IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14556 of 2005 SUSHILA DEVI wife of late Rabindra Kumar Singh, resident of mohalla-Mohan Nagar near D.M. Kothi Jail Road, Gaya, Police Station- Rampur, District-Gaya. Versus 1. THE STATE OF BIHAR 2. The Secretary-cum-Commissioner, Department of Food and Civil Supplies Government of Bihar, Patna. 3. The Deputy Secretary Food Civil Supply, Government of Bihar, Patna. 4. The Director Provident Fund, Government of Bihar, Patna. 5. The District Magistrate Gaya. 6. The District Provident Fund Officer, Gaya. 7. The sub-Divisional Magistrate, Sairghati, District-Gaya. 8. The Accountant General Bihar-II (A and E) Birchand Patel Path, Patna. 9. The Bihar State Food and Civil Supply Corporation, through the Managing Director, Sone Bhawan, Patna. ----------- For the Petitioner :-Mr. Jitendra Kumar Roy, Adv. For the State :-Mr. S.A. Alam, S.C.4. For the Corporation :-Mr. R.S. Pradhan, Sr. Adv. Mr. A.N. Rai, Adv. ************ 9 14.05.2010 Heard learned counsel for the parties. The petitioner is the widow of late Rabindra Kumar Singh, a State Government Employee who superannuated from the post of Supply Inspector in Sherghati Divisional Office in the District of Gaya with effect from 28.2.2002. The writ petition has been filed for payment of the death cum retiral dues and other dues as found 2 admissible to her late husband including arrears of salary etc. together with admissible interest thereon. With the consent of the parties, the matter which has come up for reconsideration under an order of remand, has been taken up for disposal at the stage of Admission itself. Summary of facts in issue is that the husband of the petitioner was appointed as a Supply Inspector in the Department of Food and Civil Supplies, Government of Bihar in the year 1966. In the year 1975, he was sent on deputation to the Bihar State Food and Civil Supplies, Corporation (hereinafter referred to as the “Corporation”), where he continued as an Assistant Godown Manager until 1982. Consequent upon the completion of the period of deputation the husband of the petitioner handed over his charge to one Vinod Kumar, an Assistant Godown Manager on different dates referred to in paragraph No. 3 of the Interlocutory Application bearing I.A.No. 5503/2006, as between 13.4.1982 to 31.5.1982, when the final charge was handed over by him. No issue regarding any pending dues or non handing over of materials were set out against the husband of the petitioner at the time 3 of relieving/ handing over of charge on 31.5.1982. Having been relieved from the Corporation under memo No.1394 dated 2.6.1982 (Annexure-6), the petitioner joined the Department of Civil Supplies, Government of Bihar. He was directed to give his joining at the Rohtas (Sasaram). The husband of the petitioner since after his joining under the State Government was transferred to various places and finally superannuated while posted at the Sherghati Sub Division in the District of Gaya, with effect from 28.2.2002. As the service book had not been forwarded by the Corporation it resulted in non fixation of his correct salary since after his joining in the State Government and as a result petitioner continued to draw only the basic salary. The said circumstance led to filing of a writ petition bearing C.W.J.C. No. 9463 of 1998 for issuance of a last pay certificate by the Corporation and which was disposed of by order dated 24.11.1998 (Annexure-7) with a direction to the Corporation to send the last pay certificate to the Block Development Officer, Imamganj, District Gaya together with service book so that appropriate steps could be taken for fixation of 4 his salary. In pursuance of the order contained in Annexure-7 a last pay certificate was issued by the respondent Corporation bearing memo No. 72 dated 6.2.1999 (Annexure-8). The said last pay certificate also contained a list of deductions to be carried out and at Item No. 4 thereof it was mentioned that an outstanding advance of Rs. 1,06,383.58 was still pending against the husband of the petitioner and regarding which he had neither submitted any vouchers nor had refunded the amount. It was then mentioned that as the Corporation had suffered a loss on this account hence the employee was liable to pay a further amount by way of compound interest calculated to the tune of Rs. 17,21,502.11. Request was made for recovery of the said amount and for forwarding the same to the Corporation office at Bhojpur, Ara. It was however, mentioned that no godown shortage was found. The husband of the petitioner challenged the outstanding(s) shown in the last pay certificate by filing a writ petition bearing C.W.J.C. No. 5856 of 2001. It was contended on his behalf that whatever advance had been taken by him was deposited under vouchers and only whereafter charge was taken from him by one Vinod Kumar as 5 back as in the year 1992. It was further contended that in any view there was no question of imposition of interest. Considering the submissions of the parties, the writ petition was disposed of on 30.7.2001 (Anneuxre-9) with a direction to the respondent authorities to consider and dispose of the grievance of the petitioner after giving him opportunity and in accordance with law. In compliance of the direction of this Court aforesaid, a notice was issued to the husband of the petitioner bearing No. 5590 dated 1.9.2001 fixing the date of hearing on 13.9.2001 and which was received on the date of hearing itself. The husband of the petitioner vide letter dated 13.9.2001 (Annexure-10) requested for 15 days adjournment and also informed the authorities of the Corporation that as he was posted at Gaya hence the address mentioned in the said letter should be noted for future correspondence and notices issued in this regard be sent on the said address. Learned counsel for the petitioner contends that there after the husband of the petitioner did not receive any notice rather an ex-parte office order contained in Memo No. 7731 6 dated 19.12.2001(Annexure-11) was passed whereby the petitioner was charged with having an outstanding advance of Rs. 1,06,383.58 and for which he had neither submitted any vouchers nor had he refunded the amount. Relying upon relevant circulars of the Board on the issue of interest, it was held that the husband of the petitioner was liable to pay interest at the rate of 18% calculated to the tune of Rs. 4,97,875.15. The husband of the petitioner was further charged for incurring a recoverable shortage of Rs. 27,705.73 and which together with simple interest at the rate of 18 % was calculated to the tune of Rs.1,11,394.25. The petitioner was thus directed to refund a sum of Rs. 7,43,358.73 towards principal and interest. The order was assailed by the husband of the petitioner by filing a writ petition bearing C.W.J.C.No.10444 of 2002. While the said writ petition was pending disposal before this Court, the husband of the petitioner expired on 21.4.2005 and the writ petition was disposed of as not pressed in view of the said eventuality. The order dated 20.6.2005 disposing of the writ petition has been brought on record vide Annexure R/3 to the counter affidavit filed on behalf of 7 the Corporation. As stated above the present writ petition has been filed by widow of late Ravindra Kumar Singh for payment of the post retiral and other dues admissible to her late husband together with admissible interest. During the pendency of the proceeding an order purportedly under rule 43(a) of the Bihar Pension Rules (hereinafter referred to as the „rules‟) and finance Department Circular dated 6.9.1975, came to be passed under the signature of the Deputy Secretary, Department of Food and Supplies and Commerce, Government of Bihar contained in memo No. 667 dated 25.2.2006 (Annexure-5) disposing of the claim(s) of the deceased employee by adjusting the same towards the outstandings in the light of the order dated 19.12.2001 (Annexure-11) and by issuing directions for payment of the same to the respondent corporation by way of settlement of their claims. The husband of the writ petitioner was found only entitled to the payment of group insurance amount of Rs. 32,000/- and the provident fund amount. The petitioner filed an interlocutory application bearing I.A. No. 5503/06 seeking permission for challenging the correctness of the 8 order as contained in Annexure 5 and which has since been allowed by this Court. Learned counsel for the petitioner submits that the order as contained in Annexure-5 has been passed without any notice or opportunity of hearing, much less holding any proceeding as envisaged under Rule 43(a) or (b) of the Rules. He submits that the respondent authorities of the State of Bihar have simply proceeded to act on the basis of the order as contained in Annexure- 11 without application of mind and in a mechanical manner. He submits that the husband of the petitioner had handed over the charge of the materials and had submitted the vouchers in respect of the advances taken and only whereafter he was relieved from the Corporation. He submits that the Corporation has raised the issue of outstanding advance at the stage of issuance of last pay certificate in the year 1999 i.e. after a lapse of almost 17 years of his relieving from the corporation in the year 1982. He thus submits that not only the enquiry is in relation to a stale issue but the same has also not been conducted in the manner prescribed under the Rules. He also submits that in absence of there being any dues against the State of Bihar they 9 have no jurisdiction to withhold the retiral benefits admissible to the petitioner relating to her late husband on pretext of certain alleged dues pertaining to the Corporation who were free to take recourse to remedies as available to them under law and that the State of Bihar cannot be permitted to act as their recovery officer. Learned counsel also challenged the order of recovery on grounds of a differential and discriminatory treatment meted out by the State Government. With reference to an order placed at Annexure-12 of the proceeding bearing memo No 1530 dated 4.8.2006 issued in relation to one Ram Nandan Jha a retired Marketing Officer who was facing identical charges, it was held by the Deputy Secretary that in absence of any proceeding under Rule 43(b) or 139 of the Rules, the recovery was not proper. It was also held that the Corporation could file a money suit or a certificate case for recovery of the amount in question. It is contended that the finding arrived at by the Managing Director of the Corporation placed at Annexure-11 of the proceedings is ex parte, having been passed without hearing the husband of the petitioner. It is submitted that 10 although the Managing Director has tried to demonstrate that notices for hearing were served on the deceased employee on 13.9.2001 and 28.9.2001 but the fact is otherwise. Learned counsel submits that in response to the first notice dated 1.9.2001 the employee had appeared on 13.9.2001 and filed a petition for adjournment for 15 days and also intimated the authorities of the Corporation for sending future notice(s) on the address mentioned in the said letter placed at Annexure-10 of the proceeding but they have deliberately sent the notice on the old address at Rohtas (Sasaram) despite the position being clarified, that he was posted at Gaya. Learned counsel in support of his submissions referred to the returned notice(s) placed at Annexure-5 of L.P.A.No.392 of 2007. Learned counsel assails the impugned order inter alia on grounds that no proceeding as envisaged under the Rules was ever initiated against the husband of the petitioner and that even the so called enquiry conducted by the Managing Director was ex parte without affording proper opportunity of hearing to the husband of the petitioner and thus was farcical. He also challenges the order on grounds of discrimination. 11 Mr. Ram Shankar Pradhan, learned Senior counsel for the Corporation, supports the impugned order passed by the Managing Director and submits that the petitioner was not only liable for payment of the principal amount but also payment of interest in the light of the resolution of the Board on the issue. With reference to judgments of this Court placed in the counter affidavit, it is submitted that in similar cases this Court did not choose to interfere with imposition of interest. He further submits that taking lenient view of the matter, the interest which was originally at a compound rate was scaled down to simple rate of interest and which is payable by the present petitioner. He submits that as the petitioner was on deputation hence no regular proceeding could be initiated by the Corporation and the finding arrived at in the enquiry conducted by the respondent Managing Director placed at Annexure-11, was in compliance of the directions of this Court and in which the charges were found proved against the husband of the petitioner of non refund of certain advance amount. He submits that the writ petition is also not maintainable as being barred on the principles of resjudicata. 12 Mr. S. Arshad Alam learned S.C. IV representing the State submits that in view of a clear position that there were clear evidence of advances taken by the husband of the petitioner and for which he had neither submitted vouchers nor refunded the amount, no formal proceeding was required to be held. He submits that the action taken by the authorities under the order placed at Annexure-5 was a mere adjustment of the advance standing against the name of the husband of the petitioner. He further submits that there was no requirement of a regular proceedings under Rule 43(b) of the Rules for the reasons that the husband of the petitioner was liable to refund the advance taken by him. In response to the charge of discrimination made by the learned counsel for the petitioner, he submits that there was no question of discrimination for the reason that the case of Ram Nandan Jha stood on different footing. He further submits that whereas proceedings against Ram Nandan Jha were initiated after his superannuation but in the case of the petitioner the liability was crystallized much prior to his retirement vide Annexure-11 and thus the State has merely adjusted the amount found outstanding against the 13 husband in an enquiry conducted by the Corporation. In response to the averment of enforcing recovery on behalf of the corporation, learned counsel submits that the State Government was fully responsible for the acts or misdeeds of its employees and if the charges were proved against any employee regarding outstanding then it was well within the authority of the State Government to recover the same from his pending dues. He thus submits that there was no infirmity in the order as contained in Annexure-5 and that the writ petition was fit to be dismissed. I have heard learned counsel for the parties and considered the materials available on record. Taking the preliminary issue at the first instance that the matter stands concluded upon disposal of the writ petition filed by the deceased employee, as not pressed (Annexure-R/3) and thus is operating as a resjudicata to the present proceedings, I am of the opinion that no such issue exists and the petition is maintainable and can be considered on its own merits. Indisputably, the issue is stale and was raised by the Corporation rather belatedly. Outstanding(s) if any, against the husband of the 14 petitioner, ought to have been recovered with utmost promptness and in the normal course before relieving him from the services of the Corporation in the year, 1982 itself. Having not done so, the Corporation should have endeavoured to recover the same soon thereafter but they did not choose to take any action and delayed the same for an unexplained period of 17 years and that also when the husband of the petitioner had to move this Court for issuance of the last pay certificate by the Corporation. It is at this stage, that while issuing the last pay certificate on 6.2.1999 (Annexure-8), an issue of outstanding was first raised by the Corporation. The proceeding conducted by the Managing Director of the Corporation purportedly in the light of the directions of this Court, was, to say the least, in a whimsical manner, without even making serious endeavours for service of notice on the deceased employee. That the State Government chose to bail out the Corporation in recovery of the alleged outstandings, after the death of the deceased employee even when the deceased employee had no issues against the State Government makes the matter even worse, especially when no proceeding as provided either 15 in the service rules or the Pension Rules was ever drawn for adjustment of the outstanding advances. Undoubtedly, no full-fledged proceedings are required to be undertaken in such cases and the matter can be disposed of by mere notice and consideration of explanation. However, no sooner the issue of penal interest is clubbed, the matter becomes different and a proper hearing has to be provided as it partakes the nature of a penal proceedings to recompense the loss suffered by the establishment. In this back ground, the submission of the learned counsel appearing on behalf of the State that as it was simple case of adjustment of the advances outstanding, hence no formal proceeding was required to be drawn, does not hold justified nor has a lawful support. In consideration of the issue of levy of interest on the advances, I perused the relevant circulars which formed the basis thereof, as appended to the supplementary counter affidavit filed on behalf of the Corporation. The office order provides for imposition of interest in cases of loss caused or amount misappropriated. The order placed at Annexure- 16 11 of the proceedings no where indicts the husband of the petitioner of either causing loss to the Corporation or having misappropriated the amount. He is only charged with certain outstanding advances in absence of proper vouchers or refund. Advances are neither in the nature of loss nor a case of misappropriation until it is so established in a dully constituted proceedings. As stated, it is neither the case of the Corporation nor of the State Government, for effecting the recovery. Such being the position in my opinion, in absence of the any clear finding against the deceased employee of having caused loss to the Corporation or having misappropriated the sum, it is certainly not a case warranting imposition of interest. The issue is clearly beyond the purview of the Circulars of the Corporation warranting interest. In the aforementioned circumstances without going into the correctness or otherwise of the order dated 19.12.2001 (Anneuxre-11) and the order of recovery dated 25.2.2006 (Annexure-5), In my opinion, ends of justice would be met by according permission to the State of Bihar to adjust the principal amount of Rs. 1,06,383.58 17 said to be still outstanding against the deceased employee i.e. the husband of the petitioner as per the last payment certificate (Annexure-8) by way of full and final settlement of the claims of the Corporation and make payment of the remaining amount to the petitioner. I accordingly direct the concerned authorities of the State of Bihar to release the entire post retiral and other dues as found admissible to the present petitioner relating to her late husband together with admissible interest thereon calculated until the date of its respective payment(s) after adjusting the amount of Rs. 1,06,383.58, within a period of three months from the date of receipt/production of a copy of this order. The writ petition is disposed of with the direction aforesaid. Patna High Court/ Dated 14th May, 2010 / Bibhash/ N.A.F.R. (Jyoti Saran, J. )