IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10521 of 2005 ====================================================== Panchu Ram, son of late Ram Briksh Ram, r/o- village Hira Sadan, East Patel Nagar, Road No. 1, P.S.- Shastri Nagar, District- Patna. .... .... Petitioner/s Versus 1. The State Of Bihar through Chief Secretary, Old Secretariat, Patna. 2. Accountant General, Bihar, Patna. 3. The Agricultural Produce Commissioner, Bihar State Vikash Bhawan, Patna. 4. Bihar State Agricultural Marketing Board, Patna, Pant Bhawan, Bailey Road, Patna. 5. The Managing Director, Bihar State Agricultural Marketing Board, Patna. 6. The Director, Marketing Board, Bihar State Agricultural Marketing Board, Patna 7. Agricultural Produce Market Committee, Bairgania, District- Sitamarhi, through its Market Secretary .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Bishnu Kant Dubey Mr. Ranjit Kumar For the Respondent/s : A.C. to S.C. 6 ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER (Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL) 7 08-11-2011 I.A. No. 7507 of 2011 Both sides present. Heard. Learned counsel for the petitioner presses interlocutory application (I.A. No. 7507 of 2011) which has been filed for impleading the Administrator, Bihar State Agriculture Marketing (Repealed) Board, Pant Bhawan, Bailey Road, Patna, as one of the Patna High Court CWJC No.10521 of 2005 (7) dt.08-11-2011 2 respondents. Learned A.C. to S.C. 6 does not object to grant of the application. Having heard the parties, the said application is allowed. The Administrator, Bihar State Agriculture Marketing (Repealed) Board, Pant Bhawan, Bailey Road, Patna is impleaded as party respondent No. 8. Office to carry out necessary correction in the cause title. Heard learned counsel for the petitioner and learned counsel for the State. Petitioner is a retired employee of the erstwhile Bihar State Agricultural Marketing Board (for short “ the Board”). He superannuated from service w.e.f. 31.1.2004. He is aggrieved by the order dated 10.6.2005 passed by the then Managing Director of the Board (Annexure-10). The said order reads as under: “On the perusal of the relevant documents it is clear that the then Market Secretary, Agriculture Produce Market Committee, Bairgania who is an appellant in this case, while issuing trading license to the defaulting traders realized surcharge amount equal to the license fee. The appellant takes umbrage under the letter issued by the Director Marketing vide letter No. 4455 dated 10.8.78. In his opinion he was to obey the orders of the higher authorities and accordingly he implemented the order of the Market Committee in the light of the above mentioned letter. The audit team on the other hand had objected the action of the then Market Secretary as under Bihar Agriculture Produce market Act, 1960 there is no such provision wherein Market Committee or Patna High Court CWJC No.10521 of 2005 (7) dt.08-11-2011 3 Board can modify or waive the surcharge. The Market Secretary, Agriculture Produce Market Committee, Bairgania has clearly erred and implemented the decision of the Market Committee which is bad in law. It is pertinent here to note that appellant was Assistant Director, Agriculture Marketing at that time Hon’ble Court, have ruled that it is not necessary that an officer should obey the orders passed by his superior authority which are unlawful. The Market Secretary, A.P.M.C. Bairgania who is an appellant in this case was a senior most Market Secretary and already served Market Committees for a long-long years, it was but a natural for him to know that the direction given by the Director Marketing does not have legal basis. Besides, he should also have known this fact that Director marketing of Agricultural Marketing Board is not empowered to issue such order on behalf of Agricultural Marketing Board. Therefore, in the light of the above mentioned facts and circumstances I do not find any merit in the plaint. Therefore, the appellant’s appeal stands rejected.” On perusal of the order, it appears that the petitioner was carrying out the orders of the Market Committee as contained in Annexure-5 which was taken in the light of direction issued by the Director, Marketing dated 10.8.1978 (Annexure-4). After his superannuation, the petitioner has been made liable to refund a sum of Rs. 4575/- on account of realization of less amount of fee for renewal of the licences. Learned counsel for the petitioner submits that petitioner, while functioning as the Secretary of the Market Committee was duty bound to carry out the orders of the Market Committee which Patna High Court CWJC No.10521 of 2005 (7) dt.08-11-2011 4 was taken in the light of direction issued by the Director, Marketing of the Board. He has also referred to the communication dated 21.2.1995 issued by the Managing Director of the Board requesting of waiving the aforesaid amount in view of the decision taken by the Market Committee. Learned counsel further contends that any recovery can be made according to law. Admittedly, no proceeding was initiated against the petitioner in which he was given an opportunity to explain his stand. In this connection, he draws attention of the Court to paragraph 10 of the counter affidavit filed on behalf of respondent Nos. 5 to 8. Learned counsel for the State, on going through the pleadings on record, states that the Market Committee had no jurisdiction to amend the rule. However, he does not dispute that any proceeding was taken by the respondents before passing the impugned order in which the petitioner was given opportunity to explain his stand. Having heard the parties and on going through the materials on record, it is evident that petitioner being the Secretary of the Market Committee was obliged to obey the resolutions passed by the Market Committee. The Market Committee had already resolved on 8.11.1985 to realize surcharge by way of delayed renewal fee equivalent to the licence fee and not @ Rs. 5 Patna High Court CWJC No.10521 of 2005 (7) dt.08-11-2011 5 per day. The relevant resolution of the Market Committee is Annexure-5. It further appears that considering the aforesaid fact, the Managing Director of the Board had himself instructed the Accounts Examination Officer/Surcharge of the office of Accountant General to waive the aforesaid amount which was shown payable by the petitioner. Regard being had to the admitted position that no proceeding was drawn in which the petitioner was given an opportunity to explain his stand before the order of recovery was passed, this Court is satisfied that the order contained in Annexure-10 is fit to be quashed. I order accordingly. It has been pointed out that the aforesaid amount of Rs. 4575/- has already been recovered from the post retiral benefits payable to the petitioner. If that be so, then respondents are directed to refund the aforesaid amount to the petitioner within four weeks from the date of receipt/production of a copy of this order. PANKAJ KUMAR/- (Kishore K. Mandal, J)