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2012 DIGILAW 330 (PAT)

Malti Devi v. State of Bihar

2012-02-24

V.N.SINHA

body2012
ORDER : Heard learned counsel for the petitioner and the State. Also perused the ORDER :passed by the Principal Secretary, Panchayati Raj Department, bearing Memo No. 715 dated 1.2.2012, Annexure-C to the counter affidavit filed on behalf of Respondent no.1. 2. Petitioner is the widow of Late Ram Kishun Prasad, who at the relevant time served as Panchayat Sewak in Ghoraiya Block within Banka district. She has filed this writ petition questioning the validity of the ORDER :dated 28.8.2003/ 28.12.2003 passed by the District Panchayati Raj Officer / District Magistrate, Banka communicated to the petitioner under Memo No. 639 dated 15.1.2004, Annexure-1 whereunder the proceeding initiated against her late husband for not executing the civil works as per the agreement and for failure to account for advance under Memo No. 641/E dated 13.5.1993 has been concluded as infructuous with further direction that her husband shall be paid only subsistence allowance during the period between 13.5.1993 the date of suspension – 28.4.2003, the date of death as also to recover the amount of advance from his terminal dues. Aforesaid ORDER :is being challenged on the ground that the departmental proceeding and the criminal case bearing Dhoraiya P.S. Case No. 105 of 1992 and one another G.R. Case No. 1022 of 1993 registered for misappropriation of the amount advanced were not taken to its logical conclusion and remained pending until the death of her husband on 28.4.2003 few months prior to his date of superannuation i.e. 31.7.2003 and according to the petitioner she is entitled for full salary of her husband during the period of suspension, as he was never held guilty in the departmental, criminal proceeding. 3. 3. It is submitted on behalf of the petitioner that after the copy of the writ petition was served on the office of the Advocate General on 9.2.2007, the same was transmitted to the Panchayati Raj Directorate for furnishing instructions in the matter whereafter short counter affidavit was affirmed on 30.3.2007 by the Monitoring Officer, Panchayati Raj Directorate, Bihar, Patna annexing the instructions of the Directorate contained in letter No. 769 dated 28.2.2007 addressed to the District Magistrate, Banka asking the District Magistrate to first make payment of the admissible dues of the husband of the petitioner to the petitioner and thereafter to file further counter affidavit in the matter stating that admitted terminal dues of her husband has been released in favour of the petitioner and she is also getting her regular family pension. Despite such direction of the Directorate contained in letter No. 769 dated 28.2.2007, admitted dues of the petitioner was not paid till 17.11.2011 the date when matter was first taken up by this Court. In appreciation of the fact that petitioner was not even paid admitted terminal dues of her late husband, this Court under ORDER :s dated 17.11.2011 directed for appearance of the District Magistrate, Banka and the Monitoring Officer, Panchayati Raj Directorate, who was the author of letter No. 769 dated 28.2.2007. On 18.11.2011 Deputy Secretary, Panchayat Raj & District Panchayat Raj Officer, Banka appeared before this Court as District Magistrate was advised by the doctor of Banka surgency under Memo No. 9476 dated 17.11.2011 not to travel to Patna. Deputy Secretary informed the Court that Monitoring Officer, who issued letter dated 28.2.2007 and his successor(s) have since been transferred the Monitoring Officer(s) and the concerned District Magistrates can explain as to why terminal dues of the husband of the petitioner has not been paid so far. In view of the statement made by the Deputy Secretary, this Court directed the Monitoring Officer, who had written letter dated 28.2.2007 as also his successors including the present District Magistrate, Banka and his predecessors from 28.2.2007 to appear before this Court on 28.11.2011 to explain as to why the instructions of the Directorate contained in letter dated 28.2.2007 was not complied with. On 28.11.2011, the three Monitoring Officers, the present District Magistrate, Banka and his predecessors from 28.2.2007 appeared before this Court but could not explain with clarity as to who amongst them was responsible for not making payment of the terminal dues including subsistence allowance payable to the late husband of the petitioner in the light of the ORDER :dated 15.1.2004, Annexure-1 and instructions of the Directorate contained in letter dated 28.2.2007. This Court on account of failure of the officers to comply and explain the delay in compliance directed the officers present to file separate affidavits explaining their conduct within two weeks. The officers present before this Court on 28.11.2011 filed their affidavits within two weeks the time granted by this Court but this Court was informed on 13.12.2011 that State has preferred L.P.A. No. 1907 of 2011 against the ORDER :dated 28.11.2011. In appreciation of the pendency of L.P.A., this Court under ORDER :s dated 14.12.2011 directed the writ petition to be heard after disposal of L.P.A. No. 1907 of 2011 filed against the ORDER :dated 28.11.2011. L.P.A. No. 1907 of 2011 was disposed of under ORDER :s dated 15.12.2011 taking note of the submission of the learned counsel for the State that challenge to the impugned ORDER :is to the extent that all the officers who were summoned before the Court under ORDER :dated 17.11.2011 ( some 18 officers) have been called upon to file counter affidavit indicating the action taken by each officer at the relevant time which was not warranted as the officer now Incharge of the office could have filed the counter affidavit and placed materials before the Court. The Division Bench of this Court, however, disposed of the appeal under ORDER :s dated 15.12.2011 as it was informed that all the officers have filed counter affidavit. The Division Bench of this Court, however, disposed of the appeal under ORDER :s dated 15.12.2011 as it was informed that all the officers have filed counter affidavit. After disposal of the L.P.A., matter was taken up by this Court on 23.12.2011 when this Court noticed the fact that before the Division Bench submission was made that under ORDER :s dated 17, 18, 28.11.2011 this Court directed 18 officers of the Department to file affidavit which does not appear to be correct and further observed that under the aforesaid ORDER :s dated 17, 18, 28.11.2011 this Court required M/s Kamal Kumar Sinha, Ram Chandra Prasad and the present Deputy Secretary of the Panchayati Raj Department, the District Magistrate, Banka holding the post on 28.2.2007, his successors till the joining of the present District Magistrate, Banka to file affidavit. Having noted the aforesaid fact under ORDER :dated 23.12.2011, this Court asked the learned counsel for the State, AAG-2 assisted by Standing Counsel No.8 to make submission whereafter it was submitted by the learned counsel for the State that in the light of the ORDER :s dated 18.11.2011 and 28.11.2011 only 8 officers were required to have affirmed the affidavit and he is not aware under what circumstances it was submitted before the Division Bench that 18 officers were asked to affirm affidavit and called upon the Secretary of the Department at whose instance L.P.A. was filed to explain by filing affidavit as to how ORDER :s of the High Court dated 17,18,28.11.2011 was construed to mean that this Court directed 18 officers to affirm the affidavit. This Court under ORDER :s dated 23.12.2011 further noted the fact that from the affidavit of the District Magistrate, Banka, it does not appear that delay in making payment of the arrears of the terminal dues including subsistence allowance of the deceased husband of the petitioner has been explained, accordingly, called upon the Secretary of the Department to enquire into the matter and submit before this Court through affidavit as to who is responsible for delay so that interest allowed to the petitioner may be recovered from the personal pocket of the persons responsible. This Court further directed the Secretary to ensure payment of the rightful dues of the petitioner in the meanwhile. This Court further directed the Secretary to ensure payment of the rightful dues of the petitioner in the meanwhile. In compliance of the said ORDER :, Principal Secretary has passed ORDER :dated 1.2.2012 in which he has not explained as to how the Department concluded that 18 officers were required to affirm affidavit before this Court in compliance of the ORDER :dated 17,18,28.11.2011. The affidavit annexing the ORDER :dated 1.2.2012 attempts to explain the position but such explanation is quite contrary to the contents of the ORDER :s dated 17,18,28.11.2011 passed in the writ case and having appreciated such fact, learned counsel for the State accepted the position on 23.12.2011 that under ORDER :s dated 17,18, 28.11.2011 only 8 officers were required to affirm affidavit explaining non-compliance of the ORDER :dated 15.1.2004, Annexure-1 and 28.2.2007. In view of the facts aforesaid, to me, it appears that during the pendency of the writ petition, L.P.A. was filed against an innocuous interim ORDER :asking the officers to file affidavit explaining non-compliance of their own ORDER :dated 15.1.2004, 28.2.2007 perhaps for the reason that the authorities desired to further delay the payment to the widow- petitioner, which became due even prior to the death of her husband on 28.4.2003 as her deceased husband was intermittently paid subsistence allowance after his suspension under ORDER :dated 13.5.1993. Such conduct on the part of the State to deprive the widow- petitioner of the admitted terminal dues of her late husband is nothing but arbitrary inaction on the part of the authorities for which they must bear at least financial burden by paying interest @ 18% per annum on the amount of subsistence allowance and other terminal dues of her husband at least for the period during which the payment became due but was not actually paid. 4. Husband of the petitioner was placed under suspension and departmentally proceeded under ORDER :s dated 13.5.1993 and was also prosecuted in two criminal cases as it is said that he did not execute civil works as per the agreement and failed to account for the advance given to him for the execution of the civil works for which Dhoraiya P.S. Case No. 105 of 1992 and one another G.R. Case No. 1022 of 1993 was lodged and registered against him. In the criminal case husband of the petitioner was also taken in custody during the period between 17.9.1994 – 17.5.1996. The proceeding was initiated against the husband of the petitioner under ORDER :dated 13.5.1993, in the circumstances, prior to 17.9.1994 and after 17.5.1996, the authorities were always at liberty to proceed against him in the departmental proceeding but the proceedings were not concluded until his death on 28.4.2003. It would thus appear that the proceeding continued for about 10 years but the authorities did not conclude the same because of the inaction on the part of the Enquiry, Controlling and Disciplinary Authority. For the inaction of the authorities to conclude the proceeding during the life time of service holder the dependents of the deceased service holder namely, the petitioner cannot be deprived of the rightful dues of the service holder. Government Pleader, Banka in his opinion dated 25.11.2003 observed that husband of the petitioner shall be entitled only for subsistence allowance during the period of suspension. Such opinion of the Government Pleader has been relied upon by the Principal Secretary of the Department contrary to the statutory rules i.e. Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as the Rules) and the subsequent Rules of 2005 repealing the 1930 Rules. Any punishment under the Rules including punishment of recovery from the salary (non-payment of full salary for the suspension period) can be imposed on the delinquent after recording finding of guilt against him either in the departmental or criminal proceeding. In the instant case, without there being finding of guilt recorded against the husband of the petitioner either in departmental/criminal proceeding, his full salary for the suspension period could not have been withheld contrary to the Service Rules. The Principal Secretary of the Department under ORDER :dated 1.2.2012 passed in compliance of the ORDER :of this Court dated 23.12.2011 without referring to any statutory provision, which enable the State Government to withhold salary beyond the subsistence allowance in absence of finding of misconduct relying on the opinion of the Government Pleader, Banka dated 25.11.2003 approved the ORDER :dated 15.1.2004, Annexure-1 that the husband of the petitioner is entitled for payment of only subsistence allowance for the period of suspension, although no finding of misconduct or guilt was ever recorded against him in departmental/criminal proceeding. Aforesaid ORDER :dated 1.2.2012 is wholly arbitrary and contrary to law, demonstrative of the fact that the Principal Secretary of the Department is either unaware of the statutory rules or is inclined to harass the widow petitioner and to protect those who kept the proceeding pending for about 10 years including the District Panchayat Raj Officer and District Magistrate, Banka who passed ORDER :dated 15.01.2004, Annexure-1 and their successors who did not comply the same to the detriment of the petitioner. Husband of the petitioner was not even paid subsistence allowance regularly as arrears of subsistence allowance of the husband of the petitioner for considerably long period was paid to the petitioner on 24.11.2011, 25.01.2012 after this Court directed for personal appearance of the concerned officers. If the husband of the petitioner was an absconder in the criminal case, the authorities were not precluded from proceeding against him ex parte. The authorities on their own have not chosen to proceed against husband of the petitioner and after his death it is being submitted that he was an absconder. If husband of the petitioner was an absconder in the two criminal cases still the criminal cases could have been taken to its logical end in view of the provisions of the Code of Criminal Procedure, which empower the prosecution to proceed against the absconder. The departmental proceeding in any case was not subject to the rules of evidence and the authorities could have proceeded and concluded the departmental proceeding, but they did not choose to conclude the departmental proceeding. Till the death of the husband of the petitioner, no finding either in the criminal court or in the departmental proceeding was recorded against him and as no finding was recorded against him, he cannot be held guilty either in the departmental proceeding or in the criminal case. If the husband of the petitioner has not been held guilty of misconduct either in the departmental proceeding or in the criminal case, he is entitled for full salary for the period of suspension as suspension without recording any finding of misconduct in the departmental proceeding or of guilt in the criminal case is of no consequence and the Government servant is required to be paid the entire arrears of salary for the suspension period. 5. 5. Accordingly, I set aside the ORDER :dated 28.8.2003/ 28.12.2003 passed by the District Panchayati Raj Officer / District Magistrate, Banka communicated to the petitioner under Memo No. 639 dated 15.1.2004, Annexure-1 and the ORDER :passed by the Principal Secretary of the Panchayati Raj Department dated 1.2.2012, Annexure-C to the counter affidavit filed on behalf of Respondent no.1 and direct the State- respondents to pay the entire arrears of salary of the husband of the petitioner for the period of suspension to the petitioner after deducting the subsistence allowance which has already been paid either earlier or during the pendency of the writ case on 24.11.2011, 25.1.2012. The amount of subsistence allowance and other dues paid during the pendency of the writ case or to be paid in compliance of this ORDER :except the amount of salary beyond subsistence allowance shall be payable with interest @ 18% per annum from the date the payment became due and was paid along with interest @ 18% per annum. The interest paid to the petitioner shall be recovered from the District Magistrate and Panchayati Raj Officer, Banka, who are responsible for delay in payment of the arrears of subsistence allowance including provisional/ final pension. Principal Secretary of the Department is further directed to streamline the affairs in his own Department so that instructions issued from the Department like the one issued under letter No. 769 dated 28.2.2007 is complied with by the authorities without any intervention from the Court. For failure to ensure due compliance of the instruction dated 28.2.2007, the Principal Secretary of the Department shall take appropriate action and if the officers against whom action is warranted are members of the Bihar Administrative Service or any other State Service then appropriate recommendation shall be made to the Principal Secretary of the General Administration Department or other competent authority for taking appropriate action against the defaulting officer. 6. Necessary payment in compliance of the ORDER :of the High Court be made to the petitioner as early as possible, in any case within two months from the date of receipt/ production of a copy of this ORDER :before the Principal Secretary, Panchayati Raj Department and the District Magistrate, Banka. 7. The writ petition is, accordingly, allowed.