IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.769 of 2009 4 13.1.2010 1. Bihar Rajya Sahkari Bhumi Vikash Bank Limited, Patna, Budha Marg, Patna 2. The Administrator (Now Managing Director), Bihar Rajya Sahkari Bhumi Vikash Bank Limited, Patna, Budha Marg, Patna ..... Respondent Nos.2 &3 Appellants VERSUS Krishna Prasad Ambastha, Son of Late Shiv Gobind Saran, Resident of Village Ramchandra- Dih, P.O. and P.S.- Chakai, District Jamui ..... Writ Petitioner / Respondent -------- For the Appellants : Mr Rajesh Prasad Choudhary, Adv. For the Respondent : M/s Subodh Kumar Jha and Krishna Kumar, Advocates. ------- IA No.3653 of 2009 This is an application for condonation of delay of 143 days in preferring this appeal. Having heard Mr Rajesh Prasad Choudhary, learned counsel for the appellants and Mr Subodh Kumar Jha, learned counsel for the respondent and upon perusal of the averments made in the application, we are inclined to condone the delay in preferring the appeal. Accordingly, the delay in preferring the appeal is condoned. The IA stands disposed of. 2 LPA No.769 of 2009 As we have condoned the delay in preferring the appeal, we are inclined to take up the appeal for admission. Admit. Issue notice. As the respondent has already entered appearance, no further notice need be issued. On consent of learned counsel for the parties, it is finally heard. In this appeal the sustainability of the order dated 14.2.2008 passed by the learned Single Judge in CWJC No.14009 of 2002 is called in question. The facts which are essential to be stated are that the writ petitioner, who retired from service on 31.1.2002, was paid C.P.F. amount but gratuity and leave encashment amount has been withheld. It was asserted in the writ petition that during service tenure of the petitioner, no departmental proceeding was ever initiated against him. In the counter affidavit it was stated that when petitioner was posted at Giridih and Deoghar, he had committed certain 3 irregularities in advancing loan which resulted into bad debts amounting to Rs.48,41,136/- and on account of the non-recovery of the loan, 10 per cent of the amount was recovered from leave encashment and gratuity payable to the writ petitioner. The learned Single Judge took note of the fact that there is no averment that any departmental proceeding was initiated against the petitioner in which charges were proved. Being of this view, the learned Single Judge expressed the view that there was no justification for withholding the gratuity and leave encashment payable to the petitioner. After so holding, he directed the respondent Bank to release leave encashment and gratuity amount payable to the petitioner with 12 per cent interest. Learned counsel for the appellants has submitted that a departmental proceeding was initiated against the petitioner long back in the year 2003 and he was visited with the punishment of recovery of 10 per cent of the bad debts. Be it noted, the said document was not produced before the learned Single Judge. The petitioner did not have the occasion to meet the stand. It is 4 submitted by Mr Subodh Kumar Jha that no proceeding at any point of time was initiated and no order of punishment during service tenure of the petitioner was passed. In view of aforesaid, we are of the considered opinion that further affidavits are required to be filed so that controversy can be thrashed out. Indubitably, the fault lies with the Bank. Had it brought on record the documents to the effect that a departmental proceeding was initiated and punishment was imposed such a situation would not have come to pass. It is also worth noting that the writ petition was preferred in the year 2002 and the departmental proceeding was initiated in the year 2003 and, therefore, there is no fathomable reason why the fact relating to departmental proceeding could not have been brought on record before the learned Single Judge. However, regard being had to the totality of circumstances, we are inclined to set aside the order dated 14.2.2008 and remit the matter to the learned Single Judge for fresh adjudication after counter affidavits and rejoinder affidavits are filed by the respective parties. We may hasten to add that as we have directed the remit as the 5 factual controversy can be thrashed out from all spectrums after perusal of the documents that may be brought on record, we may also candidly state that in the order of the learned Single Judge there is no error but we have remitted regard being had to the facts that have been brought before us. As the Bank is responsible for not bringing the facts on record, while granting an opportunity to the Bank, we impose costs of Rs.10,000/- to be paid to the respondent within a period of six weeks hence. On payment of costs, the matter shall be listed before the learned Single Judge and thereafter, the pleadings shall be completed within a period of six weeks therefrom. The Letters Patent Appeal is allowed to the extent indicated above on aforestated terms. (Dipak Misra,CJ) (Shiva Kirti Singh,J.) sk