IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16182 of 2006 RAVINDRA NATH SINGH Versus THE STATE OF BIHAR & ORS ----------- 03/ 23.12.2009 I.A. No. 8345 of 2009. This interlocutory application has been filed on behalf of the petitioner seeking permission to amend the relief and prayer made in the writ petition by incorporation of a prayer seeking quashing of the order bearing memo no. 8267 dated 10.10.2003 as contained in Annexure-4, whereby a decision was taken by the respondent no. 2, Commissioner-cum-Secretary, Water Resources Department, Government of Bihar, Patna for recovery of an amount of Rs. 2,97,410.62 from the gratuity and pensionary entitlements of the petitioner by reason of non- handing over of charge by this petitioner while he was posted as Assistant Engineer, Tirhut Canal Division, Saraiya before being put on transfer to Sitamarhi in the year 1991. The recovered amount comprises of an amount of Rs. 2,63,125/- being the cost of the materials which have been allegedly not handed over by this petitioner to his successor and a further amount of Rs. 34,285.62 said to be certain advances taken by the petitioner under different heads. The petitioner assails the validity of recovery of Rs. 2, 63,125/- from his gratuity 2 and pensionary entitlements. The interlocutory application is allowed and the petitioner is permitted to assail the same in the present proceedings. Heard Mr. Triloki Nath Maitin, learned counsel appearing on behalf of the petitioner and Mr. Tejendra Sinha, learned assisting counsel to G.P. 18 on behalf of the State and its authorities. The petitioner retired from the post of Assistant Engineer in the Water Resources Department with effect from 28.2.1999. Non-payment of the post retiral benefits forced the petitioner to move this Court through C.W.J.C. No. 7971 of 2002 and which was disposed of by order dated 9.9.2002 giving liberty to the petitioner to file an appropriate representation before the authority concerned and who was required to dispose of the same in accordance with law. The order of this Court is placed at Annexure-3 of the writ petition. In compliance of this Court’s order as contained in Annexure-3 the petitioner filed a representation before the respondent no. 2, the Commissioner-cum-Secretary, Water Resources Department, Government of Bihar, Patna and who has passed a reasoned order bearing Memo No. 8267 dated 10.10.2003, impugned at Annexure-4. 3 It is an admitted position that the entire retiral benefits of this petitioner has been paid to him save and except Rs. 2, 97,410.62 which has been withheld from the gratuity and pensionary entitlements of the petitioner for the reason stated above. Upon consideration of the representation filed by this petitioner in compliance of the order passed in C.W.J.C. No. 7971 of 2002, the respondent Commissioner-cum-Secretary, has proceeded to hold that the petitioner at the time of his transfer from the Tirhut Canal Division, Saraiya to Sitamarhi in the year 1991 had failed to hand over the charge of the materials to his successor and for which appropriate direction had been issued to the Executive Engineer & Chief Engineer through letter no. 961 dated 4.2.2003 to carry out the process of handing over/taking over charge from the petitioner within 15 days and even the petitioner was duly informed vide letter no. 764 dated 4.2.2003. Upon non-submission of the report regarding the value of the materials in question, the petitioner and the Executive Engineer were directed to be present on 15.7.2003. A report was given by the Executive Engineer, Tirhut Canal Division contained in letter no. 846 dated 16.7.2003 and 905 dated 21.7.2003 informing the respondent Commissioner-cum-Secretary, Water Resources Department that several items were 4 pending against the petitioner, the charge of which he had not handed over and which were valued at Rs. 6,33,119.25 and Rs. 6526.00. Upon explanation being asked, the petitioner is said to have responded by submitting that the materials were lying in open sky and were taken without obtaining any receipt, that the matter remained pending due to non taking of charge by the successor and that even the lock was found broken, thus he could not be saddled with the liability. The respondent Commissioner-cum- Secretary upon consideration of the matter passed the order as contained in Annexure-4 holding the petitioner liable to make good the losses suffered by the department by reason of the missing materials valued at Rs. 2,63,125/- and which should be recovered from the petitioner together with an amount of Rs. 34, 285.62 being the advances taken by this petitioner, the total amount coming to Rs. 2,97,410.62. The petitioner is aggrieved by the findings in so far as it relates to the amount of Rs. 2,63,125/- being the value of the allegedly missing materials. Learned counsel appearing on behalf of the petitioner submits that the petitioner was posted at Saraiya as back as in the year 1991 and thereafter he was transferred to Sitamarhi and subsequently retired on 5 28.2.1999 while serving as Assistant Engineer at Hajipur. Learned counsel submits that during the entire service span of eight years since after his transfer from Saraiya in the year 1991, there was not even a whisper by the respondents regarding failure by this petitioner to hand over the charge of the materials to his successor. Learned counsel submits that since after his transfer from Saraiya he has been transferred to two more places and no such complaint has been made by any of the authorities regarding non-handing over of charge by this petitioner. Learned counsel, with reference to the last pay certificate placed at Annexure-5 to the writ petition submits that no dues are shown against this petitioner. He further submits that the order passed by the respondent, Commissioner-cum-Secretary as contained in Annexure-4 besides being in the teeth of the provisions of Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the ‘Rules’), also raises a stale issue and has been passed without initiation of any regular proceeding as required under the Rules. Learned counsel submits that the findings given by the respondent Commissioner-cum- Secretary, after a lapse of almost 12 years since his transfer from Saraiya is not sustainable also for the reason that several persons have taken charge of the post at Saraiya since after his transfer. It is submitted that it was 6 the responsibility of the persons who have held the post at Saraiya since after his transfer to have brought to the notice of the superior if there was any material lacking in the charge report during his service period. Learned counsel submits that the order is not only arbitrary but has been passed in gross abuse of powers and being in the teeth of the principles of natural justice cannot be sustained. He further submits that the issue being more than twelve years old, since the passing of the order, in absence of regular proceedings as envisaged under Rule 43(b) of the Rules, no such order can be passed. Learned counsel appearing on behalf of the State supports the impugned order and also with reference to a supplementary counter affidavit filed in the Court today relies upon a report of the enquiry Committee. A perusal of the report placed at Annexure-D of the said supplementary counter affidavit itself demonstrates the manner in which the entire matter has been conducted. The report talks about non handing over of charge by this petitioner during his posting at Mahua whereas, the impugned order refers to the place of posting of this petitioner at Saraiya in the district of Muzaffarpur. It has been brought to the information of this Court that the place Mahua also falls within Hajipur Circle within the same Division. Learned counsel submits that the 7 respondent Commissioner-cum-Secretary after considering of the entire materials placed before him came to a finding that the petitioner had not handed over charge of certain materials which were valued at Rs. 2,63,125/- and thus the petitioner having failed to do so, was fully responsible to make good the losses suffered by the Department. He submits that the order has been passed after following the due procedure required in the circumstances and ensuring compliance of the order of this Court I have heard learned counsel appearing on behalf of the parties and considered the materials on record. The very fact that the issue relates to an event which dates back more than 12 years from the date of passing of the impugned order on 10.10.2003, the entire exercise itself is in the teeth of provision of Rule 43 (b) of the Rules. The matter becomes worse in absence of any regular proceedings initiated by the respondent authorities for driving home the charges either before or after retirement of the petitioner as required under the Rules. In such situation the recovery from the pensionary entitlements of the petitioner for alleged losses caused to the Government becomes unsustainable. Besides the order is also bereft of any discussion as to the items, the charge of which was assumed by the petitioner on his 8 posting at Saraiya but not handed over at the time of his transfer from Saraiya in the year 1991. Thus upon consideration of the facts and circumstances and the pleadings on record, I come to an irresistible conclusion that the order impugned at Annexure-4 besides being unsustainable on grounds of raising a stale issue also has been passed in a most arbitrary manner and in complete violation of the Rules. In the circumstances, the order bearing memo no. 8267 dated 10.10.2003 (Annexure-4) is set aside and the respondents are directed to remit the amount of Rs. 2,63,125/- to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed with the directions aforesaid. S.Sb/- (Jyoti Saran, J.)