IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2078 of 2006 SAHDEO KRISHNA DAS Versus THE STATE OF BIHAR & ORS ----------- 04/ 15.04.2010 Heard Mr. Anil Kumar Upadhyay, learned counsel appearing on behalf of the petitioner, Mr. Uma Kant Singh, learned counsel representing the Bihar State Small Industries Corporation (hereinafter referred to as the Corporation) and its authorities and Mr. Girijesh Kumar, assisting counsel to A.A.G. 3 for the State. The petitioner is aggrieved by the order bearing memo no. 1306/05 dated 22.12.2005 as contained in Annexure-8, passed by the respondent no. 3, the Managing Director of the respondent Corporation directing the petitioner to deposit an amount of Rs. 1,53,794/- with the Accountant within a period of 15 days and produce receipt thereof, failing which the same would be recovered from his pending entitlements. Brief facts of the matter is that the petitioner joined the service of the respondent Bihar State Small Industries Corporation as a Routine Clerk on 2.7.1962 and 2 after obtaining promotion, was made In-Charge, General Manager and Company Secretary of the Corporation and superannuated while holding the post of Section Officer- cum-In-Charge, General Manager/Company Secretary, Bihar State Small Industries Corporation Limited with effect from 31.1.2000. Learned counsel for the petitioner submits that upon superannuation, the petitioner became entitled for payment of his post retiral dues which according to him were as follows: (a) Gratuity- 2,75,902/- (b) Leave Salary to the tune of Rs. 1,00,680/- (c) Arrears of Salary for the period 1995-2000 for an amount of Rs. 7,26,354/-. He submits that the total post retiral dues of the petitioner was to the tune of Rs. 11,02,936/- and for the payment whereof the petitioner represented by a letter as contained in Annexure-2. Learned counsel submits that no sooner such representation was filed, a show cause notice came to be issued by the Managing Director of the Corporation setting out certain allegations regarding 3 creating obstructions and causing undue delay in the disposal of the departmental proceedings initiated against one Ramashray Prasad Sinha, Store Keeper against whom a departmental proceedings had been initiated for certain irregularities. It so appears that the petitioner was the Presenting Officer in the said departmental proceedings. Learned counsel submits that the petitioner having discharged his responsibility as a Presenting Officer, an enquiry report was submitted by the Enquiry Officer as back as on 21.6.1996 before the then Managing Director for passing appropriate orders and the matter kept lingering at his level. Learned counsel further submits that as no order was passed in the said departmental proceedings, hence the delinquent Ramashray Prasad Sinha filed a writ petition bearing C.W.J.C. No. 13217 of 1992 and which was disposed of by order dated 22.06.1995 directing payment of the arrears of salary after adjustment of the subsistence allowance paid to him. However, no restrain was put as regarding the pending departmental proceedings and/or completion thereof. The 4 respondent Corporation filed an L.P.A. against that order giving rise to L.P.A. No. 897 of 1995 and which was also dismissed in view of the fact that no restraint had been put on the Corporation in proceeding with the departmental enquiry and imposing any punishment on the employee as it intended to. Learned counsel submits that the Managing Director thereafter took legal advise from their counsel and decided to exonerate the delinquent employee Ramashray Prasad Sinha by giving him the benefit of doubt. Having exonerated the guilty person against whom the proceedings had been initiated the respondent Managing Director in a mala fide manner turned against the petitioner and issued the impugned show cause notice appended at Annexure-3 to the writ petition charging the petitioner of delaying the proceeding and causing pecuniary loss to the Corporation. The petitioner on his part responded to the charges and filed a detailed reply placed at Annexure-5 to the writ petition on 29.12.2003. The respondent Managing Director of the Corporation in a 5 most whimsical manner and without appreciating the issue, proceeded to pass the impugned order directing the petitioner to deposit the sum of Rs. 1,53,794/- with the Accountant being 70 per cent of the principal amount with interest. The balance 30 per cent principal amount with interest at the rate of the 13 per cent was attributed to one Amlendu Kumar Chaudhary who by the same order was also directed to deposit a sum of Rs. 54,587/- with the Corporation under the threat of recovery thereof from the pending entitlements. Upon a query being posed before the learned counsel representing the Corporation as to the rules under which the respondent Managing Director got empowered to pass an order effecting recovery especially for the reason that the enquiry report was submitted as back as on 21.6.1996, the petitioner superannuated almost four years thereafter on 31.1.2000 and the impugned order as contained in Annexure-8 came to be passed five years thereafter on 22.12.2005. Although no service rules could be produced by learned counsel for the Corporation 6 supporting the impugned action of the respondent Managing Director in passing the impugned order but even for the sake of assumption if it is presumed that the guidelines were drawn from the provisions of the Bihar Pension Rules, even then the impugned order could not be passed for the reason that the issue dates back to the year 1996 and stood concluded by the superannuation of the petitioner. Even on merits, no charge is made out against the petitioner nor it can be any ground for effecting recovery. In fact, the only person responsible for causing loss to the Corporation if at all, would be the Managing Director himself who on the basis of some legal opinion chose to exonerate the delinquent employee who was charged with causing loss of Rs. 1,09,512.30 to the Corporation. The Managing Director of the Corporation having chosen to exonerate the guilty person had no business to make good the loss by attributing the same to a person who was in no manner connected with the alleged loss. The reason attributed for effecting recovery is preposterous, to say the least. 7 In the result, the impugned order as contained in Annexure-8 is set aside. The petitioner would be entitled to all the pending admissible claims together with interest @ rate 5% calculated until the date of payment. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.)