J. N. SARMA , J.- In this case notice of motion was issued on 1.10.99 and it was made returnable within four weeks as the matter is with regard to the right of a widow to get the retiral benefit of her husband. Thereafter Rule was issued on 27.04.2001. No affidavit-in-opposition was filed. No. record was produced by the State of Assam and on 29.11.2001 the matter was heard-in-part and two weeks time was granted to the learned Government Advocate to produce the record with a further direction that the widow shall be paid all the retiral benefits save and except Rupees one lakh thirty-four thousand three hundred seventy-three. This amount is stated to be misappropriated by the husband. Nothing was done. 2. The matter came up for hearing yesterday and it was heard-in-part and Shri B. Choudhury appeared and submitted that he has no instruction. To-day Smit. R.Chakravarty, learned Junior Government Advocate appears, but she does not have any instruction in this respect. This is a pitiable state of thing and it is happening in almost each and every case of the State of Assam. I have nothing to say in the matter as it is the look out of the State of Assam. But sometime because of the failure to produce records injustice is caused and that is, what we are concerned with. 3. The brief facts of this case are as follows: The husband of the petitioner Mahendra Saikia had joined on 7.12.73 as Sub-Engineer in the office of the Executive Engineer, Planning and Design Division, Guwahati. While in service he was transferred from place to place. In the month of January , 1995, the husband of the petitioner while posted at North-Lakhimpur he fell seriously ill and prayed for earned leave and during the period of his earned leave one Durlav Chandra Gogoi, Junior Engineer was allowed to hold the charge of the husband of the petitioner of the post which the husband of the petitioner held. The husband of the petitioner in the month of June/95 was taken to Madras for treatment. But he died of cancer and during the period of treatment the wife approached the authority for financial help/ medical reimbursement. But nothing was done and during the absence of the husband of the petitioner the Assistant Executive Engineer was incharge of the post held by him. But he died of cancer and during the period of treatment the wife approached the authority for financial help/ medical reimbursement. But nothing was done and during the absence of the husband of the petitioner the Assistant Executive Engineer was incharge of the post held by him. That will be evident from Annexure-3 to the writ application and that is quoted below:- "Annexure -3. Government of Assam Office of the Executive Engineer Lakhimpur Division lirigation : : : : North Lakhimpur ORDER Order No. 728/Dated/95 In the interest of Public service. Durlov Ch. Gogoi, Junior Engineer, is allowed to hold the supervision charges of Section Officer, Head Quarter, Bihpuria Sub-Division (Irrigation ) Bihpuria, in addition to his own duties vice Shri Mohendra Nath Saikia, Junior Engineer, proceeded on earned leave on Medical ground with immediate effect. Sd/- K. C. Baruah, Executive Engineer, Lakhimpur Division (Irrigation), North - Lakhimpur Memo No. LD (I) NL/94-95/ E-3/277-80 Dated 23.02.95. Copy to :- 1. The Asstt. Executive Engineer, Bihpuria Sub-Division ( Irrigation ) , Bihpuria, for information & necessary action with reference to his proposal BSD (I) B/AC-21/94-95/92, dated 21.2.95. The charges of Headquarter store may be kept by himself, for the present as proposed. 2. Shri Durlov Ch. Gogol, Junior Engineer for i information and necessary action. 3. Shri M. Saikia, Junior Engineer, for information and necessary action. 4. Order Book." 4. Thereafter the petitioner applied to the authority for the release of the amount due to her husband against the Group Insurance Policy and the said application was forwarded by the Assistant Excutive Engineer, that is, Annexure-5 which is quoted below :- "Annexure- 5. Government of Assam Office of the Executive Engineer Lakhimpur Division Irrigation: : : : North Lakhimpur NO. LD (I) NL/95-96/M-31/Dated/95 To The Chief Engineer, Irrigation Department, Assam, Guwahati -3. Subject:- Release of Money deposit against the G. I. Scheme in favour of Late Mohendra Nath Saikia, Junior Engineer. Sir, With reference to the subject cited above, I have the honour to submit herewith a statement showing details of amount deposited under the Group Insurance scheme against Late Mohendra Saikia, Junior Engineer. Necessary permission may kindly be accorded from your end to release and disburse the amount to the nominee Mrs. Aruna Sadhanider as admissible under rule. " 5. Nothing was done "cm it. Necessary permission may kindly be accorded from your end to release and disburse the amount to the nominee Mrs. Aruna Sadhanider as admissible under rule. " 5. Nothing was done "cm it. The petitioner also submitted an application for medical re-imbursement bill and that also was forwarded by the Executive Engineer vide Annexure-6, that is quoted below :- "Annexure -6 Government of Assam Office of the Executive Engineer Lakhimpur Division Irrigation : : :: North Lakhimpur No. LD (I)NL 95-96/M-32/ Dated /96. To The Chief Engineer, Assam, Irrigation Department, Guwahati-3, Subject:- Submission of T. A. Bill and medical reimbursement bills in respect of Late M. Saikia, J. E., for his cancer treatment outside of Assam. Sir, I have the honour to forward herewith the T. A. Bill and other reimbursement bill submitted by success of Lt. M. Saikia, J.E., in connection with his Cancer treatment her husband out side Assam as referred by the Director of health service, Assam Hengrabari, Guwahati -6. This is for favour of his kind disposal & necessary action. Enclosed:-1. Application submitted in original. 2. T. A. Bill 1 No. in duplicate. 3. Medical reimbursement bill 24 Nos. 4. Director of health service order copy. 5. Medical Certificate. 6. Succession Certificate. 7. Death Certificate." 6. Under the law to receive the amount of medical reimbursement and Group Insurance there is no necessity to obtain a No Liability Certificate. But even inspite of it the Executive Engineer was kind enough to issue no liability certificate vide Annexure-7 and that is quoted below :- "Annexure-7. To TheTrixecutive Engineer, JorghSt Division, Irrigation, . Jorhat. Subject:- No. Liability Certificate against Late Mohendra Nath Saikia , Junior Engineer. Sir. In inviting reference to the above, I have the honour to inform you that late Mohendra Nath Saikia, Junior Engineer, expired on 23.6.95 while he is on service. As such , for finalisation of his family pension, gratuity etc. no liability certificate is required. As such , I would request you kindly to furnish his "No Liability Certificate" direct to Chief Engineer, Irrigation, Assam, for the period served under that Division as shown below, with intimation to this office. Place of Posting Period served as J. E. 1. Chief Engineer, Irrigation, Assam from 7.12.73. to 27. 1.79 , 2. Executive Engineer, Jorhat Divn. (Irrigation) Jorhat 28.1.79 to 16.3.82. 3. Executive Engineer , Lakhimpur Divn. (Irrigation ), North- Lakhimpur. 17.3.82 to 13.7.88. 4. Place of Posting Period served as J. E. 1. Chief Engineer, Irrigation, Assam from 7.12.73. to 27. 1.79 , 2. Executive Engineer, Jorhat Divn. (Irrigation) Jorhat 28.1.79 to 16.3.82. 3. Executive Engineer , Lakhimpur Divn. (Irrigation ), North- Lakhimpur. 17.3.82 to 13.7.88. 4. Executive Engineer, Lakhimpur Division (Irrigation), North -Lakhimpur. 1.10.88 to 23.6.95. Yours faithfully, Executive Engineer, Lakhimpur Division, Irrigation, North -Lakhimpur. Memo No. LD (I) NL.95-96/ E-144/2967- 69 Dtd.9.1.96. Copy to :- 1. The Executive Engineer, Lakhimpur Investigatioh Division, Irrigation, North Lakhimpur for information and similar necessary action for the period served under that Division. 2. The Accounts Officer, Lakhimpur Division , Irrigation, North- Lakhimpur for information & necessary action. 3. Smti. Aruna Sadhanider Saikia, Amguri, P.O.-Mornoi, Khora, Bihpuria for information." 7. Correspondence was made on 19th of March/96 with regard to certain matters and that is Annexure-8 and on 8/8/96 even the Executive Engineer wrote to the authority for placing the fund at his disposal so that necessary amount/ retiral benefit can be paid to the petitioner, that is, Annexure-9. Thereafter on 3/10/96 almost after year from the date of her husband's death, the authority came up with a claim that after the death the physical varification of the those was made and it was found that there was a shortage of Rs. 1,34,373.00 ( Rupees one lakh thirtyfour thousand three hundred seventythree), that is Annexure-10 which is quoted below :- "Annexure -10 An amount of Rs. 1,34,373.00 (Rupees one lakh thirtyfore thousand three hundred seventythree) only has been booked in Misc. P.W. Advance against Late Mahendra Saikia, J. E. being the value of shortage of materials found short during the physical verification done by the Asstt. Executive Engineer, Bihpuria Sub-Division, Irrigation, Bihpuria subject to necessary adjustment. Sd/- S. D. Dutta, Executive Engineer, Lakhimpur Division, Irrigation, North-Lakhimpur." 8. The petitioner on 15th of May, 1997 wrote the following letter which is Annexure-13 and that is also quoted below:- " Annexure-13. To The Chief Engineer, Minor Irrigation, Assam, Guwahati- 3. Dated North Lakhimpur, the 15th May, 1997. Sub: Payment of Gratuity, G. P. F., G. I. Pension benefit etc. payable to Late Mohendra Nath Saikia, Junior Engineer under Executive Engineer, Lakhimpur Division, Irrigation, North Lakhimpur. Hon'ble Sir, Most respectfully I have the honour to state as under: I am a citizen of India and permanent resident of Village Amguri, P. O. -Mornoi (Khora) in the district of Lakhimpur, Assam. payable to Late Mohendra Nath Saikia, Junior Engineer under Executive Engineer, Lakhimpur Division, Irrigation, North Lakhimpur. Hon'ble Sir, Most respectfully I have the honour to state as under: I am a citizen of India and permanent resident of Village Amguri, P. O. -Mornoi (Khora) in the district of Lakhimpur, Assam. My husband Late Mohendra Nath Saikia was an employee of Irrigation Department and was working as J. E. under the Executive Engineer, Lakhimpur Division, Irrigation, North Lakhimpur, who died on 23.06.95 while he was in service. Prior to his death he was on medical leave for more than 3 months. I applied to you for payment of Gratuity, G. P. F. G. I. Etc. but your high office communicated me that my late husband had a liability of Rs. 1,34,373.00 with the department concerned. But I have the honour to submit that if at all my husband had involved in any type irregularities that could have been raised and settled in his* service tenure while he was on leave or before his death. No. departmental proceeding/ show cause etc. was held against my late husband during his service tenure. But instead of settling the matter, if any, during his life time or service period, your good office preferred to remain silent and is raising the matter while I as the wife of applied for payment of the benefits, the above liability against my husband is booked capriciously vide order No. of 821 dated 03.10.96 of Executive Engineer, Lakhimpur Division, long time after the death of my husband. Sir, I beg to submit that after the death of my husband I feel insecure owing to lack of any source of income and find it most difficult to make both ends meet. So, I request you kindly to consider the matter and make an arrangement to pay the benefits payable to my husband Lt. Mahendra 1 Nath Saikia at tne earliest for which act of kindness I shall remain grateful to you. Yours faithfully, (Smti. Aruna Sadhanider Saikia,) W/o. Late Mohendra Nath Saikia, Vill. Amguri, P.O. Mornoi (Khora) Dist. Lakhimpur, Assam." And on 7.7.97 , the authority wrote the following letter to the Executive Engineer and that is quoted below :- "Annexure-14. Government of Assam Office of the Chief Engineer Irrigation:: Assam (Audit Branch) No. CEI (A) 10/96/76 Dated Guwahati, the th July, 1997. To The Executive Engineer, . Amguri, P.O. Mornoi (Khora) Dist. Lakhimpur, Assam." And on 7.7.97 , the authority wrote the following letter to the Executive Engineer and that is quoted below :- "Annexure-14. Government of Assam Office of the Chief Engineer Irrigation:: Assam (Audit Branch) No. CEI (A) 10/96/76 Dated Guwahati, the th July, 1997. To The Executive Engineer, . Lakhimpur Division (Irrigation) North-Lakhimpur. Sub:- Payment of Pension Benefit to Late Mohendra Nath Saikia, J.E. With reference to the subject cited above, I am to enclose herewith a copy .of petition dt. 15.5.97 received from SimjL Aruna Sadhanider (Siakia) wife of late Mahendra Nath Saikia, J.E. Irrigation Deptt. which speaks for flself and you are instructed to furnish your views/ comments on the matter at an early date. This may be treated as most URGENT." 9. At this stage it is submitted by the learned counsel for the petitioner that the Group Insurance money have been paid to the petitioner by the authority. The question that arises for determination in this case is that Whether after the death of a person the authority can fix a liability on a person come let without making an enquiry Even when a person is living there is some restriction/bar. Regarding the power of the authority to hold an enquiry and fix the liability that is provided by Rule 21 of the Assam Pension Rules. Rule 21 is quoted below :- "21. The Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period" and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or Judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service , including service rendered upon re-employment after retirement provided that- (b) Such departmental proceeding, if not instituted while the officer was in service whether before his retirement or during his re-employment (i) shall not be instituted save with the sanction of the Governor of Assam. (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor of Assam may direct and in accordance with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) the Assam Service Commission shall be consulted before final orders are passed. Explanation - For the purpose of this Rule- (a) A departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued on the officer or pensioner or if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of criminal proceeding, on the date on which the complaint or report of police officer, on which the Magistrate takes cognizance, is made ,and (iii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court. Note 1. - This applies also to recoveries from death -cum-retirement gratuity and family pension sanctioned under Chapter- VIII. Note 2.- Under the above rules , besides the right of ordering recovery from a pension of the amount of any pecuniary loss caused to Government, the Governor of Assam has also reserved to himself the right of withholding or withdrawing a pension or any part of it whether permanently or for a specified period. The authority which institutes proceedings of the nature referred to in the above rule should without-delay intimate the fact to the Audit Officer concerned. It has also been decided that in a case in which a pension as such is not withheld or withdrawn but the amount of any pecuniary loss caused to Government is ordered to be recovered from the pension, the recovery should not ordinarily be made at rate exceeding one-third of the gross pension originally sanctioned including any amount which may have been commuted." 10. In view of the Judgment reported in 1984 (2) GLR 424 ( Eyakub Hussain, Petitioner -Versus- The Secretary to the Government of Assam, Public Works Department, Dispur & Others, Respondents) wherein the law has been laid down by the Division Bench of this Court is as follows :- "A bare perusal of Rule 21 makes it quite plain that the authority has a right to with-hold or withdraw a pension or any part of it permanently or for a specified period, if the pensioner is found guilty of grave misconduct or negligence during the period of his service. For witholding pension it would be necessary to draw departmental proceedings against the delinquent. Such departmental proceedings may be instituted while the pensioner was in service or while he was re-employed. The departmental proceedings may also be instituted against the pensioner even after his retirement under Clause (b) of Rule 21 (provided the sanction of the Governor of Assam had been obtained to do so). However, such departmental proceeding can not be taken with respect to any event which had occurred more than four years before such institution. Moreover, the proceedings may be conducted only by such authority and at such place as the Governor of Assam may direct in that behalf. It also requires that the Public Service Commission shall be consulted before final orders are passed." 11. In this particular case the person died in the year 1995 and to-day in the fag end of 2001, more than four years have elapsed and till to day no departmental proceeding has been initiated even if it is allowed by law. On this short ground alone Rs. 1,34, 373.00 (Rupees one lakh thirtyfour thousand three hundred seventythree) fixid as liability shall fall through. To-day the authority only way have the power to file a suit recovery of the money against the husband of the petitioner. Rule 21 requires that even suit is to be filed within the period fixid by it. The period of 12 years as provided by Limitation Act seems to be curtailed by the note itself by the legislature. Though I have not decided it. 12. Accordingly this writ application is allowed. The authority is directed to pay all the retiral benefits to this widow within a period of three months from the date of receipt of copy of judgment.