Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1080 (PAT)

Suresh Prasad Singh v. State Of Bihar

2007-07-06

MRIDULA MISHRA

body2007
Judgment 1. Heard counsel for the petitioner and the counsel appearing for the State. 2. Petitioner has retired from the post of Senior Personal Secretary to the Commissioner, Saharsa Division on 31.7.2001. 3. This application has been filed by the petitioner for quashing the notice dated 1.9.2004 issued by the District Certificate Officer, Saharsa in Certificate Misc. Case No. 2 of 2004-05. The certificate proceeding has been initiated for realisation of Rs. 1,63,416/- from the petitioner. From the notice it transpires that the amount for realisation of which certificate proceeding has been initiated is the interest of such amount which were advanced to the petitioner for some official purposes during his service period on different dates. 4. Point of law which has been raised by the petitioner for quashing the notice issued under Section 7 of the Public Demands Recovery Act as well as the entire certificate proceeding is that that the initiation of certificate proceeding is itself without jurisdiction as the amount for realisation of which certificate proceeding has been initiated is not a public demand. Secondly it has been stated that any amount which is advanced to a Government servant for the purpose of miscellaneous official work cannot be treated as advance under Rule 384 of the Bihar Finance Rules and for such amount no interest can be charged. Since the certificate proceeding has been initiated for realisation of interest amount on such advance is illegal, arbitrary and without jurisdiction. 5. Petitioners case is that connection with miscellaneous official work he used to receive advance and submit vouchers relating to its expenditure. Vide memo no. 1502/Nazarat, Saharsa dated 20.10.1987 petitioner was informed that he has taken some advance and has not submitted vouchers relating to its expenditure. The petitioner thereafter wrote a letter to the Commissioner, Saharsa explaining all advances and its expenditure. He also submitted vouchers relating to such expenditures. The dues amounting to Rs. 16053.37 Paise was also deposited by him on 23.10.1987 in Nazarat in cash. Again notice was issued on 30.5.1998 asking to deposit same amount which had already been deposited. Petitioner was asked to deposit Rs. 10280.50 paise within three days. The petitioner replied to this letter and stated that he has already deposited the vouchers of different amount and has returned the residual amount in cash and in spite of this the petitioner is being asked to deposit Rs. Petitioner was asked to deposit Rs. 10280.50 paise within three days. The petitioner replied to this letter and stated that he has already deposited the vouchers of different amount and has returned the residual amount in cash and in spite of this the petitioner is being asked to deposit Rs. 16280.50 by the Commissioner, Kosi Division or otherwise the amount will be deducted from his monthly salary. Left with no alternative for the reasons that the petitioner was going to superannuate he agreed that the amount should be deducted from his salary and this amount was deducted from his salary. After few years of his superannuation the Secretary to the Commissioner, Kosi Division, Saharsa filed a requisition on 27.8.2004 before the District Certificate Officer, Saharsa for recovery of Rs. 1,63,416/- for not depositing Rs. 15980/-. The amount for which requisition was filed for initiating Certificate proceedings the interest calculated of Rs. 15,980/- for same period. 6. Petitioners case is that the initiation of certificate case is an arbitrary exercise of power as there is no provision under the Finance Rules to charge interest upon the advance given to an employee for miscellaneous work during the tenure of his service. The Bihar Financial Rules or the Treasury Code do not provide any such provision. It has also been submitted by the petitioners counsel that the amount for which requisition has been filed is not a public demand under Sec. 3(6) of the Public Demands Recovery Act read with Schedule 1 of the Bihar and Orissa Public Demands Recovery Act as such the notice as well as the entire certificate proceeding is fit to be quashed. 7. Counter affidavit has been filed on behalf of Collector, Saharsa and the District Certificate Officer, Saharsa. In the counter affidavit it has been admitted that the amount for realisation of which requisition was filed for initiating certificate proceeding is the interest amount calculated on amount advanced to the petitioner for miscellaneous work. It has further been submitted that Rule 384 of Bihar Finance Rules provides for charging interest on such amount. Rule 384 of the Bihar Finance Rules, has been relied upon by the respondents for holding that act as just, proper and legal. Rule 384 of Bihar Finance Rules reads as follows: 384. It has further been submitted that Rule 384 of Bihar Finance Rules provides for charging interest on such amount. Rule 384 of the Bihar Finance Rules, has been relied upon by the respondents for holding that act as just, proper and legal. Rule 384 of Bihar Finance Rules reads as follows: 384. Simple interest will be charged on advances granted to Government servants for house building, purchase of motor cars, motorcycles and other conveyances and for purchase of typewriters, or tents and certain circumstances, the payment of special passage advances made in England by the High Commissioner for India and for passage overseas. The rate is fixed from time to time with reference to the borrowing rate of the State Government. The interest will be calculated on balances outstanding on the last day of each month. 8. I find that the Bihar Finance Rule 384 has been misunderstood and wrongly interpreted by the respondents. On account of such interpretation the amount advanced for miscellaneous work interest has been calculated for which vouchers were not deposited by the petitioner in time. Since the calculation of the interest itself is illegal realisation of this amount through certificate proceeding is also illegal and arbitrary. The initiation of certificate proceeding for realisation of such amount is furthermore illegal and arbitrary such certificate proceeding cannot be allowed to continue for the reasons that it is not maintainable. The certificate proceeding is totally without jurisdiction for another reason as the amount for realisation of which proceeding was initiated is not a public demand under sec. 3(6) of P.D.R. Act the proceeding must be quashed. 9. Accordingly the entire proceeding of Certificate Case No. 2 of 2004-05 as well as the notice dated 1.9.2004 issued under Section 7 of the Bihar and Orissa Public Demands Recovery Act is quashed. This application is allowed. 10. It has been submitted by the petitioner that after initiation of certificate proceeding coercive steps was taken against him, the petitioner left with no alternative deposited Rs. 1,63,460/-. This amount should be refunded to the petitioner within two months from the date of production/communication of a copy of this order.