R K MISRA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the parties. Counsel for the petitioner submits that the petitioner was appointed as Overseer by the Chief Engineer, Public Works Department on 22.12.1965, which was re-designated as Junior Engineer. The controversy with regard to the nature of appointment of Overseer/Junior Engineer was settled by a Division Bench of this Court in Writ Petition No. 10589 of 1989, Ashwani Kumar Sahal Versus The State of U.P. and others and the Overseers/Junior Engineers so appointed were treated to be confirmed employees and were taken outside the purview of Public Service Commissioner vide order dated 28.3.1966. Thereafter, the State Government vide order dated 10.9.2005 had created supernumerary posts and confirmed the petitioner w.e.f. 28.3.1966 and also provided the pay-scale of higher post, i.e. Assistant Engineer, etc., as and when it fell due and arrears of salary were also paid. The petitioner, on attaining the age of superannuation, has retired and the requisite pension was also paid on the basis of the salary last drawn, but abruptly, by means of the impugned order the pension has been reduced. Counsel for the petitioner further submits that the pension can only be reduced under the orders passed by His Excellency the Governor, after affording opportunity of hearing. The matter pertaining to the petitioner's designation has been agitated before the U. P. Public Services Tribunal and thereafter before this Court as also before the Hon'ble Apex court. All the Courts have uphold the contention of the petitioner that the services of the petitioner were deemed to be regularized with effect from 22.10.2005 and as such, he is entitled for full pension as he has completed the requisite qualifying service. Petitioner's counsel further submits that the persons junior to him, namely, T. N. Rai, have been paid full pension and no order for reducing the pension has been passed against the said person. Further, the aforesaid facts have also not been disputed in the counter-affidavit. In the case of Bhagwan Shukla Versus Union of India and others [1994 SCC (LandS) 1320], the Hon'ble Apex Court has held that the appellant has obviously been vitiated with civil consequence, 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 order came to be made behind his back without following any procedure known to law, thus, there has been flagrant violation of the principles of natural justice and the appellant has been made to suffer a huge financial loss without being heard. Fair play in action warrants that no such order which has the effect on an employee suffering from the civil consequences should be passed without putting the employee concerned to notice and without giving him a hearing in the matter as in the present case the salary and pension of the petitioner has been reduced and recovery from the pension has been ordered without giving any show-cause notice or explanation to the effect. The Apex Court in another case State of Bihar and others Versus Laxmi S. Prasad and another, vide judgment and order dated 10.4.2001, has held that the principle of constructive res judicata is a very refined principle which is equally applicable while exercising the power under the rule, the State was obliged to consider the entire records, if it has not considered as we have said it could not give a fresh right for passing another order. Accordingly, the writ petition is allowed and the impugned orders dated 30.11.2007 and 28.12.2007 are hereby quashed.