Appeal against a Single Judge order stopping salary without hearing. Held, direction stopping salary set aside as it violates principle of audi alteram partem without personal hearing.
The portion of the impugned order directing stoppage of salary without opportunity of hearing was set aside. The rest of the order remained operative.
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20.12.2021
Court : 04 Item : 27 Matter : MAT Status : DISPOSED OF Transcriber: nandy
MAT 1314 of 2021 with CAN 1 of 2021
Soumya Kanti Middya Vs.
Sabina Yeasmin & Ors.
Mr. Subir Sanyal, Advocate Mr. Somesh Kumar Ghosh, Advocate
……for the Appellant
Mr. Sudipta Dasgupta, Advocate Mr. Bikram Banerjee, Advocate Mr. Arka Nandi, Advocate Mr. Sutirtha Nayek, Advocate
……for the Writ-Petitioners/Respondents Mr. Supriyo Chattopadhyay, Advocate Ms. Iti Dutta, Advocate Mr. Samir Kumar Ghosh, Advocate
……for the State
Dr. Sutanu Kmar Patra, Advocate Mr. Supriya Dubey, Advocate
……for the WBCSSC
Ms. Koyeli Bhattacharya, Advocate
……for the WBBSE
The order dated December 2, 2021 passed by the learned Single Judge in WPA 12270 of 2021 is assailed in the instant mandamus appeal solely on the ground that the order for stoppage of the salary without affording an opportunity of hearing is par se illegal and against the constitutional ethos. The impugned order would reveal that serious irregularities and illegalities have been tentatively noticed by the Single Bench in relation to an appointment at Group-C post. The directions have been passed for
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transmission and preservations of the relevant documents before the same goes beyond the hands of a responsible officer. The severity of the allegations if ultimately found to be true and correct, has an impact on the person appointed therein.
We thus do not find any ground to interfere with the portion of the impugned order directing various recourses to be adopted and undertaken by the authority but we intend to interfere with the said order for the simple reason that the stoppage of the salary has a far-reaching effect. Though a person who is a benefactor or the beneficiary of the illegal appointment or have entered through an unknown door, should not receive any blessing from the Court but equally we cannot overlook that a person who has been at the substantive post and rendering services till date has a right to be heard before any order stopping the salary is passed. The maxim, audi alteram partem is inhered and imbibed within the Constitution. A person cannot suffer any adverse order without having an opportunity of hearing.
We are not unmindful of the dilution of such concept. Mere non-adherence to the principles of natural justice may not invalidate the action of the authority unless the person aggrieved thereby
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produces convincing materials that such action of the authority has prejudiced him. The theory of prejudice recognized in conjunction with the principles of natural justice.
All the Counsels appearing before us echoed that the impugned order was passed without affording an opportunity to the applicant who was added as party respondent in the writpetition.
In view of the above and solely on the ground that the portion of the order by which the salary was directed to be stopped, cannot withstand on the anvil of principles of natural justice. The same is hereby set aside . The other portion of the order has not been interfered with and remain operative for all purposes.
However, we make it clear that it is open to the parties or the Single Bench to consider such aspect, if arose, without being deterred with the observations that we have set aside such portion of the order provided an opportunity is given to the person who shall be affected by the order that the Court proposes to pass.
With these observations, the appeal being MAT 1314 of 2021 is disposed of. No order as to costs.
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In view of disposal of the main appeal itself, the connected application being CAN 1 of 2021 is also disposed of .
(Harish Tandon, J.)
(Rabindranath Samanta, J.)
2 issues framed by the court
Whether a direction to stop salary passed without affording an opportunity of hearing violates the principle of audi alteram partem.
Whether the non-adherence to principles of natural justice in stopping salary is liable to be set aside.
Soumya Kanti Middya
Sabina Yeasmin
Harish Tandon
Rabindranath Samanta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
