IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5576 of 2005 Jamuna Prasad Singh, son of Late Jagdish Prasad Singh, resident of village Ganga Bigha, P.O.Bharuk, Police station- Obra, Aurangabad at present posted as Junior Engineer durgawati Works Divisional No.5, Chenari, Rohtas at Sasaram ….Petitioner Versus 1. The State Of Bihar 2. The Executive Engineer, Durgawati Works Division No.5, Chenari, Rohtas at Sasaram 3. The Executive Engineer, Saran Canal Division Gandak Yojna Maharajganj, Siwan 4. The Executive Engineer, Ganga Pump Canal Division Suraj Garha Camp Munger 5. The Junior Engineer Sri Ram parvesh Sharma Gandak Project Maharajganj, Siwan 6. The Sub-divisional officer, Saran, Canal Sub division, Gandak project Tarwara, Siwan …Respondents 06. 26.07.2011 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner seeks invocation of discretionary and extra- ordinary writ jurisdiction of the Court conferred under Article 226 of the Constitution of India to set aside the order dated 15.9.2004, passed by respondent-authorities (Annexure-1), whereby he was informed that as per the endorsement dated 27.12.1999 made in the provisional last pay certificate (LPC) issued in favour of the petitioner (Annexure-7) the deduction from his salary shall commence since he failed to deposit the amount as indicated in the provisional LPC. Background facts, in short, are as follows: Petitioner, during the relevant time, was posted as Junior Engineer in Saran Canal Divisional Gandak Project, 2 Maharajganj. By a notification dated 28.06.1997, he was transferred therefrom. By yet another order dated 10.11.1998 (Annexure-4), he was directed to be relieved of his assignment as Junior Engineer at the said Division/Section placed under his charge. While functioning as Junior Engineer, he was allotted several government materials of which he was made the custodian. Petitioner at the time of making over charge of his office, did not explain the shortage/shortfall(s) in government godown under his charge. This prompted the respondents to constitute a body of officials to look into the matter and to quantify the shortages that occurred while the petitioner was the in-charge/custodian of the godown in question. Petitioner seems to have made certain representation(s) during the said enquiry/investigation. On a consideration of materials on record, the department issued provisional LPC on 27.12.1999 wherein it was endorsed that government materials placed under his charge was not handed over by the petitioner which, upon quantification, was estimated at Rs.2,20,746.79 P. Petitioner joined the transferred post wherefrom a communication contained in memo no.349 dated 18.08.2004 (Annexure-11), was issued by the Executive Engineer of Durgawati Works Division No.5, Chenari addressed to the Executive Engineer, Saran Canal Division, Gandak Project, Maharajganj, Siwan wherein it was queried whether the sanction of the government in the matter of adjustment/recovery of the shortfalls government materials placed under the charge of the petitioner had been obtained or 3 not. In consequence whereof, the impugned order contained in annexure-1, seems to have been passed which has been questioned in the present writ petition. Learned counsel for the petitioner, while assailing the order contained in annexure-1, submits that for recovery of the loss sustained by the government, a proceeding is/was required to be initiated against him. The said proceeding has not been initiated and impugned order has been passed. It is next contended that no sanction of the government was obtained before passing the impugned order. Two sets of counter affidavit have been filed in the present case which are on record. Learned counsel for the respondents, on the other hand, submits that for about a year the petitioner did not make over the charge of the government materials for which a body of officials was constituted in which the petitioner was given ample opportunity to explain the shortages/shortfall. It is submitted that petitioner made several communications in this regard as would appear from Annexures- 6, 8/A and 11 of the writ petition. It is submitted that relevant notices issued to the petitioner are also on record, one of them is annexure-12 of the writ petition.. He also refers to the letter written by the petitioner to the concerned Executive Engineer of Saran Canal Division (Annexure-D to the supplementary counter affidavit). The stand of the respondents is thus that the petitioner in these communication(s) particularly at Annexures-6,8 and D to the 4 supplementary counter affidavit clearly admitted the shortfall(s) in the government material(s) placed under his change and requested for adjustment of some of those materials on the ground set out thereunder. As about sanction of the government in the matter of endorsement in provisional LPC (Annexure-7) and the consequential order (Annexure-1) is/are concerned, learned counsel drew attention of the Court Annexure-A to the supplementary counter affidavit to demonstrate that the sanction of the government in the matter of pursuing against the petitioner in regard to adjustment/recovery of government materials placed under his charge which remained unexplained has been obtained/granted. Petitioner was serving as Junior Engineer of Saran Canal Divisional Gandak Project, Maharajganj, Siwan. By government notification issued in the year 1997 he was transferred therefrom as Junior Engineer and while serving in the said Division he was allotted several government materials which was/were placed under his charge. The relieving of the petitioner was delayed for more than a year on account of non- submission of the charge report in respect of government materials. Ultimately, by order contained in annexure-4 dated 10.11.1998, he was relieved. It appears that respondents having noticed gross shortage/shortfall of government materials placed under the charge of the petitioner, had to constitute a body of officials to ascertain the shortages. Petitioner was given adequate opportunity to explain those shortages. Relevant 5 documents emanating from the petitioner in this regard are already on record. This Court would only extract part of annexure-6 in this regard which reads as under: “vr% mijksDr of.kZr rF;ksa ds lR;rk dh tk¡p djkokrs gq;s esjs uke yfEcr lkekuksa dks fn;s x;s lwfp ls eqDr dj fn;k tk;A iqu% rsjs izHkkj izfrosnu ds vk/kkj ij lkekuksa dks tk¡pksijkUr esjs uke ij ftu lkekuksa esa deh ik;h tk;sxh mldh olqyh nsus ds fy;s eSa rS;kj gw¡A ijUrq o"kZ 98&99 esa LVksj Hksfjfids”ku ds vk/kkj ij esjs lkekuksa ds tk¡p djkbZ tk;A” It further appears that relevant endorsement in provisional LPC was made and issued way back in the year 1999. The petitioner did not challenge those insertions/endorsements made on LPC nor made good the loss sustained on account of the shortage of the government materials placed under his charge. In the year 2004, the Executive Engineer, Durgawati Works Division No.5, Chenari where the petitioner was transferred, communicated vide annexure-11 seeking information as to whether the sanction of the government has been obtained in the matter of adjustment/recovery of the losses/shortfall found in respect of the government materials placed under the charge of the petitioner as Junior Engineer. The order contained in Annexure- 1 was thereafter passed which recites that in spite of adequate opportunity given to the petitioner the shortage of government materials places under his charge has neither been explained nor the quantified cost whereof has been paid/deposited and, as 6 such, the deduction as per the endorsement made in provisional LPC (Annexure-7) would commence. On a consideration of aforesaid facts appearing from record, it appears that respondents having found shortfall in government materials placed under the charge of the petitioner, got it quantified and after obtaining the sanction passed the impugned order as contained in annexure-1 whereby they decided to effect recovery/adjustment of loss sustained by the government in installments as per the endorsement made in provisional LPC (Annexure-7). It also appears from materials on record that petitioner in course of ascertaining the loss/shortfall of government materials placed under his charge was afforded opportunity to explain. In response thereto, he filed application(s) in which he clearly admitted that loss caused to the government by non-furnishing details of their consumption while the petitioner was posted as Junior Engineer in Saran Canal Divisional Gandak Project, Maharajganj, Siwan was liable to be recovered/adjusted from him. It also appears that the approval/sanction of the government in this regard has been obtained. If a government servant receives government materials and keep under his charge, then he would require to give charge of those materials to the new incumbent on his transfer. In case there is shortfall which remains unexplained then in that situation the government, in my view, is duty- bound to adjust the loss/shortfall from the incumbent who was 7 the custodian of those government materials. The submission of the petitioner that the course open to the respondents was to initiate departmental proceeding, in my view, is not sustainable. It would be a case of adjustment and not of recovery. Furthermore, it appears from the materials on record as I have already noticed hereinabove that the petitioner made several communications accepting his liability to explain the government materials placed under his charge. That having not been made, the order impugned was passed. Thus, in the aforesaid circumstances, this Court is not persuaded to invoke its discretionary and equitable writ jurisdiction to set aside the order contained in Annexure-1. The application is accordingly dismissed. hr ( Kishore K. Mandal )