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2003 DIGILAW 1111 (JHR)

Etwa Sahu v. Government of Bihar

2003-09-09

TAPEN SEN

body2003
Judgment Tapen Sen, J.-In this writ application, the petitioner has prayed for quashing the order dated 27.3.98 (Annexure-1) issued from the office of the respondent no. 6 directing the recovery of Rs. 68,860.25 p. from four bills covering different amounts towards Gratuity, Group Insurance, leave encashment etc. being in the nature of a recovery of the outstanding advances given for execution of different plans, projects and schemes for the year 1987-88. The petitioner further prays for issuance of a writ of mandamus commanding the respondents to fix, assess and pay the full and final claims/dues in relation to his retiral benefits such as pension, gratuity, leave encashment, group insurance, G.P.F and also arrears. 2. Ths short facts which are necessary to be taken note of are that while he was working as a Panchayat Sevak and posted in the Block Development Office, Bano in the district of Gumla, the petitioner was authorized to execute various scheme, namely, Indira Awas etc. and for getting the work completed, the advances were released accordingly. Further case of the petitioner is that he completed the work and submitted all documents and papers including measurement books, muster roll etc. However, some works pertaining to certain schemes could not be completed because of rise in the prices of labour and materials as well as managerial costs for which the petitioner had prayed for a revised estimate which was not considered while he was in service. It has further been stated that the amount spent on the work under the scheme came to around of Rs. 1,88,000/- and the same has been treated to be an outstanding advance against the name of the petitioner. At paragraphs 16 and 18 the petitioner has stated that the respondents had not initiated any departmental proceedings or even criminal proceedings against the petitioner while he was in service. He retired on 30.6.91 and after a lapse of about 7/8 years, the respondents came out with a mere memo of recovery vide Annexure-1 on 27.3.98. The aforementioned statements of the petitioner made in paragraphs 16 and 18 of the Writ Petition to the effect that no proceeding was initiated during time when he was in service, has been replied at paragraph 28 of the counter affidavit of the respondent nos. The aforementioned statements of the petitioner made in paragraphs 16 and 18 of the Writ Petition to the effect that no proceeding was initiated during time when he was in service, has been replied at paragraph 28 of the counter affidavit of the respondent nos. 3 and 6 who have stated that "there was no question of initiating any departmental proceeding or lodging a criminal proceeding against the petitioner since the petitioner had himself accepted the misappropriation of the amount and had agreed to pay the same from his retirement benefits and other dues and had requested for grant of time. And moreover he himself agreed for adjustment of Rs. 68,860.25 p. and signed the record also." In support of the aforementioned contention to the effect that the petitioner had himself accepted the misappropriation and had agreed for adjustment of Rs. 68,860.25 p., the respondents have brought on record a hand written document dated 27.3.98 vide Annexure-E appended to the supplementary counter affidavit of the respondents no. 3 and 6 (see page 101). The aforementioned document (Annexure-E) is a hand written document which appears to be a recommendation for recovery of Rs. 68,840.25 p. This document (Annexure-E) is at running page 101 of this writ petition and a better/legible copy thereof can also be found in the other connected writ application, namely, WP. (8) No. 3977/02 at running page 73 thereof. Below the recommendation for adjustment of Rs. 68,840/the petitioner seems to have put his signature on 27.3.98 saying "Dekha" and two years thereafter i.e. on 26.2.2000 a note has been written to the effect that "Yeh Jo Katauti Ki Gaye Hai Meri Sahmati Se Ki Gaye Hai. " Below the aforementioned writing is the name of Etwa Sahu and the date is 26.2.2000. It is in the context of the aforementioned document that the respondents have stated at paragraph 28 of the counter affidavit that the amount of Rs. 68,860.25 p. had been adjusted on 27.3.98 with the consent of the petitioner. 3. Reacting to the aforementioned statement, the petitioner has stated at paragraph 11 of his rejoinder, the gist whereof is that these statements are not correct and that the signature was forcibly procured. Though not very happily worded that paragraph reads as follows : "11. 68,860.25 p. had been adjusted on 27.3.98 with the consent of the petitioner. 3. Reacting to the aforementioned statement, the petitioner has stated at paragraph 11 of his rejoinder, the gist whereof is that these statements are not correct and that the signature was forcibly procured. Though not very happily worded that paragraph reads as follows : "11. That in reply to para 28 of the counter affidavit it is most humbly submitted that the failure of the respondents to initiate departmental or criminal proceeding against the petitioner even after loss of 12 years from the date of initiation of the scheme under execution and 8 to 9 years after the retirement of the petitioner simply established their hand in glove relation as nothing positive as per Rule and provision of law have been done and to forcefully procure signature of the petitioner in support of recovery of the so called outstanding advance which were utilized long back out of his retirement benefits, is a total deviation from the truth, fact and Rule of Law." A further statement which necessarily needs to be taken note of in relation to Annexure-E above is the statement of the petitioner made at paragraph 4 of his rejoinder to the supplementary counter affidavit (at running page 105) and upon perusal thereof, what. the petitioner really wants to say is that the note-sheet dated 27.3.98 was initiated after almost 12 years from the execution of the work and after more than 7 years from the date of retirement and, therefore, that matter is a subject matter of adjudication before this Court. These two paragraphs i.e. 4 and 4(a) are, therefore, necessary to be quoted. "4. That it is further apparent from the perusal of Annexure E of the supplementary counter affidavit that the Respondents moved further to recover the amount of Rs. 68,860.25 belonging to the petitioner on account of different retirement benefits viz Gratuity, Leave Encashment, Group Insurance etc. as per the Note Sheet dated 27.3.98 which was apparently initiated on the order of the then Deputy Commissioner, Gumla, which was also made to be seen by the petitioner on the same date i.e. 27.3.1998 i.e. approximately after more than seven years of the retirement and approximately after 12 years of execution of the work/schemes. as per the Note Sheet dated 27.3.98 which was apparently initiated on the order of the then Deputy Commissioner, Gumla, which was also made to be seen by the petitioner on the same date i.e. 27.3.1998 i.e. approximately after more than seven years of the retirement and approximately after 12 years of execution of the work/schemes. (a) That it is most strange to observe further that petitioner has been further pressurized to put his initial on 26.2.2000 with the comment that the amount under recovery of Rs. 68,860.25, which is the subject matter of this Hon'ble Court's consideration and quashing of the same in the instant writ petition itself (vide Annexure-1) is being recovered with his consent." 4. Thus, the most important factor that has to be taken note of in the instant case is that the petitioner superannuated on 30.6.91. No departmental proceeding nor any criminal case nor any other proceeding had been initiated while he was in service and after a lapse of 7/8 years, the respondents took action on 27.3.98 and straight way ordered recovery of Rs. 68,860/- from his Gratuity, Group Insurance and other retiral dues and that too, on the basis of a memo. As has already been stated earlier, a specific statement has been made by the petitioner at paragraph 16 that during his service period no proceeding had been initiated. This has been replied at paragraph 28 of the counter affidavit of the respondents no. 3 and 6 and they have admitted that there was no departmental proceeding or criminal proceeding because they have stated thus : "28. That with regard to the statements made in paras 14 to 19 of the writ application, it is stated that the same are totally wrong and hereby denied. There was no question of initiating any departmental proceeding or lodging of a criminal proceeding against the petitioner since the petitioner had himself accepted the misappropriation of the amount and had agreed to pay the same from his retirement benefits, and other dues and had requested for grant of time. And moreover he himself agreed for adjustment of Rs. 68,860.25 and signed the record also." 5. Counter affidavit of the Accountant General is silent on the aforementioned issue and he has not replied to that paragraph. In the counter affidavit of the respondent no. And moreover he himself agreed for adjustment of Rs. 68,860.25 and signed the record also." 5. Counter affidavit of the Accountant General is silent on the aforementioned issue and he has not replied to that paragraph. In the counter affidavit of the respondent no. 5 (District Provident Fund Officer), it has been stated at paragraph 9 that he has no concern with that statement meaning thereby the statement made in paragraph 16. It is well known that post retiral dues are not bounties any further. However, the payment of pension has been made liable to be either withheld or withdrawn under Rule 43(b) of the Bihar Pension Rules. Rule 43(b) reads as follows: "43(b) The State Government further reserve to themselves 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 the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: Provided that- (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation-For the purposes of the rule- (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date, and (b) judicial proceedings shall be deemed to have been instituted (i) In the case of criminal proceedings, on the date on which a complaint is made, or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil court." 6. Upon perusal of the provision of Rule 43(b) it is evident that the right of the Government in withholding or withdrawing pension or part of it whether permanently or for a specified period and the order of recovery from pension can be made only if the petitioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence. There is a bar under the proviso of Rule 43(b) that such departmental proceeding, if not instituted while the Government servant was on duty cannot be instituted save and except with the sanction of the State Government and it can be only in respect of an event which took place not more than four years before the institution of such proceeding. In the instant case, admittedly no proceeding of any kind was ever initiated while the petitioner was in service. The only provisions under which post retiral dues can be withheld are Rules 43(b) and 139 of the Bihar Pension Rules, 1950. That being the position, the action of the respondents in straightaway ordering the adjustment of Rs.68,860.25 and that too after more than 7 years without there being any departmental proceeding etc., must be held to be totally impermissible and cannot be sustained. 7. That being the position, the action of the respondents in straightaway ordering the adjustment of Rs.68,860.25 and that too after more than 7 years without there being any departmental proceeding etc., must be held to be totally impermissible and cannot be sustained. 7. The next question is as to whether merely because the petitioner had signed below the recommendation vide Annexure-E, will be a sufficient cause to snatch away the valuable rights of the petitioner because in any event, even if such signature was given by the petitioner the same was beyond the period of a superannuation and the respondents cannot plead estoppel against him because there is no estoppel against a statute. Moreover, the explanation that the petitioner has given to the effect that he was forced to put his signature is a reasonable explanation considering that 7 years went by without payment of his retiral dues and in that helpless state if he puts his signature there is every reason to doubt the bonafides of the document. The petitioner, therefore, has been subjected to enforced litigation and mental agony. To that extent, therefore, the petitioner must also be compensated for torture and also for being subjected to an action by which his right was snatched away (after 7 years from the date he had retired) by the respondents who are expected to be fully aware of the provisions of Rule 43(b) of the Bihar Pension Rules. It must, therefore, be held that they acted in a malafide manner as against the petitioner and deliberately remained mute spectators when the Petitioner put his signature on Annexure-E. Consequently, the respondents must pay compensation to the petitioner to the extent of Rs.25,000/- for the aforementioned illegal and arbitrary action perpetrated upon him. They must also immediately pay him all retirement dues and restrain themselves from making any recovery whatsoever. The writ petition is accordingly allowed. W.P. (5) No. 3977 of 2002 In this case, the petitioner has prayed for quashing the memos dated 7.8.2000 and 30.4.2001 (Annexures 1 and 1/A), whereby and whereunder, the Block Development Officer, Bano, Gumla has informed the petitioner that in relation to certain schemes of the years 1986-87 to 1988-89 a sum of Rs. 1,92,127/- had been executed by the petitioner but on subsequent verification of measurement etc. it was found that even after the recovery of Rs. 68,860.25 p. an additional sum of Rs. 1,92,127/- had been executed by the petitioner but on subsequent verification of measurement etc. it was found that even after the recovery of Rs. 68,860.25 p. an additional sum of Rs. 1,23,266.75 p. was recoverable. Consequently, by Annexure1-A, the petitioner was directed to deposit the said amount within a period of one month in his office. 2. The petitioner has further prayed that the respondents should not initiate recovery process in respect of any other additional amount on the ground of not having passed the Hindi Notings Drafting examination as has been threatened by Annexure-5/A issued by the Sr. Accounts Officer of the office of the Accountant General. 3. The short facts which are necessary to be taken note of in this case are that while he was working as Panchayat Sevak in the office of the Block Development Office, Bano, in the district of Gumla he was directed to execute certain schemes. He was advanced certain sums of money but the sum of Rs.1,72,000/was treated as outstanding advance against his name. The respondents did not take any action nor did they initiate any departmental proceeding or criminal proceeding while he was in service and after almost 12 years from the date of his retirement on 30.6.1991, and after about 9/10 years they suddenly resorted to the action indicated above i.e. issuance of Annexures-1, 1/A and 5/ A. The statement to the effect that respondents had not initiated any departmental proceeding etc. while he was in service has been made in paragraph 14 of the writ application and that paragraphs has not been replied to by the respondent no. 3 in his counter affidavit. The respondents no.2 and 5 have however replied to the aforementioned statement in paragraph 28 of their counter affidavit in the following manner- "28. That with regard to the statements made in paragraphs 14 and 15 of the writ application it is stated that the same are totally wrong and hereby denied. It is being reiterated that the petitioner was given notices and several requests were made to him to complete the work, while in service also". 4. It is not necessary to go into other details of the case because the only question that is relevant to be decided is whether the respondents should have initiated action after 9/10 years from the date of his superannuation? 4. It is not necessary to go into other details of the case because the only question that is relevant to be decided is whether the respondents should have initiated action after 9/10 years from the date of his superannuation? In this case the respondents have merely stated that all retiral dues including provisional pension have been granted except that G.P. for which the answering respondents are taking all necessary efforts and are also taking steps for finalization of the pension. They have also stated at paragraph 36 that in relation to finalization of pension they are trying their best to meet the objection of the Accountant General meaning thereby the objection in relation to Annexure-5/A as to whether any excess amount should be adjusted for the petitioner's not having passed Hindi Noting Drafting Examination. In their counter affidavit, at page 73 the respondents have again brought on record the same hand written text in which the petitioner has signed below the recommendation to adjust the sum of Rs. 68,846/-. In the other case, this Court has already held that respondents have acted illegally and, therefore, following the same reasonings given in the aforesaid case, it is held in this case also that the impugned memoes dated 7.8.2000 and 30.4.2001 as contained in Annexures-1 and 1/A as also the objection of the Accountant General dated 28.3.2000 cannot be sustained and accordingly, they are set aside and quashed and it is directed that the petitioner shall be paid all his retiral dues forthwith after adjusting whatever amount he may have received. He shall also be entitled to full pension together with costs as indicated above.