IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10792 of 2005 Manoj Kumar Poddar and ors. Versus THE BIHAR STATE ELECTRICITY BOARD AND OTHERS ----------- 5. 19.4.2010. Heard Mr. R.K.Sinha, learned counsel for the petitioner and Mr. Ram Kishore Singh, learned counsel representing the Bihar State Electricity Board. The petitioner superannuated from the post of Assistant Electrical Engineer, Bikramganj with effect from 31.3.2000. The retirement of the petitioner was followed by initiation of a departmental proceeding under resolution dated 17.11.2000 (Annexure-3A) under rule 43(b) of the Bihar Pension Rules. The departmental proceeding was directed against some financial irregularity attributed to the petitioner during his service period. The enquiry report was submitted in the proceedings on 18.6.2001 (Annexure-3). The submission of the enquiry report was followed by an order of punishment contained in resolution no.2405 dated 16.10.2003 as appended at Annexure-1 as well as Annexure-4 to the proceedings and whereunder a punishment of reduction of pension to the extent of 5 % was imposed on the petitioner. The petitioner 2 preferred an appeal against the order of punishment and which was rejected by order dated 21.2.2004 communicated to the petitioner vide letter dated 5.8.2005 as contained in Annexure-2. As the petitioner was not paid his pension, gratuity, leave encashment, arrears of pension and other dues, the writ petition came to be filed. The petitioner does not question the departmental proceeding or the order passed therein. During the pendency of the writ petition, the original petitioner expired and has been substituted by his legal heirs who are pursuing the matter. The admitted position is that while the matter was pending before this Court, the other admissible dues of the petitioner together with 95% pension has since been paid to him except the gratuity amount which has not been released. By order bearing memo no.606 dated 20.7.2007, the Financial Controller of the Board, while granting sanction for payment of the gratuity amount of the petitioner to the tune of Rs.2,90,318/-, was pleased to order for recovery of the entire sanctioned amount said to be towards the miscellaneous advances outstanding against the original petitioner to the 3 tune of Rs.3,01,500/- with further stipulation of adjusting the balance amount from his pensionary entitlements. An application (I.A.No.3659 of 2010) has been filed seeking permission of this Court to assail the validity of the order sanctioning gratuity in so far it stipulates the recovery and which has since been allowed. Learned counsel for the petitioner submits that the respondent authorities of the Board having conducted a full fledged enquiry into the miscellaneous advances attributed against the petitioner culminating in an order of penalty reducing the pension of the petitioner to the extent of 5%, the order of recovery stipulated in the gratuity payment order is arbitrary, illegal and amounts double jeopardy. Learned counsel submits that the order of punishment as contained in Annexure-1 after being upheld in appeal, has become conclusive and binding on the parties and the respondent authorities cannot enhance or vary the punishment by adopting circuitous methods Though a counter affidavit was filed on behalf of the authorities of the Board but it is not explained as to how there could be two proceedings 4 for the same charge regarding the miscellaneous advance or the circumstances leading to imposition of second penalty, without recourse to any proceeding and/or giving any opportunity of hearing to the petitioner. That the order of penalty as contained in Annexure-1 did not provide for any recovery, the recovery stipulation in the order sanctioning gratuity dated 20.7.2007 placed at Annexure-7 of the supplementary affidavit, becomes unsustainable and cannot be upheld. The authorities having closed the chapter by issuance of the order of penalty dated 16.10.2003, would not be permitted to enhance or vary the same by issuance of the impugned order as contained in Annexure-7. In that view of the matter, the order sanctioning gratuity as contained in Annexure-7 in so far it stipulates recovery of an amount of Rs.3,01,500/- is set aside and the concerned respondent authorities of the Electricity Board are directed to remit the amount recovered from the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed. ahk (Jyoti Saran, J.) 5