( 1 ) PETITIONER, Smt. Ram Sawari, widow of late D. N. Singh, has approached this Court for issuing a writ in the nature of certiorari for quashing the recovery proceeding initiated by Executive Engineer, Provincial Division, P. W. D. Mahoba against her husband late D. N. Singh and his heirs and legal representatives for recovery of Rs. 11,96,314/- in pursuance of Office Memo/order dated 16. 12. 2004 issued by Superintending Engineer, Banda Circle, P. W. D. Banda. ( 2 ) BRIEF background of the case, as disclosed in the writ petition, is that husband of petitioner had been performing and discharging duties as Junior Engineer in Provincial Works Department (PWD), Mahoba since 03. 03. 1973. He was transferred from Civil Provincial Division, Mahoba to Temporary Division, Etawah and the relieving order was passed by Executive Engineer, PWD on 21. 07. 2000. Subsequent to the same, said transfer order was modified on 17. 08. 2000, and instead of Etawah, late D. N. Singh was transferred to Construction Division, Fatehpur, and on 28. 08. 2000 fresh relieving order was passed by Executive Engineer and late D. N. Singh was asked to hand over his entire charge to Sri Umesh Narain Tripathi, Junior Engineer. On 15. 09. 2000, report was submitted by AE (Pancham) that charge had not been handed over by late D. N. Singh. On 19. 09. 2000 Executive Engineer, PWD, Banda, constituted a committee comprising Sri Saurabh Bairathi and Sri R. A. Dohre directing them to assume charge from late D. N. Singh and submit report within three days. On 24. 10. 2000, late D. N. Singh informed A. E. (Pancham) that he was depositing charge memo along with RMR concerning his old section and further requested that directives be issued to concerned Junior Engineer, Sri A. K. Jain, to receive charge from him, so that necessary verification of the material on spot may be done easily, and handing over of the charge may also be completed easily. On 11. 10. 2000 letter was issued from the office of the AE (Pancham) informing that assumption of charge proceedings would take place on 31. 10. 2000 in presence of the Officers nominated earlier. On 31. 10. 2000 Sri A. R. Dohre was not present on account of illness and late D. N. Singh submitted charge memo through his letter dated 24. 10. 2000 in the office on 30. 10. 10. 2000 in presence of the Officers nominated earlier. On 31. 10. 2000 Sri A. R. Dohre was not present on account of illness and late D. N. Singh submitted charge memo through his letter dated 24. 10. 2000 in the office on 30. 10. 2000, and the same was sent to Sri A. K. Jain, Junior Engineer, for verification, and late D. N. Singh was asked to get physical verification done. Late D. N. Singh on the same day informed the A. E. (Pancham) that Sri A. K. Jain had refused to accept the charge and it was further mentioned by late D. N. Singh that when he himself was willing to hand over charge, then what was the need and necessity for assumption of charge. Request was further made to send some other J. E. to receive charge in case sri A. K. Jain was not in a position to take over charge. On 18. 11. 2000, A. E. (Pancham) wrote letter to late D. N. Singh that he was not cooperating in the matter and further it was also mentioned that Sri A. K. Jain, J. E. had reported that there was difference between RMR attached to the charge memo and stock on the spot and he would be responsible for the difference, if the quantity of the material shown in the RMR and the charge memo on one hand and the stock of material available on spot. On 22. 11. 2000 charge memo was handed over and same was received by Sri A. K. Jain, J. E. On 25. 11. 2000. Similarly, charge was handed over by late D. N. Singh to Sri U. N. Tripathi, J. E. And to Sri Jagat Pal Verma, J. E. on 25. 11. 2000. On 08. 12. 2000, late D. N. Singh submitted RMR in the office of the AE (Pancham) and the same was received in his office on 15. 12. 2000. 11. 2000. Similarly, charge was handed over by late D. N. Singh to Sri U. N. Tripathi, J. E. And to Sri Jagat Pal Verma, J. E. on 25. 11. 2000. On 08. 12. 2000, late D. N. Singh submitted RMR in the office of the AE (Pancham) and the same was received in his office on 15. 12. 2000. It has been contended that late D. N. Singh intimated the Executive Engineer, P. W. D. Mahoba that the charge in respect (1) JM to Richhara Marg, (2) Kashipur -Tyagi Marg, (3) Harpalpur Naugaon to Saura Marg, (4) Jhansi-Mirzapur to Baghrauni Marg and (5) Harpalpur Naugaon to Manki Marg had been handed over to Sri A. K. Jain, J. E. but in respect of Dhasan Mukhya Nahar Marg and JM to Basariya charge was not being taken by Sri A. K. Jain, rather an insistence was made to hand over charge after completion of work, and same was not possible, as late D. N. Singh had already been transferred, and moreover, materials from those sites were being removed without taking over charge. Accordingly, late D. N. Singh had requested to nominate another J. E. to take over charge. Thereafter, on 22. 01. 2001 in respect of (1) Kashipur -Teiya Marg (2) Dhasan Mukhya Nahar Marg (3) Jhansi-Mirzapur Marg to Basariya Marg (4) Mahoba- Ghutai Marg, orders were passed by A. E. (Pancham) to hand over charge to Sri A. K. Jain, J. E. and 07. 02. 2001 was the date fixed for assumption of the charge. Thereafter, on 02. 02. 2001 letter was issued from the office of the Executive Engineer, PWD Mahoba to late D. N. Singh to deposit the measurement book Nos. 329 (L), 330 (L), 335 (L) and 336 (L) and by letter dated 03. 02. 2001, late D. N. Sing was directed to be present on 07. 02. 2001 at the time of assumption of charge. Late D. N. Singh came out with case that said letter was received by him on 07. 02. 2001 itself, as such he could present himself before assumption committee. Thereafter on 28. 08. 2001, Executive Engineer, Provincial Division, PWD, Mahoba, issued a reminder letter to late D. N. Singh to deposit the measurement books as aforesaid. ( 3 ) THEREAFTER, on 08. 12. 02. 2001 itself, as such he could present himself before assumption committee. Thereafter on 28. 08. 2001, Executive Engineer, Provincial Division, PWD, Mahoba, issued a reminder letter to late D. N. Singh to deposit the measurement books as aforesaid. ( 3 ) THEREAFTER, on 08. 12. 2001, late D. N. Singh informed that the letters sent to him were received by him on 07. 02. 2007 in the evening at 4 Oclock, as such he could not be present before the assumption committee. Copies in respect of 4 roads had already been supplied and he was still ready to hand over the charge in respect of all the four roads, although naming of AE and JE in the assumption committee was against the rules; and all the measurement books were already deposited in the office of A. E. (Pancham ). Late D. N. Singh requested to fix other date. ( 4 ) THEREAFTER on 13. 07. 2002, a statement of receipt, issues and balance of Road Metal showing a loss of Rs. 11,96,314, Mahoba Kanth to Ghutai road was submitted by the AE (Pancham); a remark was also made that measurement book No. 335 (L) was not available. Sri R. A. Dohre and Sri Ram Bahadur, Assistant Engineers, requested the Executive Engineer that details of difference be prepared at the level of Executive Engineer himself, but their request was ignored by the Executive Engineer. Thereafter on 17. 07. 2002, Executive Engineer, provincial Division, PWD, Mahoba wrote letter to the Superintending Engineer, Banda Circle, PWD, Banda that proceeding of charge assumption was held by Sri U. N. Tripathi in presence of the committee consisting of Sri R. A. Dohre and Sri Ram Bahadur, Assistant Engineers, and difference had been found by which loss of Rs. 11,96,314/- was caused to the Government, therefore, order for recovery was recommended to be passed against late D. N. Singh, who at that p0oint of time was posted at Construction Division of P. W. D. , Fatehpur. ( 5 ) AFTER letter dated 17. 07. 2002 had been written, as luck would have been, D. N. Singh died. Petitioner requested for the post death benefits, whereupon , Executive Engineer, Construction Division, P. W. D. Fatehpur demanded "no Dues Certificate". On 22. 11. 2002 communication was also made in respect of grant of compassionate appointment. ( 5 ) AFTER letter dated 17. 07. 2002 had been written, as luck would have been, D. N. Singh died. Petitioner requested for the post death benefits, whereupon , Executive Engineer, Construction Division, P. W. D. Fatehpur demanded "no Dues Certificate". On 22. 11. 2002 communication was also made in respect of grant of compassionate appointment. Thereafter, during the finalization of post death benefits and grant of compassionate appointment, it was reflected that recovery matter for an amount of Rs. 11,96,314 was pending, therefore, it was directed that payment of post death benefits would be made only after "no Dues Certificate" was issued. Petitioner was paid interim pension. Thereafter on 06. 12. 2004 recovery order was passed for recovering the amount in question, mentioning therein that same shall be recovered from his dues and in case it was not possible then recovery shall be made through District Magistrate as arrears of land revenue. ( 6 ) COUNTER affidavit has been filed, and therein, it has been contended that deliberately Late D. N. Singh did not get the verification proceedings completed and as he was aware of this fact that details as mentioned in the RMR would not tally with the materials, which were lying on the spot, and in this background, it has been contended that rightful decision has been taken by initiating recovery proceedings, and there was no infirmity in the same. ( 7 ) REJOINDER affidavit has been filed disputing the averments made in the counter affidavit and reiterating the averments made in the writ petition. Supplementary counter affidavit has also been filed on behalf of the State to show that justified and valid action has been taken. ( 8 ) AFTER pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. ( 9 ) THIS Court on 02. 02. 2007 and 12. 02. 2007 had given specific direction for production of record, qua the steps which had been undertaken during the life-time of petitioners husband, but the said record has not been produced. On the matter being taken up today, with the consent of the parties case has been heard and is being decided on the basis of pleadings available on record. 02. 2007 had given specific direction for production of record, qua the steps which had been undertaken during the life-time of petitioners husband, but the said record has not been produced. On the matter being taken up today, with the consent of the parties case has been heard and is being decided on the basis of pleadings available on record. ( 10 ) SRI Yamuna Pandey, Advocate, learned counsel for the petitioner, contended with vehemence that in the present case, once husband of petitioner had died during his continuance in service, and during this life-time at no point of time any proceedings had been undertaken for recovery of the amount in question, then by no stretch of imagination, after his death, said amount can be recovered from his heirs and legal representatives, as such entire recovery proceeding is liable to be quashed. ( 11 ) LEARNED Standing Counsel, on the other hand, contended that recovery has been initiated in respect of loss caused to Government and for such loss the husband of petitioner was responsible, as such rightful decision has been taken to recover the amount in question from the legal heirs of late D. N. Singh. ( 12 ) AFTER respective arguments have been advanced, factual position which emerges is to the effect that while petitioners husband was in service, he died on 29. 08. 2002. The question for determination is as to whether amount in question can be recovered or not from family members of late D. N. Singh after his death for the loss of caused to the Government, for which he was responsible. It is well settled that State Government has executive authority to issue executive instructions regulating the service condition of Government Servant, which are not contrary to any statutory rules. To deal with the situation, as one in hand, State Legislature has not made any law on the subject, nor any Rules have been framed, by the Governor, in this regard by exercising and invoking the power vested under the proviso to Article 309 of the Constitution of India. In the absence of legislative enactment, State Government has issued executive instructions, covering the field. Relevant Executive instruction, which covers the field is Government Order dated 28. 07. 1989, wherein paragraph10 holds the field in this regard. Relevant extract of paragraph 10 of the said Government Order is being quoted below:. . In the absence of legislative enactment, State Government has issued executive instructions, covering the field. Relevant Executive instruction, which covers the field is Government Order dated 28. 07. 1989, wherein paragraph10 holds the field in this regard. Relevant extract of paragraph 10 of the said Government Order is being quoted below:. . (VERNACULAR MATTER OMMITED ). . ( 13 ) A bare perusal of the aforesaid executive instructions would go to show that where an incumbent dies during his continuance in service, therein categorical directives have been issued that, as far as pension amount is concerned, the same shall be immediately released and further the loan which have been taken by the incumbent, such as home loan, vehicle loan or other similar loans, the said amount can be recovered from gratuity amount , and as far as other recovery is concerned, the same is feasible only in the contingency when before death, valid proceedings had been undertaken, or alternatively, he had been issued show cause notice to give his version, and thereafter rest of the amount is to be immediately released. ( 14 ) ON the touchstone of the executive instruction contained in the aforementioned Government Order, record of the present case has been perused. Record in question reveals that petitioner was transferred from Mahoba to Fetehpur, and thereafter dispute was with regard to handing over and taking over of charge. Series of correspondence clearly reflects that in respect of handing over charge, various meetings took place and charge in respect of some of items had been handed over and in respect of some of the items there was dispute. Record in question further reveals that on 17. 07. 2002 two gazetted officers had found difference and they calculated that there was a loss of Rs. 11,96,314/-, and the order dated 17. 07. 2002 further shows that recommendations were made for getting the amount recovered from D. N. Singh. Said order does not reflect in any manner, whatsoever, that the said opinion had been formed after providing opportunity of hearing to late D. N. Singh. Before proceeding to impose and determine the said loss, at no point of time, any opportunity was provided to late D. N. Singh. Said order does not reflect in any manner, whatsoever, that the said opinion had been formed after providing opportunity of hearing to late D. N. Singh. Before proceeding to impose and determine the said loss, at no point of time, any opportunity was provided to late D. N. Singh. Categorical statement of fact has been mentioned in paragraph 44 of the writ petition, that respondents did not give any show cause notice to late D. N. Singh, in respect of alleged Government loss of Rs. 11,96,314/- nor did the respondents give any opportunity to late D. N. Singh to place his defence, for the said loss. Reply to this specific statement, has been given in paragraph 35 of the counter affidavit, wherein it has been contended that various opportunities were given to late D. N. Singh for verification of the material on the spot, but he evaded the said exercise of verification, as he knew very well that there was lot of difference and he also knew the loss caused to the Government. Thus, reply is vague and evasive on this front. Consequently, it is writ apparent that proceedings based on letter/order dated 17. 07. 2002 are exparte proceedings based on the report submitted by two incumbents, that there were short comings. Before proceeding to impose recovery, It was incumbent and obligatory on the authority concerned to have afforded opportunity to late D. N. Singh, so that he could have explained the situation that he was not responsible for the said shortcomings, or alternatively, there was no shortcoming. Once proceeding dated 17. 07. 2002 is exparte, same cannot be said to be proceeding, being carried out in accordance with law. Apart from this, letter dated 16. 12. 2004, reflects that Executive Engineer, in this enquiry report dated 08. 09. 2004, has recommended for recovery of the amount of Rs. 11,96,314/- on account of loss of material from late D. N. Singh. Said proceedings are also admittedly exparte ( 15 ) PARAGRAPH 10 of the Government Order dated 28. 07. 1989 provides that recovery is possible, when valid proceedings had already been undertaken or show cause notice had been issued to the incumbent to put forth his version. Here, in the present case proceedings in the shape of order dated 17. 07. 2002, 08. 09. 2004 and 16. 12. 07. 1989 provides that recovery is possible, when valid proceedings had already been undertaken or show cause notice had been issued to the incumbent to put forth his version. Here, in the present case proceedings in the shape of order dated 17. 07. 2002, 08. 09. 2004 and 16. 12. 2004 are all exparte as at no point of time late D. N. Singh was ever put to show cause before actually fixing the liability of loss. In spite of time being granted original record has not been produced. In the facts and circumstances of the present case, it is apparent that during life time of late D. N. Singh no valid proceeding had been undertaken, and once he is no more, then by no stretch of imagination, directives could have been issued for recovery, as has been sought to be done in the present case. ( 16 ) CONSEQUENTLY, writ petition succeeds and is allowed. The impugned order dated 16. 12. 2004 and consequential order dated 07. 06. 2005 are quashed. Respondents are directed to see that in case any amount is due to late D. N. Singh, the same is paid to petitioner, forthwith. No order as to costs. .