N.N.TIWARI, J. - (1.) THE petitioner, in this writ petition, has prayed for quashing the order dated 17th May, 1997 passed by the Deputy Commissioner, whereby a sum of Rs. 18,430/ - (rupees eighteen thousand four hundred thirty) was sought to be recovered from the death -cum -retiral benefits payable to the petitioner after the death of her husband.
(2.) IT has been stated that the petitioners husband retired from the post of Panchayat Sewak under Katkamsandi Block, on attaining the age of superannuation, on 31st January, 1997. After his retirement, an enquiry was initiated, alleging the charge of defalcation during his service period. The Enquiry Officer was appointed. However, before completion of the enquiry, the petitioners husband died. After the death of her husband, no notice or opportunity of hearing was given to the petitioner and suddenly the impugned order was passed, holding the petitioners husband liable for recovery of a sum of Rs. 18,430/ - (rupees eighteen thousand four hundred thirty) and the same was sought to be recovered from the death -cum -retiral benefits, payable to the petitioner after the death of her husband. Mr. S. Shrivastava, learned Counsel, appearing on behalf of the petitioner, submitted that during the lifetime of the petitioner, the liability was not fixed against him, neither he was found guilty of the charges and liable for recovery of the said amount in the said enquiry, which was initiated against the petitioners husband. The said amount after the death of the petitioners husband cannot be recovered out of the death -cum -retiral benefits, payable to the petitioner. By the impugned order, the respondents directed to deduct the amount of Rs. 18,430/ - (rupees eighteen thousand four hundred thirty) from the sanctioned amount, payable to the petitioner on different heads. Under the said order of deduction, the petitioner was forced to pay the said amount as a condition for payment of the remaining benefits to her. Learned counsel submitted that the liability has not been fixed in any legal proceeding and the impugned order, fixing liability, without giving any opportunity of hearing, is wholly illegal and without jurisdiction and as such, the said order is not sustainable.
(3.) A counter affidavit has been filed on behalf of the respondents, stating, inter alia, that the enquiry was made during the lifetime of the petitioners husband and an amount of Rs. 18,430/ - (rupees eighteen thousand four hundred thirty) was found recoverable from the petitioners husband. On the basis thereof, the said order has been passed for recovery of the amount from the death -cum -retiral benefits of the petitioners husband. Subsequently, it was found that the petitioners husband was liable for recovery of lesser amount and as such, a sum of Rs. 7,600/ - (rupees seven thousand six hundred) has been refunded to the petitioner on 7th September, 2003.;