IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11397 of 2005 SHAMBHU NATH JHA SON OF LATE SHOBHA KANT JHA, RESIDENT OF VILLAGE KESHULI, P.S. BENIPATTI, DISTRICT MADHUBANI AT PRESENT RESIDING IN QUARTER NO.12, ROAD NO.21, GARDANIBAGH, P.S. GARDANIBAGH, DISTRICT PATNA. Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, HIGHER EDUCATION, GOVERNMENT OF BIHAR, NEW SECRETARIAT BUILDING, BAILEY ROAD, PATNA. 3. THE DIRECTOR HIGHER EDUCATION, GOVERNMENT OF BIHAR, NEW SECRETARIAT BUILDING, BAILEY ROAD, PATNA. 4. THE DIRECTOR, LALIT NARAIN MISHRA INSTITUTE OF ECONOMIC DEVELOPMENT AND SOCIAL CHANGE, BAILEY ROAD, PATNA-800 001. 5. THE REGISTRAR, LALIT NARAIN MISHRA INSTITUTE OF ECONOMIC DEVELOPMENT AND SOCIAL CHANGE, BAILEY ROAD, PATNA-800 001. ----------- 7. 27.1.2010. Heard learned counsel for the petitioner and the counsel for the Lalit Narain Mishra Institute of Economic Development and Social Change (hereinafter referred to as the Institute) who has filed supplementary counter affidavit in compliance of my order dated 13.1.2010 stating that Bihar Pension Rules is not applicable to the employees of the Institute as those Rules have not been adopted by the Institute. 2. Petitioner, who superannuated while serving as Librarian in the Institute with effect from 31.7.2001, is aggrieved by the order bearing Memo No.572 of 2002 dated 3.10.2002 (Annexure-14) whereunder a sum of Rs.2,69,684/- has been directed to be recovered from the petitioner on account of - 2 - loss of 3899 books from the Library of the Institute. Perusal of the aforesaid order dated 3.10.2002 indicates that the same has been passed in the light of the liberty granted by this Court under orders dated 20.5.2002 (Annexure-6) passed in C.W.J.C.No.2134 of 2002 to conclude the proceeding already initiated against the petitioner presumably under Rule 43(B) of the Bihar Pension Rules. It was submitted before this Court on 13.1.2010 that reference of Rule 43(B) of the Bihar Pension Rules by this Court in the earlier order (Annexure-6) is wholly misconceived as Bihar Pension Rule is not applicable to the employees of the Institute. In order to verify such submission, this Court under orders dated 13.1.2010 called upon the counsel for the Institute to seek instruction and file affidavit. In compliance thereto, the learned counsel for the Institute has filed the supplementary counter affidavit in which he has admitted that Bihar Pension Rules have not been adopted by the Institute and the provisions of those rules are not applicable - 3 - to the employees of the Institute. Petitioner joinjkled the Institute as a Librarian on 16.8.1982. He superannuated with effect from 31.7.2001 and after his superannuation, the order dated 3.10.2002 (Annexure-14) could not have been passed against him for recovery of the amount as on the date of the order i.e. 3.10.2002 there was no relationship of employer and employee between the institute and the petitioner. This Court while considering the validity of the order dated 3.10.2002 under discretionary writ jurisdiction posed a question to the counsel for the petitioner as to whether petitioner an honest ex-Librarian of the Institute should or not refund the cost of the books which were lost from the Library while he remained the Librarian. Learned counsel fairly accepted that the cost price of the books lost during the tenure of the petitioner as Librarian, be certainly recovered from the amount due to petitioner as Provident Fund, Leave Encashment and the Gratuity. The submission was qualified by saying that 64 Books were reported missing - 4 - from the Library in 1980, prior to the petitioner becoming the Librarian in the Institute and price of 76 books stood realized from those who had actually lost those books and while accounting for the loss of books attributable to the petitioner the price of the aforesaid 64 + 70 books should not be included. 3. I see substance in the aforesaid submission and accordingly, direct the Institute to undertake a fresh physical verification/scrutiny of books in the Library in terms of the Library Rules and cost price of the books which were lost during the tenure of the petitioner between 16.8.1982 to 31.7.2001 be recovered from the terminal dues payable to the petitioner. In compliance of this order, the authorities of the Institute should pay 75% of the terminal dues to the petitioner within two weeks from the date of receipt/production of a copy of this order and thereafter undertake the scrutiny as is directed under this order and furnish the bill for the loss of books to the petitioner which the petitioner shall clear within - 5 - N.H./ another two weeks of the receipt of the bill whereafter the remaining terminal dues be paid to the petitioner. In the light of my observation aforesaid in paragraph-2,3 the order dated 3.10.2001 (Annexure-14) is quashed. ( V.N. Sinha,J.)