IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.246 of 2010 1. THE BIHAR STATE KHADI & VILLAGE INDUSTRIES BOARD MAHESH BHAWAN, EAST GANDHI MAIDAN, PATNA, P.S. GANDHI MAIDAN, PATNA, DISTT.- PATNA THROUGH ITS CHIEF EXECUTIVE OFFICER. 2. THE CHIEF EXECUTIVE OFFICER BIHAR STATE KHADI & VILLAGE INDUSTRIES BOARD, MAHESH BHAWAN, EAST GANDHI MAIDAN, PATNA, P.S.- GANDHI MAIDAN, PATNA, DISTT.- PATNA. ------------- Respondents--------Appellants -:Versus:- 1. PRITAM SINGH MARWAHA S/O LATE RADHA SINGH MARWAHA R/O FLAT NO. 403, ANAND SHREE COMPLEX, RAM KRISHNA PATH, NORTH S.K. PURI, P.S. SRI KRISHNA PURI, PATNA, DISTT.- PATNA ------------ Petitioner---------Respondent 1st Set 2. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM- SECRETARY DEPTT. OF INDUSTRY, GOVT. OF BIHAR, NEW SECRETARIAT, P.S. SACHIVALAYA THANA, PATNA, DISTT.- PATNA. ---------- Respondent No.1---Respondent 2nd Set ----------- Respondents ----------- For the Petitioners/Appellants :- Mr. Amitesh Kumar, Adv. For the Respondent No.1 :- Mr. A.K. Chaudhary, Adv. Mr. Vishwambhar Prasad, Adv. ----------- 3 08.03.2010 I.A. No. 1181 of 2010 Having heard Mr. Amitesh Kumar, learned counsel for the appellants as also Mr. Ashok Kumar Chaudhary appearing with Mr. Vishwambhar Prasad, Advocates for the respondent writ petitioner and upon taking into account the fact and circumstances mentioned in this application, the delay of 57 days in filing of this appeal is hereby condoned. I.A. No. 1181 of 2010 is accordingly allowed. 2 L.P.A. No. 246 of 2010 Having condoned the delay, we, with the consent of the parties, have also taken up this appeal for its disposal on merits. The Bihar State Khadi & Village Industries Board (hereinafter to be referred to as ‘the Board’) and its Chief Executive Officer in this appeal have assailed the order dated 29.10.2009 in C.W.J.C. No. 2155 of 2007, wherein, the prayer of the respondent writ petitioner for quashing the order of recovery to the tune of Rs. 2,03,121/- has been set aside on the ground of its being in violation of the principles of natural justice. Learned counsel appearing on behalf of the appellants has laid stress on the aspect that such amount of Rs. 2,03,121/- was an admitted amount payable by the respondent writ petitioner, inasmuch as, it was found by the auditors of the Accountant General in their audit report that the same was recoverable from the respondent writ petitioner. Counsel for the Board, however, could not explain to us any reason for passing the impugned order of 3 recovery dated 17.10.2007 by the authorities of the Board after more than eight and half years of the retirement of the respondent writ petitioner who admittedly retired from the services of the Board in the month of February, 1999. As a matter of fact, the Board, though had a filed counter affidavit and supplementary counter affidavit in the connected writ application having a prayer of Respondent writ petitioner for payment of the admissible retirement benefit, it had not even chosen to bring the alleged audit report of the year 1997-98 and 2001-02 on the basis of which alone, a decision had been taken in the year 2007 to make such recovery of Rs. 2,03,121/- from the retirement benefit of Respondent-writ petitioner. Counsel, however, had tried to explain that the connected audit reports being nowhere in dispute were by themselves proof of the fact that the said amount was recoverable from the respondent writ petitioner and in this context had referred to and relied on the stand taken in the counter affidavit and supplementary counter affidavit. In the opinion of this Court, the respondents, having not brought on record the audit report in support of 4 their plea of recovery of the amount from the respondent writ petitioner, cannot be allowed to claim this as an admitted fact. It is the specific case of the respondent writ petitioner that till the date of his retirement i.e. 28.2.1999, no proceedings for recovery of the amount as envisaged under the service rules was ever initiated against him and in fact, the impugned order of recovery by way of settlement of claim of retirement benefit was passed only on 17.10.2007 when the writ application for payment of such retirement benefit was filed by the respondent writ petitioner on 19.2.2007. By now, it is well settled that any order visiting a person with civil and evil consequences cannot be passed without giving an opportunity of hearing, inasmuch as, adherence to the principles of natural justice is the basic requirement of fair play and anti thesis of arbitrariness. Reference in this connection may be readily made to the judgment of the Apex Court in the case of S.L. Kapoor Vs. Jagmohan & Ors. reported in AIR 1981 SC 136. In that view of the matter, we fully concur with the view recorded by the learned single Judge on this 5 aspect who has rightly held the impugned order visiting the respondent writ petitioner with the consequence of recovery of amount from his retirement benefit unsustainable only on the ground of violation of principles of natural justice. To that extent, the reliance placed by the learned counsel for the respondent writ petitioner on an earlier order of this Court dated 9.2.2007 in C.W.J.C. No. 12504 of 2001 (Brija Nand Prasad Vs. Bihar Khadi Gramodyog Board and others) in the case of another employee of this very Board holding such recovery without adherence to the principles of natural justice to be wholly impermissible, is also quite apt. This Court must notice that the attitude of the authorities of the Board in proceeding to make recovery from retirement benefits on the basis of the audit report as noticed and deprecated in the case of Brija Nand Prasad (supra) has somewhat a become a notorious practice which cannot be countenanced in law. The writ petitioner in the process, in fact, was precluded from taking his stand with regard to the correctness of the findings in aforementioned audit report in absence of a show-cause notice issued to him. The Board 6 also did not produce such audit report before the learned single Judge or before us to show the justifiability of such recovery from the retirement benefit of the petitioner. It is well settled that the pleadings in a writ application have to be self sufficient and to be supported by the documents in absence of no party can be permitted to proceed by treating it to be an admitted fact by way of interference alone. Reference in this connection may be made to the judgment of the Apex Court in the case of Bharat Singh & Ors. Vs. State of Haryana & Ors. reported in AIR 1988 SC 2181 relevant portion whereof reads as below:- “--------- As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or 7 the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter- affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable.........." Thus, if the respondents appellants have themselves did not substantiate their case of the Respondent-writ petitioner being liable for recovery on the basis of alleged audit report their impugned action of making recovery from the retirement benefits of the Respondent-writ petitioner without complying the principles of natural Justice cannot be upheld. Normally, this Court in keeping with the interest of public revenue could have accorded leave to the appellant Board to initiate a proceedings in terms of the service rules but then taking into account that the respondent writ petitioner had retired way back in February, 1999, we are now not inclined to give such leave 8 to the Board keeping in view the statutory power under Rule 43 of Bihar Pension Rules for making such recovery from the retirement benefit of the respondent writ petitioner was there only for a period of four years. That being so, we find no merit in this appeal and the same is accordingly dismissed. There would be however no order as to cost. Rishi (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)