TAPEN SEN, J. - (1.) IN this writ application, the petitioner has prayed for quashing the order dated 27.3.98 (Annexure -1) issued from the office of the respondent no. 6 directing the recovery of Rs. 68,860.25 p. from four bills covering different amounts towards Gratuity, Group Insurance, leave encashment etc. being in the nature of a recovery of the outstanding advances given for execution of different plans, projects and schemes for the year 1987 -88. The petitioner further prays for issuance of a writ of mandamus commanding the respondents to fix, assess and pay the full and final claims/dues in relation to his retiral benefits such as pension, gratuity, leave encashment, group insurance, G.P.F and also arrears.
(2.) THS short facts which are necessary to be taken note of are that while he was working as a Panchayat Sevak and posted in the Block Development Office, Bano in the district of Gumla, the petitioner was authorized to execute various scheme, namely, Indira Awas etc. and for getting the work completed, the advances were released accordingly. Further case of the petitioner is that he completed the work and submitted all documents and papers including measurement books, muster roll etc. However, some works pertaining to certain schemes could not be completed because of rise in the prices of labour and materials as well as managerial costs for which the petitioner had prayed for a revised estimate which was not considered while he was in service. It has further been stated that the amount spent on the work under the scheme came to around of Rs. 1,88,000/ - and the same has been treated to be an outstanding advance against the name of the petitioner. At paragraphs 16 and 18 the petitioner has stated that the respondents had not initiated any departmental proceedings or even criminal proceedings against the petitioner while he was in service. He retired on 30.6.91 and after a lapse of about 7/8 years, the respondents came out with a mere memo of recovery vide Annexure -1 on 27.3.98. The aforementioned statements of the petitioner made in paragraphs 16 and 18 of the Writ Petition to the effect that no proceeding was initiated during time when he was in service, has been replied at paragraph 28 of the counter affidavit of the respondent nos. 3 and 6 who have stated that "there was no question of initiating any departmental proceeding or lodging a criminal proceeding against the petitioner since the petitioner had himself accepted the misappropriation of the amount and had agreed to pay the same from his retirement benefits and other dues and had requested for grant of time. And moreover he himself agreed for adjustment of Rs. 68,860.25 p. and signed the record also." In support of the aforementioned contention to the effect that the petitioner had himself accepted the misappropriation and had agreed for adjustment of Rs. 68,860.25 p., the respondents have brought on record a hand written document dated 27.3.98 vide Annexure -E appended to the supplementary counter affidavit of the respondents no. 3 and 6 (see page 101). The aforementioned document (Annexure -E) is a hand written document which appears to be a recommendation for recovery of Rs. 68,840.25 p. This document (Annexure -E) is at running page 101 of this writ petition and a better/legible copy thereof can also be found in the other connected writ application, namely, WP. (8) No. 3977/02 at running page 73 thereof. Below the recommendation for adjustment of Rs. 68,840/the petitioner seems to have put his signature on 27.3.98 saying "Dekha" and two years thereafter i.e. on 26.2.2000 a note has been written to the effect that "Yeh Jo Katauti Ki Gaye Hai Meri Sahmati Se Ki Gaye Hai. " Below the aforementioned writing is the name of Etwa Sahu and the date is 26.2.2000. It is in the context of the aforementioned document that the respondents have stated at paragraph 28 of the counter affidavit that the amount of Rs. 68,860.25 p. had been adjusted on 27.3.98 with the consent of the petitioner. Reacting to the aforementioned statement, the petitioner has stated at paragraph 11 of his rejoinder, the gist whereof is that these statements are not correct and that the signature was forcibly procured. Though not very happily worded that paragraph reads as follows : "11. That in reply to para 28 of the counter affidavit it is most humbly submitted that the failure of the respondents to initiate departmental or criminal proceeding against the petitioner even after loss of 12 years from the date of initiation of the scheme under execution and 8 to 9 years after the retirement of the petitioner simply established their hand in glove relation as nothing positive as per Rule and provision of law have been done and to forcefully procure signature of the petitioner in support of recovery of the so called outstanding advance which were utilized long back out of his retirement benefits, is a total deviation from the truth, fact and Rule of Law." A further statement which necessarily needs to be taken note of in relation to Annexure -E above is the statement of the petitioner made at paragraph 4 of his rejoinder to the supplementary counter affidavit (at running page 105) and upon perusal thereof, what. the petitioner really wants to say is that the note -sheet dated 27.3.98 was initiated after almost 12 years from the execution of the work and after more than 7 years from the date of retirement and, therefore, that matter is a subject matter of adjudication before this Court. These two paragraphs i.e. 4 and 4(a) are, therefore, necessary to be quoted. "4. That it is further apparent from the perusal of Annexure E of the supplementary counter affidavit that the Respondents moved further to recover the amount of Rs. 68,860.25 belonging to the petitioner on account of different retirement benefits viz Gratuity, Leave Encashment, Group Insurance etc. as per the Note Sheet dated 27.3.98 which was apparently initiated on the order of the then Deputy Commissioner, Gumla, which was also made to be seen by the petitioner on the same date i.e. 27.3.1998 i.e. approximately after more than seven years of the retirement and approximately after 12 years of execution of the work/schemes. (a) That it is most strange to observe further that petitioner has been further pressurized to put his initial on 26.2.2000 with the comment that the amount under recovery of Rs. 68,860.25, which is the subject matter of this Hon'ble Court's consideration and quashing of the same in the instant writ petition itself (vide Annexure -1) is being recovered with his consent."
(3.) THUS , the most important factor that has to be taken note of in the instant case is that the petitioner superannuated on 30.6.91. No departmental proceeding nor any criminal case nor any other proceeding had been initiated while he was in service and after a lapse of 7/8 years, the respondents took action on 27.3.98 and straight way ordered recovery of Rs. 68,860/ - from his Gratuity, Group Insurance and other retiral dues and that too, on the basis of a memo. As has already been stated earlier, a specific statement has been made by the petitioner at paragraph 16 that during his service period no proceeding had been initiated. This has been replied at paragraph 28 of the counter affidavit of the respondents no. 3 and 6 and they have admitted that there was no departmental proceeding or criminal proceeding because they have stated thus : "28. That with regard to the statements made in paras 14 to 19 of the writ application, it is stated that the same are totally wrong and hereby denied. There was no question of initiating any departmental proceeding or lodging of a criminal proceeding against the petitioner since the petitioner had himself accepted the misappropriation of the amount and had agreed to pay the same from his retirement benefits, and other dues and had requested for grant of time. And moreover he himself agreed for adjustment of Rs. 68,860.25 and signed the record also.";