Mridula Mishra, J.:— This application has been filled by the petitioner for a direction to the respondent to make payment of all retiral dues like pension, gratuity, leave encashment, group insurance and GPF amount with statutory as well as penal interest and also for commutation of 40% pension without appearing before the medical board.
2. The petitioner superannuated from service as Assistant Engineer on 31.1.1998 from Building Division, Deoghar, under the Building Construction Department, Bihar.
3. While in service he was granted first time bound promotion with effect from 1.4.1981, second time bound promotion with effect from 25.5.1989, senior selection grade with effect from 1.3.1989, super time scale of Junior Engineer with effect from 26.3.1994 and super time scale with effect from 1.4.1990 He was promoted as Assistant Engineer in Bihar Engineering Service Class-II with effect from 18.7.1995 but subsequently on the direction of the High Court in a writ application his date of promotion was shifted back from 18.7.1995 to 1.4.1992 The petitioner after his superannuation submitted his application for payment of pension and gratuity as well as for withdrawal of his GPF and other retiral dues. At the time of his retirement no proceeding or judicial proceeding was pending against him. Even then he has not been paid any of his retiral dues.
4. A counter-affidavit has been filed by respondent No. 11, Dy. Secretary, Finance (Personal Claim Cell) Department, Bihar, Patna wherein it has been stated that the petitioner was given promotion to the post of Assistant Engineer with effect from 1.4.1992 and thereafter, the service of the petitioner was placed with the Building construction Department by the Road Construction Department vide their notification No. 7781 dated 30.12.1995 The petitioner retired from his service while he was posted at Deoghar. During his service period neither the petitioner nor the Road Construction Department requested the personal claims fixation cell of the Finance Department for fixation of his salary in the promotional scale. He never sent his service book and last pay certificate in order to fix his pay with effect from 1.4.1992 i.e the date of promotion to the post of Assistant Engineer. The petitioner continued to draw his salary in the pay scale of Junior Engineer even after his promotion to the post of Assistant Engineer. For the first time on 4.5.2001 a letter. was issued to the Executive Engineer, N.H Motihari Division, to send the service book and last pay certificate of the petitioner. The Secretary, Raod Construction Department, was also requested to send (1) up-to-date service book of thepetitioner with all the entries including leave encashment (2) posting of the petitioner at different places (3) charge report (4) other informations. When the informations were sent it was found that the petitioner when promoted from the post of Junior Engineer to Assistant Engineer, he proceeded to join the new assignment at Deoghar without handing over charge and material work of several lacs, given to the petitioner for completion of work. The amount was recoverable from the petitioner and for which he was requested earlier vide letter No. 202 dated .14.6.1996 but he did not give any response to this request. The petitioner was directed by the Executive Engineer, N.H Division Motihari, to hand over charge but he did not hand over charge. On receiving such information the Executive Engineer, N.H Division, Motihari, was instructed to furnish detailed report for initiating a proceeding under Rule 43-B of the Bihar.Pension against the petitioner. Even after discovering all these materials the petitioner has been sanctioned provisional pension and gratuity to the extent of 90% on 27.9.2001
5. The petitioner has filed IA No. 4683 of 2004 in which it has been stated that during the pendency of the writ application memo No. 331 dated 20.3.2004 has been issued by the respondent by which the amount of leave encashment for 240 days has been sanctioned amounting to Rs. 97,440/-, but the whole amount of leave encashment has been recovered/adjusted without any legal justification. No enquiry has been held against the petitioner and without any authority of law and without assigning any reason/opportunity to the petitioner, in gross violation of principle of natural justice entire leave encashment amount has been adjusted. The said amount has been recovered as per letter of Deputy Secretary, RCD to the Executive Engineer, Building Division. Vide another letter No. 927 dated 3.9.2004 amount of arrears of salary of the petitioner from 4/92 to 1/98 amounting to Rs. 2,56,650/- has been sanctioned but out of the aforesaid amount Rs. 1,50,151/- was ordered to be recovered and the petitioner has been asked to receive the remaining amount of Rs. 1,06,499/- from the Divisional office within one week. The amount of Rs. 1,51,151/- was illegally recovered from the salary of the petitioner without holding any enquiry and without authority of law in gross violation of principle of natural justice. It has been submitted by the petitioner that recently a Bench of this Court in CWJC No. 4041 of 2001, Parasnath Gupta v. State of Bihar, has held that. “In case any action is proposed to be taken against a Government employee either during his service tenure or after his retirement, the rule of law and the principles of natural justice are required to be followed.” The petitioner's case is fully covered by this decision as neither a proceeding under Rule 55 of Civil Services (Classification, Control and Appeal) Rules nor a proceeding under Rule 43-B of Bihar Pension Rules’, was initiated against the petitioner with regard to defalcation of any amount. The order of recovery has been passed without initiating any departmental proceeding simply on the basis of a letter sent by respondent No. 7. The amount which is payable to the petitioner has been recovered from the pensionary benefits of the petitioner in a most illegal and arbitrary manner.
6. I find substance in the argument advanced on behalf of the petitioner. If the respondents were of the view that the petitioner has defalcated any amount, in such case it was desirable that either departmental proceeding or after his retirement and a proceeding under Rule 43-B of the Bihar Pension Rules should have been initiated.against the petitioner only after his guilt would have been proved any punishment could have been awarded. The respondent could have recovered the amount from the petitioner only after observing rule of law andnatural justice. The rules authorise the Government for initiating proceeding under Rule 43-B of the Bihar Pension Rule subject to the condition that the misconduct alleged should not relate to a period of more than 4 years from the date on which such proceeding is initiated. In the present case the orders contained in Annexure-12 series have been passed in violation of principles of natural justice. As such, the orders contained in Annexures-12 series are hereby quashed. The respondents are directed to make payment of leave encashment as well as arrears of salary amounting to Rs. 2,47,591/- to the petitioner. If other dues are there, that should also be paid to the petitioner within one month from the date of communication/production of a copy of this order.
7. With this observation/direction this application is disposed of.
8. Order accordingly.
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