IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11315 of 2002 1. RAJESH KUMAR, son of late Satya Narayan Rishidev 2. Mukesh Kumar, son of late Satya Narayan Rishidev Both resident of village Agma, Post Sahshawl, P.S. Basnatti, District Saharsa … Petitioners Versus 1. THE STATE OF BIHAR through the Chief Secretary, Govt. of Bihar, Patna 2. District Superintendent of Education, Saharsa 3. Principal Madhya Vidhyalaya, Koldatpatti, Nawahatta, Saharsa 4. Principal, Prathamik Vidhayalaya Purushottampur, Saharsa … Respondents ----------- 3. 25.6.2010 No one appears for the petitioners. Counsel for the State is present. The prayer of the petitioners in this writ application in capacity of heirs and legal representatives of late Satya Narayan Rishidev, a teacher of Primary School, Purushottampur in Nauhatta Anchal of Saharsa District is for quashing the order dated 14th August, 2002, whereby and whereunder a sum of Rs. 1,41,931/- was sought to be recovered from the petitioners on the ground that their father in his life time while exercising the power of Drawing and Disbursing Officer has drawn excess salary from April, 1981 till the date of his death. 2 From the reading of the impugned order it is clear that two sons were not given any opportunity of hearing nor the order by itself clarifies the heads of such excess payment. Such order, therefore, would not only be in violation of the principles of natural justice but also unspeaking order. Taking all these aspects into consideration this Court while adjourning the hearing of this case on 7.10.2002 had stayed the operation of the aforesaid order. It would, therefore, mean that the impugned order has not yet been given effect to. Counsel for the State, however, would submit that one of the two petitioners has shown his declination to deposit half of the excess amount and therefore, whole issue can now be left to the other half being contested by one of the two petitioners. These aspects of the matter could have been gone into by this Court if the order was a speaking order giving the reasons for such excess payment and its recovery. That being not so, this Court will be left with little option but to quash the 3 impugned order. From the impugned order, it also appears that death cum retirement benefit of the father of the petitioners has not yet been finalized. Thus, the District Superintendent of Education, Saharsa is directed to afford opportunity of personal hearing to the petitioners and thereafter pass a fresh order wherein if it is found that the petitioners’ father had drawn excess amount to which he was never entitled in law, the authority after considering such defence of the petitioner would pass necessary order. The question of recovery in fact would be dependent on such order of the D.S.E. but then it is clarified that in the event it is found that certain amount was recoverable from the father of the petitioners, the two petitioners, being two sons, having been bound by the doctrine of pious obligation would be liable to pay back such amount by way of adjustment of such excess amount drawn by their father from the other retirement benefit payable to them by way of death cum retirement benefit of their 4 father. Till such exercise is completed by the District Superintendent of Education no recovery shall be made from the petitioners but then retirement benefit of father shall also not be paid to them till such decision is taken by the D.S.E., Saharsa. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/