IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4954 of 2004 SHEO DAYAL SHARMA S/o Late Jay Nandan Prasad Singh, residing at Srikrishnapuri, P.S. S.K. Puri, Patna, Bihar. -------------Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner and Secretary, Public Health Engineering Department, Bihar, Patna 3. The Additional Secretary, P.H.E.D. Bihar, Patna 4. The Engineer-in-Chief cum special Secretary, P.H.E.D., Bihar, Patna. 5. The Chief Engineer, Mechanical, P.H.E.D., Bihar, Patna 6. The Joint Secretary, Management cell, P.H.E.D., Bihar, Patna. ------------Respondents. ----------- For the Petitioner:- Mr. Sanat Kumar Mishra, Adv. For the State:- Mr. S.S. Mishra, Assistant counsel to G.A. 5. --------------- 3. 22.07.2010 Heard learned counsel for the petitioner and the State. Petitioner was an Assistant Engineer who superannuated from Service on 31.8.2001 after he retired an order of punishment dated 18.2.2003 came to be passed. By virtue of which a sum of Rs. 19,665/- was sought to be recovered from his gratuity for having caused loss to the public exchequer. This order is Annexure-7/A and under challenge in the present writ application. There are many fold submissions made in support of the writ application. The first submission is that the order of punishment has been passed after retirement of the petitioner which could not be 2 done more so when there is nothing to indicate from the order that this order was passed in exercise of power under Rule 43 B of the Bihar Pension Rules. Other submission is that the finding of guilt recorded by the disciplinary authority is not based on record because the enquiry officer in his report does not find the petitioner guilty as would be borne out from enquiry report contained in Annexure-4. In absence of finding of guilt it was not open to the disciplinary authority to use his personal knowledge or materials in his possession to declare the petitioner guilty. Another submission made is that the theft took place on 20.7.1981 whereas the enquiry was held after more than 20 years. Such a delayed enquiry has caused serious prejudice to the petitioner. Obviously, the respondents have raked up an old issue to punish the petitioner when there is no clear finding of guilt in the enquiry held against him. No counter on behalf of the respondents have been filed. Counsel for the State is not in a position to indicate whether the order of punishment has been passed in exercise of power under Rule 43 B or it is an order of punishment passed after the 3 retirement of the petitioner. In absence of any indication of the same and in absence of the notice for disagreement with the enquiring officer by the disciplinary authority there is a serious infirmity. In view of the above finding any order passed in breach of the procedure has to be interfered with. Annexure-7A dated 18.2.2003 is quashed. The writ application is allowed. If the deductions has been made from the gratuity of the petitioner to the tune of Rs. 19,665/- or the same has been recovered the same will be refunded within a period of three months from the date of receipt/production of a copy of this order. Anand Kr. ( Ajay Kumar Tripathi, J.)