IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.462 of 2005 SIDHNATH DUBEY Versus THE BIHAR STATE ELECTRICITY BOARD & ORS. ----------- 08/ 22-02-2010 Heard Mr. Anand Kumar Ojha, learned counsel for the petitioner and Mr. Vinay Kirti Singh, learned counsel representing the Electricity Board. The petitioner who superannuated from the post of Junior Electrical Engineer with effect from 30.06.2002 has filed the writ petition being aggrieved by the order as contained in Annexure-1, whereby the total admissible gratuity amount of the petitioner to the tune of Rs. 2,73,627/- has been adjusted against a temporary advance said to have been drawn by him during his posting at Bikramganj and further a sum of Rs, 36,373/- also said to be a part of the temporary advance has been adjusted from his leave encashment amount. The total recovery coming to Rs, 3,10,000/-. Facts in brief is that an enquiry was initiated against the petitioner vide resolution no. 2531 dated 14.11.2000 (Annexure-2) on certain charges which have been set out in the said resolution. Charge No. 1 related to non-submission of vouchers to the extent of Rs. 10,000/- for the expenditure incurred by this petitioner during his posting as Electrical Executive Engineer, Bikramganj division. Charge No. 2 indicted the petitioner of having incurred an expenditure of Rs. 5,29,330/- against office and maintenance without obtaining any - 2 - advance. The petitioner is charged of having incurred an expenditure of such volume which in absence of any advance being taken, appeared doubtful. Charge No. 3 indicted the petitioner of not appearing before the Committee constituted in this regard for physical verification of vouchers. The petitioner responded to the charges by filing a reply on 25.11.2000 (Annexure-3), replying and rebutting the charges as being vague, baseless and set out without verification of records. The petitioner submitted that the cases of expenditure incurred by a Electrical Division could only be properly verified by a technical wing and that the report of the audit was not reliable for drawing such proceedings. Considering the charges and the show cause reply filed by the petitioner, the enquiry officer submitted his report which was forwarded to the petitioner for filing his reply to the proposed punishment contained in resolution no. 1736 dated 16.10.2001(Annexure-5). In relation to charge no. 1, the Enquiry Officer held that the petitioner had though not submitted voucher to the extent of Rs. 10,000/- but that did not constitute a case of misappropriation. In relation to charge no. 2 regarding the expenditure incurred by the petitioner to the extent of Rs. 5,29,330/- against office and maintenance head it was held that the vouchers and accounts submitted by the petitioner appeared doubtful in the backdrop that no advance had been obtained by him against such large volume of work. In - 3 - so far as non-participation of the petitioner for verification of the vouchers is concerned, the enquiry officer simply stated that it was difficult to hold that the charge was not proved. A perusal of the memo of charges and the finding of the enquiry officer in no uncertain terms shows that the entire proceeding was based upon suspicion and doubts. It is not the case of the department that the petitioner had misappropriated the amounts or had submitted forged vouchers without incurring the expenditure. The only charge is that he incurred such heavy expenditure without obtaining any advance from the head office. The disciplinary authority upon consideration of the report of the enquiry officer and the reply of the petitioner to the proposed punishment, issued an order of punishment as contained in resolution dated 9.5.2002 (Annexure-6) imposing the punishments as set out in the said order. The amount of Rs. 10,000/- was ordered to be recovered from the petitioner who was also censured and punished with stoppage of four increments with cumulative effect. He was denied promotion for a period of three years. The petitioner was debarred from being posted in the field for the next five years. The suspension was revoked with stipulation that the petitioner would not be paid anything beyond the subsistence allowance. The petitioner did not choose to assail the order as contained in Annexure-6 and has accepted the same. The - 4 - punishment order was passed on 9.5.2002 and barely a month thereafter the petitioner superannuated with effect from 30.6.2002 and submitted his papers for payment of his post retiral benefits. It is an admitted position that the entire post retiral benefits of the petitioner has since been paid except that the respondents have recovered an amount of Rs. 3,10,000/- by adjusting his gratuity amount and a part of the leave encashment amount as already indicated hereinabove in this order. It is this action of the authority which led to the filing of the present writ petition. Mr. Anand Kumar Ojha, learned counsel appearing on behalf of the petitioner submits that the action of the authorities in recovering the amount of Rs. 3,10,000/- from the retiral benefits admissible to the petitioner is per se arbitrary, illegal and abuse of powers by the authorities. He submits that the issue of expenditure incurred by the petitioner during his posting at the Bikramganj division stood concluded and settled under the order of punishment dated 9.5.2002 as contained in Annexure-6. It is submitted that the recovery of the amount in question unilaterally without initiating any proceeding in this regard is wholly illegal and without sanction of law. Learned counsel further submits that the recovery in absence of a show cause much less any duly constituted proceedings cannot be sustained. Learned counsel thus submits that the order - 5 - besides being illegal is also in the teeth of the principles of natural justice. After repeated adjournments, a counter affidavit has been filed on behalf of the Electricity Board today and in which a general statement has been made that Rs. 3,10,000/- was found outstanding by way of temporary advance against the petitioner during his posting at Bikramganj division and which has been recovered from the gratuity amount and by adjustment from part of the leave encashment amount. Learned counsel representing the Electricity Board with reference to a document placed at Annexure-A to the counter affidavit submits that Rs. 3,10,000/- was found to be outstanding against the petitioner and the same has been recovered and thus there was no infirmity in the action taken by the authority in recovering the amount in question. Annexure-A is a letter dated 8.2.2005 of the Accounts Officer of the Board addressed to the Joint Secretary mentioning therein that the auditor has raised an objection that the petitioner did not obtain approval before effecting the expenditure of Rs. 3,10,000/- and thus it was fit to be recovered. The letter itself is difficult to understand because it nowhere indicts the petitioner of not incurring the expenditure rather it absolves the petitioner of the charges by charging him of having expended the amount without obtaining approval. The interesting aspect of the present proceedings is that - 6 - at no place the petitioner’s conduct has been found to be doubtful nor has he been charged for misappropriating the amount in question. He has not even been charged with not incurring the expenditure except that he has carried out the work of the Board by somehow managing the funds and it is unfortunate that a person who has taken pains to carry out work has been harassed at the hands of the Board even after his retirement. Having regard to the circumstances set forth, I hold that the action of the Board is per se arbitrary in effecting recovery of the amounts in question despite the order passed in a duly constituted departmental proceedings present at Annexure-6 which was on self same charges i.e. in relation to the expenditure incurred by this petitioner during his posting at Bikramganj division. That no proceeding for effecting the recovery in question was initiated by the respondents makes the matter worse for the respondents. Having held as such, the order of recovery as contained in Annexure-1 is set aside and the respondents are directed to remit the amount of Rs. 3,10,000/- recovered from the gratuity amount and the leave encashment entitlement of the petitioner, within a period of three months from the date of receipt/production of a copy of this order. The writ petition stands allowed. S.Sb/- (Jyoti Saran, J.) - 7 -