The Kisan Sahkari Chini Mills Ltd. vs Shabbir Ahmad and Others

Barin Ghosh, C.J.—The appellant is the employer of the private respondent. It appeared to the appellant that the private respondent has received certain amount of money, which he was not entitled to receive. In course of making an inquiry in relation thereto, it was felt that the General Manager, whose order entitled the private respondent to obtain payment of such extra money, be heard. Subsequently, on 9th December, 2005, the appellant passed an order and directed recovery of the money alleged to have been received by the private respondent in excess of his entitlement. This order was assailed by filing the writ petition. By the judgment and order under appeal, the Court did not quash the order dated 9th December, 2005, but directed the same to be kept in abeyance until a representation, to be made by the private respondent to the appellant, is heard and decided. Subsequent thereto, private respondent filed a correction application and thereby sought permission to make the representation before respondent No. 4 i.e. General Manager, who permitted the appellant to obtain such extra payment and who, at that time, was an employee of another institution. This correction application has been allowed. Against the order, allowing the correction application, the present appeal has been filed.

In the appeal, it is the contention of the appellant that even if a representation is made to the General Manager of another employer and even if a decision is taken by the said General Manager on such representation, in law, that will have no effect in so far as the appellant is concerned. It appears to us that it was the decision of the employer, which was assailed in the writ petition. The Court directed that decision to be kept in abeyance giving an opportunity to the private respondent to make a representation. The said state of affair demonstrates that the order of the employer, impugned in the writ petition, was without notice to the private respondent and, accordingly, by the order passed by the Court, an opportunity of hearing was accorded to the private respondent. This opportunity of hearing can only be given by the employer and not by a third party, who has no connection with the employer. The General Manager, who permitted the private respondent to withdraw the money, said to be in excess of the entitlement of the private respondent, can be at the best be a witness in the proceedings for concluding the issue, whether the private respondent was or was not entitled to the amount, which has been directed to be recovered, but he could not be the person to whom, the private respondent could make a representation. In any event, even if such representation is made, the same will have no impact on the order dated 9th December, 2005, inasmuch as, an employee of another organisation cannot recall or direct the order dated 9th December, 2005, passed by the employer to be kept aside.

We, accordingly, allow the appeal and restore the original order, as was passed on 17th December, 2005.