to be set aside. We, accordingly, accept this appeal and set
aside the order of the Central Administrative Tribunal dated
17-9-1993 as well as the order (memorandum) impugned before the
Tribunal dated 25-7-1991 reducing the basic pay of the appellant from
Rs. 190 to Rs. 181 w.e.f. 18-12-1970.”
In
view of the principles of law enunciated by the Supreme Court, which
are fully applicable to the facts obtaining in the present case, the
impugned order dated 28.10.2010 is hereby quashed and set aside.
10. The
Commissioner, Bhavnagar Municipal Corporation shall grant an
opportunity of personal hearing to the petitioner and shall
thereafter pass a fresh, reasoned, order in accordance with law.
11. The
petition is partly-allowed in the above terms. Rule is made absolute
to the above extent.
(Smt.
Abhilasha Kumari, J.)
Safir*
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