Cancellation Of Promotion & Reversion Of Employee's Position Without Providing Show Cause Notice Is Unsustainable : Guwahati High Court

Background facts

The petitioner was an employee of Sivasagar Municipal Board (SMB) and was assigned as Lower Division Assistant (LDA) in the year 1995. He was then promoted to the position of Upper Division Assistant (UDA) in February 2020 through a decision passed by the SMB. Subsequently, he was appointed as the head assistant temporarily. However, on 10.06.2022 the SMB enforced an order cancelling his position from the promotion of LDA to HDA and discontinuing his position of head assistant. The reason for the same given by SMC was procedural discrepancies and non-compliance with the government guidelines of prior approval of administrative bodies. The employee was reverted to his earlier position of LDA, with a directional order for the recovery of excess salary drawn during his tenure in the higher posts.

Aggrieved by the same, the employee filed the writ petition asserting that the cancellation was carried out without providing him with a show cause notice and an opportunity to be heard thereby contravening the principles of natural justice.

It was contended by the employee that the circular dated 17-12-2016 which the respondent have relied upon is only applicable to the fresh recruitments and not upon the internal promotion such as the one in the case of employee i.e. LDA to Upper division assistant. Further, the employee contended that the process of promotion was regular in nature.

It was further contended by the employee that despite the procedural irregularities, the respondent authorities were bound to provide with the prior show cause notice and an opportunity to present his case before passing the disputed decision as the same had adverse civil consequences consisting of demotion and salary reduction.

On the other hand it was argued by the respondent that the procedure adopted for promoting the employee from LDA to UDA, was not in accordance with the guidelines mandated by the Assam Government as per the circular dated 17-12-2016. Further they contended that within only two days of the said promotion, the employee was asked to discharge the function of head assistant therefore claiming no violation of the rules.

Further the respondent acknowledged that the employee should have been given a show cause notice and a proper opportunity to be heard before issuing the order of reversion.

Findings of the court

It was found by the court that the promotion of the employee from the post of LDA to UDA was a regular promotion. However, it was stated by the court that there was a lack of evidence to show that the employee had been duly promoted to the position of the Head Assistant rather he was provisionally assigned in such position.

Further, relating to the reversion of the employee from the post of UDA to LDA, the court observed that such a decision had far reaching consequences. It was then emphasized by the court that such demotion if passed is a serious violation of the principle of natural justice and administrative fairness.

It was held by the court that the reversed order, regarding the demotion of employee without providing him with his right or opportunity to be heard was legally unsustainable. The court then set aside the order, conferring liberty to the respondent to initiate a fresh procedure, provided that the employee was given a show cause notice and an opportunity to be heard.

With the aforesaid observations, the writ petition was disposed of by the court.

Case no. : WP(C)/4849/2022

Counsel for the Petitioner : S CHETIA, J P MORE

Counsel for the Respondent : GA, ASSAM, T J MAHANTA