Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15598 of 2006 ====================================================== Bharti Mishra widow of Late Ashok Mishra, presently resident at Village Sarisab-Pahi, P.S. Pandaul, Madhubani .... .... Petitioner/s Versus 1. The State Of Bihar through the District Certificate Officer,Madhubani 2. The Registrar, Civil Court,Madhubani .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Birendra Kant Choudhary Mr. Sanat Kumar Mishra Mr. Shashi Bhushan For the Respondent/s : Mr. (GP-19) ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 10 24-09-2013 The petitioner is the widow of Late Ashok Mishra. She has prayed for issuance of appropriate writ/order for quashing the notice dated 20.11.2006 (Annexure-4) issued by the District Certificate Officer, Madhubani in Certificate Case No. 01 of 2005- 06, whereby the petitioner has been called upon to submit her reply/objection as to why she be not arrested and kept in civil imprisonment for non payment of the certificate amount. The petitioner’s husband Late Ashok Mishra was an employee of the Civil Court, Madhubani and while working as such he died in harness on 10.06.1999. At the time of his death he was working as Nazir/Accountant/Cashier in the Civil Court, 2
Facts
Patna High Court CWJC No.15598 of 2006 (10) dt.17-09-2013 2 / 7 Jhanjharpur under Madhubani judgeship. Few months thereafter an FIR (Annexure-1) being Jhanjharpur P.S. Case No.143 of 2000 was lodged under section 409/34 IPC on the basis of a written report submitted by the learned Sub Judge-I cum Additional Chief Judicial Magistrate, Civil Court, Jhanjharpur, Madhubani in which the deceased husband of the petitioner was made an accused. Several years thereafter a requisition was filed on 24.07.2005 (Annexure-2) by the Registrar Civil Court Madhubani before the Additional Collector-cum- District Certificate Officer, Madhubani to institute a certificate case against the petitioner for recovery of the amount defalcated by her late husband. It was stated therein that between the period December, 1996 to May, 1999 the deceased husband of the petitioner had defalcated the government amount/fund specified therein. The petitioner was not aware of the aforesaid proceeding. She received notice dated 01.12.2006 issued by the District Certificate Officer, Madhubani dated 20.11.2006 in connection with the aforesaid certificate case directing the petitioner to appear in person and reply as to why she be not arrested and sent to jail/civil imprisonment in connection with the execution of the Certificate Case No.01/2005-06. It is further submitted that during the lifetime of the petitioner’s husband no case was registered for recovery of the amount 3 Patna High Court CWJC No.15598 of 2006 (10) dt.17-09-2013 3 / 7 inasmuch as no departmental proceeding was initiated in which the amount said to have been misappropriated/defalcated by her husband was ascertained/established. The petitioner, in such circumstance, has filed the present writ application questioning the sustainability/legality of the said notice (Annexure-4).
Legal Reasoning
Having considered the rival submissions made at the Bar it appears that the husband of the petitioner while in service is said to have committed defalcation of certain amount of the government fund. While he was in serve no departmental action was taken against him. The amount said to have been defalcated by the husband of the petitioner was not fixed/ascertained/quantified in a duly constituted proceeding after affording opportunity of hearing to the deceased employee. The respondents lodged an FIR against the husband of the petitioner nearly one year after his death citing him as an accused who had already died. Learned counsel for the petitioner has relied on Smt. Indu 6 Patna High Court CWJC No.15598 of 2006 (10) dt.17-09-2013 6 / 7 Devi (supra). The aforesaid view of this Court was expressed in a different factual background. The proposition of law propounded therein may not have application in the present case. However, one fact is apparent that the petitioner was not given any opportunity to contest the claim of the respondents. It is the categorical case of the petitioner that she was not served any notice in the proceeding enabling her to contest the claim. The respondents have expressed their inability to dispel the same in view of the intervening circumstance in which the records were partly/entirely damaged/burnt. The respondents may have a case that misappropriation was ascertained based on diverse records/documents but then the petitioner ought to have been given an opportunity to resist the claim by filing objection etc. Nothing has been placed on record by the respondents. It has only been submitted on behalf of the respondents that an appeal can be filed by the petitioner against the impugned notice. It further appears that parts of the retiral dues payable to the petitioner has not been sanctioned and paid probably on account of the misconduct of the employee. In such circumstances, this Court finds that a case for interference has been made out. The application is allowed. Impugned notice dated 7 Patna High Court CWJC No.15598 of 2006 (10) dt.17-09-2013 7 / 7 20.11.2006 (Annexure-4) is quashed and set aside. If the respondents are sanguine about their claim and the liability of the petitioner to pay the same then they are at liberty to proceed in accordance with law. (Kishore Kumar Mandal, J) HR/-
Arguments
Heard Mr. Birendra Kant Choudhary for the petitioner and A.C. to G.P.21 for the State. A counter affidavit has been filed on behalf of respondent no.1. It has been stated by the respondent that the District Certificate Section of the Collectorate was burnt and damaged during arson in Madhubani Collectorate on 12.10.2012. In this incident records of Certificate Case No.01/2005-06 along with notices etc. have been burnt. The certified copy of the requisition was called for from the office of the requisitioning authority. The records were reconstructed. The respondents have supported the issuance of the impugned notice. Since the amount was defalcated by her husband who was dead the petitioner, being the widow of the deceased employee, was made party to the proceeding for recovery of the defalcated amount. The petitioner being the wife/widow of the deceased employee is responsible to pay the amount of defalcation/misappropriation cited in the requisition. 4 Patna High Court CWJC No.15598 of 2006 (10) dt.17-09-2013 4 / 7 Learned counsel for the petitioner has submitted that before taking steps for recovery of the alleged defalcated amount by the deceased husband of the petitioner, no disciplinary action on charge of misappropriate/defalcation of the government money/fund was initiated and a finding of guilt having misappropriated the fund and quantification thereof was recorded. Several months after the death of the husband of the petitioner an FIR (Annexure-1) was lodged citing the deceased husband of the petitioner as an accused. The result of the criminal prosecution has not been brought on record by the respondents. The enquiry, if any, made in this regard by the respondents to fix the responsibility and the quantum of misappropriated amount of the government has also not been placed on record by the respondents. It has thus been submitted that the only course open to the respondents was to recover the amount by filing a civil suit. Unless the amount payable to the government is ascertained and quantified, no such proceeding under the Bihar and Orissa Public Demand Recovery Act, 1914 (for short ‘the Act’) ought to have been instituted. It has next been submitted that the petitioner was not given any information and/or opportunity before deciding the case. Learned counsel has further submitted that part of the retiral dues was not sanctioned to the petitioner considering the 5 Patna High Court CWJC No.15598 of 2006 (10) dt.17-09-2013 5 / 7 fact that the deceased husband of the petitioner had committed misappropriation of the government fund/money. Mr. Choudahry relying on a judgment rendered by a bench of this Court in Smt. Indu Devi vs. State of Bihar & Ors. since reported in 2004(1) PLJR 162 submits that after the death of the government servant recovery of the amount is only permissible by getting a decree of civil court of competent jurisdiction else it would not be possible for the widow of the deceased employee to dispute such recovery on merit for want of proper opportunity.