Boby Francis v. Joint Registrar (General) & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943** ## **WP(C) NO. 4788 OF 2021** ## **PETITIONER :** **BOBY FRANCIS, AGED 49 YEARS, S/O.FRANCIS, POOTHOTTAL, KEZHUVANKULAM, KOTTAYAM DISTRICT.** **BY ADVS.LIJI.J.VADAKEDOM SRI.RAJEEV JYOTHISH GEORGE.** ## **RESPONDENTS :** - **1 THE JOINT REGISTRAR (GENERAL), OFFICE OF THE JOINT REGISTRAR(GENERAL), KOTTAYAM, PIN-686577.** - **2 THE ASSISTANT REGISTRAR(GENERAL), OFFICE OF THE ASSISTANT REGISTRAR (GENERAL), MEENACHIL,PALA,PIN-686577.** - **3 MUTHOLI SERVICE CO-OPERATIVE BANK LTD.NO.1631, REPRESENTED BY ITS SECRETARY, THEKKUMMURY, PULIYANNUR.P.O, KOTTAYAM-686573.** - **4 PRESIDENT, MUTHOLI SERVICE CO-OPERATIVE BANK LTD.NO.1631, THEKKEMMURY, PULIYANNUR.P.O, KOTTTAYAM-686573.** - **5 SUNNY JACOB,** **HEAD CLERK,MUTHOLI SERVICE CO-OPERATIVE BANK LTD, NO.1631,PULIYANNUR.P.O, KOTTAYAM-686573.** **BY ADVS. SRI.MATHEW DEVASSI SRI.MATHEW JOHN (K)** **R1 & R2 BY SRI JIMMY GEORGE, GOVT.PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 4788 OF 2021** **2** ## **JUDGMENT** Dated this the 13[th] day of December, 2021. 1. Ext.P2 order dated 26-07-2020 of the Assistant Registrar on the basis of a complaint submitted by 5[th] respondent with regard to anomaly in the higher pay scale of the petitioner has been assailed in the writ petition on the following facts and grounds. 2. Both petitioner and 5[th] respondent, appointed as Peon on 14-05-1990 as per the rules governing the service conditions were granted first higher grade on 14-05-2000. On 1-10-2010, the petitioner was promoted as Junior clerk. However, before that, on 14-05-2010 was granted a second higher grade. The grievance as expressed in the complaint of the 5[th] respondent is that the petitioner was not entitled to double benefit viz. promotion as well as the second higher grade. Resolution under Section 69 of the Kerala Co-operative Societies Act, granting the second higher grade to the petitioner and another person including the 5[th] respondent was brought to the notice of the Assistant Registrar. The Assistant Registrar found prima facie the anomaly, ordered for recalling the order of granting the benefit of second higher **WP(C) NO. 4788 OF 2021** **3** grade and ordered for recovery by seeking a report from the Managing Committee. The Managing Committee dated 19-01-2021 in unison by examining the matter in detail did not deny the fact that the petitioner was granted the promotion as Junior clerk with effect from 1.10.2010., called upon the petitioner to give an explanation within a period of 7 days. Finding the explanation unsatisfactory, an order Ext.P3(a) dated 29.1.2021 awarded for deducting Rs.4,500/- from the monthly salary from January 2020 onwards. Though the petitioner is stated to have submitted representation Ext.P4 but of no avail. 3. Sri.Kishor, the learned counsel appearing on behalf of the petitioner submitted that on the very same grievance, respondent No.5 had raised the issue before the Joint Registrar and vide order dated 26.09.2013 Ext.P1 the same was rejected. There was no case for respondent No.4 to reiterate the issue as promotion was already effected from 1.10.2010 and as well as the second higher grade with effect from 14.05.2010. 4. Principles of Natural Justice have been violated with impunity as neither at the time of passing of the impugned order dated 26.07.2020 or when the Managing Committee had taken a call on the order aforementioned on 19.01.2021, any opportunity was afforded. **WP(C) NO. 4788 OF 2021** **4** Issuance of orders Ext.P3 dated 20.01.2021, Ext.P3(a) dated 29.01.2021 was a farcical exercise and was actuated from a predetermined mind, which cannot be permitted to be sustained in the eyes of law. The petitioner would have been given a chance to make representation even otherwise. There was no misrepresentation on behalf of the petitioner in obtaining the benefit and the recovery cannot be effected in the law laid down by the Supreme Court in _**State of Punjab & Others v. Rafiq Masih (White Washer) & Others (2015) 4 SCC 334**_ and _**State of Kerala and Others v. P.V.Priya (2021 KHC 473)**_ . 5. On the other hand, Mr.Mathew John, the learned counsel representing the Co-operative Bank, supported the order in Exts.P2, P3 & P3(a) on the premise that the order would have the effect of deducting the recovery and as well as the anomaly committed by the respondents could not have been denied by the petitioner even if in the first instance an opportunity ought to have been granted. In other words, had the opportunity been granted, the effect of the order would have been the same. In support of the aforementioned contention, reliance has been laid down in paragraphs 19, 20 & 21 of judgment in _**Aligarh Muslim University and Others v. Mansoor Ali Khan (2000**_ **WP(C) NO. 4788 OF 2021** **5** _**KHC 1366)**_ . No provisions of the rule envisage of extension of double benefit of second higher grade and as well as the promotion. The idea of granting the second higher grade pay is only when there is no scope of promotion. In other words, it is granted to rule out the frustration or stagnation in service. It is in that context, a poultry amount of Rs.4,000/is sought to be recovered monthwise so that the petitioner is not put to substantial pecuniary laws. 6. I have heard the counsel for the parties. 7. The factum of appointment as peon on 14.05.1990, grant of first pay higher grade scale with effect from 14.05.2000 as well as promotion of the petitioner as Junior clerk with effect from 1.10.2010 are not disputed. It is also a matter of record that petitioner and 5[th] respondent were granted second higher grades with effect from 14.05.2010. But before that, the petitioner had already been promoted as Junior clerk with effect from 1.10.2010. 8. In the first blush the arguments of Mr.Kishore, in not complying with the principles of natural justice when the order Ext.P2 dated 26.07.2020 was passed, looked very attractive. But on perusal of the same and subsequent communication, Ext.P3 dated 20.01.2021 giving an opportunity to the petitioner to show cause within a period of seven **WP(C) NO. 4788 OF 2021** **6** days of not effecting the recovery do reflect the compliance of the principles of natural justice. There is no dispute to the ratio decidendi culled out in the judgment of _**Aligarh Muslim University**_ (Supra) in paragraphs 19, 20, 21 & 22, which are extracted herein below, where even after compliance of the natural justice, the order impugned would have been same, it would have been a futile exercise for setting aside the order: " 19. Coming back to the first case of Mr.Mansoor Ali Khan, admittedly, no notice under R.5(8)(i) of the 1969 Rules has been given. There is, therefore, violation of principles of natural justice as notice contemplated in R.5(8)(i) has not been given. Question as to whether the order deeming that he vacated office is correct or not, will have to be then decided. We shall decide that point under point 5. We decide accordingly against Mr.Murshad Hussain Khan and partly in favour of Mr.Mansoor Ali Khan under Point 4. Point 5. 20. This is the crucial point in this case. As already stated under point 4, in the case of Mr. Mansoor Ali Khan, notice calling for an explanation had not been issued under Rule 5(8)(i) of the 1969 Rules. Question is whether interference is not called for in the special circumstances of the case. 21. As pointed recently in M.C. Mehta Vs. Union of India (1999 (6) SCC 237), there can be certain situations in which an order passed in violation of natural justice need not be set aside underArt.226 of the Constitution of India. For example where **WP(C) NO. 4788 OF 2021** **7** no prejudice is caused to the person concerned, interference under Art.226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadee Venkateswara Rao v. Govt. Of A.P [AIR 1966 SC 828 : 1966 (2) SCR 172], it is not necessary to quash the order merely because of violation of principles of natural justice. 22. In M.C.Mehta (1999 (6) SCC 237) it was pointed out that at one time, it was held in Ridge vs. Baldwin ( 1964 AC 40 : 1963(2) All ER 66(HL)) that breach of principles of natural justice was in itself treated as prejudice and that no other 'defacto' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor Vs. Jagmohan ( 1980 (4) SCC 379), Chinnappa Reddy, J. followed Ridge vs. Baldwin (1964 AC 40 : 1963(2) All ER 66 (HL) and set aside the order of supercession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer. " 9. The Managing Committee on reciept of the order dated 26.07.2020 had in unison agreed with the order Ext.P2 by submitting a report on 19.01.2021 called upon the petitioner on the next date, i.e., 20.01.2021 Ext.P3 and after rejecting the reply of the petitioner which **WP(C) NO. 4788 OF 2021** **8** was not backed by any provisions of law and rules pertaining to the service conditions of the parties including the petitioner reiterated the decision of the Assistant Registrar by ordering the recovery of arrears by deducting a sum of Rs.4,500/-. Now the question requires to be decided by this Court whether in the absence of any misrepresentation or any fault of the petitioner, can the recovery be effected, the answer is 'No', it cannot be. The aforementioned view of mine is derived from the ratio decidendi culled out in the judgment in _**State of Kerala v. P.V.Priya (supra),**_ wherein in paragraph 17 after discussing the case law threadbare on the issue, recorded the findings in favour of the affected employee. The case in hand is also of similar nature where the petitioner did not at any point of time misrepresented in respect of the order dated 14.05.2010 when the second higher grade was accorded. 10. As an upshot of my finding, I partly allow the writ petition by upholding the orders vis-a-vis curing the defect of setting aside the order of grant of the higher pay scale with effect from 14.05.2010 as a few months thereafter the petitioner had already been given promotion with effect from 1.10.2010. In fact, the Officers at the helm of affairs should have rectified the said mistake and ought not to have allowed to perpetuate without any justifiable reasons. Thus, the recovery sought **WP(C) NO. 4788 OF 2021** **9** to be effected from the petitioner cannot be justified. The same is ordered to be quashed. The writ petition stands disposed of. Sd/- **AMIT RAWAL, JUDGE** amk **WP(C) NO. 4788 OF 2021** **10** ## **APPENDIX OF WP(C) 4788/2021** ## **PETITIONER'S EXHIBITS :** **EXHIBIT P1 THE COPY OF THE ORDER DATED 26.9.2013 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P2 THE COPY OF THE ORDER NO.K 995/2020 DATED 26.07.2020 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 THE COPY OF THE SHOW CAUSE NOTICE DATED 20.1.2021 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P3(A) THE COPY OF THE ORDER DATED 29.1.2021 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER** **EXHIBIT P4 THE COPY OF THE REPLY DATED 15.2.2021 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.**