IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16220 of 2009 UMA KUMARI W/O LATE DAYANAND PRASAD SINGH, R/O H/O DR. VIDYA SINGH, NAND BHAWAN, GATE NO. 68, KURJI , P.S-DIGHA, DISTT- PATNA 2. THE FINANCE COMMISSIONER, FINANCE DEPARTMENT, OLD SECRETARIAT, POLICE STATION SACHIVALAYA,, DISTT- PATNA 3. THE ENGINEER IN CHIEF, ROAD COSNTRUCTION DEPARTMENT, VISHWESHARAIYA BHAWAN, BAILEY ROAD, PATNA 4. THE EXECUTIVE ENGINEER, NEW CAPITAL DIVISION, ROAD CONSTRUCTION DEPARTMENT, PATNA 5. THE TREASURY OFFICER, VISHWESHARAIYA BHAWAN, TREASURY, PATNA 6. THE ACCOUNTATN GENERAL (A & E), VIRCHAND PATEL PATH, PATNA Versus THE STATE OF BIHAR & ORS . ----------- For the petitioner: - Mr. Rupak Kumar Advocate For the State : - Mr. P.K. Verma, AAG - XI ------ 05. 12.03.2010 Heard the parties. The petitioner prays for quashing of the order dated 3rd of August 2009 contained in Memo No. 2711 (Annexure- 1) whereby the Executive Engineer, New Capital Road Division, Road Construction Department , Patna (respondent no. 4) sanctioned 90 percent of the gratuity amounting to Rs. 3,15,000/- however, advised the Accountant General (Respondent No. 6) to recover a sum of Rs. 1,62,853/- in one lump sum towards the departmental Chips Material and instructed the Accountant General to pay the petitioner a sum of Rs. 1,52, 147/- only. It is submitted on behalf of the petitioner that it appears that while the husband of the petitioner, at 2 the material time, working as Junior Engineer under the respondent no. 4, was having certain Chips Material under him in connection with construction of the road. However, for want of funds, the work could not be completed and the materials were dumped on the site. The husband of the petitioner informed the concerned Assistant Engineer as also the Executive Engineer that the materials may got wasted on the site and as such in order to avoid the wastage, it may be removed or be placed at different site as per his letter dated 25.08.2006 vide Annexure-2. Eventually, the Executive Engineer requested the concerned Superintending Engineer as per the letter bearing memo No. 584 dated 27.09.2006 as contained in Annexure- 4, for utilization of the materials kept on the site so that the chips on the site could be utilized and justified the request of the petitioner. It is further submitted that the husband of the petitioner was relieved by office order vide memo No. 547 dated 10th of August 2008 as contained in Annexure- 6 and was directed to handover the charge to the new incumbent namely, Gupteshwar Rai by 17.08.2007 and with effect from the said date, he shall be deemed to be relieved. The new incumbent was directed to take complete charge and to submit the necessary charge report. Petitioner, in terms of Annexure- 6, stood 3 relieved and joined under the respondent no. 4 and while the petitioner was working under the respondent no.4, he died on 2nd of February 2008 on account of disease. It is specifically stated in paragraph -13 of the writ application that there was neither any proceeding under Rule 43 (b) of the Bihar Pension Rules nor any Judicial Proceeding was pending against the husband of the petitioner till the date of his death and otherwise also after the death of her husband nothing can be recovered from the retiral dues of her husband and relied upon a decision of this court in the case of Manju Jaiswal Vs. State of Bihar reported in 2009 (1) BLJ Page 234. It is also submitted that the value of the chips material as indicated in the impugned order to the tune of Rs. 1,62, 853 does not stand to reason in absence of any enquiry or verification to ascertain the value of the chip materials as such the same appears to be totally arbitrary and illegal. In the above circumstances, it is submitted that the order contained in Annexure- 1 with request to the recovery of a sum of Rs. 1,62,853/- from gratuity payable to her after the death of her husband cannot be sustained in law and deserves to be quashed. Besides there is also no justification for withholding the balance payment of the gratuity to the tune of 10 percent which has not been sanctioned till date. In other words, entire 4 gratuity to the tune of Rs. 3,15,000/- as sanctioned as per Annexure- 1 is liable to be paid save and except, the amount which has been paid to the petitioner i.e. Rs. 1,52, 147/-. Mr. P.K. Verma Additional Advocate General No. 11 appearing for the State submits that although no proceeding could be initiated against the husband of the petitioner since before the proceeding could be initiated the husband of the petitioner had died but nonetheless, the department sustained a loss of Rs. 1,62,853/- as indicated in the impugned order vide Annexure- 1, and as such, the State is required to get the aforesaid amount adjusted from the gratuity which has now payable to the petitioner who is widow of the deceased employee. He further submits that on perusal of the relevant resolution of the Finance Department vide resolution no. 3014 dated 31st of July 1980 as contained in Annexures – D, it would appear that the amount in question could be recovered after the death of the deceased employee. Learned counsel for the petitioner on the other hand submits that the aforesaid resolution as contained in Annexure- D is not applicable in the aforesaid facts and circumstances of the case for the simple reason that that procedure for recovery can be 5 enforced in case of damage of goods in case there is final order under the proceedings under Section 43(b) of the Bihar Pension Rules and since in the present case admittedly there is no proceeding initiated under the aforesaid provision, the question of applicability of the aforesaid resolution does not arise. Considering the submissions of the parties, and their respective pleadings the admitted position is that the husband of the petitioner while working on the post of Junior Engineer certain Chip materials were in his charge in connection with the construction of Road in the district of Khagaria under the control of the Executive Engineer , Road Division, Khagaria however for want of funds the project could not be completed and the chip materials were dumped on the site. It is also not in dispute that the husband of the petitioner requested the Assistant Engineer and the Executive Engineer that the chip materials may be used in some other division so that it may not get wasted. The above position appears to be substantiated on perusal of the letter which was written by the Executive Engineer, National Highway Division, Road Construction Department, Khagaria to the Superintending Engineer as contained in Memo No. 584 dated 27.09.2006 vide Annexure- 4 of the writ application and as such, the 6 deceased employee cannot be faulted. Moreover, there is nothing on the record to substantiate as to whether the chip materials got wasted or lost as also how the amount Rs. 1,62,853/- was assessed which has been recovered from the gratuity payable to the petitioner after the death of her husband in light of the order sanctioning payment of gratuity as per impugned contained in Annexure-1. There is another aspect of the matter that admitted there was no proceeding whatsoever against the husband of the petitioner nor there is any material on the record fixing responsibility on the part of the husband of the petitioner which led to the recovery of the amount from the gratuity after his death and as a matter of fact, when the husband of the petitioner was transferred to another place the new incumbent on the post was specifically directed to take charge as per the office order as contained Memo No. 584 dated 10.08.2007 vide Annexure- 6 and there is nothing on the record to show whether the new incumbent took charge or not and the fate of the chips material in question. The decision in the case of Manju Jaiswal (Supra) relied by the petitioner that no recovery from the retiral dues is permissible in law supports the case of the petitioner in the facts and circumstances of the case. 7 In the above circumstances, it is difficult to sustain the impugned order vide Memo No. 2711 dated 03.08.2009 as contained in Annexure-1 whereby while sanctioning the gratuity of the husband of the petitioner as now payable to her a sum of Rs. 1,62,853 was directed to be recovered in one lump sum and pursuant to which the amount has been recovered. In light of the discussions made above and in the facts and circumstances of the case the order vide memo No. 2711 dated 03.08.2009 with respect to the recovery of Rs. 1,62853/- as contained in Annexure-1 is quashed and the respondent no. 4 is, hereby, directed to refund the aforesaid amount to the petitioner amount to Rs. 1,62,853/- with statutory interest expeditiously preferably within a period of two months on receipt/production of the certified copy of the present order. Respondent no. 4 is also directed to issue the sanction for payment of the balance 10 percent of the gratuity which appears to have been not sanctioned as evident on perusal of the aforesaid order contained in Annexure-1. The writ application, accordingly, stands allowed with the directions/observations as indicated above. Jagdish ( Shailesh Kumar Sinha, J.)