IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10640 of 2003 ***** Manju Jaiswal, wife of Late Jagdish Prasad Jaiswal, presently residing in Mohalla-Bari Khagaul, near Braham Asthan, Police-station-Khagaul, District-Patna. …. …. Petitioner Versus 1. The State of Bihar. 2. Bihar School Examination Board, Patna – 800 017 through its Secretary. 3. The Administrator, Bihar School Examination Board, Patna. 4. The Secretary, Bihar School Examination Board,, Patna. 5. The Finance Officer, Bihar School Examination Board, Patna. …. …. Respondents ----------- 12. 22.1.2009. Husband of the petitioner died on 23.4.1994. He was a Peon working under the respondent Bihar School Examination Board (hereinafter to be referred to as „the Board‟). He entered service initially on 12.6.1968 and was on the permanent establishment of the Board. During the period of service he has shouldered his responsibility with due diligence and there is nothing adverse in so far as service career is concerned. After the death of the husband of the petitioner when the widow lodged the claim for payment of retiral dues and family pension, the respondents refused to obliged. The reason for not sanctioning family pension was because it is the stand of the respondent Board that there are large amount of unadjusted advance still lying in the records of the Board and till the same is reconciled, petitioner can not be given the benefit of family pension. Though group insurance stands paid to her. When the writ application was filed the stand of the respondents in the counter affidavit was that an amount Rs.1,76,519/- is outstanding as traveling allowance advance against the husband of the petitioner, which pertains to the year 1983 till 1992. In view of the same the Court in its order dated 6.2.2004 expressed certain surprise and - 2 - directed the Board to file a supplementary affidavit and substantiate the stand. A supplementary counter affidavit thereafter came to be filed, where certain vouchers have been annexed in support of the stand of the Board. Certain accounting seems to have been done by the authorities of the Board thereafter and the file stand was that now a sum of Rs.79,098/- is outstanding against the deceased employee and this is the sum, which the Board is entitled to recover from the petitioner from her family pension. Learned counsel appearing on behalf of the petitioner, however, submits that on the face of it the stand or the response of the Board is arbitrary. The outstanding dues shown against the husband of the petitioner in the year 1983 to 1992, why no effort was made on their part to do the needful accounting or adjustments during the life time of the husband is not explained. She herself expresses helplessness which have been brought on record because she has absolutely no way of knowing the state of affairs either of the Board or of the husband. Not only this the action of the respondents are further challenged on the ground of some decisions rendered in the similar circumstances. Counsel for the petitioner relies on the decision in the case of Radha Jha v. State of Bihar, 2003(1) PLJR 679, where certain recoveries were sought to be made by the State Government from the widow of the deceased employee. After considering the matrix of facts, the Court came to a considered opinion that since no proceeding was initiated during the life time of the employee, it was not open to the State Government to effect recoveries from the family pension and other dues of the government servant after his death. - 3 - Similar view was also expressed in the case of Smt. Shanti Choubey v. State of Bihar, 2004(4) PLJR 236. Emphasis is on paragraph nos. 11, 12 and 13 of the said judgment. “11. I am unable to appreciate the said submission of the learned counsel for the State. In view of the law settled that recovery is not permissible even after the retirement of a Government servant from service except after taking recourse to the provisions, contained in rule 43(b) of the Bihar Pension Rules and that too only if the case is covered by the rider clause of the said provision, which provides that (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings. 12. In the present case, obviously the periods in question relate to the years in between 3.2.1982 and 17.11.1989 whereas the order has been passed on 4.9.2001, i.e. much beyond four years and that too without initiating any action with respect to it while the deceased Government servant was alive. The deceased Government servant died after six and half years even from the last date of alleged advance given to him on 17.11.1989, but nothing has been brought on record to show that any step was taken for realization of the same from the petitioner during his lifetime and it was only after lapse of ten years that the impugned order, contained in Annexure 14, has been passed for making recovery from the death-cum-retiral dues payable to the widow. 13. I fail to appreciate as to how after the death of the Government servant, the Government expects from the widow to meet such claim of the department when no step at all was taken during the lifetime of the deceased Government servant. It is really shocking that such decision for recovery is taken after the death of the Government servant on the pretext of adjustment sought to be made from the death-cum-retiral dues payable to the widow who obviously cannot meet such claim of the Department that the works for which advances were taken were not executed and vouchers/bills were not produced by the deceased Government servant during his lifetime.” In response to the stand of the learned counsel for the Board - 4 - relies on a decision in the case of Smt. Bachchi Devi v. State of Bihar, 2004(3) PLJR 825, wherein the Court in the given facts of the case did come to an opinion that for each and every case taking recourse to a proceeding under Rule 43(b) of the Bihar Pension Rules may not be required when the facts are of open and shut category. In the case of Bachchi Devi (supra), the Court upheld the action of the respondent State of recovering certain outstanding dues against the husband of that petitioner. From a perusal of the ratio laid down and in the case of Bachchi Devi (supra), it is apparent that the Court has no discretion with some of the other reasonings given in the case of Radha Jha it has only laid down that in normal course of things, recourse to a proceeding under 43(b) would be the need of the hour. But there could be certain facts where there are no disputes then 43(b) may not be resorted to and recoveries could be affected. Coming to the bunch of facts in the present writ application, when the writ application was initially filed the stand of the respondents was that the outstanding is in the range of Rs.1,76,519/-. When the Court directed the respondents to supplement their claim, some kind of accounting was done and even according to the respondents the figure has come down to Rs.79,098/-. Though large number of vouchers has been brought on record some of them also bear the stamps of adjustments but then this cannot be said to be final reflection of figures with regard to the outstanding dues. In other words, it is not one of those category of cases, which may be said to be an open and shut case. There are grey areas as to what would be the exact figure which is still outstanding against the - 5 - petitioner‟s husband. Not only this the Court has certain serious reservations keeping in mind that these outstandings have been shown for the period 1983 to 1992, it is strange that an organisation like the Examination Board does not do its audit or accounting on a regular basis. These are unexplained area which does not make the Court very happy about the state of affairs as it then was in the Board. Keeping the facts and the contentions of the parties in mind, the Court is of the considered opinion that in the given facts of the case the Court would rather rely on the ratio in the case of Radha Jha (supra) instead of the reliance which has been placed on the judgment by respondent Board in the present case. The writ application is allowed. Direction is hereby issued upon the respondent Board that they shall sanction the family pension of the petitioner and all other retiral dues preferably within a period of three months from the date of communication/production of a copy of this order. The petitioner shall not be harassed or any demand be made with regard to the outstanding dues of her husband, since it was not due during his life time. If any recovery has been made because of the so-called outstanding, the same shall be refunded to the petitioner within the same time frame. Pawan/- (Ajay Kumar Tripathi, J.)