V. J. Varghese Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No. 2090 of 2019

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Ashwani Kumar Verma S/o. Late Shri Madan Mohanlal Verma, aged about 81 years, R/o. A-13, Central Avenue, Smriti Nagar, Bhilai, Distt. Durg (CG)

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Secretary, Department of Urban Administration & Development Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur (CG)

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State of Chhattisgarh Through The Additional Director (Finance), Department of Urban Administration & Development, Block-4, 4^th Floor, Indravati Bhawan, Atal Nagar, Distt. Raipur (CG)

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Municipal Commissioner Bhilai, Through Commissioner, Municipal Corporation Bhilai, District – Durg (CG)

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---- Respondents

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Writ Petition (S) No. 2184 of 2019

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Dinesh Gupta S/o. Late Shri Lakhan Lal Gupta, aged about 45 years, R/o. A38/6, Nehru Nagar, Bhilai, Distt. Durg (CG)

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Secretary, Department of Urban Administration & Development Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur (CG)

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Deputy Director (Pension), Directorate of Urban Administration & Development, Block-4, 4^th Floor, Indravati Bhawan, Atal Nagar, Distt. Raipur (CG)

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Municipal Corporation Bhilai, Through Commissioner, Municipal Corporation Bhilai, District – Durg (CG)

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Municipal Corporation Korba, Through Commissioner, Municipal Corporation Korba, Distt. Korba (CG)

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---- Respondents

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WPS No. 3619 of 2019

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V. J. Varghese S/o Late Shri V.C. John Aged About 82 Years R/o Plot No. 467, Street - 6, Model Town, Bhilai District Durg Chhattisgarh.

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Department Of Urban Administration And Development Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur Chhattisgarh.

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State Of Chhattisgarh, Through The Additional Director (Finance) Department Of Urban Administration And Development, Block - 4, 4th Floor, Indravati Bhawan, Atal Nagar, District Raipur Chhattisgarh.

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Municipal Corporation Bhilai, Through Commissioner, Municipal Corporation Bhilai, District Durg Chhattisgarh.

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---- Respondents

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---------------------------------------------------------------------------------------------- For Petitioners in WPS No. 2090/19 & WPS No. 3619/19 : Dr. Sudeep Agrawal and Shri Vikas Dubey, Advocates For Petitioner in WPS No.2184/19 : Shri Ashutosh Biswas, Advocate on behalf of Shri Devershi Thakur, Advocate For Respondents 1 & 2/State : Ku. Pragya Pandey, Dy. Govt. Advocate For Respondent No.3 : Shri Anuroop Panda, Advocate on behalf of Shri BD Guru, Advocate ---------------------------------------------------------------------------------------------- Hon'ble Shri Justice Naresh Kumar Chandravanshi Order On Board

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19.01.2024

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1 . Since all above writ petitions involve identical issue, they are disposed of by this common order.

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2 . WP(S) No.2090/2019 & WP(S) No.3619/2019 have been preferred by the petitioners seeking following relief:-

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“10.1 That, this Hon’ble Court may kindly be pleased to issue appropriate writ or writs for quashing the impugned order dated 02.03.19 (Annexure-P/1) in the interest of justice.

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10.2 Any other relief or relief(s) which this Hon’ble Court may think proper in view of the facts and circumstances of the case may also kindly be granted.”

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3. WP(S) No.2184/2019 has been preferred by the petitioner seeking following relief:-

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“10.1 That, this Hon’ble Court may kindly be pleased to issue appropriate writ or writs for quashing the impugned order dated 12.02.2019(Annexure-P/1) and further held that the father of the petitioner is entitled for pension in the interest of justice.

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10.2 Any other relief or relief(s) which this Hon’ble Court may think proper in view of the facts and circumstances of the case may also kindly be granted.”

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4. Learned counsel for the petitioners referring to their respective petitions would jointly submit that the petitioners were the employees of Special Area Development Authority (for short ‘SADA’), Bhilai and they were retired from the service prior to merging of SADA Bhilai with Municipal Corporation, Bhilai on 09.6.1998, but they were not granted pension. They would further submit that in the light of order dated 08.02.2016 passed by this Court in WPS No.4459/2014 and two other cases, vide order dated 23.02.2017 (Annexure P/4 in WPS No.2090/2019) issued by the State Government, service period of the employees of SADA, who were working in the Municipal Corporation, was ordered to be counted for granting pension to them. On the basis of that order, petitioners Ashwani Kumar Verma and VJ Varghese were granted pension vide Order dated 29.10.2018 (Annexure P/ 5 in WPS No.2090/19) & Order dated 26.4.2017 (Annexure-P/4 in WPS No.3619/19) respectively. Thereafter they got pension for

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about 2-3 months, but abruptly, vide impugned order dated 02.3.2019 (Annexure-P/1), earlier order granting pension to them, i.e. order dated 29.10.2018 (Annexure-P/5 in WPS No.2090/19) and order dated 26.4.2017 (Annexure-P/4 inWPS No.3619), had been cancelled and it was further ordered that pension be recovered from them.

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5. Learned counsel appearing for petitioner Dinesh Gupta (WPS No.2184/2019) submits that petitioner’s father late Lakhan Lal Gupta, was also an employee of SADA and he died on 25.3.2002. He would further submit that late Lakhan Lal Gupta was also eligible for grant of pension in view of order dated 23.02.2017 issued by the State Government however, vide impugned order dated 12.02.2019 (Annexure-P/1 in WPS No.2184/19) respondent No.2 held that father of the petitioner is not entitled for pension.

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6. It is further submitted by learned counsel for the petitioners that by counting past services rendered by petitioners namely Ashwani Kumar Verma and VJ Varghese, they were granted pension in light of Circular dated 23.02.2017 issued by the State Government but, without providing opportunity of hearing, impugned order dated 02.3.2019 (Annexure P/1 in WPS No.2090/2019 & WPS No.3619/2019) and impugned order dated 12.02.2019 (Annexure-P/1 in WPS No.2184/19) have been passed holding therein that petitioners are not entitled to get pension and recovery order was also made against petitioners

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Ashwani Kumar Verma and VJ Varghese, without following principles of natural justice. Whereas, it is settled position in administrative law, that it is mandatory to provide an opportunity of being heard when an administrative action results in civil consequences to a person or entity. Learned counsel placed reliance in the matter of State of Orissa v. Dr.(Miss) Binapani Dei, AIR 1967 SC 1269 wherein two-Judge Bench of Hon’ble Apex Court held that every authority which has the power to take punitive or damaging action has a duty to give a reasonable opportunity to be heard. The Hon’ble Apex Court, further held that an administrative action which involves civil consequences must be made consistent with the rules of natural justice. It is further contended that, in the matter of Maneka Gandhi v. Union of India, (1978) 1 SCC 248, a seven-judge bench of Supreme Court held that any person prejudicially affected by a decision of the authority entailing civil consequences must be given an opportunity of being heard. Relying upon the above decisions, learned counsel for the petitioners would pray that these petitions may be disposed of by quashing impugned orders dated 02.3.2019/12.02.2019 and further directing the respondent authorities/competent authority that appropriate order may be passed after providing opportunity of hearing to the petitioners, till that effect of stay order passed by this Court on 26.3.2019 may be extended.

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7 . Learned counsel for the State/respondents 1 & 2 would submit that impugned order (Annexure-P/1) itself is self

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explanatory, but considering the limited prayer of the petitioners, appropriate order may be passed.

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8 . Learned counsel appearing for respondent No.3 has extended his support to the submission made by learned counsel for the State.

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9 . Vide impugned order dated 02.3.2019, order for granting pension to petitioners Ashwani Kumar Verma and VJ Varghese were cancelled and the pension granted to them have also been directed to be recovered from them. Once, order for granting pension has been passed and the same has been complied with, then cancellation of said order have effect on civil consequences.

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10. In the case of Mangilal Vs. State of MP (2004) 2 SCC 447, Hon’ble Apex Court has held that principles of natural justice need to be observed even if the statute is silent in that regard. In other words, a statutory silence should be taken to imply the need to observe the principles of natural justice where substantial rights of parties are affected:

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“10. Even if a statute is silent and there are no positive words in the Act or the Rules made thereunder, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected by the orders that may be passed, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. No form or procedure should ever be

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permitted to exclude the presentation of a litigant’s defence or stand. Even in the absence of a provision in procedural laws, power inheres in every tribunal/court of a judicial or quasi-judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties. Procedure is mainly grounded on the principles of natural justice irrespective of the extent of its application by express provision in that regard in a given situation. It has always been a cherished principle. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validity made. They are a means to an end and not an end in themselves.[...]”

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(emphasis supplied)

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11. While considering, as to whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice, the Supreme Court in Syed Abdul Qadir & Ors. vs. State of Bihar & Ors. (2009) 3 SCC 475 , has also taken similar view that principles of natural justice ought to have followed.

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12. In the case of Canara Bank vs. VK Awasthy (2005) 6 SCC 321, a two-judge bench of Supreme Court succinctly

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summarized the history, scope and application of the principles of natural justice to administrative actions involving civil consequences in the following terms:-

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“14. Concept of natural has undergone a great

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deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.”

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(emphasis supplied)

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13. The Hon’ble Supreme Court as well as High Courts in a catena of decisions, time and again, reiterated that no recovery of excess payment for no fault of the employee can be made without following the principles of natural justice. This Court in

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Ramchandra Kurup Vs. State of CG and ors., [WP(S) No. 3663 of 2009] and other connected matters], decided on 23 rd November, 2009, observed as under :-

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“10. A common thread running into the above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/ allowances, there are three conditions wherein the excess payment may be recovered, namely (i) excess payment was made on account of misrepresentation or fraud on the part of the employee, (ii) the employee had knowledge that the payment received was in excess, and (iii) the error was corrected within a short span of time of wrong payment..........”.

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14. In the instant case, petitioner Aswani Kumar Verma and VJ Varghese were granted pension on the basis of circular dated 23.02.2017 (Annexure-P/4) issued by Government of Chhattisgarh and they were granted pension, however, vide impugned order, granting pension to them was not only revoked, but pension granted to them was also ordered to be recovered from them. But, no opportunity of hearing was provided to them prior to passing the impugned orders. However, the respondents have stated in their reply that since the petitioners were retired prior to merger of SADA, Bhilai in to Municipal Corporation, Bhilai, therefore, they are not entitled to get benefit of order dated 23.02.2017 (Annexure-P/4) issued by the State Government.

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15. If aforesaid contentions of learned counsel for the respondents are taken into count despite that, in view of aforesaid settled principle of law, petitioners are entitled to get opportunity of hearing prior to passing of aforesaid impugned

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orders, by following principles of natural justice which has not been followed in instant case.

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16 . in view of the above facts-situation of the case and law laid down by the Hon’ble Apex Court and by this Court and further considering the limited prayer of the petitioners, these petitions are disposed of at this juncture, by quashing impugned orders dated 02.3.2019/12.02.2019 (Annexure-P/1 in all writ petitions) issued by respondent No.2 and further the respondent authorities/competent authority is directed that after providing due opportunity of hearing to the petitioners, appropriate order may be passed in accordance with applicable law/order/ circulars. It is further observed that, aforesaid exercise be concluded within 90 days from the date of receipt/submission of a copy of this order. The State counsel is directed to submit a copy of this order before the respondents/competent authority for compliance. The petitioners are also directed to cooperate with respondents/ competent authority to decide the matter within stipulated period.

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17. It is pertinent to mention here that vide order dated 26.3.2019, this Court granted stay with regard to effect and operation of the impugned order, which is still in operation and as per the learned counsel for the petitioners, pension is being granted to petitioners Ashwani Kumar Verma and VJ Varghese. In this circumstance, it is ordered that order granting stay with regard to effect and operation of the impugned order shall remain in operation till passing of order by respondent/competent

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authority, subject to the condition that aforesaid petitioners shall cooperate for early disposal of their case with regard to grant of pension, also by filing a copy of this order.

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18. It is made clear that this Court has not expressed any opinion on the merits of the case.

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19. With aforesaid observations and directions, these petitions stand disposed of.

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Sd/-

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(Naresh Kumar Chandravanshi) JUDGE

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Bini

V. J. Varghese v. State of Chhattisgarh

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V. J. Varghese v. State of Chhattisgarh

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