IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2786 of 2004 Shail Kumari, wife of Harbansh Singh, resident of Village Balhan, P.O. Haridaspur, P.S. Kanti, District Muzaffarpur, retired Assistant Teacher in Rajkiya Middle School, Birpur, P.S. Kanti, Dist. Muzaffarpur. --------- Petitioner Versus 1. The State of Bihar. 2. The Director, Primary Education, Primary Secondary and Adult Education Department, Government of Bihar, New Secretariat, Patna. 3. The District Superintendent of Education, Muzaffarpur, District Muzaffarpur. 4. The Area Education Officer, Kanti. 5. The Accountant General, Bihar, Patna. ----------- Respondents ----------- 6 13.4.2011 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- “1(i) For issuance of an appropriate writ in the nature of CERTIORARI for quashing the order dated 03.12.2001 issued under the signature of the Respondent No.3/and contained in his Memo No. 2768 dated 03.12.2001, whereby and whereunder the Respondent No.3 was pleased to ask the petitioner to show-cause under which circumstances she approached the office of the Area Education Officer, Kanti to mark her attendance. (ii) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities for payment of a sum of Rs. 37,361/- which has 2 been illegally deducted from the amount of gratuity of the petitioner on the ground that though the petitioner was on strike in between 05.02.1999 to 06.05.1999 but after the strike was over, the petitioner in collusion with the Area Education Officer, Kanti had marked her attendance in his office, showing herself on duty in between the strike period and thereby she had fraudulently withdrawn her salary for the strike period. (iii) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities to pay the amount of unutilized leave and other benefits of service for which the petitioner has become entitle after her retirement from service.” Mr. Mangalam, learned counsel for the petitioner would submit that when the impugned show-cause notice was issued to the petitioner on 3.12.2001 and the petitioner had filed its reply on 20.12.2001, vide Annexure-3 & 4 respectively, any order having the effect of recovery from the post retirement benefit of the petitioner ought to have been passed and communicated to the 3 petitioner. Mr. Mangalam in fact also went to the extent of asserting that the petitioner was never on strike and after her deputation and being relieved, she had completed the training of ten days on 30.1.1999 and when she could return after completing the training, she had remained stationed in the office of Area Education Officer, Kanti, inasmuch as, there was strike in the school from 6.2.1999. This Court had earlier having noted the aforementioned submissions passed the order on 8.11.2010, which reads as follows:- “Mr. S.B.K. Manglam, learned counsel for the petitioner, placing reliance on Annexure Nos. 1 & 2, would submit that the petitioner was actually on duty in the form of being on training in between 1.2.1999 to 10.2.1999 and, thereafter, from 11.2.1999 to 11.5.1999, she was present in the office of Area Education Officer, Kanti. This Court, however, would like to peruse the order, in question, by which after the petitioner was transferred by an order dated 30.12.1998 as mentioned in Annexure-2 by the order of the District Superintendent of Education, she was relieved from her earlier school, namely, Madhya Vidyalaya Haridaspur, Kanti as also the order by 4 which she was sent on training before joining at new place of posting at Middle School, Virpur Anchal Kanti. Mr. Mangalam prays for and is allowed three weeks time to file a supplementary affidavit incorporating the aforesaid facts supported by documents. List this case accordingly after three weeks at the top of the list as a tied up case.” In compliance of the said order, a supplementary affidavit has been filed in which the petitioner has enclosed the photocopy of the page of the attendance register of the school of the month of February, 1999, wherein, in the remark column, surprisingly an entry in the date of 30th January, 1999 has been made. As a matter of fact, such entry in the attendance register in the month of February 1999 by itself would not be a proof of either the petitioner remaining present in the school after completion of her training and in any event would not clinch the issue as with regard to the allegation of her unauthorized absence during the period of strike. This Court, however, would find from the 5 counter affidavit that an enquiry was conducted pursuant to the denial of charges by the petitioner and the enquiry officer had held the petitioner of being absent in the period of strike from duty to be proved, whereafter, she was subjected to an order of recovery of excess amount paid to her. The enquiry report has however not been brought on record in the counter affidavit though this Court had granted time to the counsel for the State on 10.11.2004 to bring such enquiry report on record. In such circumstances, this Court, in order to shorten the litigation at the instance of the petitioner, a retired teacher, would give liberty to the petitioner to approach the District Education Establishment Committee of Muzaffarpur district, who will go into the question as to whether the petitioner was present in the office of Area Education Officer, Kanti during the period of strike as has been sought to be certified and communicated by the Area Education Officer in his office order no. 318 dated 11.5.1999 (Annexure-2). 6 If the District Education Establishment Committee would find that the petitioner’s joining on completion of training was accepted by the Area Education Officer, Kanti in an authorized manner and that there is a proof of the petitioner of reporting on duty on each and every date between 11.2.1999 to 11.5.1999 in the office of the Area Education Officer, Kanti, it will pass necessary order for refund of the amount allegedly recovered from the petitioner, which has now been reduced from 37,361/- to Rs. 27,162/- only in view of the letter no. 525 dated 23.3.2004 (Annexure-A to the counter affidavit). If, on the other hand, it is found that the Area Education Officer, Kanti, Muzaffarpur had no jurisdiction to accept the joining of the petitioner and that there is no proof of her reporting in the said office in the period of strike, it will pass an appropriate order rejecting the claim of the petitioner for refund of the amount. As the petitioner is a retired employee, her representation, so filed before the District Superintendent of Education, 7 Muzaffarpur, will be placed before the District Education Establishment Committee within a period of one month and the Committee shall take its decision in next three months so that a final decision and the consequential order is communicated to the petitioner within a period of four months from the date of receipt/production of a copy of this order. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)