IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1827 of 2003 NATHUNI SAH Versus THE STATE OF BIHAR & ORS ----------- 8/ 11.07.2008 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel of the Accountant General. This writ petitioner has been filed by the petitioner challenging office order dated 23.9.2002 ( Annexure- 14) passed by the District Superintendent of Education, West Champaran, Bettiah in a departmental proceeding holding the petitioner to be guilty of misappropriation of Rs. 4, 38,000/- during the period 1993-94, 1994-95 and 1995-96 which was encashed through Treasury and Bank. It is also prayed in the writ petition that the authorities be directed to pay all retiral dues to the petitioner along with provident fund etc. Learned counsel for the petitioner has submitted that the entire allegation against him is baseless and frivolous and the petitioner has been falsely implicated . In this regard he submits that two police cases were instituted against him and in both the said cases final form has been submitted on the basis of “ mistake of fact”, and in both the aforesaid cases the petitioner has been released. He further states that earlier also a departmental proceeding was initiated but in that also the petitioner was not held guilty. The other point raised by the petitioner is that by impugned order his entire pension and gratuity, earned leave encashment and all retiral dues which were payable to the petitioner during the pendency of the proceeding was ordered to be adjusted for 2 recovery of Rs. 4,38,000/- with interest and the petitioner would be entitled only to subsistence allowance paid during the period of his suspension. Learned counsel for the petitioner further submits that the said proceeding was initiated on 9.9.1998 when memo of charges were supplied to him and the impugned order was passed on 23.9.2002 when the petitioner had already retired on 31.10.2001 from the post of Headmaster of middle school, Gudra, Majhaulia (West Champaran). The said proceeding was under the provision of Rule 139 of the Bihar Pension Rules, 1950, according to which only the amounts of pension and gratuity could be deducted under the said proceeding but in the instant case the entire amount of all the retiral dues of the petitioner is sought to be adjusted by the impugned order. He further submits that according to the general rule, first pension has to be fixed and only thereafter it could be adjusted in such a proceeding but here in the instant case the authorities have first adjusted the pension of the petitioner without any fixation. Hence he averred that there are grave irregularities and illegalities in the impugned order which has been passed by improper exercise of discretion as provided in the specific provisions of law. Learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner. From the aforesaid facts and circumstances it is apparent that complicated question of facts are also involved apart from the question of law. In the said circumstances this Court feels that it will be proper for the ends of 3 justice to direct the Divisional Commissioner, West Champaran to hear the petitioner and decide the same. In the said circumstances without going into the merits of the case this writ petition is disposed of with a liberty to the petitioner to move before the Division Commissioner, West Champaran, raising all his grievances and also challenging the aforesaid order of District Superintendent of Education by way of filing an application before him within four weeks from today along with a copy of this order and other relevant materials. If such an application is filed within the period prescribed, the Divisional Commissioner is directed to consider the same in accordance with law and pass a speaking order within twelve weeks thereafter. If the petitioner is found entitled to any payment of his retiral dues, all such retiral dues should be paid to the petitioner immediately thereafter. B.Tiwary/ ( S. N. Hussain, J )