IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10681 of 2002 Om Prakash Gupta, S/O Sri Kishori Prasad Gupta, Resident of Village-Basopatti, P.O.-Basopatti, P.S.- Basopatti, District-Madhubani At present Assistant Engineer, Quality Control Road Subdivision, Aurangabad within Road Division Aurangabad, P.O.-Aurangabad, District-Aurangabad. …………………………………………………. Petitioner Versus 1. THE STATE OF BIHAR. 2. The Engineer-in-Chief cum Addl. Commissioner cum Special Secretary, Road Construction Department, P.W.D., Government of Bihar Visheswaraiya Bhawan, Bailey Road, Patna-800001. 3. The Joint Secretary, Road Construction Department, P.W.D., Government of Bihar Visheswaraiya Bhawan, Bailey Road, Patna-800001. 4. The Superintending Engineer, Road Construction Department North Bihar Anchal, Muzaffarpur. 5. The Executive Engineer Dhaka Road Division, Dhaka, Road Construction Department, Government of Bihar, P.S.- Dhaka, District-Motihari. 6. The Executive Engineer, Soil Investigation Division Advance Planning, Road Construction Department, Government of Bihar, East Boring Canal Road, S.P.Sinha Path, Patna-800001. 7. The Treasury Officer, Secretariat Treasury, Nirman Bhawan, Patna-800001. 8. The Treasury Officer, Aurangabad. …………………………………………………. Respondents ----------- 4 21.5.2009 Heard counsel for the parties. In this writ application, the prayer of the petitioner reads as follows:- “(i) The letter bearing Memo No. A-23 dated 25-06-2002 issued by the Executive Engineer, Road Division Dhaka, the Respondent No.5 to the Executive Engineer Soil Investigation Division, Advance Planning Road Construction Department, Bihar, Patna, the 2 Respondent No.6, containing direction to recover Rs. 3,04,176.65, the amount of temporary advance from the petitioner (Annexure- 17/A) be quashed. (ii) The (Annexure-17) Letter No. 482 dated 25-07-2002 issued by the Treasury Officer, Secretariat Treasury, Nirman Bhawan, Patna, the Respondent No.7 to the Treasury Officer Aurangabad, the Respondent No.8 informing him to realize Rs. 3,04,176.65 from the petitioner and act as per revised LPC by canceling earlier LPC sent through Memo No. 407 dated 11-07-2002, be quashed. (iii) The Respondent be directed to pay regular salary to the petitioner without any deduction as contained in Revised LPC dated 23-07-2002 (Annexure-16). (iv) The Respondent be further restrained from taking any coercive action against the petitioner till the final disposal of the writ application and/or from realizing or deducting any amount from his salary. (v) ---------------” Counsel for the petitioner would submit that when a person is subjected to a recovery and that too for a sum of Rs. three lacs and odd, he must be at least given a show-cause notice and an opportunity of hearing. In fact, 3 she would, however, submit that the recovery from salary for any Government dues is by itself a punishment under the concerned Discipline, Control and Appeal Rules and therefore, when no departmental proceeding was initiated against the petitioner, the impugned order seeking recovery per-se is illegal. Counsel for the State on the other hand with the help of materials brought on record by way of counter affidavit would submit that when there is a direct proof of the petitioner being handed over such amount and no accounts being rendered in support of the same, there would be hardly any scope for holding departmental proceeding and the order of recovery under such circumstances by indicating the said amount to be recovered in the Last Pay Certificate (LPC) infact cannot be held to be one by way of punishment under the concerned Rules. Attractive though the submission of the counsel for the State may be, the effect of such order of recovery of the amount from the salary of the petitioner none the less is penal in nature. Such order in fact would form 4 part of punishment in terms of the Discipline Control & Appeal Rules. Obviously, for such recovery, a proceeding in terms of Rule 55A of the Bihar Government Servants (Classification, Control & Appeal) Rules by giving a show cause notice had to be initiated. There is no denial of this fact in the counter affidavit that the petitioner was not given any such notice, much less, any proceeding in terms of Rule 55A was conducted before passing the impugned order seeking recovery of Rs. 3,04,176.65/- from the petitioner. That being so, this Court would quash the impugned order as contained in Annexure No. 17 & 17/A and would remit the matter back to the Secretary of the Road Construction Department who after examining the facts would be at liberty to issue show cause notice against the petitioner for recovery of any amount which was taken by him by way of advance and was not accounted for or adjusted by him and was sought to be recovered in the impugned order. In view of the fact that the agony of the petitioner has continued for more than 5 seven years, this Court would direct the Secretary of the Department to take his final decision after affording reasonable opportunity to the petitioner and in terms of existing Discipline Control & Appeal Rules within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations/ direction, this application to extent indicated above is allowed. Rsh (Mihir Kumar Jha, J.)