IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16648 of 2004 RADHIKA RAMAN SINGH, Son of Late Thakur Prasad Singh, resident of village-Chamtha Chhot Khut Dih, Police Station-Bachhwara, District-Begusarai . Versus 1. BIHAR STATE CO-Operative Land Development Bank, through its Managing Director, Budh Marg, Patna 2. The Managing Director, the Bihar State Co-operative Land Development Bank, Budh Marg, Patna. 3. The Regional Manager, Bihar State Co-operative Land Development Bank, Laheriasarai, Darbhanga. 4. The Branch Manager, Bihar State Co-operative Land Development Bank, Kamtaul, District Darbhanga. 5. Secretary, Bihar Sate Co-operative Land Development Bank, Budh Marg, Patna. --------- For the petitioner :- Mr. Purnendu Singh, Adv. Mrs. Pronoti Singh, Adv. Mr. Rakesh Kumar Sharma, Adv. For Respondent :- Mr. R.P. Chaudhary, Adv. ******** 17 06.11.2009 I.A. No. 6808 of 2009 has been filed on behalf of the petitioner seeking permission from this Court to amend the relief and the prayer portion of the writ application by incorporation of the prayer for quashing the decision of the respondent-Bank as contained in the letter dated 30.5.2002 (Annexure-A) to the counter affidavit), the letter bearing No. 2465 dated 27.6.2002 (Annexure-B) and the letter bearing memo No. 6147 dated 26.10.2002 Annexure-B series which have also been annexed vide Annexures 8, 9 and 10 respectively to the interlocutory application. 2 The prayer made in the interlocutory application is allowed and the writ petitioner is permitted to challenge the legality of the orders as contained in Annexures A and B series to the counter affidavit which are Annexures 8, 9 and 10 respectively to the interlocutory application. Heard Mr. Purnendu Singh learned counsel appearing on behalf of the petitioner and Mr. Rajesh Pd. Choudhary learned counsel appearing on behalf of the Bihar State Co- operative Land Development Bank and its authorities. With the consent of parties this matter has been taken up for disposal at the stage of Admission itself. The petitioner herein is aggrieved by the action of the respondent authorities in withholding his retiral benefits on grounds of certain irregularities having been committed in disbursement of loans pertaining to the period 1985-88. The petitioner retired from the services of the Bank from the post of Field Officer with effect from 31.1.2000. Having retired on 31.1.2000 upon delay being committed by the respondents towards payment of his post 3 retiral dues, the petitioner submitted a representation before the administrator on 9.4.2001 (Annexure-1). The representation not being disposed of, the petitioner moved before this Court through C.W.J.C. No. 10023 of 2001 seeking inter alia, a direction to the respondents to finalize and pay his entire retiral benefits comprising of Provident Fund, gratuity, leave encashment etc. together with consequential benefits and interest. The said writ petition was disposed of vide order passed on 6.8.2001 (Annexure-3)with a direction to the administrator to dispose of the claim of the petitioner towards payment of his post retiral dues within a period of two months together with interest, if any. The non-compliance of the order of this Court led to the filing of a contempt application bearing M.J.C. No. 283 of 2002. During the course of proceedings arising from the said contempt application a show cause was filed on behalf of the respondents, herein mentioning therein that the amounts in question had been withheld by reason of an advice by the Vigilance Cell of the respondent, Bank on account of alleged lapses on the part of the petitioner while he was in service. In view of 4 said development the contempt application was disposed of on 5.5.2004 with liberty to the petitioner to peruse his remedy against the action of the respondent authorities in accordance with law (Annexure-4). The present writ application has been filed challenging the said actions of the respondent authorities. The petitioner at the stage of the filing of the writ petition had challenged the order bearing memo No. 551 dated 17.9.2002 (Annexure-5) in so far as it was directed therein to withhold the amount of Rs. 1, 25, 302/- from his Provident Fund amount. During the course of hearing of the present writ petition it was submitted on behalf of the petitioner that the Provident Fund amount in its entirety has been subsequently paid to him. The petitioner had also challenged the order dated 1.6.2002 (Annexure-6) whereby a decision was taken to keep in abeyance the amount due to him towards his gratuity amount of Rs. 48, 720/- and leave encashment of Rs. 78,880/- as against the advances taken by the petitioner towards travelling advance of Rs. 800/- and motorcycle advance of Rs. 27,600/-, total coming to Rs. 28,400/- and in addition thereto 5 the objections raised by the Audit and Loan Utility Cell. The petitioner has challenged the order bearing memo No. 2600 dated 1.7.2002 (Annexure-7) whereby a decision had been taken by the Secretary under the orders of the administrator of the Bank to withhold an amount of Rs. 1,79,425/- on the basis of the advice of the Audit and Loan Utility Cell of the Bank. As already indicated above, the petitioner by way of the interlocutory application also assails the decision of the respondents to withhold the amounts under the orders dated 30.5.2002 (Annexure-A), letter No. 2465 dated 27.6.2002 (Annexure-B) and order bearing memo No. 6147 dated 26.10.2002 (Annexure-B series) which have been appended as Annexures 8,9 and 10 respectively to the interlocutory application. The position as it stands today is that save and except the amount of Rs. 48,720/- towards the gratuity and a sum of Rs. 78,880/- towards leave encashment of the petitioner, all other remaining dues as admissible to the petitioner has been paid. Thus the dispute remains only with regard to the gratuity amount and leave encashment amount. 6 Learned counsel appearing on behalf of the petitioner submits that the action of the respondent-Bank and its authorities in initiation of the proceeding is wholly without jurisdiction and without sanction of law. He further submits that a bare perusal of the decision of the respondent, Bank as evidenced from Annexure-A shows that the amount towards the said dues have been withheld by the respondents by reason of some irregularities having been committed in the disbursement of loans relatable to the period 1985-88 i.e. almost 15 years prior to the retirement of the petitioner. Learned counsel submits that the order for initiation of a proceeding after lapses of 15 years does not have sanction of law and should be set aside at the very threshold. Learned counsel further submits that save and except of a sweeping statement made in the counter affidavit regarding omissions and commissions having been committed in the disbursement of loans during the service tenure of the petitioner, no specific allegation or charge has been made against the petitioner nor any role has been assigned to him in relation to the alleged omissions and 7 commissions and simply by reason of the fact that the loan so disbursed became bad debts for the Bank that has resulted in initiation of the proceedings under challenge almost 15 years after his retirement. Learned counsel further submits that even the service rules framed by the Bank do not permit the Bank to initiate proceedings after retirement of an employee for an incident which dates back to 15 years of his retirement. He further submits that Rule 151 thereof mentions that any controversy arising under the Rules and requiring resolution thereof would be governed by the Rules framed by the State Government from time to time. He further submits that the relevant Rule governing continuation of proceedings relating to retired State Government employees is the Bihar Pension Rules and which in its Rule 43 (b) does not permit the authorities to reopen any proceeding which dates back 15 years of his retirement. Learned counsel in support of his submission refers to a decision of the Supreme Court reported in (2005) 6 SCC 636 (P.V. Mahadevan versus Md. T.N. Housing Board). With reference to paragraph 4 of the said judgment, 8 learned counsel submits that the case of the petitioner is fully covered by the law settled by the Supreme Court in the said judgment and thus the impugned action of the respondent-Bank is unsustainable and fit to be set aside. He further submits that in the said case also the initiation of proceeding was after an inordinate delay of 12 years whereas in the present case it is about 17 years when the decision was taken, vide Annexure A. Learned counsel further submits that notwithstanding the fact that the said show cause(Annexure-A) was never received by the present petitioner even otherwise the impugned action on the basis of decision as contained in Annexures-A and B series have no lawful support and is fit to be set aside. Mr. Rajesh Pd. Choudhary, learned counsel appearing for the Bank supports the decision taken by the respondent, bank under the orders impugned in the writ petition as Annexures A and B series and which have also been brought on record vide Annexures 8 to 10 of the interlocutory application. Learned counsel submits that the petitioner had a duty at the time of disbursement of the loans in 9 question to ensure that the loans were recoverable and the laches and failure on the part of the petitioner to take steps to ensure the recovery of loans disbursed by him, makes him liable for the action taken against him. He submits that the said action of the petitioner had caused immense financial losses to the Bank. Learned counsel submits that the Loan Utility Cell of the Bank enquired into the distribution of loans made by the Field Officers including the present petitioner and after examination of the loan register a large number of loans disbursed by such Field Officers were either found bad or doubtful loans and thus a policy decision was taken by the Bank to recover 45 % of the such loans disbursed by the Field Officers from the dues payable to them. Learned counsel submits that it was decided in principle to recover the loans from the remaining due amount of the petitioner and which action of the Bank is fully in accordance with Rules and policy decision framed by itself. Learned counsel also relies upon a Bench decision of this Court in C.W.J.C. No. 9195 of 2003 dated 8.9.2004 (Radha Nand Gupta versus The B.S. Co-operative 10 Land Devp. Bank) and submits that even in the said case the withheld amount had not been interfered with by the Court. Learned counsel thus submits that the orders impugned in the present proceeding need not be interfered by this Court in exercise of its extraordinary jurisdiction under Article 226 of the constitution of India. I have heard learned counsel appearing on behalf of the parties and perused the materials on record. It is indisputed that the decision to initiate proceeding vide letter dated 30.5.2002 (Annexure-A) which is Annexure-8 to the interlocutory application was taken almost after 17 years of the disbursement of loans in question. The said fact is evident from the letter itself whereby the petitioner has been charged with disbursement of bad and doubtful loans during his period of service as Field Officer pertaining to the years 1985-88. Save and except of the sweeping statement that the loans which were disbursed by the petitioner were found either bad or doubtful subsequently, no other charge of favouritism or extending undue favour or 11 violation of the Rules in disbursement of loans or malafide exercise of power and jurisdiction or like, has been alleged against the petitioner. The decision taken by the petitioner in this regard is directly relatable to the service efficiency or inefficiency of the petitioner and for which the petitioner could have been proceeded during his service period itself and appropriate action could have been taken under the service Rules. The respondents having slept over the matter for a period of almost 17 years before realizing that the loans which had been disbursed by the petitioner in the year 1985-88 were bad, doubtful and could not be recovered from them cannot be permitted to reopen a stale issue. Neither the Service Rules of the Bank nor the Bihar Pension Rules confer any jurisdiction upon any authority to reopen an issue which dates back 15 years from retirement and 17 years from the decision to initiate such proceedings. The legal position stands settled in this regard and does not require reference to any further judicial pronouncement. In addition 12 thereto the decision relied upon by the petitioner fully supports its case. Section 33 of the Bihar Co-operative Societies Act, 1935 and Rule 57 framed thereunder in no uncertain terms requires each society to have its accounts audited under the orders of the Registrar and in the manner prescribed by the Bank. Had the Bank been vigilant in its commercial ventures and in protecting its finances, the said irregularities, if any, could have been detected no sooner than the loans were disbursed. Thus the Bank having failed to take prompt action as required in the Service Rules or the Bihar Pension Rules or under the provisions of the Co-operative Societies Act cannot be permitted to reopen such stale old issues especially in absence of any direct or indirect evidence against the petitioner. In the result this writ petition is allowed. The impugned orders which relates to withholding of the amount due to the petitioner towards gratuity and leave encashment are set aside and the respondent Bank is directed to release the said amount in favour of the 13 petitioner after deducting and adjusting the amount of Rs. 28,400/- which is the amount of advance taken by the petitioner by way of travelling advance and motorcycle advance. The said exercise should be completed within a period of three months from the date of receipt/production of a copy of this order. Bibhash (Jyoti Saran, J.)