IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9502 of 2009 Pitambar Jha, son of Late Pushp Lal Jha, resident of Mohalla Benta, Police Station Benta (Laheriasarai), District Darbhanga Versus 1. The Bihar State Food & Civil Supplies Corporation Ltd., through its Chairman, Sone Bhawan, 5th Floor Beer Chand Patel Path, Patna- 800001. 2. The Chairman-cum- Managing Director, Bihar State Food and Civil Supplies Corporation Ltd., Sone Bhawan, 5th Floor, Beer Chand Patel Path, Patna – 800001. 3. Chief of Administration, Bihar State Food and Civil Supplies Corporation Ltd., Sone Bhawan, 5th Floor, Beer Chand Patel Path, Patna – 800001. 4. Chief of Finance-cum Enquiry Officer, Bihar State Food and Civil Supplies Corporation Ltd., Sone Bhawan, 5th Floor, Beer Chand Patel Path, Patna – 800001. --------- For the Petitioner :Mr. Gyanand Roy, Advocate For the Corporation :M/s R.S. Pradhan, Sr. Advocate & Amrendra Narayan Rai, Advocate ----------- 03/ 12.05.2010 Heard learned counsel for the petitioner and the Bihar State Food & Civil supplies Corporation Ltd., Patna (hereinafter referred to as the Corporation). 2. Petitioner is aggrieved by the office order, bearing Memo No. 5136 dated 22.6.2009, Annexure-1, passed by the Managing Director of the Corporation, whereunder a sum of Rs. 1,83,808/- has been directed to be recovered with interest @ 18% from the petitioner as the said amount is the amount of loss caused on account of - 2 - delivery of food grain from the unattached godowns of the Corporation. Under the said order, deduction of 25% of gratuity and leave encashment amount payable to the petitioner has also been directed to be recovered, as petitioner is held guilty of the charges levelled against him by the Managing Director. 3. It is submitted on behalf of the petitioner that aforesaid order has been passed with reference to Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Rules), which has not been adopted by the Corporation and the order impugned is wholly without jurisdiction as the Corporation having not adopted the Rules, recovery order with reference to Rule 43(b) of the Rules, cannot be passed after retirement of the petitioner. It is further submitted that in the light of the liberty granted by this Court under orders dated 13.3.2007, passed in C.W.J.C. No. 3046 of 2006, Annexure-12, charges were again enquired into by the Enquiry Officer, who submitted report dated 7.3.2008 and petitioner was exonerated of all the charges levelled against him, as would appear from the enquiry report dated 7.3.2008. The Managing Director of the Corporation - 3 - considered the enquiry report on 13.1.2009 and under his note of the same day, Managing Director differed with the findings recorded by the Enquiry Officer against charge nos. 1,2 and 4. The reasons for differing with the findings of the Enquiry Officer was forwarded to the petitioner along with the enquiry report under memo No. 308 dated 13.1.2009, Annexure-23. Perusal of the note dated 13.1.2009 does not make out any reason to differ with the findings recorded by the Enquiry Officer, so submitted counsel for the petitioner. In this connection, it is pointed out that under charge no.1, petitioner is alleged to have released payment to the transport agent a sum of Rs. 21,34,000/- against the transport bill of Rs. 10,04,729/- and thereby petitioner violated the instruction of the Corporation to pay the transport agent only 90% of the transport bill. Learned counsel for the petitioner in this respect invited my attention to the findings recorded by the Enquiry Officer in regard to charge no.1, whereunder the Enquiry Officer has specifically found that the transport bill was of Rs. 23,30,577.60 and petitioner had released payment only to the extent of 90% i.e. Rs. 20,90,000/- plus 44,000/- as - 4 - income tax and thus according to the Enquiry Officer, petitioner was not guilty of releasing payment to the transporter more than 90% of the transport bill. While differing with the aforesaid findings of the Enquiry Officer, the Managing Director of the Corporation under notes dated 13.1.2009, states that the transport bill was not submitted in the form meant for submitting such bills. The Managing Director in the said note has not stated that from the materials on record, he is satisfied that the transport bill was not of Rs. 23,30,577.60, as such, the reason for differing with the findings of Enquiry Officer as regard charge no.1 recorded by the Managing Director does not appear to be germane. The finding recorded by the Enquiry Officer as regards charge no.2 is that by changing godowns from Manjhaulia and Lauria to Bagha, from where the food grain was delivered, loss of Rs. 1,83, 808/- was not caused as the dealers, who had to take delivery of the food grain, had to undertake the carriage charge on their own and by changing the godowns from where the food grain was delivered, no excess carriage charge was borne by the Corporation. While differing with the aforesaid findings recorded in respect to - 5 - charge no.2, the Managing Director simply states that by changing the godowns from Manjhaulia and Lauria to Bagha, loss was caused to the Corporation to the extent of Rs. 1,83,808/-, he has not specified in his note as to how such loss was caused when the carriage charge was not to be borne by the Corporation and it did not matter for the dealers who lifted the food grain either from the godown at Manjhaulia and Lauria or from Bagha. As regards charge no. 4, the Enquiry Officer has held that petitioner is not responsible for issuing delivery order in the name of fictitious dealers as the delivery orders are issued in favour of those dealers whose names are forwarded by the Block Supply Officer and petitioner is not guilty of the said charge. The Managing Director of the Corporation, while differing with the findings with regard to charge no.4, has not held that petitioner issued delivery order in favour of those, who were not included in the list submitted by the Block Supply Officer, as such, the reason of difference given in regard to charge no.4 also does not appear to be germane. Having received the aforesaid reasons of difference contained in note dated 13.1.2009 under letter of - 6 - the Chief of Administration of the Corporation dated 13.1.2009, Annexure-23, petitioner submitted his reply dated 3.2.2009, Annexure-24, perusal whereof indicates that he made effective submissions disputing the reasons given by the Managing Director in his note dated 13.1.2009 and submitted that in view of the findings of the Enquiry Officer, he be exonerated and no recovery be made from his retiral dues. Aforesaid reply of the petitioner dated 3.2.2009, Annexure-2 has been considered by the Managing Director under note dated 12.6.2009, Annexure-C to the counter affidavit. Perusal of the note dated 12.6.2009 as also the impugned order indicate that the Managing Director has not considered the cause shown by the petitioner dated 3.2.2009, Annexure-24, still under the impugned order the Managing Director has held that the charge of paying the transporter the advance more than his bill and causing loss to the Corporation by making delivery of food grain from the unattached godown has been proved against the petitioner. Aforesaid finding has been recorded in the note dated 12.6.2009 and the impugned order without there being any material available to establish such fact. - 7 - 4. In the circumstances, in the opinion of this Court, the decision making process to hold the petitioner guilty of the charges is found vitiated. The consequence of such vitiation is quashing of order dated 22.6.2009, Annexure-1, which is, accordingly, quashed. 5. Petitioner superannuated with effect from 30.11.2008 and the charges relate to the period of 2000-01, there being no material to establish the charge placed on record, it is directed that no useful purpose will be served by flogging a dead horse and, accordingly, it is directed that the retiral dues and the arrears of salary be released to the petitioner in the light of the findings of the Enquiry Officer. 6. The writ application is, accordingly, allowed. AFR Arjun/ (V.N. Sinha, J.)