IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1329 of 2007 SURENDRA PRASAD SINGH, son of late Ganesh Prasad Singh, resident of village – Punauara, P.O. Punaura, P.S. Sadar Sitamarhi, District – Sitamarhi. Versus 1. THE STATE OF BIHAR. 2. The Collector, Sitamarhi. 3. District Certificate Officer, Sitamarhi. 4. The Circle Officer, Pupari Block, Sitamarhi. ----------- For the petitioner : Mr. Mahendra Thakur. For the State : Mr. Chandra Bhushan Prasad, AC to SC 23. ------- 02. 2.2.2010 Petitioner wants quashing of the order dated 13.3.2002 which has been passed by the Collector, Sitamarhi in Nilam Appeal No. 77 of 1997. By the impugned order contained in annexure-1 the District Magistrate has remanded the matter back to the Certificate Officer for deciding the issue on its own merit without assigning any reason thereto. The background to the present litigation is that the petitioner at the relevant time was posted as an Assistant Nazir in the Anchal Office of Pupri Block, in the district of Sitamarhi. He came to be charged with defalcation of a sum of Rs.38,874.08 and for the said allegation an FIR was instituted against him. Petitioner came to be charged, a trial was held and he was convicted for the charge of defalcation of public money. This order of conviction was appealed. Appeal is Cr. Appeal No. 127 of 1990. A decision dated 23rd August, 1991 has come to be rendered by the court of 1st Additional Sessions Judge, Sitamarhi. By virtue of the said decision the petitioner has been acquitted and he has been exonerated from the criminal liability of the charge of 2 defalcation. After the said decision in appeal the matter is allowed to rest. The trouble of the petitioner however did not end at that. A separate case under the Public Demand Recovery Act was instituted against him for recovery of the so-called defalcated amount. Petitioner however appeared before the Certificate Officer, took his objection and brought before the Certificate Officer the judgment by virtue of which he was exonerated in appeal. He was of the opinion that there was a case made out for dropping certificate proceeding in view of the above development but before doing so he wanted an opinion of the District Magistrate in this regard. It is in this background that the so- called Nilam Appeal No. 77 of 1997 came up before the District Magistrate. The District Magistrate vide order dated 13.3.2002 has disagreed with the preliminary opinion of the recovery officer and held that the matter should proceed. The said order is under challenge in the writ application. The first submission of the learned counsel for the petitioner is that there is no material or basis on which the recovery should be effected under the Public Demand Recovery Act. There was never any departmental proceeding initiated against him. Petitioner has been permitted to superannuate after reaching the age of retirement and it is also stated that he has been paid his dues thereafter including money for the suspended period. The only other basis on which the present proceeding 3 could have been maintained was if the finding of guilt was sustained against the petitioner in the criminal court. No doubt the trial court convicted him but the appellate court in a well considered decision has finally exonerated him from all the charges. If that be so, the innocence of the petitioner now stands established and there is no ground or material based on which the charge of defalcation can still be sustained. In absence of any finding to this effect by any other authority the allegation that the petitioner had defalcated the money is only an allegation not based on any evidence or finding. The stand of the respondents in their counter affidavit is that no doubt the petitioner has been exonerated in the criminal appeal but the District Magistrate has only remanded the matter back to the Certificate Officer to consider the matter in light of the fact that government money has been defalcated. He has only been asked to pass order in accordance with law, but there is no statement in the said counter affidavit with regard to the stand of the petitioner that there is no material or basis now for pinning down the petitioner on the charge of defalcation. There is some force in the submissions made at the bar on behalf of the petitioner. No doubt based on the FIR, petitioner was tried though convicted by the trial court but exonerated by the appellate court. Once the appeal is allowed the innocence of the petitioner is established because the appeal has rested and no further proceeding has been initiated against the 4 said finding. Even if it was a case that the respondent authorities had held a separate enquiry into the matter and found the petitioner guilty of that charge, then there could have been some material and ground-work done to maintain the proceeding, may be under the Public Demand Recovery Act. Since the respondents entire charge hinges on the criminal proceeding in which the petitioner stands exonerated, then the allegation that the petitioner is guilty of misappropriation of public money is without any substance or legs to stand. The fact that the petitioner has been allowed to superannuate and some benefits have accrued to him is also a circumstance to show that the petitioner was not dealt with on the administrative side by the respondent authorities with regard to the set of charge. The petitioner has succeeded in making out a case. In view of the above entire proceeding of Certificate Case No. 1 of 1985-86 is hereby quashed and the writ application is allowed. rkp ( Ajay Kumar Tripathi, J )