CIVIL WRIT JURISDICTION CASE No. 6805 of 2005 (In the matter of an application under Article 226 of the Constitution of India) Ram Jee Dubey, Son of Late Jagarnath Dubey, resident of village-Dubey Dehri, P.O.-Natwar Khurd, P.S.- Dinara,District-Rohtas --------------- PETITIONER Versus 1. The State of Bihar through the Secretary and Commissioner, Road Construction Department, Govt. of Bihar, Patna. 2. The Engineer-in-Chief-Cum-Additional Commissioner- cum-Special Secretary, Road Construction Department, Govt. of Bihar, Patna. 3. The Additional Secretary, Road Construction Department, Govt. of Bihar, Patna. 4. Joint Secretary, Road Construction Department, Govt. of Bihar, Patna. 5. Superintending Engineer Road Construction, circle Ara. 6. Executive Engineer, Road Construction Division, Buxar. 7. Executive Engineer, Building Construction Division, Saharsa. 8. Sub-Divisional Officer, Public Works Department (Roads), Mohania. 9. Accountant General, Bihar, Patna. 10. Executive Engineer, Bhabhua Road Division, Road Construction Department, Bhabhua ---------------------- RESPONDENTS --------- For The Petitioner :Amrendra Kumar, Adv. For The Respondent :Mr. Mahesh Prasad (SC 8) and Mr.R.K. Sinha, A.C. to S.C.8 For the Accountant General :- Mr. Sanjay Kumar, Adv. *********** P R E S E N T THE HON'BLE MR. JUSTICE JYOTI SARAN Jyoti Saran,J. Heard learned counsel for the parties. The petitioner questions the validity of the order bearing memo No. 357 dated 23.1.2004 passed by the Engineer-in-Chief placed at 2 Annexure-1 as also the order bearing memo No. 3142 (E) dated 19.10.1981 also passed by the same authority, placed at Annexure-2 to the writ petition whereby a recovery of Rs. 3,84,285.67 has been directed against the petitioner, to be recovered from his salary and/or from his pensionary entitlements. Brief facts of the matter is that the petitioner was appointed as a Junior Engineer and posted in the Office of the Block Development Officer, Warsaliganj, Gaya where he joined on 21.9.1964. The petitioner was transferred and posted in the Sub-Divisional Road Construction, Sub-division, Mohania, where he joined on 16.9.1974. The petitioner remained in the said Sub-Division until 14.9.1978. During the posting of the petitioner at Sub-Division, Mohania a physical verification of the stocks was conducted and a loss of stocks to the tune of Rs. 5,45,109.94 was reported by the Auditors. The loss was attributed to 8 officers and of which the petitioner was attributed with alleged loss of Rs. 3,84,285.67. Following the audit report, impugned office order bearing memo No. 3142 (E) dated 19.10.1981 came to be issued under the signature of the respondent Engineer – in – Chief 3 – cum - Additional Secretary, Public Works Department, Government of Bihar, Patna. The order stipulated, a recovery at the rate of Rs. 200/- from the salary of the persons named in the said order and in case any of them got superannuated, the balance amount was to be recovered from his gratuity and his movable/immovable properties. The order of recovery though was passed on 19.10.1981, the petitioner did not question the same before any appropriate forum. Learned counsel for the petitioner submits that the petitioner had been representing the authorities in this connection and with reference to a letter bearing No.450 dated 25.10.1981 of the Sub-Divisional Officer, Public Works Department placed at Annexure-3 of the writ petition, submits that in no uncertain terms the Sub-Divisional Officer had pointed out that there were no loss of stocks outstanding in the name of the petitioner. Learned counsel with reference to another letter bearing No. 2259 dated 28.12.1981 (Annexure-6) of the Executive Engineer, Building Construction Division, Sasaram addressed to the Engineer-in-Chief, submits that the said fact was also intimated to the Engineer-in-Chief, that the loss of stocks held out against the petitioner were not during his tenure. 4 In the circumstances guidelines were asked as to whether the deduction at the rate of Rs. 200/- per month had to be carried out from the salary of the petitioner or not. Admitted position is that the deductions were never carried out and the petitioner superannuated from the post of Assistant Engineer with effect from 30.9.2001. It is two years after superannuation, that for the first time the petitioner chose to assail the order dated 19.10.1981 (Annexure-2) by filing a writ petition bearing C.W.J.C. No. 4566 of 2003. During the pendency of the said writ petition the recovery was effected from the gratuity and the leave encashment entitlements of the petitioner and evidence whereof is placed at Annexures 11 and 12 of the writ petition. In the said proceeding a counter affidavit was filed on behalf of the State and in which a stand was taken that the petitioner had never taken any steps for modifying or withdrawal of the order of recovery as contained in Annexure-2, either before the Engineer-in-Chief or any other authority superior to him. The Bench hearing the matter took notice of the fact that the said statement of the respondents was not controverted by the petitioner 5 in his rejoinder nor any document was placed on record of the proceedings to controvert the same. In the said circumstances the writ petition was disposed of by order dated 6.8.2003 (Annexure-13) in the following terms. “Under such circumstances, this Court finds it difficult to grant any relief to the petitioner as against Annexure-1. However, having regard to the letters issued by the Executive Engineer to the Engineer-in-Chief, contained in Annexure-5, and also the letter of the Sub divisional officer referred therein, this court considers it expedient to dispose of the writ application with a direction to the Engineer-in-Chief(respondent No.2) to re- examine the grievance of the petitioner and dispose it of afresh by a reasoned order within two weeks of the receipt/production of a copy of this order.” The Bench even while disposing of the writ petition was pleased to hold that it was difficult to grant any relief to the petitioner as against Annexure-1, meaning thereby no fault was found in the order of recovery as contained in Annexure-1. The said conclusive finding by the writ Court was never assailed by the writ petitioner. The second 6 part of the order required the Engineer-in-Chief to consider the grievance of the petitioner in the backdrop of the letter of the Sub-Divisional Officer and the Executive Engineer which is placed at Annexure-3 and Annexure-6 of the present proceedings. The representation filed by the petitioner upon disposal of the writ petition placed at Annexure-14 to the writ petition, also does not provide any explanation as regarding the loss of stocks attributed to him. The Engineer-in-Chief upon consideration of the issue in the backdrop of the order of the writ Court placed at Annexure-13 of the writ petition, was pleased to pass the impugned order dated 23.1.2004 as contained in Annexure-1 holding that no substantial proof had been put forth by the petitioner for exonerating him of the liability and in which background there was no requirement of modification or rectification of the order dated 19.10.1981 as contained in Annexure-2. It is in this background that the present writ petition came to be filed. Learned counsel for the petitioner while assailing the validity of the order as contained in Annexures-1 and 2 submits that the petitioner having superannuated with effect from 13.9.2001, 7 any adjustment/requirement could only be effected within the confines of Rule 43(b) of the Bihar Pension Rules. Learned counsel submits that admittedly no proceedings had been drawn by the authorities for effecting the recovery in question by following the procedure as envisaged under the Rules. He thus submits that the recovery effected without following the due process of law cannot be sustained. Learned counsel in support of his submissions relied upon the following decisions 1. 2004 (4) PLJR 5 Bali Ram Pandey Versus State) (paragraphs 3, 5 and 6) 2. 2004(4)PLJR 159 (Parmeshwar Dayal Sharma versus State of Bihar) (paragraph 11 to 15) 3. 2005(3) PLJR 591 (Sukhdeo Narayan Verma Versus State) (paragraph 10 and 11). 4. 2005(1) PLJR 68 (Asha Sinha versus State) (paragraph 7 and 8) and 5. 2002 (4) PLJR 148 (Dilip Kumar Singh Versus State) (paragraphs 7 and 8) Learned counsel with support of the judicial pronouncement noted above submits that the respondents having not effected the process of recovery/adjustment within the service period of 8 the petitioner, were precluded from effecting the same until such time that a proceeding under Rule 43 (b) was drawn against the petitioner. He submits that the provisions of the Rules in no uncertain terms provides that no adjustment or recovery can be made from either the pension or even gratuity of the petitioner, until the proceedings aforesaid are formally drawn. He thus submits that as no proceedings had been drawn nor can be drawn against the petitioner for the reason that the issue relates to the period 1975-76, the recovery is unsustainable. Learned counsel further submits that notwithstanding the aforesaid position even the minimal procedure for effecting a punishment of recovery as provided under Rule 55A of the Civil Services (Classification Control and Appeal) Rules 1930 has not been followed in the present case. He thus submits that where neither of the procedure as envisaged under Rules has been followed, the recovery made from gratuity and leave encashment of the petitioner is unsustainable in law and thus the petitioner is entitled for refund thereof. Learned counsel with reference to the letter of the Executive Engineer dated 28.6.2003 and the Additional Secretary, Government of Bihar dated 5.7.2002 placed at Annexure-A of the counter 9 affidavit, submits that even until 2003, the liability had not been crystallized and was in a nebulous stage, which fact is apparent from correspondence entered within the Department. He thus submits that in such situation where loss in the stocks attributed to the petitioner, itself was in doubt, the recovery effected by the authorities on the basis of mere suspicion in absence of a definite conclusion was sustainable in law. Mr. R.K. Sinha, learned counsel for the State opposes the contentions of the petitioner and raises an objection regarding the maintainability of the writ petition, in view of the categorical finding of this Court on the previous writ petition preferred by this petitioner placed at Annexure-13 of the proceedings. It is submitted that this Court upon consideration of the matter did not choose to grant any relief to the petitioner against the order of recovery placed at Annexure 1 of the said proceedings and which is Annexure-2 to the present proceedings and which fact has closed all doors for the petitioner to maintain a second writ petition. He submits that the issue stood concluded in so far as the validity of the order of recovery dated 19.10.1981 (Annexure-2) is concerned. He submits that the matter was re- 10 examined by the Engineer-in-Chief in the light of the directions of the Court and the Engineer-in- Chief upon consideration of the materials available on record came to a conclusion that the impugned order required no modification nor cancellation. He submits that the letter of the Sub-Divisional Officer and the Executive Engineer was examined and considered by the Engineer-in-Chief while disposing of the claim of the petitioner, vide order dated 23.1.2004 placed at Annexure-1. He submits that the writ petition was barred on the principles of res-judicata as the issue stood concluded. He further submits that the petitioner has slept over the matter for the period of 20 years and his claim not having found favour by the writ Court on the earlier occasion required no consideration and the writ petition was fit to be dismissed on this count above. It is further submitted that the liability was identified on the basis of the audit report, taken note in the order dated 19.10.1981 of the Engineer-in-Chief (Annexure-2) and it was the duty of the petitioner to have explained the situation. Learned counsel for the State submits that there is nothing on the records of the proceedings nor in the representation filed on behalf of the petitioner placed at Annexure-14 which explains the 11 loss of stocks shown against him. Learned counsel thus submits that the claim set forth by the petitioner does not merit consideration and is fit to be dismissed. Learned counsel for the petitioner in response to the contention advanced on behalf of the respondents submits that the order as contained in Annexure-1 is not in consonance with the directions of this Court placed at Annexure-13 to the writ petition. He submits that a perusal thereof does not in any manner demonstrate whether the letters of the Sub-Divisional Officer and the Executive Engineer taken note of by this Court in the order as contained in Annexure-13, were considered by the Engineer-in-Chief while disposing of the claim of the petitioner. Learned counsel for the Accountant General submits that the stand of the petitioner that in absence of a proceeding under the Pension Rules, no recovery could be effected from his pensionary benefits, is completely misplaced and misconceived for the reason that it is only in circumstances where the person concerned is guilty of grave misconduct or causing pecuniary loss to the Government that such proceeding is envisaged. He submits that the loss of stock was already 12 identified under the impugned order dated 19.10.1981 (Annexure-2) and that the recovery from pensionary entitlements of the petitioner was only a consequence of the said order. I have heard learned counsel for the respective parties and perused the materials on record. A perusal of the order passed by the writ Court in the writ petition earlier preferred by this petitioner giving rise to C.W.J.C. No. 4566 of 2003 dated 6.8.2003 is very clear and in no uncertain terms manifests that the petitioner was not found entitled to any relief as against the order of recovery dated 19.10.1981 placed at Annexure-1 of the said writ petition and Annexure-2 to the present proceeding. The relevant portion of the order has already been reproduced in this order and does not require any further eloquence. The order of the writ Court is conclusive on the issue of Annexure-2 and sitting in coordinate jurisdiction I shall not interfere with the same. The petitioner never assailed that part of the order of the writ Court and thus the same has become final and conclusive on the said issue. Having held as such I do not consider it appropriate to deal with the issue whether or not the respondents were within their jurisdiction to 13 effect the recovery without following the procedure as envisaged under Rule 43(b) of the Rules. Even otherwise the responsibility having been identified 20 years prior to the retirement of the petitioner, who never bothered to challenge the same before an appropriate forum, the recovery effected after retirement of the petitioner is merely an implementation of the order of recovery and does not require an independent proceeding. The judgments cited by learned counsel for the petitioner relates to recovery without initiation of any proceeding. The case in hand is on an entirely different footing. In the present case, the order of recovery had already passed though not acted upon. The belated implementation of the order of recovery would not grant a premium to the petitioner to assail the same on the anvil of the provisions of the Bihar Pension Rules. That brings us to the order as contained in Annexure-1 of the writ petition disposing of the claim of the petitioner with the finding that there was no requirement for modification or cancellation of the order dated 19.10.1981. On perusal of the order of the writ Court placed at Annexure-13, I find that a specific direction had been issued to the Engineer-in-Chief 14 to consider the grievance of the petitioner in the backdrop of the letter of the Sub-Divisional Officer (Anneuxre-3 herein) and the Executive Engineer (Annexure-6 herein). I find that though the Engineer –in-Chief has referred to the said letters but there is apparently no finding either accepting or rejecting the same. In the circumstances the order cannot be said to be in tune with the directions of this Court. There are some other documents placed on the records of the proceedings which demonstrates that no finality was attached to the liability created under the audit report. All that the Engineer-in-Chief has stated in his order in observance of the direction of this Court is that he has perused the letter(s) and considered the same. He however, does not deal with the said letter and whether the same were issued contrary to the evidence available on the record. The duty cast upon the Engineer –in-Chief under the directions of this Court has not been properly discharged. Having regard to the circumstances, I am unable to uphold the order passed by the Engineer- in-Chief dated 23.1.2004 placed at Annexure-1 & the same is set is set aside. The Engineer-in-Chief is directed to pass a fresh order in accordance with 15 law with due opportunity to the petitioner to defend himself and dispose of the same in the light of the direction passed by this Court in C.W.J.C. No. 4566 of 2003 placed at Annexure-13, within three months from the date of receipt/production of a copy of this order. The writ petition is disposed of with the direction aforesaid. The Patna High Court/ 13th April,2010/ Bibhash/A.F.R. (Jyoti Saran, J.)