Dr. Madhu Kant Jha v. The State Of Bihar

Patna High Court CWJC No.1957 of 2013 (3) dt.07-03-2013 2 Officer, Office of Accountant General (Accounts & Entitlement), Bihar, Patna to deduct Rs.2,53,477/- (Rupees Two Lakh Fifty Three Thousand Four Hundred and Seventy Seven only) from the leave encashment as also the follow up action of the Senior Accounts Officer contained in authority slip bearing Memo No. G.E.- 6VET.1818 dated 31.10.12 reducing the amount of leave encashment by Rs.2,52,977/- (Rupees two lakh fifty two thousand nine hundred and seventy seven only) as well as in the nature of mandamus commanding the respondents to repay the deducted amount with compound interest computed at the rate of 18% per annum from the due date to the date of actual payment.” Mr. Rajni Kant Jha, learned counsel for the petitioner, while pressing for the aforementioned relief apart from the other aspects has basically concentrated on his plea that before passing of the aforementioned impugned order the petitioner was never given a show cause notice and/or opportunity of hearing and since such order is penal in nature, the same has been held to be in violation of the principles of natural justice. In this regard he has referred to paragraphs 11 and 14 as also 15 of the writ application, which for the sake of convenience is quoted hereinbelow: “11. That no notice was given to the petitioner nor any show cause was asked from the petitioner prior to passing of the order of deduction of Rs. 2,53,477/- from the amount of leave encashment of the petitioner and the Patna High Court CWJC No.1957 of 2013 (3) dt.07-03-2013 3 entire action is contrary to and in contravention of the principles of natural justice.

14. That the respondents have adopted a peculiar procedure. They have first punished the petitioner by deducting the amount of leave encashment and than initiated a departmental proceeding justify deduction.

15. That it is very significant to note that it is only after deduction of the amount from the leave encashment that a departmental proceeding has been initiated against the petitioner and the authorities acted in reverse gear which is not sustainable in law.” Learned counsel for the State, who was earlier given an opportunity to file the counter affidavit by an order dated

31.1.2013 has filed a counter affidavit and the deponent of the counter affidavit very conveniently has not chosen to answer the aforesaid paragraphs of the writ petition. These days a peculiar trend is being adopted by the Counsel for the State that they do not advert to the averments made in respective paragraphs which in turn defeats the very object of filing the counter affidavit. There is a specific assertion of the petitioner in paragraph 11 that he was given no show cause prior to issuance of the impugned order seeking to recover a sum of Rs.2,53,477/- from the retirement benefit of the petitioner and yet there is no answer to this aspect and in fact if paragraph 20 of the counter affidavit is read in Patna High Court CWJC No.1957 of 2013 (3) dt.07-03-2013 4 isolation it may create an impression that actually the petitioner was given a show cause notice prior to issuance of the impugned order seeking to recover the amount of Rs. 2,53,477/- and the petitioner in fact has also availed such opportunity by way of filing his show cause reply. Such statement, however, being not in specific reply to paragraph 11 when this Court had confronted to the learned counsel for the State to produce the document in support of the same he has very fairly submitted that such records were not made available to the learned counsel for the State by the deponent of the counter affidavit. From the above it would be clear that the respondents have deliberately not filed the document in question in support of paragraph 20 of the writ application. In that view of the matter, this Court would find it difficult to sustain the impugned order. By-now it is well settled that a pleading in the writ petition or in the counter affidavit capable of being supported by the document must be enclosed with it. Reference in this connection may be made to the judgment of the Apex Court in the case of Bharat Singh & ors. v. the State of Haryana & ors., reported in AIR 1988 SC 2181. Learned counsel for the State, however, would very fairly point out that actually the departmental proceeding and the show cause notice was issued to the petitioner after the impugned order Patna High Court CWJC No.1957 of 2013 (3) dt.07-03-2013 5 was passed, inasmuch as he has referred to the enquiry report of the Special Secretary cum Conducting Officer dated 11.5.2012. From reading of the aforementioned enquiry report it would be absolutely clear that whereas the impugned order was passed against the petitioner on 30.3.2009 the departmental proceeding itself was initiated some time in the year 2011. The petitioner’s assertion, therefore, in paragraphs 11, 14 and 15, as referred above, is fully established from the enquiry report itself relied by the learned counsel for the State and forming part of the counter affidavit. In such a situation, this Court will have no hesitation in coming to the conclusion that the petitioner was virtually being given a post facto hearing after passing of the impugned order. The concept of post facto hearing by way of compliance of principles of natural justice has been deprecated by the Apex Court in a number of cases, inasmuch as that only reflects predetermined mind of the authority. Normally in fact there is a tendency to uphold the decision and thus the post facto hearing becomes a mere formality. In the present case when the office of the Accountant General in the audit report had already fixed liability against the petitioner and the department had made recovery of the amount by the impugned order without even Patna High Court CWJC No.1957 of 2013 (3) dt.07-03-2013 6 affording him a show cause notice, any subsequent decision to initiate a departmental proceeding for that very allegation in the circumstances has to be held as non-compliance of the principles of natural justice so far it relates to the impugned order. As a result of the aforementioned discussion, this Court will have no difficulty in quashing the impugned order dated 30th March, 2009, as contained in Annexure 1. If the amount of Rs.2,53,477/- has already been recovered from the petitioner the same must be refunded to him within a period of three months from the date of receipt/ production of a copy of this order. The order of punishment which has been passed during the pendency of this writ application being confined only to stoppage of 25% of pension of the petitioner, in view of its being a subsequent cause of action, it will be open for the petitioner to assail the same before the appropriate authority/court accordance with law. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha, J) surendra/-