ORAL JUDGMENT M. S. KHANDEPARKAR, J.:- Heard. The petitioners challenge the judgment and order dated 18th June, 1999 passed by the Maharashtra administrative Tribunal in Original Application No. 108 of 1995. By the impugned judgment and order, the Tribunal while allowing the Original Application has quashed the charge-sheet dated 30th November, 1994 issued the respondent herein. 2. Few facts relevant for the decision are that the respondent was employed Sales Tax Department of the Government of Maharashtra as a Deputy .Commissioner of Sales Tax for a period from 13st March, 1989 to 26th November, 1993, and in that capacity, he had administrative control of the ion under his jurisdiction, apart from the other duties attached to the said . The Assistant Commissioner of Sales Tax, Assessing Officers and Tax officers were subordinate to the post of Deputy Commissioner held by the respondent. During the said tenure, the respondent was required to pass orders to refund of the excess payment of the sales tax on the consideration of port submitted in that regard by the Sales Tax Officer or the Assistant Commissioner. 3. It is the case of the petitioners that during the relevant period, in six , the refund orders were issued for a total amount of Rs. 95,57,681/- under nature of the respondent. Out of the six cases, three cases of refund orders issued on the same day on which the proposals were received by him from les Tax Officer. In one case, it was issued on the day following the day on the proposal was placed before the respondent. In the 5th case, it was after a week, and in the 6th case it was issued after a period of fortnight the date of submission in that regard by the subordinate officer. It is further of the petitioners that the respondent without taking due care to verify refund and/or scrutinize the proposal submitted by the Sales Tax Officer issued the orders and thereby caused loss to the tune of Rs. 95,57,681/- to the public exchequer. It is their further case that considering that as the amount which was ordered to be refunded was a huge amount, it was expected from the respondent to observe due care caution and to have the proposal property duties in the regard diligently and vigilantly. 95,57,681/- to the public exchequer. It is their further case that considering that as the amount which was ordered to be refunded was a huge amount, it was expected from the respondent to observe due care caution and to have the proposal property duties in the regard diligently and vigilantly. The respondent was not vigilant not take care to ascertain the genuineness of the claim for refund and the and submitted in that regard by the Sales Tax Officer and issued the said . Having brought the said fact to the notice of the concerned authorities, the dated 30th November. 1994 was issued for initiating departmental inquiry against the respondent. Consequently, the memo was issued to the respondent The respondent sought to challenge the said order and the memo before Maharashtra Administrative Tribunal by the Original Application No. 108 1995 which came to be allowed by the impugned order quashing the said and Memo dated 30th November, 1994. Hence the present petition. 4. It is to be noted that the respondent retired on attaining the age superannuation on 30th November, 1994. 5. The learned AGP appearing for the petitioners, while assailing impugned order, submitted that the Tribunal merely on the basis of a circular dated 20th January, 1988 which requires the concerned authority to attend refund claim promptly, by misconstruing the said circular, erred in quashing order dated 30th November, 1994 along with the Memo issued against respondent. He further submitted that the order apparently discloses that preliminary inquiry revealed failure on the part of the respondent to perform duties diligently resulting in losses of Rs. 95,57,681/- to the public exchequer a that therefore it was a clear case for necessary departmental inquiry to assert and fix the responsibility, if any, of the respondent in relation to the said 10 The Tribunal having totally ignored the same and having proceeded to quash said order solely on the basis of misconstruction of the circular has clearly act illegally, and therefore, the impugned order needs to be quashed and set aside. 6. 6. The learned advocate appearing for the respondent, on the other ha submitted that the respondent was merely a signing authority and verificafication regarding refund claim was required to be done by the subordinate officer, a based on such verification the respondent was required merely to affix signature to the report submitted to him in relation to the refund claim and that apparent from the circular dated 20th January, 1988 on which the Tribunal placed reliance while quashing the order of 30th November, 1994. respondent having duly complied with the directions given under the said circum cannot be said to have failed in performance of his duties or being not diligent performance of his duties, nor he can be held to be responsible for any I alleged to have been suffered on account of the said refund orders. In case of 1 in that regard, nothing prevents the Government from challenging the loss filing proper appeals against the orders or taking appropriate steps in that regard but that cannot be a justification to contend that the respondent had failed performance of his duties. 7. Section 20 of the Bombay Sales Tax Act, 1959 deals with the authority under the said Act. Sub-section (1) thereof provides that the State Government shall appoint an officer to be called the Commissioner of Sales Tax. Under section (2), the State Government may appoint Additional Commissioner Sales Tax and such number of Deputy Commissioners, Senior Assistant Commissioner, Assistant Commissioners, Sales Tax Officers, and other official and persons, and give them such designations, if any, as that Government think necessary. Sub-section (3) of the section 20 of the said Act provides t the Commissioner shall have jurisdiction over the whole of the State Maharashtra and an Additional Commissioner of Sales Tax, if any be appoint shall have jurisdiction over the whole of the State, or where the S Government so directs, over any local area thereof, and all other officers shall have jurisdiction over such local areas as the State Government may specify. The Section (4) provides that the Commissioner shall have and exercise all the . The Section (4) provides that the Commissioner shall have and exercise all the . and perform all duties, conferred or imposed on the Commissioner by or the said Act, and an Additional Commissioner, if any be appointed, shall, otherwise directed by the State Government, have and exercise within his jurisdiction all the powers and perform all the duties, conferred or imposed on the Commissioner by or under the said Act. 8. Section 43 of the said Act deals with the subject of refund of excess under the said Act. Sub-section (1) thereof provides that subject to the provisions and the rules made there under, the Commissioner shall refund to the amount of tax, penalty and interest, if any, paid by such person in of the amount due from him. The refund may be either by cash payment option of the person by deduction of such excess from the amount of tax ,penalty and interest due in respect of any other period, provided that the Commissioner shall first apply such excess towards the recovery of any amount respect of which notice under sub-section (4) of section 38 has been issued all then refund the balance, if any. Sub-section (2) thereof provides that any refund is due to any dealer according to the return furnished by him for period, such refund may provisionally be adjusted by him against the tax due payable as per the returns furnished under section 32 for any period, , ed that the amount of tax, penalty or interest or of all of them due from and by, the dealer on the date of such adjustment shall first be deducted from refund before making adjustment. 9. Section 74 of the said Act empowers the Government to frame rules to out the purposes of the said Act and accordingly the Government has the Bombay Sales Tax Rules, 1959. 10. Rule 48 of the said Rules provides that when the Commissioner is ed that a refund is due, he shall record an order showing the amount of d due and shall communicate the same to the dealer. Rule 49 deals with the according to revised return, and the Rule 50 provides that when an order fund has been made under Rule 48 or 49, the Commissioner shall if the ant desires payment in cash issued to him a refund payment order in Form in Form 34A. Rule 49 deals with the according to revised return, and the Rule 50 provides that when an order fund has been made under Rule 48 or 49, the Commissioner shall if the ant desires payment in cash issued to him a refund payment order in Form in Form 34A. Rule 52A makes provision for sanctioning interest on the refunds and it provides that whereupon an application by any person claiming interest on any delayed refund or otherwise the Commissioner is led that such interest is due and payable to the applicant or any person under n 44A, the Commissioner shall record an order specifying therein the of refund the payment of which was delayed, the period of delay for interest is payable and the amount of interest payable by the State government there for, and shall communicate the same to the applicant or person med. 11. The provisions of the said Act and the Rules referred above, therefore, evidently disclose that the powers of the Commissioner under section 43 can also exercised by the Deputy Commissioner in relation to the area of his jurisdiction. This position in law is not in dispute. 12. Section 43 of the said Act nowhere discloses that the Commissioner or duty Commissioner to be a mere postman or a courier of the report of refund prepared either by the Sales Tax Officer or an officer subordinate to Commissioner or Deputy Commissioner, to carry the same to the dealer or the refund claimant. On the contrary, the provisions clearly impose an obligation on such authority to ensure that the dealer or the refund claimant is entitled for refund and whatever proposal is prepared by a subordinate officer regarding refund is in accordance with the provisions of law and as per the entitlement of the dealer or the refund claimant in relation to the refund. This is further clarified by the rules and in particular the Rule 48 of the said Rules which clearly says that the authority must be satisfied that a refund is due. In other words. no refund order can be issued unless the refund is really due and payable to the claimant The concerned officer, therefore, cannot act mechanically and with application of mind to sanction the refund solely on the basis of the republic submitted by the subordinate officers. In other words. no refund order can be issued unless the refund is really due and payable to the claimant The concerned officer, therefore, cannot act mechanically and with application of mind to sanction the refund solely on the basis of the republic submitted by the subordinate officers. Undoubtedly, it is primarily for sue officer to verify that the claimants claim for refund and to ascertain whether h is factually and legally entitled for refund or not, and to what extent the refund j to be approved. Any failure in that regard by the concerned officer would amount to failure in performance of the obligation and duty cast upon such officer und section 43 of the said Act read with the Rule 48 of the said Rules. Plain reading of the order of the Tribunal nowhere discloses any application of mind to this most important aspect of the matter, more particularly when the Tribunal was dealing with a matter where the authority had issued such order prima fad disclosing the failure on the part of the concerned officers to perform his duty enumerated under the statutory provisions and that too in relation to the public money. Obviously, therefore, the petitioners are justified in contending not only about the failure on the part of the Tribunal to apply its mind while deciding matter but also illegality of the impugned order. It appears that the Tribunal disposed of the matter too casually without dealing with the issue which w required to be addressed and the same clearly justifies interference in impugned order in writ jurisdiction. 13. The order dated 30th November, 1994 which was followed by Memo to the respondent apparently discloses that the refund orders were issue by the respondent in his capacity as Deputy Commissioner of Sales Tax with due diligent and in utmost hurry resulting in loss of Rs. 95,57,681/- to the public exchequer. The order also discloses that the refund orders were issued on t proposals submitted by only one Sales Tax Officer viz. Shri M. V. More. It is in dispute that there were disciplinary proceedings against the said officer and is a matter of record. It is also a matter of record that such discipline proceedings were initiated in relation to the very orders and the amount disclose in the impugned order. Shri M. V. More. It is in dispute that there were disciplinary proceedings against the said officer and is a matter of record. It is also a matter of record that such discipline proceedings were initiated in relation to the very orders and the amount disclose in the impugned order. Totally ignoring this aspect, the Tribunal proceeded give a clean chit to the respondent by merely referring to a circular dated 2 January, 1988. The learned advocate for the respondent has also placed heavy reliance on the said circular to justify the impugned order. Attention was drawn to the following paragraph from the said circular. The same reads thus :- "Care is to be taken that there is no undue delay in issue of ref payment orders and advice notes to the bankers. For this purpose, it necessary that immediately after the assessment order is passed, A. O. and demand notice have been dispatched to the dealer, assessing officer will send the proposal for refund to the next higher authority. The next higher authority will not have time for verifying whether the amount of refund worked out by the Assessing Officer is correct or not and will depend on the recommendations of the Assessing Officer in this regard. Therefore, the responsibility for deciding the quantum of R.P.O. will continue to be with the assessing officer himself and he will not be able to transfer this responsibility merely because the R.P.O. is being issued by some higher authority." 14. At the outset, it is to be noted that no circular or executive fiat can over- statutory provisions. Any circular or executive fiat has to be read along he statutory provision and any provision in any such circular or executive contrary to the statutory provision cannot have enforceability and no right claimed by anyone based on such circular or executive fiat contrary to the statutory provision. 15. In any case, above quoted paragraph from the said circular dated 20th , 1988 nowhere discloses any provision contrary to the statutory liability imposed upon the Commissioner and Deputy Commissioner under section 43 of aid Act read with Rule 48 of the said Rules. The provision in the said circular merely contemplates that in addition to the responsibility of the Commissioner and Deputy Commissioner under the said statutory provision, it also be the responsibility of the subordinate officers preparing proposals fund. The provision in the said circular merely contemplates that in addition to the responsibility of the Commissioner and Deputy Commissioner under the said statutory provision, it also be the responsibility of the subordinate officers preparing proposals fund. In case of any proposal prepared by the subordinate officer, if it ins mistake, it would be responsibility of the said officer also. The said circular nowhere provides and cannot provide that it will relieve the higher authority from its responsibility as provided under section 43 of the said Act and Rule 48 of the said Rules. The provision under the said circular nowhere provides nor it can provide that the authority exercising powers under section 43 said Act and the Rule 48 of the said Rules can mechanically issue refund s without ascertaining whether the refund is really due or not. Being so, the circular nowhere assists the respondent to contend that the authorities had no to issue the order dated 30th November, 1994 or to initiate departmental endings against the respondent. Without considering this aspect, the Ttibunal, mechanically referring to the said circular, held the order dated 30th November, 1994 to be bad-in-law and set aside the order and the Memo issued to respondent, in an arbitrary manner. 16. The contention on behalf of the respondent that the circular required expeditious disposal of the refund claims and the same are to be disposed of without "undue delay", and therefore, they must be disposed of on the very day the proposal was submitted by the authority is totally devoid of substance. It be disputed that the refund claims are to be disposed of as expeditiously as possible and without unnecessarily delay. But that does not mean that the refund are to be issued mechanically and without ascertaining whether the claim is genuine or not and without ascertaining whether the amount is really due for being refunded or not. A proper balance has to be struck by the concerned authority in regard. While there should not be undue delay, at the same time, there should be unwarranted haste in disposal of such claims, and the authorities shall always have to act diligently with the public money as any mistake in that regard would amount to unwarranted burden on the public exchequer. Atmost care has necessarily to be taken by the concerned authority while dealing with the claim for refund. Atmost care has necessarily to be taken by the concerned authority while dealing with the claim for refund. Being so, merely because the circular says that there should not be undue delay, that does not mean that the authorities should act hastily. The expression used in the circular is that there should not be "undue delay". The prefix that undue to the term "delay" clearly discloses the intention of the framers of circular that the officers have to act diligently, and to act diligently does not me acting hastily. It has to be necessarily with care, caution and diligence. 17. In the facts and circumstances of the case narrated above, therefore, is apparent that there was no justification for the Tribunal to interfere in the order dated 30th November, 1994 and the Memo issued to the respondent nor it could have quashed the departmental proceedings against the respondent. 18. The order dated 30th November, 1994, as already stated above, prime facie discloses failure on the part of the respondent to perform his duties enumerated under section 43 of the said Act read with the Rule 48 of the Rules resulting in losses of Rs. 95,57,681/- to the public exchequer, a therefore, the petitioners were justified in initiating departmental proceed in against the respondent. 19. Needless to say that since the respondent had retired on attaining t age of superannuation on 30th November, 1994, the proceedings against t respondent could be now proceeded in terms of the Rule 27(2)(a) of Maharashtra Civil Services (Pension) Rules, 1982. The Rule 27(2)(a) there clearly provides that the departmental proceedings referred to in sub-rule (1), instituted while the Government servant was in service whether before retirement or during his re-employment, shall, after the final retirement of t Government servant, be deemed to be proceedings under this rule and shall continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service. It is also in dispute that during the pendency of the Original Application No. 108 of 19 the departmental proceedings were stayed, and ultimately, they were quashed an order dated 18th June, 1999. The proceedings in the said original application were initiated immediately after the issuance of the order dated 30th November 1994. It is also in dispute that during the pendency of the Original Application No. 108 of 19 the departmental proceedings were stayed, and ultimately, they were quashed an order dated 18th June, 1999. The proceedings in the said original application were initiated immediately after the issuance of the order dated 30th November 1994. Being so, the respondent is entitled for exemption of the said period continuation of the due proceedings against the respondent in terms of the R 27(2)(a) of the said Maharashtra Civil Services (Pension) Rules, 1982. As matter relates to the period from 1989 to 1993 and the respondent having already ,a retired and the amount involved is Rs. 95,57,681/-, the petitioners are expected proceed with the proceedings and to take appropriate decision in accordance with the provisions of law as expeditiously as possible. 20. For the reasons stated above, therefore, the impugned order cannot sustained and is liable to be quashed and set aside and the order dated 3 November, 1994 against the respondent is to be restored along with the Me which would entitle the petitioners to proceed with the necessary department inquiry bearing in mind the observations made hereinabove. 21. In the result, the petition is allowed with costs of Rs. 2,000/- by respondent to the petitioners. The rule is made absolute in above terms. Petition allowed