IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12631 of 2005 USHA DEVI wife of Late Sachidanand Singh, resident of village-Balipur, P.O.Jamalpur, District-Munger Versus 1. THE STATE OF BIHAR 2. The Secretary, Minor Irrigation Department, Govt. of Bihar, Patna. 3. The Joint Secretary, Minor Irrigation Department, Govt. of Bihar, Patna. 4. The Under Secretary, Minor Irrigation Department, Govt. of Bihar, Patna. 5. The Chief Engineer (South) Tubewell Division, Minor Irrigation Department, Govt. of Bihar, Patna. 6. The Superintending Engineer, Tube Well Division, Minor Irrigation Department, Tube Well Circle, Gaya. 7. The Executive Engineer, Tubewell Division, Munger. ----------- 3 05.05.2010 Heard Mr. Pushkar Narain Shahi, learned counsel for the petitioner and Mr. Ram Subhash Singh, learned A.C. to A.A.G.6 for the State. The petitioner is the widow of Late Sachidanand Singh, a Lower Division Clerk in the Minor Irrigation Department who died in harness on 28.4.2004. The widow, petitioner is aggrieved by the order of the respondents in initiating the process of reconsideration of the promotions granted to her late husband and upon review thereof, cancelling the said promotions by orders passed as contained in Annexure-2 series to the writ petition and which was followed by an order directing recovery of the excess amount drawn by the - 2 - deceased employee, from the pensionary entitlements admissible to the widow petitioner. That no proceedings can be initiated for reconsideration of in service benefits, in context of a deceased employee, requires no judicial finding. Apart from the said settled proposition, it is equally well settled that no proceedings can be held behind the back of the effected person. The irregularities and arbitrariness of the action of the authorities is multiplied by the fact that the only proceedings which could have been initiated effecting the pensionary benefits of the petitioner, could be a proceeding under Rule 43(b) of the Bihar Pension Rules (herein after referred to as the ‘Rules’). However, no such proceedings could be initiated, in the circumstances that the employee concerned had expired prior to such proceedings. As no proceedings under Rule 43(b) could be initiated against a deceased employee further confirms the position that no such proceeding can also be taken up in relation to the family pension being drawn by - 3 - the petitioner. Considering the case of the petitioner at its minimum if at all according to the respondents, there were any excess withdrawal received by the petitioner by reason whatsoever, the appropriate recourse available to them was under civil law jurisdiction. The opinion aforesaid finds further support from a Bench decision of this Court reported in 2004(1) PLJR 162. Taking into consideration, the circumstances where the proceedings for re- appreciation of the promotions, recalculation of the benefits and the order of recovery placed at Annexures-2 series, Annexure-3 and Annexure-4 have been passed in absence of the employee concerned rather after his death the same cannot be sustained and is set aside. The writ petition is allowed. The petitioner would be entitled not only for re-fixation and recalculation of her family pension and other death cum retiral benefits on the basis of the last salary drawn by her deceased husband including the payment of the arrears thereof, she would also be entitled to refund of the - 4 - recovered amount, if any by the respondents. The entire exercise aforesaid should be completed within a period of three months from the date of receipt/production of a copy of this order. Bibhash (Jyoti Saran, J.)