LETTERS PATENT APPEAL No.191 OF 2007 ( Against the order dated 25/01/2007 passed in C.W.J.C. No. 2848 of 2007) JIVENDRA MISHRA, SON OF LATE RUDRA NARAYAN MISHRA, RESIDENT OF VILLAGE- MAHINATHPUR, P.s. BASOPATTI, DISTRICT- MADHUBANI …….. PETITIONER/APPELLANT. -VERSUS- 1. STATE OF BIHAR THROUGH THE SECRETARY, WATER RESOURCES (IRRIGATION) DEPARTMENT, BIHAR, PATNA. 2. THE SECRETARY, WATER RESOURCES (IRRIGATION) DEPARTMENT, BIHAR, PATNA. 3. THE SPECIAL SECRETARY, WATER RESOURCES (IRRIGATION) DEPARTMENT, BIHAR, PATNA 4. THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, DARBHANGA 5. THE SUPERINTENDING ENGINEER, WESTERN KOSHI CANAL CIRCLE, MADHUBANI. 6. THE EXECUTIVE ENGINEER, WESTERN KOSHI CANAL DIVISION, RAHIKA (MADHUBANI). 7. THE SUB-DIVISIONAL OFFICER, WESTERN KOSHI SUB- DIVISION, BENIPATTI, MADHUBANI. 8. THE ACCOUNTANT GENERAL, BIRCHAND PATEL PATH, PATNA …….. RESPONDENTS/RESPONDENTS 2 For the petitioner: (1) Mr. Suresh Pd. Singh, Advocate (2) Mr. Manoj Kumar, Advocate. (3) Miss. Rashmi, Advocate. For the State: Mr. L.P. K. Rajgrihar, A.C. to AAG-IX P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh & Hemant Kumar Srivastava, JJ. Heard learned counsel for the appellant and learned counsel for the state. 2. By an order dated 13th November, 2000, the respondents-authorities decided that shortage of articles from the store under charge of the petitioner was found to be valued at Rs 1.85 lakhs and the same is recoverable from him. In paragraph-2 of that letter, it was also mentioned that the amount may be recovered from the pension of the petitioner as admittedly, he had superannuated on 31st day of October, 2000. Against that order, the appellant preferred writ petition bearing C.W.J.C. No. 2848 of 2001 which has been dismissed summarily by order under appeal. Shorn of 3 unnecessary details, the crux of the matter can be noticed in brief as follows: The petitioner (appellant herein) was appointed as an overseer in 1965. In August 1991, he was transferred from his posting in Western Koshi Canal, Sub division- Rahika (Darbhanga) to Daltenganj. Charge of the store under him could be handed over finally by the petitioner only on 10.02.1993. Annexure-1 series enclosed with the counter affidavit of respondents in the writ petition discloses that he was asked to explain various items of shortage. Explanation was received by the authorities. In order to ascertain the actual shortage and its value, a Committee appears to have been constituted. The report of the committee dated 17.06.2000 contains list of the items finally found short and their valuation. The report discloses that the suggestions/objections received from the petitioner from time to time were considered by the committee and many items initially shown as shortages were deleted. The report bears signature of the petitioner also. On the basis of such report, ultimately liability to pay for this shortage was fixed by the order dated 13.11.2000 which was challenged by the petitioner before the writ court. 3. The main ground of challenge is that the alleged shortage is incorrect; the petitioner was not at fault in not handing over of the charge of the store immediately after his transfer in August, 1991 and that for realization of the value 4 of shortage, the authorities are required under law to institute a full-fledged departmental proceeding and then impose punishment as per provisions in the Bihar Pension Rules. 4. In writ jurisdiction, this court is required to examine the legality, correctness and propriety of the procedure through which findings were arrived at. The decision itself being an issue of fact is generally not examined in writ jurisdiction unless there be an exceptional circumstance warranting to interference with findings of fact. 5. In the present case, the shortage was detected belatedly because the petitioner did not hand over charge of the store immediately on transfer in August, 1991. Subsequently, the authorities had to relieve him from the transferred place and only thereafter, he ultimately handed over charge. The explanation that there was no direction in the transfer order to hand over charge is not worth consideration. As a Junior Engineer in Govt. service, petitioner could not be oblivious of the requirement of rules applicable to government servants on transfer. Handing over charge at the earlier place of posting and taking over charge at the transferred place are well-known phenomena in the service jurisprudence. We find no merit in the claim of the petitioner that initially he could not hand over charge because of lack of such direction in the transfer order. 6. The procedure adopted by the authorities was fully 5 in accordance with requirements of rules of natural justice. The petitioner was given opportunity of explanation and he in fact gave explanations on several occasions and many of such explanations were accepted or taken note of as is evident from committee’s report dated 17.06.2000. Hence, so far as fixing of liability on account of shortage was clearly done in accordance with rule of natural justice prior to petitioner’s retirement. The procedure cannot be said to be lacking in fairness. 7. The only issue which survives for determination is whether in the facts noted above, because of direction for recovery being passed on 13.11.2000, while the petitioner had superannuated on 31.10.2000, there was legal obligation to initiate a departmental proceeding under the Pension Rules before issuing directions for recovery and whether it is necessary to interfere with order for recovery in exercise of writ jurisdiction. 8. Learned counsel for the petitioner/appellant has placed reliance upon a judgment of this court in case of Mahendra Narayan Pathak vs. The State of Bihar reported in 2002(4) PLJR 154. In that case, petitioner’s pension had been stopped for unauthorized occupation of government property. There had been no opportunity given to the petitioner to explain his stand and the impugned order was not for recovery of any loss to the government on account of failure to account for entrusted property but by 6 way of punishment for unauthorized occupation of government property. The punishment was stoppage of pension. In those different state of facts, this court held that the pension which the petitioner was getting could not have been stopped without following a reasonable procedure prescribed by law or one in conformity with rules of natural justice. 9. So far as the present case is concerned, we have no hesitation in holding that the authorities have not even remotely thought of imposing any punishment to the petitioner for any misconduct etc. They have only proceeded to determine the value of loss caused to the state on account of petitioner’s failure to count for properties under his charge and entrusted to him as in-charge of stores while he was posted at the relevant place. Such act of the authorities for mere recovery of fairly ascertained loss to the government on account of failure to account for property entrusted, cannot be equated with an act of imposing punishment for misconduct. The relevant Pension Rules, i.e. rule 43 is basically in two parts: (i) Rule 43(a) is as follows:- 43. (a): “Future good conduct is an implied condition of every grant of a pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave 7 misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under the rule, shall be final and conclusive.” The other part, rule 43(b) read without the proviso is as follows: 43(b): “The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re- employment after retirement.” Rule 43(a) is in general terms reserving the right of the government to withhold or withdraw pension in whole or in part if the pensioner is convicted of serious crime or on being found guilty of grave misconduct. Rule 43(b) is specific and provides the procedure where Government decides to exercise its power to withdraw pension or any part of it, permanently for specific period or to order for recovery from a pension of the whole or part of any 8 pecuniary loss caused to the government in a case where the petitioner is found in a departmental proceeding to be guilty of grave misconduct or to have caused pecuniary loss to the government by misconduct or negligence. (Emphasis added by underlining) 10. From the wordings used in rule 43(b), it is evident that a departmental proceeding is contemplated only in respect of a charge for grave misconduct or for pecuniary loss to the government occasioned by misconduct or negligence. In the present case, the authorities never contemplated any charge or proceeding because there was no allegation leveled against the petitioner of any misconduct or negligence. The authorities proceeded on the premise that whatever may be the reason for shortage, since the petitioner was in charge of the stores and had failed to account for the goods entrusted to him, he had to make good for the loss. In absence of any allegation of misconduct or negligence, there can be no occasion for any proceeding. In fact, under the Pension Rules, the punishment envisaged is for withholding or withdrawing a pension or any part of it. But in the present case, no such order of punishment has been passed against the petitioner. In such circumstance, only because the petitioner retired before the order for recovery was issued, it will not be appropriate to direct the authorities to institute a disciplinary proceeding against the petitioner for recovery of the 9 ascertained loss. The position might have been different if there had been an order for withholding or withdrawing part of petitioner’s pension as a punishment or if the determination of shortage made prior to petitioner’s retirement had suffered from procedural irregularities for want of fairness or due to non-compliance with requirements of natural justice. 11. In the present case, the determination of the loss from the government stores entrusted to the petitioner was done in a fair manner without any intention to hold the petitioner guilty of any kind of misconduct or negligence. Hence, in such situation, it is not possible to hold that for recovery of the value of goods unaccounted for, there must be initiated a departmental proceeding under the Pension Rules. In fact, that may expose the petitioner to graver injuries which was never the intention of the authorities, as apparent from the records. 12. The situation at hand is comparable to a situation where government proceeds to recover the property or value of such property earlier given to a pensioner for his official use as per service rules. To hold that value of such goods like official furnitures, car etc. can be realized only through a disciplinary proceeding would be stretching the scope of Pension Rules beyond the required limits. A disciplinary proceeding under the Pension Rules is to be held only in 10 cases of misconduct, grave misconduct or negligence causing loss. In absence of such allegations, for mere recovery of a loss fairly ascertained prior to retirement or apparent from the books of account etc. which may include housing loan or other loans taken from the government but mistakenly not realized, no disciplinary proceeding would be warranted under the Pension Rules. 13. In our considered view, the writ court rightly refused to interfere in the matter in exercise of writ jurisdiction when the loss was already fairly ascertained before retirement. The petitioner has the option to pay the value of the goods unaccounted for from other sources and in that case, his pension amount would not be required to be touched by the authorities. In the facts of the case, exercise of writ jurisdiction would perpetuate injustice to public exchequer. Hence, we find no merit in this appeal. 14. Although we have decided not to interfere in the matter on merits, considering the fact that the appellant is a retired government servant and considering the strenuous submission of learned counsel for the appellant that he be given at least one opportunity of representing to the concerned Chief Engineer, only for revision of the then market value of some of the goods like A.C. Sheets and for some other items which had allegedly lost their utility due to passage of time, we observe that if the appellant makes such a mercy petition before the concerned Chief Engineer, 11 he shall consider the propriety of revising the rates of the concerned articles and pass any appropriate order in his discretion at an early date preferably within two months. 15. The appeal is accordingly disposed of with above observation. Patna High Court, Dated, the 26th day of August, 2010 AFR/AKV/- (Shiva Kirti Singh,J.) ( Hemant Kumar Srivastava, J.)