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2012 DIGILAW 1607 (JHR)

Madhey Chandra Mandal v. State of Jharkhand

2012-11-06

APARESH KUMAR SINGH

body2012
JUDGMENT 1. This writ petition has been preferred for quashing the order no. 30 dated 31.01.2003 issued by the respondent-Deputy Commissioner, Godda, whereby the petitioner was directed to deposit Rs. 2,93,689 on account of salary and allowances paid to him for the period 1st February, 1999 to 4th October, 1999. 2. According to the respondents, the petitioner deliberately continued in service beyond his date of superannuation i.e. 31st January, 1999. 3. Counsel for the petitioner assails the impugned order on the ground that neither proceedings were initiated against him, nor the amount in question was assessed even after his show cause. It is further submitted that although the petitioner’s date of retirement is 31st January, 1999, but the service book which is alleged to have been tampered was lying with the respondents and the allegation levelled against the petitioner has not been proved in a proper proceeding. It is also submitted that in the circumstances, the petitioner continued in service in the knowledge of the respondents and no notice of retirement was also given to him. Earlier, the impugned order was stayed by order dated 28th June, 2005. 4. The respondents have appeared and filed their counter affidavits and a supplementary counter affidavit has also been filed thereafter. In the first counter affidavit, the respondents have sought to justify the issuance of the impugned order on the ground that the petitioner remained in service in full knowledge of his date of 1st retirement contrary to the Circular dated April, 1991. It is submitted that the impugned order was passed after it was detected that service book had been tampered with and therefore show cause notice was also issued contained in Annexure-F Memo no. 336 dated 1st October, 2002 under the signature of the Deputy Commissioner, Godda. It is further submitted that in the show cause submitted by the petitioner, he has accepted his guilt and therefore the impugned order was passed. However, in the supplementary counter affidavit, it appears that the respondents have subsequently taken a decision on th August, 2005 (Annexure-H) to initiate a proceeding under the provision (A)(1) of Rule 43 B of Bihar/Jharkhand Pension Rule for recovery of the said amount of Rs.2,93,689 against the petitioner on the charges of having tempered with the date of birth in the service book and continued in service after his natural date of retirement. 5. 5. I have heard learned counsel for the parties and gone through the materials on record. 6. It appears that when the matter relating to continuance of the petitioner in service beyond his date of retirement i.e. 31st January, 1999 was detected, a show cause notice was issued on 1st October, 2002 (Annexure-F) by the Deputy Commissioner, Godda. Thereafter, the petitioner replied to the show cause notice on 9th October, 2002. The petitioner continued to discharge his duty till 4th October, 2002. The petitioner admitted in his show cause that his actual date of birth is 1st February, 1941 but denied tampering in the service book, which, according to him, was lying in the custody of the respondent-superior officials of the department. Thereafter the impugned order was passed directing the recovery. However, it appears that subsequent to the impugned order, now respondents have decided to invoke a proceeding under section 43 B of the Bihar/Jharkhand Pension Rule for recovery of the aforesaid amount. From the subsequent stand of the respondents, therefore, it appears that the respondents have thought it proper to initiate a proceeding under Jharkhand Pension Rules before realizing the amount in question from the petitioner, which was earlier sought to be recovered by the impugned order dated 31st January, 2003 without any departmental proceeding, although the petitioner had superannuated by that time. In these circumstances, the impugned order dated 31st January, 2003 does not seem to have any relevance as the respondents themselves have chosen to initiate another proceeding under the provision (A)(1) of Rule 43 B of Bihar/Jharkhand Pension Rule for the charges against the petitioner for having continued in service beyond his actual date of retirement by tampering in the service book. Therefore, the impugned order is not sustainable in the eyes of law and it is, therefore, quashed. However, the respondents will be at liberty to proceed in accordance with law under the relevant rules. However, it is made clear that as the proceedings contemplated under the provision (A)(1) of Rule 43 B of Bihar/Jharkhand Pension Rule are not in challenge of the present writ application, the petitioner will have to liberty, as available under the law, against any future cause of action. 7. With the aforesaid observation, the impugned order is quashed. The writ petition is allowed in the aforesaid terms. 8. 7. With the aforesaid observation, the impugned order is quashed. The writ petition is allowed in the aforesaid terms. 8. After the order has been dictated, counsel for the petitioner submits that the respondents be directed to pay rest of the post retrial benefits. Although the said prayer is not in the writ petition but the petitioner will be at liberty to approach the respondents for the said relief, which shall be considered in accordance with law.