Lallu Lal Shrivastava L. L. Shrivastava Vs State Of Chhattisgarh

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2024:CGHC:30617

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 519 of 2016

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1. Lallu Lal Shrivastava (L. L. Shrivastava) S/o Late Gaya Prasad Shrivastava, Aged About 68 Years Retired Draftsman, R/o Village Jalaso, Post Samartaal Via Koni, District Bilaspur, Chhattisgarh.

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... Petitioner

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versus

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1. State of Chhattisgarh through Secretary, Agriculture Department, Dau Kalyan Singh Bhawan, Raipur, Chhattisgarh.

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2- Joint Director, Agriculture, Sarguja Division, Ambikapur District Sarguja, Chhattisgarh.

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3- Assistant Soil Conservation Officer, Ramanujganj, P.S. Ramanujganj, District Balrampur, Chhattisgarh.

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4- Joint Director, Accounts, Treasury and Pension, Sarguja, P.S. Ambikapur, District Sarguja, Chhattisgarh ... Respondents

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For Petitioners : Mr. C. Jayant K. Rao, Advocate For State/Respondents : Ms. Anuradha Jain, Panel Lawyer

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Digitally A signed by ANNAJEE A (GOUTAM BHADURI, JUDGE) RAO ANNAJEE RAO

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Order on Board

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13/08/2024

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(1) The case of the petitioner is that he retired on 29.02.2008 from the post of Draftsman and since his retiral dues was not settled, he filed a writ petition bearing WPS No.2327 of 2009 wherein this Court has passed order on 05.05.2009 directing the petitioner to file

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representation before the Pension Committee. In the meanwhile, anticipatory pension as also gratuity was fixed on the basic pay of Rs.8500/-. It is the further case of petitioner that the Pension Committee directed the respondent to finalize the retiral dues of the petitioner. The pension committee has directed as under :-

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5/ समि�ति� ने करण �ें उपቝኌ�� मि�भागीय अति�कारिरयों से याति�काक�ा� को पेंशन ��त्�ों के भुग�ान की अ्ቕ�न ቝኌ��ति� से समि�ति� को अ�ग� कराने के लि%ये कहा ।

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6/ मि�भागीय अति�कारिरयों ने समि�ति� को ब�ाया की याति�काक�ा� को अन्�रिर� पेंशन भुग�ान आदेश 27-07-2009 को जारी कर मिदया गया है। सा� ही अन्�रिर� ्ቇेच्युटी रू. 2,55,614/- भी याति�काक�ा� के खा�े �ें 0408-2009 को ज�ा कर दी गयी है ।समि�ति� ने याति�काक�ा� को इस राशिश के ज�ा होने मि�षयक पुमि6 बैंक से कर %ेने के लि%ये कहा। मि�भागीय अति�कारिरयों ने समि�ति� को यह भी ब�ाया मिक याति�काक�ा� के पेंशन ्ቚप्ቔ , पेंशन भुग�ान आदेश जारी मिकये जाने के लि%ये संयु्ሹ सं�ा%क, कोष, %ेखा � पेंशन के पास 14-07-2009 को भेज मिदये गये है। समि�ति� ने आदेश मिदया मिक संयु्ሹ सं�ा%क, कोष, %ेखा � पेंशन एक �ाह �ें पेंशन भुग�ान आदेश जारी करना सुमिनति<� करेंगे।

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7/ समि�ति� ने याति�काक�ा� को जी.पी.एफ. भुग�ान के सम्बन्� �ें जानकारी भी समि�ति� को देने के लि%ये कहा। मि�भागीय अति�कारिरयों ने समि�ति� को कहा मिक याति�काक�ा� ने जी.पी एफ. भुग�ान आ�ेदन ्ቚप्ቔों पर ह��ा्ቌर नहीं मिकये हैं। समि�ति� ने याति�काक�ा� से आ�ेदन प्ቔों पर ह��ा्ቌर करने के लि%ये कहा �ामिक ्ቚकरण भुग�ान हे�ु मि�भाग ्ቛारा �हा%ेखाकार के पास भेजा जा सके । �हा%ेखाकार के अति�कारिरयों ने समि�ति� को ब�ाया मिक मि�भागीय अति�कारी, याति�काक�ा� के ्ቚप्ቔों पर ह��ा्ቌर न मिकये जाने की अ��ा �ें भी भुग�ान ्ቚ��ा� �हा%ेखाकार को भेज सक�े हैं। समि�ति� ने मि�भागीय अति�कारिरयों को आदेश मिदया मिक याति�काक�ा� के ह��ा्ቌर समिह� या ह��ा्ቌर रमिह� मिकसी भी अ��ा �ें भमि�ष्य मिनति� भुग�ान ्ቚ��ा� एक �ाह �ें �हा%ेखाकार काया�%य �ें भेजा जाना सुमिनति<� करेंगे।

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(2) Since the anticipatory pension and gratuity was fixed on the low

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pay scale, the petitioner again filed a writ petition bearing WPS No. 263 of 2010 and in the meanwhile, since the respondents recovered Rs.32,730/- on the ground that excess payment was made to the

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petitioner without giving any show cause notice and opportunity of hearing, the deduction so made was also subject of challenge in WPS No.559/2013. Both the writ petitions came to be decided on 29.07.2013 and the High Court by its order dated 29.07.2013 passed in WPC No.263/2010 (Annexure P-9) directed the respondents to finalise the pension of the petitioner including the gratuity within an outer limit of 3 months. The operating para of order dt. 29.7.2013 passed in WPS No. 263 of 2010 reads as under :

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“ 29.07.2013

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Since this Court has passed an order in other connected matter i.e., W.P(S) No. 559 of 2013 declaring recovery illegal, respondents are now directed to finalise pension case of the petitioner and make payment of the entire claims of the petitioner including gratuity within an outer limit of three months from the date of receipt of a copy of this order.

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Accordingly, this petition is finally disposed off.”

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(3) Since the finalisation of the pension and gratuity was not arrived at despite the above order of this Court, the petitioner filed Contempt Petition bearing Cont No.185/2015 wherein the respondents were directed to consider and ensure the compliance of the order dated 29.07.2013. However, subsequent to it, by letter dated 23.09.2015 Annexure P-1, it was observed that the pension and gratuity cannot be recalculated as calculation has already been made as per the amended basic pay scale.

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(4) Learned counsel for the petitioner would submit that the basic pay of the petitioner was Rs.8700/- which is evident from Annexure P-3 at the time of retirement. He further submits that subsequently, the payscale of Rs.8700/- was reduced to Rs.8500/- and accordingly, the

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gratuity and pension was calculated. Before such reduction of basic pay scale, the opportunity of hearing was not given and it was unilaterally done. He placed reliance in Bhagwan Shukla Versus Union of India AIR 1994 SC 2480 and submits that the basic pay cannot be reduced without giving any opportunity of hearing.

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(5) Per contra, learned State Counsel on the other hand opposes the arguments of petitioner and would submit that initially the fixation of basic pay was wrongly done, therefore, when the recovery was set aside on the basis of liberty given to the respondent State, the basic pay scale was recalculated which came to be reduced from 8700/- to 8500/-. Consequently on the basis of reduced pay scale of Rs.8500/-, the pension and gratuity were further fixed and accordingly the letter dated 23.09.2015 (Annexure P-1) was issued which is under challenge in this petition.

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(6) After hearing both the parties and perusal of documents, it shows that the petitioner after his retirement went through different litigation for his pension. Initially his anticipatory pension and gratuity was fixed that too also was subjected to detachment by the recovery proceedings which was also subject of challenge. Eventually all the facts boiled down as the respondent’s claim was that basic salary was wrongly fixed earlier, therefore, it was recalculated. In support of their stand, document R-1 is placed. A perusal of Annexure R-1 would show that there are two Last Pay Certificates enclosed with Annexure R-2. In the initial LPC, the basic pay was shown as Rs.8700/- whereas another certificate subsequently issued shows that basic pay is Rs.8500/-. There is nothing on record to appreciate the fact that what was the basis of reduction of such basic pay from 8700 to 8500/-. In order to

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appreciate the fact whether the basic pay can be reduced unilaterally without giving any opportunity, the Supreme Court in Bhagwan Shukla Versus Union of India AIR 1994 S.C. 2480 held that the reduction of pay-scale cannot be done without following the procedure known to law. At para 3, the Court held thus :

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“ 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 concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.07.1991, 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 17.09.1993 as well as the order (memorandum) impugned before the Tribunal dated 25.07.1991 reducing the basic pay of the appellant from Rs.190/- to Rs.181/- w.e.f. 18.12.1970.”

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(Emphasis supplied)

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(7) The averments made in return of the State also do not show that before reduction of pay-scale from Rs.8700/- to 8500/- the petitioner

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was heard or he was even put on notice. Therefore, there is flagrant miscarriage of justice for want of hearing.

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(8) Applying the ratio laid down by the Supreme Court in Bhagwan Shukla (Supra) to the facts of the present case, since the petitioner was not given opportunity of being heard when the basic pay was reduced from Rs.8700 to Rs.8500, this Court is of the considered view that the communication dated 23.09.2015 (Annexure P-1) denying the claim would remain as a short-fall to satisfy the legal requirement. Therefore, Annexure P-1 cannot be allowed to sustain and is set aside. The respondents are directed to calculate the pension and gratuity by taking the basic pay to be Rs.8700/- within a period of 60 days which the petitioner otherwise would been entitled. Accordingly, this writ petition is allowed.

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Sd/({GOUTAM BHADURI}) JUDGE

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Rao

Lallu Lal Shrivastava L. L. Shrivastava v. State Of Chhattisgarh

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Lallu Lal Shrivastava L. L. Shrivastava v. State Of Chhattisgarh

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