~——.rJJ- •-;7'.""-'• "•"••• ^^^^^^^ I tsa^ 1 1 .^1 uu1. 't^^ ^,11 ^ \v HIGH COURT OF CHHATTISGARH AT BILASPUR D.-B^: Ho_in'bLe_Shri Justice Satisti K. Acinihotri and Hon'ble Shri Justice Radho Shvam Sharma WritAppeal No.176 of 2008 •PI-L^ Shri M.L.Sahu (Dead) through his legal representatives yersys State of Chhattisgarh and others JUDGr^ENTFQR CONSIDERATIQM Sd/- —JUUGE" 01-08-2011 in ble Shri Satish K, Aanihotri, J.: ou^u . Sd/- Satish K. Agnihotri Judge Postfor 1-08-2011 Sd/- R.S. Sharma Judge ^^ •p?^.-. HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'bSe Shri Satish K. Aanihotri and Hon'ble Shri Radhe Shvam Sharma. JJ. Writ Appeal No.176 of 2008 Appellants 1. 2. 4. 5. 6. Shri M.L. Sahu, Ramdhan Sahu S/o Late (Dead) through his legat representatives: Ramwati Sahu Wd/o. Late M.L. Sahu, aged about 62 years, R/o. Near B.D. Mahant, Primary School, new Chandaniyapara, Janjgir, District Janjgir-Champa (CG) Rajesh Sahu, S/o. Late M.L. Sahu, aged about 40 years, R/o. Near B.D. Mahant, Primary School, new Chandaniyapara, Janjgir, District Janjgir-Champa (CG) Chandra Shekhar Sahu S/o. M.L. Sahu, aged about 38 years, R/o. near B.D. Mahant, Primary School, new Chandaniyapara, Janjgir, District Janjgir-Champa (CG) Usha Sahu D/o. Late M.L. Sahu, W/o. Lalit Sahu, aged about 44 years, R/o. E-361, H.T.P.P, Colony, Darri, District Korba (CG) Durga Sahu D/o. Late M.L. Sahu, W/o. Gopal Singh Sahu, aged about 42 years, R/o. M.D. 618, Deepika Colony, Gevra Project, District Korba (CG) , Rekha Sahu, D/o. Late M.L. Sahu, W/o. Krishna Kumar Sahu, aged about 36 years, R/o. Ward No.18. J.B. Road, Janjgir, District Janjgir Champa (CG) versus ^f a Respondents 1. State of Chhattisgarh, Through the Secretary, Public Works Department, DKS Bhawan, Raipur, Distt. Raipur (CG) 2. Superintending Engineer, Public Works Department, Division Bilaspur, Bilaspur Distt. Bilaspur (CG) 3. Executive Engineer, Public Works Department, Division Pendra, Pendra, Distt. Bilaspur (CG) 4. Executive EngSneer, Public Works Department, Division Champa, Champa, Distt. Janjgir Champa (CG) Present: Shri Govind Dewangan, counsel forthe appellants. Shri MPS Bhatia, Dy. Govt. Advocate for the State/respondents. Appeal under Section 2(1) ofthe Chhattisaarh Hiah Court (Appeal to Division Bench) Act. 2006 JUDGMENT (Delivered on _t_ August, 2011) Per Radhe Shvam Sharma. J.: The instant appeaf has been preferred against order dated 10.8.2006 (Annexure A-1) passed by learned Single Judge in Writ Petition No.4027/2006, whereby the writ petition filed by the appellant/petitioner M.L.Sahu (now dead and represented through his legal heirs) has been dismissed as not maintainable. 2. Brief facts of the case is that the appellant/petitioner M.L.Sahu preferred a writ petition, wherein, he challenged correctness and propriety of order dated 5.5.2006 (Annxure-P/1) issued by the Superintending Engineer, Public Works Department, Bilaspur Division, whereby the Superintending Engineer has issued order that ^ recovery of sum of Rs.2,61,241/- is to be made from the appellant/petitioner on account of the fact that when the appellant/petitioner was handing over charge of the store of the Public Works Department, Pendra Road, at that time, 62 cement bags were found missing. Simultaneously, 261 drums of tar and other items were also found missjng, for which, the appellant/petitioner was not able to account for. The appellant/petitioner has disputed the fact of missing articles. 3. After perusal of the pleadings and the documents availabte on record, the learned Single Judge held thus: "that in the first instance, the petitioner was asked to give explanation and same was considered and thereafter, a show cause notice was issued to him. The petitioner took 12 years to file reply of the same. After considering same, order has been passed and still the petitioner disputes the order. Therefore, disputed facts are involved in this case which requires a detailed enquiry by tendering the documents as also the oral evidence, which cannot be gone into in the writ jurisdiction. However, if the petitioner has any grievance against the Impugned order, then the proper remedy for the petitioner is to approach the civil Court for redressal of his grievances where a detailed enquiry can be conducted." 4. Shri Govind Dewangan, learned counsel appearing for the appellant/petitioner submits that respondent No.2 has issued a show-cause notice to the appellant/petitioner on 27.03.1992 (Annexure P-4 of the writ petition) alleging that during the course of handing over the charge by the appellant/petitioner, store materials ^S ^ iike Damar and other materials were found short in Sub-Division No.1 of the Public Works Department at Pendra Road worth Rs.3,05,566.70 and the appellant/petitioner was directed to submit an explanation thereof wjthin a period of ten days, failing which, it was warned in the notice that a disciplinary action would be taken against him. He further submits that the appellant/petitioner has submitted a reply to the show-cause notice on 22-10-1992 (Annexure P-6 in'the writ petition) requesting the concemed authority to provide him necessary documents so that he could file a proper reply in his defence to the show-cause notice, but the same was not provided to the appellant/petitioner. The appeltant/petitioner retired from his service after attaining the age of superannuation on 30.6.2004. After 12 years of issuingthe show-cause notice to the appellanVpetitioner and after two years of his retirement and even without conducting any departmental Inquiry against him, respondent No.2 has issued recovery order on 05.5.2006 (Annexure P-1 in the writ petition). The above order of respondent No.2 is bad in law, as, without conducting a departmental enquiry, issuance of recovery order is unsustainable. After a lapse of 12 years, respondent No.2 has passed the impugned order, but the learned Single Judge has not appreciated the above facts. 5. Per contra, Shri M.P.S.Bhatia, learnedDeputy Government Advocate for the State/respondents, supporting the impugned order passed by the learned Single Judge, has opposed the arguments advanced by learned counsel for the appellant/petitioner. y^ ^l 'l^\ \^ o 6. We have heard learned counsel appearing for the parties and perused the pleadings and the documents available on record. From appreciation of the pleadings and perusal of the record, it appears that show cause notices were jssued to the appellant/petitioner on 27-3-1992 and 16-10-1992 and recovery order was issued by respondent No.2 on 5-5-2006. The appellant/petitioner retired on 30-6-2004. No departmenta! enquiry was conducted during the aforestated period. 7. Relevant provisions of Rule 9 of the Chhattisgarh Civil Services (Pension) Rules, 1976 run as under: "9. Right of Governor to withhold or withdraw pension.— xxxxx xxxxx xxxxx (2)(a)xxxxx xxxxx xxxxx (b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment:- (i) shall not be instituted save with the sanction ofthe Governor; (ii) shall not be in respect of any event whtoh took place more than four years before such jnstitution; and xxxxx xxxxx xxxxx (3) No judiciaf proceeding, if not instituted while the Government servant was in service, whether before his retirement of during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such instltution. ........." ^*-^-.. 8. Record shows that a letter dated 3-4-1991 was issued by respondent No.3 to the appellant/petitioner calling for an explanation about the missing articles of the store. Thereafter, show-cause notice dated 27-3-1992 (Annexure P-4 in the writ petition) was issued by respondent No.2 to the appellant/petitioner. A reminder dated 16-10-1992 (Annexure P-5 in the writ petition) was also issued by respondent No.2 to the appellant/petitioner. The appellant/petitioner wrote a letter to respondent No.2 on 22-10-1992 (Annexure P-6 in the writ petition) requesting him to supply a copy of the account-register of the store for the purpose of submitting a proper reply in his defence. From perusal of the record, it is evident that no document was madeavailable to the appellant/petitioner or response thereon, was made. 9. When the appellant/petitioner did not submit reply to the show- cause notice and the reminder, the concerned authorities should have initiated a departmental enquiry/disciplinary action against him, but no such action was taken by the authorities against him during the period from 27-3-1992 till 5-5-2006. The recovery order has been issued against the appellant/petitioner on 5-5-2006 after his retirement on 30-6-2004, i.e., after about two years. Cause ofaction arose on 27-3-1992 and the recovery order was issued on 5-5-2006, i.e. after a tapse of 14 years. Therefore, the issuance of the recovery order against the appellanVpetitioner is contrary to the above-quoted provisions of Rute 9 of the Chhattisgarh Civil Services (Pension) Rules, 1976 and deserves to be set aside and accordingly the impugned order dated 10-8-2006 (Annexure A-1) passed by the learned Single Judge in the writ petition, being exceptionable, is unsustainable. 10. For the foregoing reasons, we allow the appeal and set aside the impugned order dated 10-8-2006 (Annexure A-1) passed by the learned Slngle Judge jn Writ Petition No.4027/2006 as also the recovery order dated 5-5-2006 (Annexure P-1 in the writ petition) passed by respondent No.2. No order as to costs. Gopal Sd/- Satish K. Agnihotri Judge Sd/- R.S. Sharma Judge