IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4473 of 2005 DUDHESHWAR RAM, son of late Tetar Ram, resident of M.I.G. 310, Kankarbagh Colony, Police Station Kankarbagh, Town and District, Patna. Versus 1. THE STATE OF BIHAR, through the Secretary, Road Construction Department, Vishweshwarilya Bhawan, Bailey Road, Patna. 2. The Joint Secretary, Road Construction Department, Vishweshwariya Bhawan, Bailey Road, Patna. 3. The Deputy Secretary, Road Construction Department, Vishweshwaraiya Bhawan, Bailey Road, Patna. 4. The Accountant-General, Bihar, Birchand Patel Path, Patna. ----------- 5 09.03.2010 Heard Mr. R.N. Mukhopadhyay learned counsel for the petitioner, Mr. Mahesh Prasad, S.C. 8 for the State and Mr. L.P.K. Rajgrihar, learned counsel for the Accountant General. The petitioner was appointed on 12.4.1967 on the post Assistant Engineer in the Road Construction Department of the Government of Bihar, Patna and superannuated with effect from 30.11.1998 while holding the post of Chief Engineer. Much after the retirement of the petitioner a vigilance case came to be instituted in relation to certain irregularities being committed in purchase of bitumen giving rise to Vigilance P.S. Case No. 3/1999. Subsequently all such cases relating to bitumen were collectively registered as R.C. No. 12/A/99(R). The - 2 - petitioner though was made an accused in the said case but the C.B.I. submitted final form in favour of the petitioner on 30.6.2004, copy whereof has been placed at Annexure-7. The petitioner admits to the payment of his entire post retiral benefits including pension, gratuity and other dues but questions the recovery of Rs. 99,780/-, vide order bearing memo No. 4395(s) dated 4.7.2005 (Annexure-10 to the interlocutory application) issued under the signature of the Joint Secretary, Road Construction Department, from his leave encashment dues. Learned counsel for the petitioner submits that withholding of the leave encashment amount of the petitioner by the respondents is per se illegal and without sanction of law. He submits that the illegality is further fortified by the fact that the recovery was made even without initiating any proceeding as envisaged under Rule 43(b) of the Bihar Pension Rules. He submits that whereas on one hand the department themselves have released the entire pension and gratuity of the petitioner but they have wholly illegally withheld the amount of RS. 99,780/- from his leave encashment amount. - 3 - Needful to mention here that the petitioner had filed the interlocutory application assailing the order of recovery as contained in Annexure-10 and which has since been allowed by this Court. The illegality in the action of the respondents is manifest from the statement made in the supplementary counter affidavit that the recovery was in relation to an allegation dating back to the year 1992-94. It is stated by the respondents State in the counter affidavit that as the petitioner along with some others were held responsible for the loss caused to the Government to the tune of Rs. 7,98,236/- hence the share attributable to this petitioner came to Rs. 99,780 and which has since been recovered under the order of recovery dated 4.7.2005 (Annexure-10). Even more surprising is the fact that the said recovery has been effected even when a decision was taken at the level of the State Government to institute a money suit against the petitioner for recovery of the said loss. Having given anxious consideration to the issue involved in the writ petition I deem it fit - 4 - to hold that the action of the authorities in enforcing the recovery is patently illegal and unsupportable by the rules Moreso, for the reason that the same has been carried out even in absence of any proceeding as envisaged under the Bihar Pension Rules. The act of the respondents is even more arbitrary for the reason that while the petitioner stands exonerated of the charges alleged against him and a final form has been submitted by the C.B.I and in that background the respondents themselves have decided to institute money suit for recovery albeit the same never came to be filed, they have adopted a shortcut method withholding the amount of leave encashment of the petitioner and which action is illegal and cannot be sustained. Such being the position, the order of recovery as contained in Annexure-10 is set aside. The respondents are directed to remit the withheld amount within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed. Bibhash (Jyoti Saran, J. )