Parmanand Kushwah vs State Of M.P. And Others

In pursuance of the directions issued by the Apex Court and guidelines issued by the High Court of Madhya Pradesh in the wake of COVID-19 outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government.

Heard finally with the consent of both the parties.

This petition under Article 226 of the Constitution of India assails the order dated 21/11/2017 passed by respondent No.2 (Annexure P-1) whereby pay scale of Rs. 3050-4590 enjoyed by petitioner, who is retired "Time Keeper" since1988, has been revised/reduced to Rs. 2750-4400 after attaining age of superannuation.

The brief facts leading to filing of this case are that the petitioner was initially appointed as "Time Keeper" from 01/05/1968. From the date of his initial appointment, the petitioner had performed his duties with utmost sincerity and dedication. On account of some anomaly in the pay-scale of "Ameen" and "Time-keeper", the petitioner alongwith other employees of the State had approached before the M.P. State Administrative Tribunal, Bench Gwalior by filing T.A No. 995/98 wherein learned Tribunal had decided the issue regarding grant of benefit of pay scale at par with "Ameen" to that of "Time Keepers". Being aggrieved with the order passed by learned Tribunal, respondents/State had approached before the Division Bench of this Court in WP No. 945/2001 which was decided on 02/02/2006 whereby order passed by learned Tribunal was set-aside and similarly situated persons were directed to file a joint representation through their respective counsel and the respondents-authorities/ Finance Department were directed to decide the same keeping in mind observation of the Apex Court for determining the salary on the principle of "Equal pay for equal work". It was further directed that before taking a decision, opportunity of hearing may be given to the representative of the employees or their counsel. Being aggrieved petitioner alongwith others preferred a Review Petition No. 187/2006 which was dismissed vide order dated 03/04/2006. In compliance of the order passed by this Court, respondents vide order dated 24/08/2007 refixed the pay scale to Rs. 2750-4400/-. Being aggrieved the petitioner and other similar situated employees approached this court by filing WP No. 4113/2007(s), the said writ petition was allowed vide order dated 09/09/2014 by passing the following order :-

"In view of the above, this Court without entering into the merits of the claim for pay parity is inclined to dispose of this petition with the following directions :

1 The impugned order passed by respondent No.4 on 24/08/2007, Annexure P-1 is set-aside.

2The respondents are free to take action against the petitioners of reduction of pay scale, in case occasion and law permits after affording due and sufficient opportunity and keeping the observation (Supra) in mind.

Cost of Rs. 1000/- be paid to the petitioner."

The State aggrieved by the order dated 09/09/2014 filed a Writ Appeal No. 154/2015, the writ appeal seems to be finally decided on 19/08/2015 whereby Division Bench maintained the order passed by Single Bench except for waiving off cost of Rs. 1000/- imposed on the respondents.

Shri D.P. Singh, learned counsel for the petitioner, assails impugned order basically on the four grounds :

The respondents without following the directions issued vide order dated 09/09/2014 in WP No. 4113/2007 wherein this court had directed that the respondents are free to take action against the petitioner for reducing the pension after affording due and sufficient opportunity of hearing but respondents without issuing any show cause notice and without affording any opportunity of hearing, violating the principles of natural justice, passed the impugned order (Annexure P-1) which caused serious prejudice to the retired employee-petitioner, therefore, the impugned deserves to be set-aside.

Since, the petitioner having retired in the year 2004, the Authorities who passed the impugned order dated 21/11/2017 are incompetent to pass such an order. Since any order in respect of retired employee has to be issued with concurrence of the Governor. The same has not been done in the present case, therefore, the order (Annexure P-1) deserves to be set-aside.

Counsel for the petitioner further submits that since the principle of natural justice (Audi-Alteram-Partem) has not been followed, respondents be imposed with heavy cost since they made the petitioner, who is retired in the year 2004, to run from pillar to post for seeking justice.

Counsel for the petitioner further submitted that authorities have already implemented the order passed by the learned Tribunal in case of similarly situated employees and have extended the benefit at par with "Ameen" to that of "Time Keeper". Moreover, petitioner is entitled to draw pension on the basis of last pay drawn.

On the other hand, learned counsel for the respondent-State has vehemently opposed the contention made by learned counsel for the petitioner and submitted that return has been filed on behalf of the respondents and it is further stated that Finance Department has already taken a decision dated 23/02/2007 in which it is stated that work and duties of "Ameen" have no relevance with that of "Time Keeper" therefore, Time Keeper is only entitled for pay scale of Rs. 445-635 (later revised to 2750-4400). The said decision dated 23/02/2007 was challenged as subject matter of WP No. 3357/2007. The aforesaid writ petition was decided by a detailed judgment dated 19/01/2009 wherein decision dated 13/07/2007 (Annxure R-1) was upheld. He further contended that aforesaid decision was brought into notice of the Court while deciding WP No. 4113/2007. The said decision has attained finality, therefore, the petitioner is not entitled for higher pay scale at Rs. 515-800 (later revised to 3050-4590). On the aforesaid submissions, learned counsel for the respondents prays for dismissal of the writ petition.

Heard learned counsel for the parties.

9 On perusal of the return filed by the State, it does not indicate that any opportunity of any nature in shape of issuance of notice or of personal hearing to the petitioner was granted before passing of the impugned order. The reply nowhere says that respondents have complied with directions issued by this Court vide order dated 09/09/2014 passed in WP No. 4113/2007.

It is well settled principle of service jurisprudence that any order adverse to the service conditions of any employee can not be passed, unless the same is preceded by following of principles of natural justice. This court vide order dated 09/09/2014 in WP No. 4113/2007 has directed the respondents to afford due and sufficient opportunity of hearing to the petitioner before passing the order. From perusal of (Annexure P-1) dated 21/11/2017, nowhere it is reflected that petitioner was afforded opportunity of hearing which reads as under :

'' म.प्र. शासन जल संसाधन विभाग मंत्रालय भोपाल के आदेश क्र एफ-12/6/2007/पी-1/31/2328 दिनांक 13.07.2007 के द्वारा मान. उच्च न्यायालय खण्डपीठ ग्वालियर की अवमानना याचिका 629/2006 (डब्लू.पी.940/2001) श्री किरण रेंगनेंकर एवं अन्य कार्यभारित मस्टर क्लर्क/समयपाल विरूद्ध अरविन्द जोशी प्रमुख सचिव एवं अन्य के द्वारा जल संसाधन विभाग के अनुसार कार्यरत स्थल सहायक/मस्टर क्लर्क (का.भा) वेतनमान 515-800 के स्थान पर वेतनमान रू. 445-635 हेतु पात्रता मानी गई है।

मान. उच्च न्यायालय खण्डपीठ ग्वालियर के निर्णय अनुसार आपके सेवानिवृत्त स्वत्वों का भुगतान वेतनमान रू. 2750-4400 के अनुरूप दिये जाने के निर्देश है। एवं वादीगण को शासन आदेशों के अनुरूप ही निर्धारित वेतनमान के अधीन भुगतान किया जा रहा है।

अतः उक्त परिप्रेक्ष्य में श्री दामोदर प्रसाद शर्मा, श्री पदमानन्द कुशवाह श्री कान्ता सिंह गुर्जर एवं नरेन्द्र सिंह सिकरवार से.नि.स्थल सहायकों के अभ्यावेदनों का समग्र परीक्षण किया गया। जिसके उपरांत पाया कि आपको उच्चतर वेतनमान दिया जाना विधि सम्मत नहीं है। अतः पूर्ण विचारोपरान्त आपका अभ्यावेदन अमान्य किया जाता है।"

From the perusal of the aforesaid order, it is clear that representation has been rejected without affording any opportunity of hearing to the petitioner. In such a situation, the impugned order can not be allowed to stand.

Accordingly, the impugned order dated 21/11/2017 (Annexure P-1) is set-aside. Respondents are directed to afford due and sufficient opportunity of personal hearing to the petitioner and then pass a detailed and speaking order. The aforesaid exercise be done within a period of three months from the date of receipt of certified copy of the order passed today

It is made clear that respondents shall issue notice to the petitioner for providing personal hearing for a date to be fixed by the respondents. A cost of Rs. 10,000/- (Rs. Ten Thousand Only) is imposed upon the respondents for being paid to the petitioner within the aforesaid period for making him run from pillar to post for getting justice in the matter, as this is the third round litigation which the petitioner has been compelled to face.

The petition stands allowed to the extent indicated herein above.