Civil Writ Jurisdiction Case No. 237 of 2005 --------- In the matter of an application under Article 226 of the Constitution of India Mohibul Haque ………. Petitioner Versus THE STATE OF BIHAR & ORS. ……… Respondents For the Petitioner : Mr. Vijay Kumar Singh, Advocate. For the Respondents: Mr. Kumar Alok, S.C. 19. ………. O R D E R THE HON’BLE MR. JUSTICE JYOTI SARAN …………. 04/ 21.01.2010 Mr. Vijay Kumar Singh, learned counsel for the petitioner and Mr. Kumar Alok, S.C. 19 for the State are present. The petitioner is aggrieved by the action of the respondent authorities in making a recovery of Rs. 2,92,200/- from his pensionary benefits without issuing even a show cause much less initiating proceedings as required under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Rules). A prayer has been made for production of the order under which the recovery has been effected and for refund of the recovered amount. The petitioner was appointed in the year 1958 on the post of Assistant and continued as such until his retirement with effect from 31.1.1996 from the post of Range Assistant, Katra, District- Muzaffarpur. The petitioner upon retirement submitted his pension papers and also received his G.P.F. amount and group insurance amount. But the other dues towards leave encashment, gratuity and - 2 - pension remained pending. The petitioner ultimately came to know that the said amount(s) had been withheld in order to effectuate recovery of Rs. 2,92,200/- under some order issued by the authorities and whereupon the petitioner filed a representation on 9.5.2004 (Annexure-4) for release of the same. It was contended that although a letter dated 28.9.2004 (Annexure-5) was issued under the signature of the respondent no. 3, the Joint Director, Tirhut Division, Muzaffarpur to the Sub- Divisional Agriculture Officer, Muzaffarpur for ensuring payment of the pending dues of the petitioner but the same remained an empty formality. It was contended that despite seven years having lapsed his pensionary dues remained pending even in absence of any proceeding under the Pension Rules or any other Rules. A counter affidavit was filed on behalf of the State and in which it was stated that as the petitioner was told to hand over the charge of materials worth Rs. 2,92,200/-, and he failed to carry out the same hence the said amount had been adjusted from his pensionary entitlements under the order of the Sub-Divisional Agriculture Officer, Sikarhana directing the Sub-Divisional Agriculture Officer, Muzaffarpur (East) to recover the amount and who vide memo no. 80 dated 26.3.2004 (Annexure-12) informed the Treasury Officer that an amount of Rs. 2,92,200/- was recoverable from the petitioner. The petitioner in his rejoinder with supportive - 3 - documents submitted that after retirement on 31.1.1996 he filed representation to the authorities for deputing some person for taking over charge and whereupon vide letter no. 54 dated 19.2.1996 (Annexure-7), Sub-Divisional Agriculture Officer, Muzaffarpur East directed one Vimal Kumar Thakur to take charge from the petitioner but he did not receive the charge and which was duly informed by the petitioner vide representation dated 7.5.1996 to the Sub-Divisional Agriculture Officer (Annexure-8). It was contended that thereafter the petitioner filed several representations dated 20.3.1996, 30.3.1996, 25.3.1997, 27.3.1997 and 10.9.1997 for handing over the charge but it was not acted upon. It was contended that the impugned order dated 26.3.2004, having been passed after eight years of his retirement without any show cause notice or without drawing any proceedings was not sustainable and thus the recovered amount should be refunded to him as there was no laches on the part of the petitioner in the matter of handing over charge. Learned counsel for the respondents supported the impugned action and submitted that it was the onus and responsibility of the petitioner to hand over his charge to the successor at the time of his retirement. It was contended that the petitioner having neglected to do so and having neglected to keep the materials of which he was holding charge in proper care, was liable to make good losses suffered by the Government to the tune of Rs. 2,92,200/- . It was submitted that when on repeated request - 4 - the petitioner did not respond to hand over the charge, the Sub- Divisional Agriculture Officer, Muzaffarpur requested the Sub- Divisional Officer, Muzaffarpur to depute a Magistrate to open the locks of the different rooms and who vide order dated 21.5.1998 (Annexure-B) entrusted the work to the Block Development Officer, Katra and the lock was opened and on 1.6.1998 an inventory was prepared. A committee comprising of the District Agriculture Engineering Officer, Muzaffarpur, District Planning and Evaluation Officer, Muzaffarpur and Assistant Agriculture Officer, Muzaffarpur was constituted by the District Agriculture Officer, Muzaffarpur to look into the matter and sort out the issue. It was contended that the Committee submitted its report on 22.11.2002 (Annexure-E). It was stated that the petitioner was given a chance to make good the losses vide letter no. 381 dated 23.12.2002 (Annexure-F) but he failed to do so and thus the same was recovered from his retrial benefits. Learned counsel for the petitioner responding to the submissions of the State counsel with reference to Annexure-10 which is the charge report given by the said Vimal Kumar Thakur dated 6.2.1999, submits that the said person had taken over charge on 6.2.1999 and who had certified that there was nothing pending against the name of this petitioner. Learned counsel thus submits that Sri Thakur having certified that nothing remained pending against this petitioner, the impugned order is arbitrary and without sanction of law. - 5 - I have heard learned counsel appearing for the parties and considered the materials on record. The issue which requires determination is whether there was any laches on the part of the petitioner in handing over the charge of the materials said to be in his possession and whether the impugned order could be passed without holding any proceeding as required under the Rules. The petitioner retired from service on 31.1.1996. Soon thereafter on 19.2.1996 (Annexure-7) on his request one Vimal Kumar Thakur was directed to take charge from him under the directions of the Sub Divisional Agriculture Officer, Muzaffarpur but he did not do so and whereupon the petitioner filed a representation on 7.5.1996 before the Sub Divisional Agriculture Officer bringing this fact to his notice and asked him to take effective action. The petitioner has also enclosed series of representations supporting his contentions that there was no laches on his part and that ultimately the said Vimal Kumar Thakur took over charge from him on 6.2.1999 (Annexure-10) certifying that nothing remained due with the petitioner. In the aforementioned view of the matter, it was contended that the impugned order having been passed behind the back of the petitioner without issuing even a show cause notice much less any proceeding under the relevant rules was unsustainable, without sanction of law and having been issued in gross violation of the principles of natural justice could not be sustained. - 6 - The contention advanced on behalf of the petitioner is well taken inasmuch as it is the responsibility of the employer to ensure that a person retiring on a particular date has no difficulty in handing over his charge. It is certainly not a duty of the retiring official to run about and search for a person to whom he could hand over charge rather it is the responsibility of his superiors to ensure that the process of handing over charge is completed in an easy manner without causing harassment to the retiring employee. It is an admitted position that the impugned order was passed sans any proceedings much less even a show cause and as such cannot be sustained. Thus the impugned order having been passed de hors the statutory provisions cannot be upheld and even on merits the petitioner cannot be held responsible for any such damage whatsoever that may have been caused in the period between the date of retirement and the date on which the charge was taken over by the successor. The responsibility and the onus lay with the superior authorities. The failure on the part of the superior authorities in ensuring the handing over of charge cannot be attributed to the petitioner and who certainly cannot be burdened to make good the losses, if any. In the circumstances, the impugned order cannot be sustained and is set aside. In the result, the writ petition is allowed. The order bearing memo no. 80 dated 26.3.2004 (Annexure-12) issued by the Sub Divisional Agriculture Officer (General), Muzaffarpur East, addressed to the Treasury Officer, Muzaffarpur directing recovery of - 7 - Rs. 2,92,200/- from the pensionary benefits of this petitioner is set aside and the respondents are directed to remit the amount of Rs. 2,92,200/- to this petitioner within a period of three month from the date of receipt/production of a copy of this order. The writ petition stands allowed with the directions aforesaid. S.Sb/- (Jyoti Saran, J.)