IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3181 of 2007 NIRBHAY KUMAR SINHA, aged about 32 years, son of Late Amlendra Kumar Sinha (Retired Assistant Engineer, Bridge Design Division No.-3, Advance Planning, Road Construction Department, Punaichak), resident of Mohalla- Hanuman Nagar, Sector-K-10 P.C. Colony. Versus 1. THE STATE OF BIHAR, through the Secretary, Rural Engineering Organization (R.E.O.), Vishwashwariya Bhawan, Bailey Road, Patna 2. The Chief Engineer No.1, Rural Engineering Organization (R.E.O.), Vishweshwariya Bhawan, Bailey Road, Patna. 3. The Executive Engineer, Rural Engineering Organization (R.E.O.), Works Division, Jehanabad, 4. The Executive Engineer, Bridge Design Division No.3, Advance Planning, Road Construction Department, Punaichak, Patna. 5. Junior Engineer, Arbal Section, Rural Engineering Organization (R.E.O.), Section, Arwal, Jehanabad. 6. The Secretary -cum- Commissioner, Road Construction Department, Government of Bihar, Vishwashwariya Bhawan, Bailey Road, Patna. 7. The Joint Secretary, Road Construction Department, Government of Bihar, Vishwashwariya Bhawan, Bailey Road, Patna. ----------- For the Petitioner :- Mr. Bajrangi Lal, Adv. Dilip Kumar, Adv. For the Respondents :- Mr.P.K. Verma, A.A.G.-11. ******** 8 08.12.2009 Heard learned counsel for the parties. The petitioner herein is the son of late Amlendra Kumar Sinha who retired as Assistant Engineer under the Bridge Design Division No.3, Advance Planning, Road Construction Department, Punaichak, Patna. The petitioner is aggrieved by the 2 order dated 13.11.2006 contained in Memo No. 2059 (Annexure-10) rejecting the representation filed by the father of the petitioner regarding release of the gratuity amount of Rs. 1,13,267/- which had been withheld on grounds of non handing over of charge of materials by the late father of the petitioner at the time of his retirement on 30.6.2000. Facts briefly stated is that an order just prior to the retirement of the father of the petitioner came to be issued dated 18.6.1998 (Annexure-6) whereby he was informed that materials worth Rs. 1,13,267/- was still pending against his name and the charge of which had not yet been handed over by him. The father of the petitioner was directed to deposit the said amount within a week of the receipt of the said letter, failing which F.I.R. would be instituted against him. The petitioner’s father responded to the said letter by filing a representation before the respondent Executive Engineer on 30.6.1998 (Annexure-7) and in which it was stated that the entire materials which was said to be pending against his name, had been utilized in the construction of the Madia Haspura Jaipur 3 Road and had been entered in the measurement book. The father of the petitioner further mentioned that by letter dated 20.5.1997 he had also requested for adjustment of the same but the same had not yet been done. He submitted that in the light of the submission made in the said letter the amount said to be pending against his name should be struck of. No order was passed thereafter and the petitioner superannuated with effect from 30.6.2000. Soon after his retirement another order bearing memo No. 6605 dated 22.9.2001 (Annexure-6/A) was issued under the signature of the Joint Secretary, Government of Bihar, Rural Construction Department. Even while the said letter mentioned that there were no dues against the father of the petitioner in respect of house construction advance, motorcycle advance and miscellaneous advance etc., it was further mentioned that the Executive Engineer, Bridge Design, Division No.1, Advance Planning, Road Construction Department had reported that an amount of Rs. 1,13,267/- was recoverable from Sri Amlendra Kumar Sinha for the period of his posting at the works Division, Jehanabad and that the said amount should be deducted 4 from the gratuity amount payable to him. The petitioner came before this Court by filing C.W.J.C. No. 7840 of 2001 and which was disposed of by a general direction dated 28.6.2001 (Annexure-8). As the issue raised, required adjudication the petitioner filed another writ petition challenging the order of deduction of the amount of Rs. 1,13, 267/- from his gratuity giving rise to C.W.J.C. No. 15575 of 2001. The said writ petition was disposed of by order dated 29.4.2002 with a liberty to the petitioner to file a detail claim before the authority concerned within a fortnight and whereupon the concerned authority was required to consider and dispose of the same in accordance with law within a period of three months thereafter(Annexure-9). In compliance of the direction passed by this Court as contained in Annexure-9, the petitioner filed detailed representation before the Commissioner-cum-Secretary Road, Construction Department, Government of Bihar on 29.5.2002 clarifying the entire position, copy of which is placed at Annexure-9/A. It was categorically stated in paragraph VIII that the petitioner had earlier submitted his reply with 5 receipts and documents about the material consumed as recorded in the measurement and copy whereof were also annexed to the said representation as Annexures 5, 5/A, 5/B series. Apart from the factual aspect of the matter the father of the petitioner also raised legal issues to the effect that neither any proceeding nor any charge sheet was issued to him prior to passing of the impugned order of recovery. In the light of the statements made in the representation and the issues raised therein, a prayer was made for releasing the amount of Rs. 1,13,267/- which had been withheld by the respondents together with interest at the rate of Rs. 12 % . The said representation was filed on 29.5.2002 under the orders of this Court as contained in Annexure-9 and the same was required to be disposed of within a period of three months. The father of the petitioner expired on 23.5.2006 i.e. almost four years of filing of the said representation which remained pending with the respondent Commissioner-cum-Secretary of the Department. It is after the death of the father of the petitioner that an order came to be issued 6 contained in Memo No. 2059 dated 13.11.2006 (Annexure-10) whereby the representation filed by the father of the petitioner had been rejected and it was held that the same did not require reconsideration. (Emphasis supplied) Learned counsel appearing on behalf of the petitioner submits that the action of the respondent authorities in withholding the said amount from the retiral benefits admissible to the father of the petitioner was per se arbitrary, unreasonable and in gross violation of the principles of natural justice. It was further submitted that no proceeding muchless even a show cause was issued to the petitioner before the impugned action was taken. It was further submitted that in pursuance of the order of this Court as contained in Annexure-9 the father of the petitioner had filed a detailed representation clarifying the entire issues with support of material evidence and clarifying that the recovery was not legal. With particular reference to the statement made in paragraph VIII of the representation it was submitted that the entire documents relatable to the usage of the materials in question had 7 been submitted again with the representation and enclosed at Annexures 5, 5/A and 5/B. It was submitted that the impugned order does not even whisper regarding the statement made in paragraph VIII of the representation and has been passed in a mechanical manner. It is submitted that the said impugned order as contained in Annexure 10 is also not in consonance with the direction issued by this Court requiring the respondent authorities to consider and dispose of the claim of the petitioner by a reasoned order. Learned counsel submits that the order is pre-meditated and does not deal with the issue raised. It is further submitted that the said order having been passed after the death of the father of the petitioner cannot be sustained having been passed against a dead person. Mr. P.K. Verma learned A.A.G.11 representing the State Government supported the impugned action and stated that the decision was taken in the light of the provisions contained in the Rules 5,6 and 7 of the P.W.D. Code. It was contented that as there was a deficit in the materials handed over by the father of the petitioner calculated to the tune 8 of Rs. 1,13,267/- hence the father of the petitioner was liable to make good the said deficit and thus the recovery was fully in accordance with law. It was further submitted that the earlier order passed by the authorities as contained in Annexure-6 and 6/A herein were not interfered by this Court while disposing of the writ petition earlier filed by the father of the petitioner as contained in Annexure-9 rather a concession was given by this Court requiring the father of the petitioner to present his claim and which has been duly considered and rejected by the authorities under the impugned order dated 13.11.2006 as contained in Annexure-10. Learned counsel further submits that the present case does not come within the category of an order being passed against a dead person for the reason that an order had already been passed adjudicating the claim and which was not interfered with by this Court while passing the earlier order and the subsequent order which has been impugned in the present writ petition is only the reiteration of the earlier view. It was submitted that as the charge report itself shows a deficit, the father of the 9 petitioner was liable to pay for the same and which has since been recovered. It was submitted that the impugned order need not be interfered by this court in exercise of its jurisdiction under Article, 226 of the constitution of India. I have heard learned counsel appearing on behalf of the parties and the contentions raised by them and have also perused the materials on record. It is an admitted position that the earlier order as contained in Annexures -6 and 6/A of the writ petition requiring father of the petitioner to deposit an amount of Rs. 1,13,267/- by reason of deficit in the materials handed over by him was issued without hearing the him. It is also an admitted position that the father of the petitioner had clarified the issue by filing a representation, copy of which is placed at Annexure-7, as back as on 30.6.1998 and which remained pending with the authorities who issued the order as contained in Annexure-6/A without with dealing the same. It is in these circumstances that when the matter came before this Court in C.W.J.C. 10 No. 15575 of 2001, this Court by order dated 29.4.2002 required the father of the petitioner to raise his grievance before the authority concerned and who under the directions of the Court was under a duty to consider the same and dispose of by a reasoned order. It is also admitted that position that in compliance of the Courts direction the petitioners father filed a representation dated 29.5.2002 (Annexure-9/A) and which again remained pending for four years and during which period the father of the petitioner expired on 23.5.2006. It is thereafter that the impugned order came to be issued on 13.11.2006. Apart from the fact that the impugned order as contained in Annexure-10 is a non- speaking order, bereft of reasons and not in terms of the directions issued by this Court placed at Annexure-9, the said order is also unsustainable for the reasons of having been passed against a dead person. It does not require reference to any judicial pronouncement to hold that no order can be passed against a dead person. Even on merits the order is unsustainable for the reason that the 11 petitioner’s father had very categorically stated in paragraph VIII of his representation (Annexure-9/A) explaining the usage of the materials with evidenciery support but the same has not been considered by the respondent Chief Engineer while rejecting the representation. In fact the disposal of the representation is simply in the light of the provision of Rules 5,6,7 of the P.W.D. Code and the respondent Chief Engineer proceeding on the same has rejected the representation of the petitioner. The impugned order as contained in Annexure-10 besides being bereft of reasons and in complete ignorance of the direction of this Court has also been issued in the name of a dead person and cannot be sustained and is thus set aside. Consequently, the Executive Engineer respondent No.3 is directed to refund the amount of Rs. 1,13,267/- to the petitioner within a period of three months from the date of receipt/production of a copy of this order. This writ petition is allowed with the aforesaid directions. Bibhash (Jyoti Saran, J. )