IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1729 of 2007 TRIBHUWAN THAKUR s/o- Late Ram Ugrah Thakur retired Clerk of the District Provident Fund office Hajipur vaishali at present resident of village/PO-Panapur Langa, P.S. Raja Pakar District Vaishali. Versus 1. THE STATE OF BIHAR through Finance Department, Patna, Bihar. 2. Director Provident Fund, Pant Bhawan Bailey Road, Patna. 3. District Provident Fund Officer, Hajipur, Vaishali. 4. District Magistrate, Vaishali, Hajipur. 5. Treasury Officer, Vaishali, Hajipur. 6. Joint Commissioner, Lekha Prashasan, Director of G.P.F. Pant Bhawan, Patna. 7. State of Jharkhand through the Chief Secretary, Jharkhand Ranchi. 8. Deputy Commissioner, East Singhbhum, Jamshedpur, Jharkhand, Ranchi. 9. Sub Divisional Officer, Singhbhum, Jamshedpur, Jharkhand, Ranchi. ----------- 12 05.02.2010 Heard Dr. M.P. Shukla learned counsel appearing on behalf of the petitioner, Mr. Anil Kumar Jha, learned G.A. 2 and Mr. Dhruba Mukherjee learned counsel appearing on behalf of the State of Jharkhand. The petitioner who retired from the post of Head Clerk with effect from 30.6.1998 filed the writ petition seeking inter alia payment of revised pension, leave salary and for refund of the amount of Rs. 14,208/- which had been withheld from the provident fund account of the petitioner. 2 It is admitted that the entire grievance of the petitioner stands redressed during the pendency of the proceedings save and except the withheld amount. A comprehensive counter affidavit was filed on behalf of the respondent No.2 to the interlocutory application filed on behalf of the petitioner challenging the order dated 29.10.2009 passed by the respondents in purported exercise of power under Rule 43(b) of the Bihar Pension Rules(hereinafter referred to as the ‘rules’) authorizing the recovery of Rs. 4652/- from the petitioner. By the same order the balance amount i.e. Rs. 14,208-4652 = 9556 was directed to be disbursed to the petitioner. Thus the only issue which remains pending for adjudication is whether the respondents were justified in making recovery of the amount of Rs. 4652/- from the petitioner in the light of the order dated 29.10.2009 placed at Annexure-E to the second supplementary counter affidavit of the respondent No.3 and whether it had any lawful support. The Background of the recovery of the amount aforesaid dates back to an order passed 3 by the then Ranchi Bench of the Patna High Court in C.W.J.C. No. 1002 of 1995 (R)(Smt.Manu Ghosh versus the State of Bihar & ors.). The learned Single Judge upon consideration of the matter was pleased to hold that culpable delay had been caused in the payment of the provident fund of the husband of the petitioner who had died during the pendency of the proceedings and that he was entitled for payment of not only the principal amount but also the amount of interest at the rate of 22 % on his provident fund dues. In compliance of the direction of the Court, the principal amount of provident fund together with an amount of Rs. 8902.68 being interest at the rate of 22 % was paid to the writ petitioner. In the background of the order passed by the Court aforesaid, the matter was considered at the level of the department to identify the persons who had caused the delay in disbursement of the provident fund amount of late S.K. Ghosh leading to imposition of penal interest on the department. A show cause in this regard was issued to the present petitioner who was holding the 4 post of Headclerk on 13.9.1996. Proceeding to fix the responsibility on the persons who had caused the delay in disbursing of the amount, the Deputy Commissioner, Jamshedpur vide letter dated 10.9.1996 (Annexure-4) issued directions to the District Provident Fund Officer, Jamshedpur to identify the erring employees. Acting thereon the District Provident Fund Officer sought an explanation from the present petitioner vide letter dated 13.9.1996 for the reason that the petitioner held the post of Headclerk in the concerned department at the relevant time. The petitioner submitted his explanation on 14.9.1996, copies of the letter dated 13.9.1996 and 14.9.1996 are placed at Annexures-C and D of the counter affidavit. The District Provident Fund Officer, Jamshedpur after considering the explanation of the petitioner submitted his report to the Deputy Commissioner, Jamshedpur on 20.9.1996 holding the petitioner and one Prakash Chandra Sinha, Assistant as responsible for the delay and also recommended disciplinary action against them. Upon consideration of the recommendation dated 20.9.1996, the Deputy Commissioner, Jamshedpur 5 vide order dated 5.3.1997(Annexure-F) directed a recovery of 40 % of the total amount of the penal interest from the petitioner and 60 % from the other person namely Prakash Chandra Sinha. On 14.3.1997 and 17.4.1997 the petitioner filed his representation against the order dated 5.3.1997 before the Deputy Commissioner, East Singhbhum and protested against the order. On receipt of the representation, the Director General Provident Fund, Bihar vide letter dated 7.5.1997 (Annexure-I) requested the Deputy Commissioner to consider the matter afresh and whereupon the Deputy Commissioner by letter dated 31.5.1997 (Annexure-K) reiterated his earlier order dated 5.3.1997(Annexure-F) and justified the recovery in the manner proposed in the said order. At this stage it would be necessary to mention that the petitioner has neither challenged the order dated 5.3.1997(Annexure-F) fixing the responsibility upon the petitioner and Prakash Chandra Sinha to the extent of 40% and 60% respectively nor did he challenge the order dated 31.5.1997(Annexure-K) of the Deputy Commissioner and which was conclusive on the issue in so far as the issue of fixing of 6 responsibility and recovery is concerned. The petitioner superannuated on 30.6.1998. It is thereafter that in the process of making recovery in the light of the order dated 5.3.1997 and 31.5.1997 that the respondents initiated another proceedings purportedly in exercise of power under Rule 43(b)of the Rules. In my opinion, the proceedings initiated subsequent to the retirement of the petitioner was unwarranted for the reason that the issue stood concluded under the order(s) dated 5.3.1997 and 31.5.1997 fixing the liability and which was never challenged by the petitioner. Dr. M.P. Shukla learned counsel appearing on behalf of the petitioner submits that the proceedings initiated after the retirement of the petitioner in purported exercise of power under Rule 43(b) is illegal and contrary to the Rules inasmuch as the notice itself has been issued under the Conduct rules and although it purports to be a proceeding under Rule 43(b) but in fact it is a disciplinary action being taken by the authority and which cannot be permitted after 7 retirement. He thus submits that the recovery pursuant to such proceeding is illegal and unsustainable. Mr. Anil Kumar Jha, learned G.A.2 submits that in fact the whole issue stood concluded under orders dated 5.3.1997 and 31.5.1997 and the authorities were not required to initiate any further action and the subsequent proceedings can be ignored. He submits that the issue raised and action taken by the authorities can be tested and upheld in the light of the aforesaid orders. Having given anxious consideration to the entire issue, I am of the opinion that the issue admittedly and definitely stood concluded on 5.3.1997 under the orders of the Deputy Commissioner, East Singhbhum, Jamshedpur holding the petitioner and Prakash Chandra Sinha as the persons responsible for causing the delay in disbursement of the provident fund amount of late S.K. Ghosh leading to imposition of penal interest. The Deputy Commissioner has also proceeded to fix the extent of liability on the two persons and has directed that 40% of the total interest be recovered from the 8 petitioner and 60% from the Prakash Chandra Sinha. The order dated 29.10.2009 which purports to be an order under Rule 43(b) of the Bihar Pension Rules is in fact only a consequence of the order dated 5.3.1997, for the purpose of effectuating the recovery. Although the objection taken by the Dr. Shukla is well taken but it is also a settled proposition of law that an invalid and unwarranted action cannot invalidate a valid action taken under the service Rules. Admittedly the recovery in question was a minor punishment. Admittedly the petitioner has represented and rerepresented in the matter. It is also indisputed that the explanation was duly considered but was rejected under the order dated 31.5.1997 (Annexure-K). It is also admitted that the orders dated 5.3.1997 (Annexure-F) and 31.5.1997(Annexure-K) were never challenged by the petitioner at any stage, not even in the present proceedings. In that view of the matter, there is no merit in the contentions advanced on behalf of the petitioner, the writ petition is dismissed. Bibhash (Jyoti Saran, J. )