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2013 DIGILAW 336 (PAT)

Badri Nath Jha v. State Of Bihar

2013-03-12

NAVANITI PRASAD SINGH

body2013
ORAL ORDER Petitioner retired from Government service as Head Clerk in the Directorate General from National Cadet Corps (NCC) Office, Madhubani. He challenges recovery of about Rs 56,000/- from his salary and partly from his retiral dues on the ground that he had not passed Departmental Accounts Examination. 2. On behalf of Directorate of NCC, counter affidavits have been filed. Heard the parties and with their consent, this writ petition is being disposed of at this stage itself. 3. It is not in dispute that vide letter dated 12.07.1966, petitioner was appointed in Government Service in the Department of Art, Culture and Youth Affairs and posted as Lower Division Clerk in NCC Office at Begusarai. It is, thus, clear that petitioner was an employee of the State Government in the Department of Art, Culture and Youth Affairs. He retired as Head Clerk. Just before his retirement, an amount of Rs 15,537/- was deducted and it is not disputed that this amount was deducted as petitioner had not passed the Departmental Accounts Examination. Thereafter, petitioner superannuated on 30.06.2007 whereafter a further sum of Rs 40,525/- was deducted on the same head from his retiral dues. These two deductions are subject matter of challenge in this writ petition. 4. Learned counsel for the petitioner submits that being with NCC, even the Directorate of NCC was not sure whether petitioner was required to take examination or not. He then submits that whatever may be the issue, a show cause had to be issued before these deductions could be made. 5. On the other hand, in view of the counter affidavit, the stand is that there was objection from the Office of the Accountant General and, accordingly, while petitioner was working as the Head Clerk, deductions were made and he did not protest and allowed the deductions. He then superannuated. The balance of deduction was then made which he has now challenged. The challenge is misconceived. 6. Having heard the learned counsel and perusing the counter affidavit, in my view, the writ petition is misconceived. Petitioner does not dispute that he was in State employment. He was in employment under the Department of Art, Culture and Youth Affairs. He was deputed to Directorate of NCC as Accountant. The challenge is misconceived. 6. Having heard the learned counsel and perusing the counter affidavit, in my view, the writ petition is misconceived. Petitioner does not dispute that he was in State employment. He was in employment under the Department of Art, Culture and Youth Affairs. He was deputed to Directorate of NCC as Accountant. In this connection, I may refer to Rule 157 of the Board’s Miscellaneous Rules which makes it obligatory on every staff of the Government at Mufassil or in any Department to pass Departmental Accounts Examination. Inter alia, Rule 157 J provides for the consequences of failure. 7. In view of the fact noted above, it cannot be denied that this Rule clearly applies to the petitioner. It was for the petitioner to be aware of this Rule and clear the examination. State was not required to inform him to sit for the examination or to notice him to take the examination. It was the duty of the employee to comply with the law. Ignorance of law is no excuse. 8. Thus, I have no hesitation in holding that Rule 157 applies to the petitioner and on his own showing, he had failed to clear the examination. Thus, the increment granted to him or the time bound promotion granted to him could not be granted. 9. In this connection, reference may also be made to the judgment of this Court in the case of Daya Shankar Singh –Versus- State of Bihar & Others since decided on 2010 (3) PLJR 220. Thus, in my view, there is no illegality in the deduction. 10. It is next submitted on behalf of petitioner that before making the deduction, notice ought to have been issued to the petitioner. Petitioner is correct. However, petitioner himself was the Head Clerk and in service when the first deduction was made. He did not protest. He allowed the deduction. Thereafter, only after retirement when the balance deduction was made, he has chosen to file the writ petition. Even in course of hearing of this writ petition, he has not been able to establish any valid much less arguable defence. It is well settled that compliance of natural justice is not an absolute rule. He allowed the deduction. Thereafter, only after retirement when the balance deduction was made, he has chosen to file the writ petition. Even in course of hearing of this writ petition, he has not been able to establish any valid much less arguable defence. It is well settled that compliance of natural justice is not an absolute rule. One of the exceptions of compliance of natural justice is that issuance of notice and grant of opportunity would not change the result (see the case of S L Kapoor –Versus- Jagmohan & Others, AIR 1981 Supreme Court 136). Here, issuance of notice could be made no difference inasmuch as even in this writ petition, petitioner is not able to show in any manner that he was exempted from the examination or the consequence of failure therein. As it has been held in several decisions, natural justice is neither a bull in the China shop nor an unruly horse. Its application has to be understood in the facts of each individual case. Petitioner next submits that his pay fixation was done departmentally and with departmental approval. Now, it cannot be said by the Department that it was wrongly done. They are estopped. There was no fraud or misrepresentation by the petitioner. In my view, the question of estoppel does not arise as it is well established rule of law that there is no estoppel against Statute. The statutory liability is there and the petitioner being unable to show that he was exempted in any manner, there was no question of any estoppel. 11. Thus, in my view, the writ petition is misconceived and is dismissed accordingly.