M.L. Joshi, J.
1. This is a writ petition under Article 226 of the Constitution of India by one Govindprasad. The facts giving rise to his writ petition briefly stated are as follows.
2. The petitioner was a tool checker in foundry shop No. 3 in Northern Railway Workshop at Jodhpur at the relevant time in the year 1965. He was prosecuted on a police report under Section 409 of the Indian Penal Code and under Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act for alleged misappropriation of 29 copper ingots. On account of this case the petitioner was suspended by the Works Manager Northern Railway Jodhpur with effect from 26th of November, 1965. Ultimately the petitioner was acquitted by this Court by its judgment dated 16th of April, 1969 passed in S.B. Criminal Appeal No. 219 of 1967. The petitioner, there-after approached the Deputy C.M.E. (West) Northern Railway Jodhpur, non-petitioner No. 2, and reported himself for duty. He was allowed to resume duty from 15th of July, 1969. However, no order was passed in regard to the wages during the period of suspension. The petitioner felt aggrieved on account of omission on the part of the non-petitioner No. 2 in this behalf and made a representation to the non-petitioner No. 2 who by his order vide letter No. 14/VI/G/477/SPE/EE dated 23-8-70 ordered that the suspension period of the petitioner shall be treated as such and only subsistence allowance be paid for that period. This order purports to have been passed Under Rule 2044 of the Indian Railway Establishment Code. The petitioner being dissatisfied with this order moved the payment of Wages Authority by submitting a claim to the tune of Rs. 5797/-. This claim was allowed by the Payment of Wages Authority by judgment dated 16th of June, 1972. The non-petitioners challenged the order of the Payment of Wages Authority by way of appeal to the District Judge, Jodhpur who accepted the appeal & dismissed the claim by his judgment on 14th of March, 1973. The learned District Judge held that the order passed by the Dy. CME non-petitioner No. 2 on 23rd of August, 1970 was valid being passed by a competent authority. The learned District Judge farther observed that there was no room for importing the principles of natural justice in this case. He thus held that in view of the order dated 23rd August, 1970, passed by the non-petitioner No. 2 no claim could be made by the petitioner. The learned District Judge also observed that the petitioner was not fully exonerated under the High Court judgment dated 16-4-69.
3. The petitioner felt aggrieved by the order of the learned District Judge and, therefore, moved the High Court by way of revision which was registered as S.B. Civil Revision No. 272/73. This revision petition came before this Court but was adjourned from time to time. According to the petitioner during the course of arguments before the Single Bench the learned Counsel for the petitioner felt that although the order dated 23rd of August, 1970, Passed by the Deputy CME is void and could be ignored by the Payment of Wages Authority but he entertained doubt whether in fact and in law the Payment of Wages Authority could ignore such order. He, therefore, has moved this Court under Article 226 by way of writ petition. It may be mentioned here that the revision petition has been decided by me today on the ground that the Payment of Wages Authority had no jurisdiction to go beyond the order passed by the competent, authority under Rule 2044 under the Railway Establishment Code.
4. Amongst others one of the principal ground raised in the writ petition is that before any order could be passed under Article 204 of the Railway Establishment Code it was incumbent upon the competent authority under that rule to have given notice to the petitioner before passing the impugned order. It has been submitted in the petition that no notice was given to the petitioner nor he was given an opportunity of being heard as to why the salary for the suspension period not be with held.
5. The writ petition has been contested on behalf of the non-petitioners and various grounds raised in the writ petition have been traversed in the reply to the writ petition.
6. In reply it has been contended that firstly the principles of natural justice do not apply at all and even if it is taken that the principles of natural justice are attracted then the petitioner having filed the representation the requirements of the principles of natural justice have been fulfilled. It has been further contended in the reply that at any rate petition being belated this Court is not to invoke its jurisdiction under Article 226 of the Constitution of India.
7. Before taking the case on merits I may deal with the preliminary objection based on the ground of delay. It has been submitted by Mr. L.R. Bhansali that the impugned order was passed on 23rd of August, 1970. The writ petition has been filed over a period of about 4 years that is on 21st of November, 1974. According to the learned Counsel no good explanation has been assigned for the delay. Mr. Shrimali on the other hand has submitted that he had challenged the order before the Payment of Wages Authority in the bonafide plea that the order having been passed in violation of natural justice was void and nullity and therefore the Payment of Wages Authority could ignore that order. It has been further submitted by him that he had been pursuing the remedy on the Payment of Wages side and the Payment of Wages Authority had accepted his claim but the claim was rejected on appeal made, by the learned District Judge. It has been further submitted that the petitioner challenged the order of the learned District Judge before the High Court and during the pendency of the revision he having felt that the Payment of Wages Authority might not be able to go beyond the order passed under Rule 2044 of the Railway Establishment Code, he at once moved this Court under Article 226. These facts are not denied by the counsel for the non-petitioners also. From the facts given in the writ petition it is clear that the petitioner had been pursuing his remedy although it may be a wrong remedy but it was never the less a bona fide one. In the circumstances the preliminary objection grounded on the basis of delay cannot be accepted.
8. Coming to the merits of the case, the contention of the non-petitioner that the principles of natural justice are not applicable to the case before me is devoid of force as the matter is concluded by a Supreme Court decision reported in Gopal Krishna V. State of M.P. : (1968)IILLJ125SC . That was a case under Fundamental Rule 54 which is just analogous to Rule 2044 of the Railway Establishment Code. In that case the order under Rule 54 was passed without giving notice to the affected party. It was held that the very nature of the order and the functions enjoined under Rule 54 implies the duty to act judicially and in such cases if the opportunity to show cause against the action proposed is not afforded the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice. The same observations can be equally applicable to the case before me. Obviously, order which is to be passed under Rule 2044 is of a quasi judicial nature and it presupposes the affording of opportunity of being heard before an order is made against the affected party. The principles of natural justice postulate that whenever a quasi judicial order is passed it shall be incumbent upon the authority to give notice to the affected party before any order is made against him. Admittedly no notice was given nor any opportunity afforded to the petitioner before passing impugned order. The impugned order therefore being in violation of the principles of natural justice is invalid in law and cannot be sustained.
9. learned Counsel for the non-petitioner however tried to sustain the impugned order on the ground that the principles of natural justice has been complied with in this case as the representation was made by the petitioner for determining his salary. The representation cannot fulfil the requirement of a notice and affording the opportunity of being heard. The filling of the representation cannot dispense with the opportunity of being heard as duty is enjoined on the quasi judicial body to give notice to comply with the principles of natural justice. Admittedly this has not been done in this case. The impugned order therefore is bad in law and has to be quashed.
10. In the result the petition is allowed in part. The impugned order dated 23-8-70 (Ex 2) is hereby quashed. The competent authority i.e. the non-petitioner No. 2 is directed to decide the matter according to law as early as possible after giving notice to the petitioner. It may be however made clear that the observations of the learned District Judge that the order passed by this Court does not amount to honourable acquittal shall not be taken into account while passing the order under Rule 2014 and the competent authority shall decide the matter after perusing the Judgment of this Court in an independent manner. In the facts and circumstances of the case the parties are left to bear their own costs.