1. Petitioner in the present case has invoked the writ jurisdiction of this Court for the following reliefs:-
(i) For issuance of writ in the nature of certiorari for quashing of the order passed by the District Magistrate, Darbhanga vide memo no.
104 dated 17.01.2018 whereby the petitioner has been compulsorily retired from service with effect from 30.04.2015 and a direction has
been given to recover an amount of Rs. 8,58,068/- from the retiral benefits of the petitioner in lieu of the service received by the petitioner
from 01.05.2015 to 03.03.2017.
(ii) For issuance of writ in the nature of certiorari for quashing of the enquiry report submitted by the Enquiry Officer on 24.06.2017 vide
letter no. 915 alongwith the supplementary inquiry report submitted vide letter no. 1260 dated 16.08.2017.
(iii) For a direction to the respondents to reinstate the petitioner as the Finance Officer with effect from 30.04.2015 with all consequential
benefits.
(iv) For issuance of writ in the nature of mandamus for commanding the respondents for payment of salary for the entire period during
which he remained his suspension.
2. As has been recorded in the order dated 28.01.2021, let it be reiterated that learned counsel for the petitioner has confined his prayer to assail the
order directing recovery of Rs.8,58,068/- from the retiral benefits of the petitioner. Thus, so far as other reliefs prayed in the writ application are
concerned, those have not been pressed before this Court.
Case of the petitioner
3. It is the case of the petitioner that he was appointed as Finance Officer on 13.05.1982 and during the service period because of his sincere
performance he was granted the benefit of Time Bound Promotion and was given the enhanced scale of pay of Rs.9300-34800 with grade pay of
Rs.5400/- vide order dated 22.07.2016.
4. It is the submission of the petitioner that while he was working in the Department, a seniority list was prepared by the Department in the year 1993
in which the date of birth of the petitioner was shown as 05.04.1955. As per this date of birth the petitioner was due to retire on 30.04.2015 but he
was never given any intimation as regards his due date of retirement. He continued to serve in the department even after 30.04.2015.
5. A memo bearing no.296 dated 03.03.2017 (Annexure-3 to the writ application) was issued by the District Magistrate, Darbhanga, the petitioner was
placed under suspension and a memo of charge was served upon him vide memo no.557 dated 15.04.2017. Altogether four charges were levelled
against the petitioner. It is his submission that no preliminary inquiry was held before initiation of the departmental proceeding.
6. The petitioner submitted his show cause answering all the charges, participated in the proceeding and claimed that his date of birth is 05.04.1958,
therefore, according to him, he was supposed to retire from service on 30.04.2018.
7. The Department lodged an F.I.R. bearing Sadar P.S. Case No.198 of 2017 on 16.05.2017, the petitioner and one clerk namely Sudhir Kumar Jha
was made an accused alleging loss of service book of the petitioner. The petitioner was granted bail in the said case on 27.07.2017.
8. It is stated in the writ application that initially when the enquiry was concluded and the enquiry report was submitted to the District Magistrate,
Darbhanga a direction was given by the District Magistrate, Darbhanga to consider certain documents presented by the petitioner and the District
Provident Office, Darbhanga. Thereafter a detail enquiry was conducted and a supplementary inquiry report was submitted vide letter no.1260 dated
16.08.2017. A copy of the inquiry report as well as supplementary inquiry report have been enclosed as Annexure-7 series to the writ application.
9. The petitioner was served with a second show cause notice, he replied to the same. It is his submission that without considering the reply filed by
the petitioner an order has been passed by the District Magistrate, Darbhanga vide memo no.104 dated 17.01.2018 whereby the petitioner has been
compulsorily retired from service with effect from 30.04.2015 and a direction has been issued to recover an amount of Rs.8,58,068/- from the retiral
benefits of the petitioner. This amount was paid to him in lieu of the service rendered by him from 01.05.2015 to 03.03.2017. A copy of the memo has
been enclosed as Annexure-9 to the writ application and the same is under challenge now to the extent that the amount of Rs. 8,58,068/- should not be
recovered from the petitioner.
10. Earlier the petitioner had preferred an appeal before the Principal Secretary, Land Reforms Department, Government of Bihar which was not the
correct forum, therefore, his appeal could not be considered.
11. When the plea of alternative remedy was taken before this Court on behalf of the State, learned counsel for the petitioner has pleaded that the writ
application may be heard as there are grounds of violation of principles of natural justice and other jurisdictional issues are involved. In this regard the
order dated 25.11.2020 passed by this Court may be referred to.
12. Mr. Bindhyachal Singh, learned counsel representing the petitioner has submitted before this Court that the amount of Rs.8,58,068/- has been paid
to the petitioner against the work done by him, therefore it should not be allowed to be recovered keeping in view the ratio of the judgment of the
Hon’ble Apex Court in the case of State of Punjab & Others Vs. Rafiqu Masih (White Washer etc.) reported in (2015) 4 SCC 334.
13. It is his further submission that from the charges levelled against the petitioner in ‘Prapatra-ka’ (Annexure-4 to the writ application) it would
appear that according to charge no.2 the petitioner had received the service book from the Circle Office, Sadar, Darbhanga on 13.07.2016, therefore,
the respondents had no hindrance at least prior to the said date in retiring the petitioner from service on 30.04.2015 itself. In this regard, the contention
of learned counsel for the petitioner is that even if the charge no.2 is taken to be correct, it is not in dispute that the service book of the petitioner was
very much available with the respondents up to 12.07.2016, but despite availability of the service book of the petitioner, if the petitioner was not made
to retire on 30.04.2015 and he continued to work even after the said date, the respondents would not be justified in affecting recovery of salary
amount from the post retiral dues.
14. A counter affidavit has been filed on behalf of the respondent nos.3 to 7 which has been sworn by Circle Officer, Bahadurpur, Darbhanga. The
respondents have justified the impugned order. It is stated that the petitioner was a Revenue Karamchari and while he was posted at Bahadurpur
Anchal, one Ram Nath Paswan of village-Kothia, Bahadurpur made a complaint on 22.12.2016, stating therein that the date of birth of the petitioner is
05.04.1955 and he should have retired in the year 2015 itself but he is still in service. The Circle Officer, Bahadurpur found that the last payment
certificate of the petitioner was received from Sadar Anchal but his service book was not yet received and, therefore, he wrote letter no.108 dated
18.01.2017 to Circle Officer, Sadar. He also called for the matriculation certificate from the petitioner. The Circle Officer, Sadar informed the Circle
Officer, Bahadurpur that the petitioner has received his service book on 13.07.2016 but has not submitted as yet.
15. The petitioner took a stand vide his application on 22.01.2017 that his matriculation certificate was destroyed in the flood of 1987. He was called
upon to submit his service book but he did not make available the same, thereafter he was suspended.
16. In course of enquiry, all the charges were found proved against the petitioner and after giving an opportunity to show cause the petitioner has been
awarded punishment of compulsory retirement with effect from 30.04.2015 and the recovery of the amount mentioned above.
17. Learned counsel for the State has drawn the attention of this Court towards the inquiry report as contained in Annexure- ‘7’ to the writ
application. The inquiry officer has mentioned that the petitioner adopted an indifferent attitude in course of inquiry, he neither made available his
educational certificate nor cooperated in verification of his age and despite letter no.710 dated 19.05.2017 calling upon him to disclose the year in
which he has passed the matriculation examination together with the name of the school from which he has passed the examination, no information
was furnished by the petitioner. He did not disclose even the name of the school from where he has passed the matriculation examination.
18. As regards the charge no.2 the inquiry officer has found that this petitioner had received four service book including his own from the District
Establishment Section, he made available three service book of others to Sri Sudhir Kumar Jha, the then clerk, Sadar Anchal, but retained his own
service book for his own purpose. Sri Sudhir Kumar Jha has disclosed in his show cause that on the request of the petitioner, his service book was
returned to him but the petitioner had obtained an acknowledgment showing the receipt of the four service books by the clerk. The bad intention of the
petitioner could not be understood by the clerk.
19. Learned counsel for the State, therefore submits that in the facts of the present case, the ratio of the judgment of the Hon’ble Supreme Court
in the case of State of Punjab & Others Vs. Rafiqu Masih (White Washer etc.) would not apply. It is pointed out that the petitioner was aware of his
date of birth mentioned in the seniority list but he had not raised any objection as regards his date of birth, the seniority list was finally published, it is
not the case of the petitioner that he was not aware of the date of birth mentioned in the seniority list, in such circumstance, the petitioner having
indulged in taking away his service book by duping the clerk, the petitioner has only shown his intention to continue in service wrongfully and by
depriving the Circle Office, Bahadurpur from getting correct date of birth of the petitioner. It is submitted that in such circumstance the petitioner
having played a role in wrong continuation in service, he cannot be allowed to enrich himself unduly.
Consideration
20. Having heard learned counsel for the petitioner and learned counsel for the State as also on perusal of the records, this Court finds that in
paragraph ‘7’ of the writ application the petitioner admits that while he was working in the Department, a seniority list was published by the
Department in the year 1993 in which the date of birth of the petitioner was mentioned as 05.04.1955 and in view of the same, he was supposed to
retire on 30.04.2015. In the whole writ application, there is no averment that the petitioner was not aware of the publication of the said seniority list or
that the petitioner submitted any objection against the date of birth mentioned in the seniority list. He has taken a plea that in the provident fund
register, the year of birth of the petitioner has been mentioned as that of 1958, however on going through the show cause submitted by the petitioner to
the inquiry officer (Annexure-6 to the writ application), this Court finds that no such plea was taken at the earliest opportunity and in absence of there
being any clinching material to support his plea and there being categorical finding by the inquiry officer on the aforesaid contention of the petitioner,
this Court is not inclined to accept the submission of the petitioner based on the alleged entry in the provident fund register. The inquiry officer in his
supplementary inquiry report has rightly taken a view that in absence of the matriculation certificate, the veracity of the date of birth entered in the
provident fund register becomes doubtful.
21. The records of the case are speaking for itself. The petitioner had been aware of the date of birth mentioned in his seniority list, he was aware of
the date of birth mentioned in the matriculation certificate, he was also aware of date of birth mentioned in the service book. In course of inquiry he
neither produced the matriculation certificate nor any effort was made by him, if he had taken a stand that the matriculation certificate has been lost in
flood, to obtain a duplicate certificate from the Bihar School Examination Board, the intention of the petitioner to conceal his date of birth becomes
apparent when he did not disclose before the inquiry officer the name of his school and the year in which he has passed the matriculation examination.
No reasonable person can say that he does not remember the name of his school from where he has passed the matriculation examination.
22. It has come in course of inquiry that the petitioner had himself received the service book from the Sadar Anchal, in fact the said service book was
to be sent to the Circle Office, Bahadurpur and the Circle Officer, Bahadurpur was looking for the same, understanding these facts the petitioner
instead of allowing the service book to be sent to the Circle Officer, Bahadurpur received service book of the four Revenue Karamcharis including
himself for submission before the District Establishment Section, he obtained a receipt from the clerk showing submission of four service books but
then it has come in course of inquiry that he requested the clerk to hand over his own service book after verification and the clerk did that. Thereafter
the service book was not returned.
23. To this Court it appears that there was a concerted effort on the part of the petitioner in concealing the relevant documents and information from
the Circle Office, Bahadurpur in order to continue himself in service even after reaching the age of superannuation. It is not denied in his pleadings
that he was aware of the date of birth mentioned in the seniority list as 05.04.1955 and the same was never objected to by him, if this is the position in
all fairness and showing his good conduct he should have informed the Circle Office, Bahadurpur which was awaiting receipt of service book from the
Sadar Anchal that he would be retiring on 30.04.2015. The inquiry officer has recorded that in course of inquiry the petitioner adopted a completely
indifferent attitude and was not at all cooperating.
24. Considering the aforesaid materials on the record and the discussions, this Court finds no error in the impugned order directing recovery of the
amount stated above. No person may be allowed to enrich himself unduly and in case they indulged in doing so, they cannot seek an excuse under the
judgment of the Hon’ble Supreme Court in the case of State of Punjab & Others Vs. Rafiqu Masih (White Washer etc.). The Hon’ble Apex
Court has cautioned on many occasions that its judgment should not be cited like an Euclid’s theorem because a slight change in the facts of the
case would make a sea difference in the judgment of the Court. Reference in this regard may be made to the judgment of the Hon’ble Supreme
Court in the case of Bharat Petroleum Ltd. Vs. N.R. Vairamani reported in (2004) 8 SCC 579.
25. This writ application has, thus, no merit. This Court finds no reason to interfere with the impugned order/orders.
26. The petitioner may represent before the District Magistrate, Darbhanga for recovery of the amount in few installments so that a sizable portion of
his post-retiral benefits remains with him for fulfilling his own obligations. If such an application is filed before the District Magistrate, Darbhanga
within a period of four weeks from today, the same will be considered by the District Magistrate and an appropriate decision shall be taken thereon
within four weeks.
27. This writ application is disposed of with the aforesaid observations and directions.
