IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11113 of 2003 RAJ KISHORE PRASAD Versus THE CHAIRMAN,B.S.E.B. & ORS ----------- For the petitioner : Md. Fazal Rahman,Adv. For the B.S.E.B. : Mr. Ram Kishore Singh, Adv. ----------- 5 24.09.2008 Heard learned counsel for the petitioner and learned counsel for the Board. The petitioner retired from service of the Board w.e.f. 31.12.1999, while holding the post of Assistant Executive Engineer, Transmission Sub-Division, Motihari. After retirement when petitioner received his all retiral benefits except gratuity, the petitioner filed an application to the respondents for payment of the same. However, since no order was passed, he has moved this Court for a direction to the respondents for payment of the same. A counter affidavit has been filed in the case on behalf of the Board. In the counter affidavit, it has been stated that while the petitioner was holding the charge of godown under the control of Transmission Construction Sub-Division, Muzaffarpur during the period of 1986-87, there were some discrepancies in the items available in the 2 store, therefore the respondents issued notice to the petitioner with regard to the said discrepancy found in the store on the basis of physical verification and directed him to explain the position by an order dated 9.10.1999, vide Annexure-B. The matter remained pending and the petitioner retired from service, therefore, after retirement notices were issued to the petitioner with regard to discrepancy found in respect of 63 items and he was directed to remove the discrepancies in the verification report and demand note vide Annexure-C. The petitioner vide Annexure-D dated 7.8.2000, replied to the same and submitted that he personally visited the store and rectified the defects in the demand note. However, the matter remained pending and the respondents issued some more letters to the petitioner which are evident from Annexure-E and F. From Annexure- F, it will be evident that while the petitioner was requested to remove the discrepancies in the store records of the period, the General Manager was also directed that the discrepancies on being removed by 3 the petitioner, for rest of the differences in items, responsibility should be fixed. The Petitioner complied with the order, visited the store and got the new demand note prepared by letter no. 131109 to 131115 dated 19.7.2001 with regard to 63 items and handed over the same to the Electrical Executive Engineer (Store). After complying with the same, the petitioner by his letter dated 29.9.2001, as contained in Annexure-G informed the Additional Secretary of the Electricity Board that he had removed the discrepancies and, therefore, commutation of pension may be allow to him. It appears that the respondents did not finally close the matter but also did not hold an enquiry with regard to fixing the responsibility of remaining items covered by the discrepancies. From Annexure-H, it appears that the Executive Engineer intimated to the Joint Director vide letter dated 15.4.2003 that the then Executive Engineer who was in-charge of the store prior to the petitioner, had refused the demand note and, therefore, the discrepancies in the registers of the store 4 continued. Hence, enclosing lists of items found short in the store and items found in excess with their value, he recommended it to be recoverable. The petitioner thereafter submitted a detailed application to the respondents-Secretary of the Board vide Annexure-I, dated 28.05.2003. In this application, he categorically stated that while he was posted in Muzafarpur in Electrical Sub-Division, the then Assistant Executive Engineer who was in-charge of the godown proceeded on long leave, hence, the petitioner was handed over charge to the godown in July, 1986 without verification of the godown. Since the verification had not been done, the petitioner called the concerned team from Head Office, Patna and got the verification of godown done. After verification some discrepancies were found in the godown which was reported by him. The Stand of the petitioner was that the discrepancies found in the godown after the said verification was answerable by godown in-charge Sri. K.N. Jha, who proceeded on long leave without getting the 5 verification done. Petitioner further stated that he was relieved from the charge of the godown vide memo on 13.3.87 and handed over the same to one S.N. Singh, Assistant Executive Engineer. It has been categorically asserted by the petitioner in the said application that he was not responsible for any short fall or discrepancy in the godown. In this application he has completely denied the responsibility for such short fall in the godown. However, in the counter affidavit the respondents have taken stand that vide his letter dated 7.8.2000, annexed as Annexure-D, the petitioner had admitted about the discrepancy in the demand note and admitted to have removed the same. Therefore the same shall amount to admission on the part of the petitioner and on the basis of the same and in that light, the gratuity of the petitioner has been rightly withheld as in view of his admission no enquiry was needed as per law. From Annexure-D the said letter of petitioner, it is apparent that the 6 petitioner has not accepted the responsibility for any short fall or discrepancy in the godown during the period of holding the charge of the godown. On the other hand, vide his application, Annexure-I submitted to the Secretary of the Board, there appears to be complete denial by the petitioner of any responsibility in respect of said discrepancy. Learned counsel for the Board then submits that the petitioner has changed his stand from step to step and from his earlier application and letters it will be evident that he had impliedly accepted the responsibility for the same. However, from the letters of the petitioner annexed with the counter affidavit and relied upon by the learned counsel for the Board, this Court does not find any categorical acceptance by the petitioner of the responsibility with regard to discrepancy found in the stock of the godown at the relevant time. Therefore, that interpretation of learned counsel for the Board is not acceptable. On the other hand, from Annexure- 7 1 series, Annexure-6 and Annexure-I, it is apparent that the petitioner although accepted that, on physical verification got done by him, some discrepancy in the stock of the godown had appeared but he completely denied the responsibility for the same and had taken a stand that the discrepancy was on the part of the earlier godown in charge namely K.N. Jha who, all of a sudden, proceeded on long leave without getting the verification done. In the circumstances, in view of the absence of any categorical acceptance by the petitioner of the responsibility for the discrepancy in stock of the go-down and his subsequent denials by his repeated letters and communication to the authorities of the Board, it is not open to the Board to withhold the gratuity of the petitioner in order to cover up the alleged pecuniary loss caused to the Board. Hence, the Board was required to hold an enquiry in this regard in terms of the provisions of Bihar pension Rules, particularly, in terms of Rule 43(b) of the Bihar Pension Rules which is 8 admittedly applicable to the Board and come to the categorical finding in accordance with law for withholding pension and gratuity of the petitioner. Apparently no proceeding has been held in the case of the alleged short fall and discrepancy in the stock of the godown is of the period 1886-87. Petitioner retired from service w.e.f. 31.12.1999, therefore, it was not open to the Board to initiate the enquiry under the proviso of Rule 43(b) also since the period of alleged incident was more than four years prior to the date of any proposed initiation of proceeding. Since as no enquiry was initiated against the petitioner during his service period. The Board was also not entitled to claim such enquiry pending for proceeding with the same in accordance with Rule 43(b) of the Bihar Pension Rules and come to a finding with regard to holding the petitioner guilty of any pecuniary loss or gross misconduct to pass orders for withholding his pension or gratuity permanently. There is no order in this regard 9 passed by the respondent authorities of the Board on record withholding the gratuity of the petitioner, therefore, no order need be quashed in the case. Hence, it will suffice to direct the respondent authorities of the Board to release the gratuity of the petitioner within a period of three months from the date of receipt/production of a copy of this order along with statutory interest as prescribed by the State Government vide letter no.P.C.- 2-1-16/79-3155 dated 7.11.1981. In the result, this writ application is allowed with the above observations and directions. Arvind/ ( J. N. Singh, J.)