IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8433 of 2002 INDRADEO PRASAD CHAUDHARY Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. Kamal Kishore Mishra, Advocate For the State : M/s Arvind Ujjwal,S.C.XI & P.K.Lal, J.C. to S.C.XI For the Accountant General : Mr. L.K.P.Rajgrihar,Advocate ------------------- 08/ 20.08.2008 Heard learned counsel for the parties. Petitioner retired as Incharge Engineer-in-Chief of Rural Development Department under the Government of Bihar with effect from 30.11.1997. As he was not paid retiral dues, he moved this Court for a direction for the same. In the writ application, petitioner claims that due to lapses in payment of Motor car advance and house building advance, his pension, G.P.F., gratuity etc. have not been paid. However, learned counsel for the petitioner submits that after filing of this writ application, his other grievances have been redressed by the department except deduction of Rs.39,897/- from his gratuity on certain alleged irregularity committed by him in the work of 2 construction of Sainik School, Tilaiya during the period 1983-84 when he was, in the capacity of the Superintending Engineer, incharge of the work. Learned counsel for the petitioner submits that the period of the said irregularity is more than four years prior to the date of his retirement. He further submits that no departmental proceeding was initiated against him in respect of the alleged irregularity committed by him during his service period. Therefore, he submits that the respondents are not authorized in law to recover that amount from the gratuity of the petitioner in exercise of their powers under Rule 43(b) of the Bihar Pension Rules. Therefore, he has prayed for quashing of notification as contained in Annexure-6, ordering for the said recovery from the gratuity, as well as the show cause issued to him as Annexure-7. Counter affidavit has been filed in the case on behalf of the Accountant General, in which it is stated that all other dues of the petitioner have been released in his favour. However, it is stated that in view of the notification of the Government as contained in 3 Annexure-6 the follow up advice was issued by the office of the Accountant General for payment of gratuity of the petitioner deducting the said amount of Rs.39,897/-. A counter affidavit has also been filed on behalf of respondent no.2 duly sworn by the Deputy Secretary of the Road Construction Department. It is stated in the affidavit that pursuant to the said notification as contained in Annexure-6 necessary sanction order was sent to the Accountant General for release of the gratuity of the petitioner by effecting deduction of the said amount. However, respondents have filed supplementary counter affidavit also duly sworn by Under Secretary of the Road Construction Department. In paragraph-5, it is stated that before issuance of Annexure-6 “no departmental proceeding has been initiated against the petitioner.” Today, learned Standing Counsel No.XI has appeared and brought the records of the department. After going through the records he admits that prior to the retirement of the petitioner, no departmental proceeding was initiated against him for the said irregularity 4 committed by him. He also fairly accepts that period of the said alleged irregularity was prior to four years of retirement of the petitioner and, therefore, the respondents were not authorized under law to take action against the petitioner after retirement and deduct the said amount from the gratuity of the petitioner. In that view of the matter and in view of the rival submissions of the learned counsel for the respective parties as well as fair stand taken by the learned Standing Counsel No.XI, this Court has no option but to quash Annexure-6 and consequential notice as contained in Annexure-7. In the result, Annexures-6 and 7 are hereby quashed and the respondents are directed to release the amount of gratuity with-held, pursuant to the said notification (Annexure-6), to the petitioner within two months from the date of receipt/production of a copy of this order. Learned counsel for the petitioner has also raised a grievance that by Annexure-13, he was promoted as Engineer-in-Chief with effect from 01.2.1997 while Accountant General has 5 fixed his pension taking into account his promoted scale with effect from 01.4.1997. He further submits that if his promotion to the post of Engineer-in-Chief with effect from 01.2.1997 is taken into account, his pension will stand revised and will be fixed at the higher rate. There appears to be no opposition to the prayer of the petitioner from the respondents. In the circumstances, the Respondent- Accountant General is directed to consider the matter with regard to promotion of the petitioner as Engineer-in-Chief with effect from 01.2.1997 in accordance with law and issue revised pay slip after refixing his pension, if necessary, within the said period of two months. In the result, this writ application is allowed with the above observations and directions. A.H./ ( J. N. Singh , J. )