Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No 17874 of 2009 ====================================================== 1. Baijnath Lal S/O Late Kishun Lal R/O Mohalla- Satpura, Near Janki Mandir Temple, P.O. Ramna, P.S. Kazi Mohammadpur, Distt.- Muzaffarpur Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Principal Secretary, Building Construction Deptt., Govt. Of Bihar, Patna 3. The Additional Secretary, Personal Claim Cell, Building Construction Deptt., Govt. Of Bihar, Patna 4. The Chief Engineer, Building Construction Deptt., Govt. Of Bihar, Patna 5. The Superintending Engineer, Building Construction Deptt., Building Circle, Muzaffarpur 6. The Executive Engineer, Building Construction Deptt., Building Division, Hajipur, Distt.- Vaishali 7. The Executive Engineer, Building Construction Deptt., Building Division, Muzaffarpur 8. The Accountant General, Bihar, Patna 9. The Principal Secretary, Road Construction Department, Government of Bihar, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr V K Singh, Advocate For the S t a t e : Mr Sunil Kumar Ravi, AC to AAG III For the A G : Mr Kumar Priya Ranjan, Advocate ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 15 07-03-2013 Petitioner was working as Junior Engineer. In early 2001, he was promoted as Assistant Engineer. The concerned Executive Engineer immediately directed him to hand over charge of various godowns which was in his charge as Junior Engineer. The fact of the matter is that petitioner, inspite of being promoted, did not hnd over charge of the godowns. He then
Legal Reasoning
Patna High Court CWJC No.17874 of 2009 (15) dt.07-03-2013 superannuated on 31st of May, 2002. He did not hand over charge 2 of the godowns which is in his charge as Junior Engineer though he retired as Assistant Engineer. Various correspondences to and fro show that various orders were issued to hand over charge but allegedly people refused to accept charge and these correspondences continued for a decade. In between, it seems that the Executive Engineer issued the last pay certificate with an endorsement that petitioner has not handed over charge of the godowns. The result is that as it is not a clean last pay certificate, the retiral dues of the petitioner are held up. Ultimately, after almost a decade, charge was handed over. At that time, an inventory was prepared and various shortages were found. Shortages were in respect of cement, iron and steel rods, sheets etc, the value thereof was calculated and a demand was raised against the petitioner for those unaccounted shortages amounting to about Rs 11 lacs. Petitioner, by way of interlocutory application, has challenged the said order of recovery from his pensionary dues.
Legal Reasoning
Learned counsel for the petitioner relies on the case of Vindeshwari Mishra –Versus- Bihar State Road Transport Corporation & Others since reported in 1995 (1) PLJR 369 for the proposition that the retiral dues cannot be Patna High Court CWJC No.17874 of 2009 (15) dt.07-03-2013 restricted or withheld without there being a departmental 3 proceeding in that regard. He then relies on a judgment of this Court in the case of Ram Vilas Mishra –Versus- State of Bihar & Others since reported in 1993 (1) PLJR 437 for the proposition that no part of pension can be withheld without following the provisions as contemplated under Rule 43 (b) of the Bihar Pension Rules. Petitioner also submits that the value recoverable from him has been calculated on basis of current value stocks and not its purchase value as contemplated in terms of Rule 131 of Public Works Account Code. Having considered the matter, in my view, there is serious controversy in relation to the bona fides with regard to handing over of charge. I regret we have a letter from the Executive Engineer issued immediately after petitioner’s promotion more than a year prior to his superannuation directing him to hand over charge as a consequence of his promotion. Only reply petitioner has given is that as this letter is addressed to the Junior Engineer whereas he has then become Assistant Engineer, the letter was not served on him. On the face of it, it is absurd for petitioner remained in that office and that letter could not have missed him. When petitioner was to superannuate, which date was no secret, he should have asked the authority to appoint Patna High Court CWJC No.17874 of 2009 (15) dt.07-03-2013 someone to take charge. He did not. In fact, he should have 4 handed over charge the day he was promoted from Junior Engineer to Assistant Engineer. He made no efforts at that time to hand over charge. Even after superannuation, he maintains that people were not ready to take charge whereas those people have reported to the authorities that they were never approached. These are matters of serious controversy which this Court is inapt to decide in this summary jurisdiction. The fact remains that as petitioner had failed to hand over charge, the last pay certificate cannot be issued without such an endorsement, whatever may be the consequence. In such a situation whatever be the consequences, authorities were within their right not to issue a clean last pay certificate. It was for petitioner to look to the consequences. If the consequences were that his pensionary benefits could not be paid till he got a clean last pay certificate, it was for him to take action in that regard. Reliance placed on the two judgments, as noted above, is misconceived inasmuch as no deduction is being sought to be made. The calculation of his pensionary benefits is being postponed till he clears the accounts. A person cannot say that I will not clear the accounts and yet my pensionary benefits should be paid. It is not one way traffic. Patna High Court CWJC No.17874 of 2009 (15) dt.07-03-2013 However, after almost a decade, petitioner agreed to hand over the 5 charge of the godowns. He does not dispute the correctness of the inventory as prepared and, thus, does not dispute the shortages. He states that these shortages are because of either destruction in weather or having been removed in his long absence of 10 years. Again, this Court is inapt to decide these issues in these proceedings. Whose fault was it is not the question to be decided because once certain properties were in charge of the petitioner and shortages were found when petitioner handed over the charge, it is for the petitioner to satisfy the authority. Thus, I am not inclined to interfere so far as the quantitative shortages are concerned. The last issue, as raised by the petitioner, does require consideration. Petitioner states that in terms of Rule 131 of the Public Works Account Code, the valuation that can be charged is to be based upon the purchase price and not the current market price. This is a matter which has to be considered by the concerned Superintending Engineer who has issued the demand notice, as contained in Annexure-14 to the IA. If he finds that the valuation had been made on basis of current value and not the purchase value, he would immediately, within one month of production of a copy of this order, order for necessary correction Patna High Court CWJC No.17874 of 2009 (15) dt.07-03-2013 in valuation and, accordingly, issue a demand for the shortage. 6 The petitioner would have then an option either to pay the demand or give an undertaking that it should be adjusted from his pensionary dues. Upon this process being completed, petitioner’s complete pensionary dues would then be calculated and paid alongwith arrears of pay and other allowances, if any within a period of three months thereof. With this observation, the writ petition is disosed of. M.E.H./- (Navaniti Prasad Singh)