- (1.) IN the instant writ petition the petitioner prays for the following reliefs: '' a. For the issuance of an appropriate writ, order or direction or writ in the nature of certiorari tor quashing of the memo dated 8.11.04 by which a proceedings has been initiated under Rule 43(b) of the Bihar Pension Rules, 1950 for an event taken place in the year 1989 -90 and 1997 -98 although petitioner stands retired in the year 2000 and proceedings under Rule 43(b) has been initiated on 8.11.04 which is barred by Rule 43(b) proviso (ii) by which proceedings cannot be initiated for an event which has taken place 4 years back from the institution of the proceedings and thus to hold and declare the same as wholly illegal, arbitrary, void ab initio and wholly without jurisdiction. b. Commanding upon the respondents to immediately pay the amount of Rs. 2,30,954.00 alongwith interest up to date which has been withheld on account of the pendency of the proceedings of Rule 43 (b) which has been showed as advance against the petitioner although the petitioner has been representing before the authority to adjust the amount since the work was completed almost 15 years back. c. To hold that the amount cannot be withheld under Section 43(b) as the said proceedings is void ab initio. d. For issuance of writ, order or direction in the nature of certiorari for quashing of recovery order dated 30.4.2008 issued vide memo No. 217 by which it has been admitted earlier proceedings issued under 43(b) of the Bihar Pension Rules being not maintainable and thus the same has been quashed and set aside but in the same order, order of recovery of Rs. 12,30,954/ - has been quashed. e. During pendency of the writ application recovery order dated 30.4.2008 issued vide memo Nos. 217 be kept in abeyance/stayed.
(2.) IN the counter affidavit filed on behalf of respondent No. 2 and 3 at paragraphs 7 and 8 it has been specifically held as under: '' "7. That it is further stated and submitted that the Road Construction Department, Jharkhand, Ranchi has already withdrawn the departmental proceeding initiated against the petitioner vide order No. 217 read under memo No. 2935(s) dated 30.4.2008. 8. That it is further stated and submitted that the amount of Rs. 2,30,964.50 pending against the petitioner as an outstanding balance despite his having retired on 31.12.2000 is a money of Government exchequer. The petitioner was directed to get the amount adjusted during his service period vide Executive Engineer, Works Division, Jamshedpur letter Nos. 577 dated 23.10.1992, 635 dated 3.12.1992, 107 dated 25.2.1993, 504 dated 20.9.1993, 609 dated 12.10.1993, 765 dated 5.12.1994, 345 dated 26.6.1995, 286 dated 12.6.1999 and 465 dated 6.8.1999. The petitioner was directed for the Assistant Engineer, R.E.O., Nimdih vide his letter No. 54 dated 15.6.1995 and also by the Superintending Engineer, Works Circle, Ranchi vide his letter No. 46 dated 17.2.1995 and 62 dated 7.9.1995. However, the petitioner, did not respond to the aforesaid directions. In the light of the facts and circumstances mentioned above the amount has to be recovered from the petitioner and State Of Jharkhand Through Director General Of Police Versus Thakur Ajit Kumar accordingly decision in this regard has already been taken." Further in the order by which the disciplinary proceeding was dropped a specific reason was assigned that such recovery was not in accordance with Rule 43(b) of the Bihar Pension Rules, 1950 which has also been annexed as Annexure -C. The fact remains that the very basis for which a disciplinary proceeding was initiated to recover the amount allegedly not adjusted, has been dropped on legal advise as well as based on the ground as stipulated in Rule 43(b), then the question arises as to whether the same claim for which a disciplinary proceeding was initiated and has been dropped could still survive against the petitioner, more so, when he has retired in the year 2000 itself. As on date it can be safely held that there is no disciplinary proceeding pending against the petitioner and in that view of the matter the judgments as relied upon by the learned counsel for the petitioner reported in 2008(1) JCR 5 Jhar. (F.B.) [: 2007(4) JLJR 451], (State of Jharkhand & Ors V/s. Padmalochan Kalindi and 2007 (4) JCR 1 Jhar. (F.B.) (Dr. Dudh Nath Pandey V/s. State of Jharkhand & Ors.) will certainly apply in the present case.
(3.) A Full Bench of this Court in 2007 (4) JLJR 459 (Laxman Prasad Gupta V/s. State of Jharkhand) specifically held at paragraph 20 as under: '' "20. In view of the above discussion, we come to the following conclusion. To sum up: '' 'In the light of the absence of any material to show that the excess amount was received by the petitioner on misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated under Rule 43(b) of the Bihar Pension Rules. In this case, the said procedure, which is mandatory, has not been followed. Therefore, the action of the respondents for recovery of the amount from the retiral dues is not valid in law." ;