D.G.R.PATNAIK, J. - (1.) HEARD Mr. A.K. Sahani, learned Counsel for the petitioner and J.C. to G.A. for the Respondent - State.
(2.) THE petitioner in this writ application has prayed for an order for quashing the order dated 01.10.2002 (Annexure -6), passed by the Respondent No. 2, whereby the entire amount of pension payable to the petitioner has been withheld purportedly under Rule 43(b) of the Bihar Pension Rules and a direction has been issued to the petitioner to deposit a sum of Rs. 9,02,574/ - in the Government Treasury, failing which the amount would be recovered through the proceedings under the Public Demand Recovery Act. Facts of the petitioner's case in brief are as follows: (i) The petitioner was initially appointed as a Clerk on 18.11.1957 in the Filaria Department and was later transferred to the Malaria Department under the State Government. (ii) He was superannuated from service from the post of Head Clerk -cum -Store -in -charge from the office of the Malaria Officer, Daltonganj on 31.12.1996. By Office order dated - 29.11.1996, issued by the Deputy Commissioner, Palamau, the petitioner was directed to hand over the charge of his Office and materials to one Kuldeep Oraon, a clerk in the said Office. (iii) Later, the order was modified with a direction to the petitioner to hand over charge of office to one Chandra Bali Singh, another employee of the Department. (iv) In compliance with the orders, the petitioner claims to have handed over the charge of his office alongwith the entire materials to the assignee. (v) Despite handing over the charge of his office and the materials, a further letter was issued by the Deputy Commissioner, Palamau to the petitioner calling upon him to show cause as to why the entire materials were not handed over to the assignee. Such show - cause notice was issued on the basis of an audit report that 240 bags of D.D.T. were not entered in the Stock Register, though it was clarified that the Truck carrying the consignment was directly sent to Nagar Ootari and the entry concerning the receipt of the materials was made in the Register of the Nagar Ootari Office. (vi) Yet, when his retiral dues were not released the petitioner filed a writ application before this Court vide C.W.J.C. No. 2452 of 1998 (R). The writ application was disposed of by order dated 02.08.1999 with an observation that there was nothing on the record to suggest that the Respondents had initiated any proceeding against the petitioner for recovery of any amount from his retiral benefits. A direction was issued to the Respondent -State of Bihar through the Secretary, Health Department to make proper enquiry from the concerned office and, if any, amount is found recoverable from the petitioner, then, the list of articles and the cost of such articles should be communicated to the petitioner and on receipt of reply to the same, the concerned authority should pass a reasoned/speaking order within four months from the date of receipt/production of a copy of that order. It was also observed that if no decision was taken by the authorities within the period of four months, they will release the provisional pension and gratuity in favour of the petitioner, which is to be paid within a period of six months from the date of receipt/production of a copy of the order. (vii) In compliance with the above order of this Court, passed in C.W.J.C. No. 2452 of 1998 (R), the petitioner submitted his representation before the concerned authorities of the Respondents on 08.09.1999. (viii) In spite of his representation, stating in detail, the relevant facts, a show cause notice was served on him on 15.10.1999 with a direction to return all the articles. (ix) Subsequently, by order dated 25.06.2001, the Respondents withheld the entire retiral dues of the petitioner. Being aggrieved by the aforesaid order dated 25.06.2001, petitioner filed another writ application vide W.P. (S) No. 4472 of 2001. The writ application was disposed of vide order dated 15.02.2002 with an observation that the impugned order of withholding the retiral dues of the petitioner was passed by the Director, purportedly under the provisions of Rule 43B of the Pension Rules, though the Director had no jurisdiction to pass such order after retirement of a Government servant. After setting aside the impugned order of withholding the petitioner's retiral dues, the Court had remitted the matter back to the Secretary, Health Department, Govt. of Bihar with a direction to pass a final order under Rule 43B of the Pension Rules after enquiry within four months, if permissible under the law and with an observation that if no order under Rule 43(b) of Pension Rules is passed within four months from the date of receipt/production of a copy of the order, the Respondents would be liable to release full Pension and Gratuity, payable to the petitioner. It was also observed that it would be open to the petitioner to raise all the objections before the Secretary, Health Department including the objections raised before this Court that the State had no jurisdiction to pass any order under Rule 43(b), the year of event of allegation being four years prior to the date of initiation of the departmental proceedings. (x) Pursuant to the orders passed by this Court, in W.P. (S) No. 4472 of 2001, the Respondent vide letter dated 18.03.2002 (Annexure -2) called upon the petitioner to submit his explanation and evidence. (xi) In response, the petitioner submitted his representation on 13.04.2002 before the Respondent No. 2, namely, the Commissioner -cum -Secretary, Health Department, Government of Bihar, Patna and three days later i.e. on 16.04.2002, the petitioner also submitted his show -cause replies before the Respondent No. 3, namely, the Chief Malaria Officer, Bihar, Patna. (xii) Thereafter, vide the impugned order dated 01.10.2002, the Respondent No. 2 decided to proceed against the petitioner and to withhold the entire pension amount with a further direction to deposit an amount of Rs. 9,02,574/ -.
(3.) ASSAILING the impugned order, learned Counsel for the petitioner would raise the following grounds: (i) That the impugned order is wholly unlawful, arbitrary and without authority of law and is violative of the principles of natural justice. (ii) The impugned order is vitiated on account of non -compliance of the provisions of the Bihar Pension Rules . ;