IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3235 of 2010 1. KIRAN SRIVASTAVA W/O LATE ASHOK KUMAR SRIVASTAVA R/O VILL BHIKHANPURA,P.O.KHABRA,P.S.SADAR,DISTT-MUZAFFARPUR Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE MUZAFFARPUR 3. THE TREASURY OFFICER MUZAFFARPUR,DISTT-MUZAFFARPUR 4. THE DEPUTY COLLECTOR ESTABLISHMENT MUZAFFARPUR,DISTT- MUZAFFARPUR ----------- 2/ 07/09/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is the wife of the deceased late Ashok Kumar Shrivastava. The latter was posted as an Assistant in the Muzaffarpur Treasury. He has been deceased on 18.6.2009 while in service. On 20.1.2003 while in service he was placed under suspension in context of four treasury bills stated to have been passed which was suspicious and payment made of approximately Rs.10,34,368/-. He was charge- sheeted on 23.6.2003 in a departmental proceeding to which he replied on 8.7.2003. On 19.3.2005 the enquiry officer was changed and the proceedings remained inconclusive till his death. On 26.5.2001 an F.I.R. is stated to have been filed registered as Muzaffarpur (T) P.S. Case No.143/01. Learned counsel for the petitioner submits that charge-sheet has been submitted in the criminal trial - 2 - only against the deceased on 20.3.2003. The petitioner being a widowed lady is not in a position to make any further statement to what may have finally happened in the trial, whether it is pending or it has been disposed before the death of her husband. After the death of her husband the petitioner represented for superannuation benefits. The respondents have then passed the impugned order dated 23.11.2009 deducting the entire allegedly defalcated amount of Rs.10,34,368/- from the retiral and other dues of the deceased alone after dropping the departmental proceedings in view of his death. Learned counsel for the petitioner from the letter No.191 dated 25.5.2001 signed by the Additional Collector and the Deputy Development Commissioner, Muzaffarpur points out that the husband of the petitioner was alone not a suspect but so were other officers in the treasury for having colluded in passing the bills. The deceased husband of the petitioner has therefore alone been made a scapegoat as he is no more there to answer the allegations against him. The respondents have found it convenient to fasten entire liability upon him in an effort to shield the others in the treasury who were suspect. Learned counsel for the State submits that - 3 - though a counter affidavit may be required, but nonetheless it is not known as to what happened in the criminal prosecution. It may have a bearing on the final order dated 23.11.2009. The departmental proceeding appears to have lingered from June,2003 till his death in June, 2009 and has finally been closed thereafter in November, 2009. Learned counsel for the State contends that the deceased may have been responsible for the delay also. If that be so, nothing precluded the respondents from proceeding ex parte in accordance with law if they were so concerned about public funds an issue being presently emphasized. In any event of the matter, the impugned order presently being questioned is not in context of any orders passed by the criminal court, but is confined to the issue of the departmental proceeding. If the departmental proceeding was pending for six long years, it was for the respondents to adequately take notice of the letter No.191 dated 25.5.2001 clearly opining that the deceased alone could not have committed the misdemeanour and the involvement of other treasury officials was more than apparent in the matter. This Court therefore finds it difficult to sustain the order dated 23.11.2009 against the deceased alone. Considering the matter from the disciplinary and - 4 - administrative aspect only in exercise of powers of judicial review this Court finds that the deceased being no more available to answer the allegations against him, the respondents have found a convenient scapegoat in him. The court arrives at this finding in view of the recitals contained in letter No.191 dated 25.5.2001 clearly opining that the involvement of other treasury officials was apparent and they should be adequately proceeded with departmentally also. The Supreme Court in (2007) 7 SCC 206 (BONGAIGAON REFINERY & PETROCHEMICALS LTD. AND OTHERS Versus GIRISH CHANDRA SARMA) has held at paragraph-18 as under- “18. After going through the report and the finding recorded by the Division Bench of the High Court, we are of opinion that in fact the Division Bench correctly assessed the situation that the respondent alone was made a scapegoat whereas the decision by all three Committees was unanimous decision by all these members participating in the negotiations and the price was finalized accordingly. It is not the respondent alone who can be held responsible when the decision was taken by the Committees. If the decision of the committee stinks, it cannot be said that the respondent alone stinks; it will be arbitrary. If all fish stink, to pick one and say only it stinks is unfair in the matter of unanimous decision of the Committee.” The order dated 23.11.2009 is accordingly set aside. Any deduction made pursuant thereto is directed to be refunded forthwith. - 5 - Should the respondents proceed afresh against all concerned in accordance with letter No.191 dated 25.5.2001 the present order shall not stand in their way. The bona fide of the stand of the respondents with regard to public funds, taken before this Court, stands to test now. Nothing stated in this order shall have any bearing in the criminal trial and/or any orders passed by the competent criminal court. The writ application is allowed. KC ( Navin Sinha, J.)