S.J.MUKHOPADHAYA, J. - (1.) AS both the writ petitions have been preferred by common petitioner; one for payment of salary as also other dues and the other against an order of recovery; they have been heard together and are being disposed of by this common judgment.
(2.) WP (S) No. 2658 of 2001 has been preferred by the petitioner for a direction on the respondents to fix his salary in the then pay scale of Rs. 2200 -4000.00 with effect from 17th May, 1989 i.e., the date on which he was promoted to the post of Assistant Conservator of Forests, and to pay him the difference of salary till 31st July, 1994 i.e., the date on which he superannuated from the services of the State. Further prayer has been made to pay him the arrears of salary against the post of Range Officer of Forests with effect from 1st January, 1996 up to 17th May, 1989, after proper fixation in the pay scale of Range Officer of Forests. During pendency of the writ petition, the respondent -State of Bihar issued Resolution No. 2946, dated 7th December, 2002 and ordered to recover a sum of Rs. 1,34,139.90 paise from the retiral benefits of the petitioner, such as, gratuity and leave encashment. It has also been ordered to deduct 10% of pension permanently. The said resolution No. 2946, dated 7th December, 2002 has been challenged in WP (S) No. 5382 of 2004.
(3.) RELEVANT facts for determination of both the cases are as follows : The petitioner was initially appointed as Forest Guard in the Forest Department of the then Government of Bihar. He was promoted to the post of Range Officer of Forests and then to the next higher post of Assistant Conservator of Forests vide Notification No. 65/87 -4465, dated 6th October, 1987 in the then pay scale of Rs. 1000 -1820.00 as revised to Rs. 2200 -4000.00 with effect from 1st January, 1986 vide Resolution No. 6021, dated 18th February, 1989. Subsequently, while posted as Assistant Divisional Manager in Minor Forest Product Project Division, Daltonganj, the Division Manager of the said Project issued a show cause notice to the petitioner to explain as to why a sum of Rs. 1,51,517.73 paise be not recovered from him, he having not adjusted the advance amount, as given to him from time to time or the advance, given by him to others from time to time, but not recovered, as detailed in the show cause notice itself. His reply to the said show cause notice not being satisfactory, a departmental proceeding was initiated against him vide Order No. Kendu -27/92, Memo No. 4213, dated 24th August, 1992, issued by the Secretary, Forest & Environment Department, Govt. of Bihar. It was shown that the petitioner had taken advance or had given advance, which has either not been returned or has not been recovered, due to which the State had incurred loss to the tune of Rs. 1,33,879.33 paise + Rs. 29,094.40 paise. The petitioner filed his show cause reply on 31st March, 1992. The State of Bihar not being satisfied with the same, put him under suspension with effect from 7th July, 1992 and appointed one Mr. N.P. Singh as Enquiry Officer. The petitioner was asked to appear in day -to -day enquiry. However, the petitioner appeared on certain dates only. Another show cause notice was issued on him on 16th April, 1993, alleging certain irregularities in the account of September, 1991, to which the petitioner replied. Not being satisfied with the reply, the State of Bihar initiated another departmental proceeding vide Memo No. 17 of 1993, dated 1st June, 1993, issued under the signature of Secretary, Forest & Environment Department, Govt. of Bihar. The petitioner was asked to show cause as to why a sum of 1,02,864.85 paise be not recovered for the alleged irregularity, committed by him, details of which was shown in the charge - sheet, including the loss incurred by the State. On Mr. N.K.N. Singh was appointed as Enquiry Officer in respect to the second proceeding. The petitioner participated in the enquiry, held on 5th April, 1994, 15th July, 1994 and so on. However, the petitioner retired on 31st July, 1994. After retirement, the retiral benefits not having been paid, the petitioner preferred a writ petition being CWC No. 3421 of 1998 (R). The said writ petition was disposed of on 17th August, 1999, directing the respondents to decide the claim and to pay him the admitted retiral benefits. It was, however, observed that if the respondents dispute any claim and/or part thereof and/ or withhold any amount from pension/ gratuity, they will give reason and communicate the decision to the petitioner. In pursuance of the first proceeding, the respondent State of Bihar issued Resolution dated 25th April, 2001 and ordered to recover a sum of Rs. 1,34,139.90 paise from the pension/gratuity of the petitioner and also ordered to deduct 10% pension permanently. The petitioner challenged the said order before this Court in WP (S) No. 2741 of 2001. A Bench of this Court vide order dated 4th December, 2001 having noticed that the order purported to have been passed under Rule 43(b) of the Bihar Pension Rules, 1950 and the fact that no ground was shown as to whether the enquiry officer has held the petitioner guilty for the charges, held the Resolution dated 25th April, 2001 illegal and thereby set aside the said resolution. The respondents, however, were given liberty to pass appropriate order after serving a copy of the enquiry report on the petitioner within four -months and on failure it was ordered that they will pay the retiral benefits as per law. In the 2nd enquiry the petitioner participated even on 3rd July, 1996, 6th August, 1996 and 16th August, 1996. He submitted that the T.A. Bills on 24th October, 1997. The respondents, thereafter, served on the petitioner a copy of the show cause notice along with the enquiry report and on receipt of reply, issued the impugned resolution dated 7th September, 2002 and ordered for recovery from the retiral benefits, such as, gratuity and leave encashment, and 10% of pension was withheld permanently.;