IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.40 of 1998 ======================================================= Rajeshwar Rai Yadav, son of Late Juqeshwar Rai, resident of Mohalla-Juran Chapra, Road No. 3, Police Station-Muzaffarpur, District-Muzaffarpur, presently residing at Ashok Nagar, Police Station Kankarbagh, District- Patna. .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Secretary-cum-Commissioner, Water Resources (Irrigation) Department, Govt. of Bihar, Patna. 3. The Special Secretary, Water Resources (Irrigation) Department, Govt. of Bihar, Patna. 4. The Deputy Secretary, Water Resources (Irrigation) Department, Govt. of Bihar, Patna. .... .... Respondent/s ======================================================= Appearance : For the Petitioner/s : Mr. SIYA RAM SHAHI For the Respondent/s : Mr. Maheshwar Dhar Dwivedi, Adv. Mr. Sanjay Kumar Singh, Adv. ======================================================= CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Ahsanuddin Amanullah, J. Heard Mr. Siya Ram Shahi for the petitioner and learned counsel for the State. 2. The writ petition has been filed challenging the order No. 748 dated 16.8.1997 communicated to the petitioner under Memo No. 2469 dated 16.8.1997 issued by the Deputy Secretary, Water Resources Department, Bihar, Patna by which order of recovery of Rs. 1,94,450/- has been passed under a proceeding under Rule 43(b) of the Bihar Pension Rules. 3. The brief facts of the case necessary for 2 the disposal of the present writ application is noticed hereinbelow. 4. The contract in writing was entered into between the State of Bihar and contractor for carrying out certain works as specified therein. It contains a clause which authorizes payment of extra amount on account of escalation of labour cost which was permissible only to the tune of 10% of the total estimated cost. During the period when the 5th to 19th running bills of the contractor with regard to the works in question were being finalised, the petitioner was in no way in the picture and the same was carried out when his predecessor namely, Mr. Bateshwar Sharma was holding the post of Executive Engineer concerned. By the said running bills, the said Mr. Sharma allowed payments which, as per the stand of the respondents, was not authorised as per the terms of the contract. Finally, the bills which were authorized by Mr. Sharma were finalized by the petitioner who had by then taken over the charge as the Executive Engineer concerned on 25.7.1987. The final bill reflected all the heads under which such payments have been made. It was the case of the respondents that initially the Bill was prepared for Rs. 33,00,000/-and odd. Thus, on this ground it was sought to be canvassed that the petitioner had finally 3 authorized payment of Rs. 5,83,351/- excess under the head of labour escalation. It appears that petitioner’s predecessors had authorized payment of Rs. 7,12,025/20 on this head which is also sought to be categorized as unauthorized and beyond the scope of the terms of the contract. This aspect, at that stage was looked into and considered by the Superintendent Engineer and ultimately by the Chief Engineer also. The Superintendent Engineer found that such payment was made in relation to work done which was closely connected with the work covered by the contract in question and accordingly recommended that the same be treated as part of the scope of the work under the present contract. He also felt that there was no justification for making payment of Rs. 5, 87,000/- and odd out of Rs. 7,12,025/20. In this background the conscious decision was taken on behalf of the State by the Chief Engineer to recover the said Rs. 5,83,351/- from the Security deposit of the contractor. 5. The contractor then made representation for knowing the reason to withhold part of the security deposit and upon consideration of the same the withheld security deposit was also refunded as far back as 8.5.1990 to the Contractor. Thereupon, the flying squad enquired into the matter and came to the conclusion 4 that a sum of Rs. 7,12,025/20 was paid to the contractor for work done which was beyond the scope of the work to be executed under the contract in question. It was held that such payment had been made unauthorizedly to the contractor and the petitioner alongwith Mr. Bateshwar Sharma was named as one of the officers who had authorized such payment. 6. The matter was thereafter looked into by the department and it was found that there was no justification for payment of sum of Rs. 5,83,351/- and accordingly show cause dated 18.08.1995 was issued under Rule 55 (A) of the Civil Services (Classification Control and Appeal) Rules, as it then existed, to the petitioner. The petitioner thereafter submitted his show cause but it appears that before the proceedings could reach their logical conclusion the petitioner superannuated on 31.1.1996 while working as Incharge Superintendent Engineer, Sone Command Area Development Agency, Patna. 7. Under these circumstances, a fresh order was passed by the department dated 28.2.97 that due to the irregularities committed by the petitioner excess payment of Rs. 5,83,351/- had been made which was sought to be recovered under Section 43 (b) of the Bihar Pension Rules for which it was indicated that separate 5 proceeding would be imitated. Pursuant to the same, notice under letter dated 30.4.97 was issued to the petitioner calling upon him to show cause as to why 1/3rd amount of Rs. 5,83,351/- be not recovered from his pension and gratuity etc. 8. According to the petitioner, the notice/show cause dated 30.4.97 was never received by him. This categorical statement and stand is clear from paragraph no. 33 of the writ petition and has not been controverted or replied to in the counter filed by the respondents. Thereafter, final order which is impugned in the present writ application as contained in Order No. 748 dated 16.8.97 as communicated to the petitioner under Memo No. 2469 dated 16.8.97 under the Signature of the Deputy Secretary, Water Resources Department, Bihar Patna came to be issued by which an order of recovery of Rs. 1,94,450/- has been passed purportedly under Rule 43 (b) of the Bihar Pension Rules, 1950. 9. It is clear that in the event unauthorized payments have been made by the petitioner to the Contractor and the contractor who has received money which he was not entitled to receive, the same could be recovered from the persons who facilitated such payments and also from the contractor himself. In the 6 present case the superior authorities of the State, having supervisory jurisdiction over the work done under the contract as well as on the persons working in respect of the contract including the petitioner have come to a conclusion that a part of such payment was not unauthorized payment but a part thereof was unauthorized. Thus, it was decided not to return a sum of Rs. 5,83,351/- belonging to the Contractor which was sought to be retained by the State Government as security deposit. Subsequent thereto, a decision was taken by the superior officers of the petitioner to return even the retained portion of the security deposit of the contractor. Thus, decision to return the retained security deposit to the contractor indicates that it was finally accepted that the said amount was required to be paid for the work done which was necessary to complete the work. The issue thus stood concluded and unless it was alleged that the persons who ultimately took the decision on behalf of the State to justify and accept the payment also misconducted themselves by doing what they did, the very charge that the petitioner had made unauthorized payment resulting in loss to the State stands washed away. This decision on behalf of the State was ultimately taken by the Chief Engineer on the basis of the recommendation of the Superintendent Engineer. 7 It is not the case of the respondents that either the recommendation made by the Superintendent Engineer or the decision taken by the Chief Engineer in this connection were mala fide and for extraneous consideration or had caused loss to the State exchequer and in this view of the matter the complaint against the petitioner having made unauthorized payment cannot be said to have remained unauthorized on the date of issuance of the chargesheet. 10. Thus, by reason of the subsequent action of the Chief Engineer, it cannot be said that due to unauthorized action of the petitioner any loss was caused to the State or its funds. For action, which has been held and accepted as being required, no disciplinary action could be initiated. 11. The aforementioned position on facts is undisputed. It would also be relevant to take notice of the decision rendered by a Division Bench of this Court in L.P.A. No. 233 of 1999 dated 7.11.2007 by which the appeal filed by Mr. Bateshwar Sharma against the order of recovery from him which was also initiated for the same transaction, has been allowed and the punishment order as well as the chargesheet has been quashed. The appeal of the State against the said order before the Hon’ble Apex Court also stood rejected by order dated 8 5.12.2008 in Special Leave to Appeal (Civil) ………….2008, C C 14349/2008. Since both the said decisions are unreported, copies of the same, which have been produced by learned counsel for the petitioner, are being kept on record. 12. In view of the discussions made hereinabove, this Court feels that the show cause issued to the petitioner with regard to the present charge itself was unjustified and cannot be sustained. 13. Accordingly the writ petition stands allowed and the order no. 748 dated 16.8.1997 contained in Memo No. 2469 dated 16.8.97 stands quashed. If any action has been taken on the same, the respondents shall make good the same to the petitioner within two months from the date of receipt/production of a copy of this order upon respondent no. 4. Patna High Court Dated 7th of December, 2011 Anand Kr./NAFR ( Ahsanuddin Amanullah, J.)