Mostt. Punita Karn vs The State Of Bihar
2023 Latest Caselaw 876 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.270 of 2020
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Mostt. Punita Karn Wife of Late Mahesh Kumar Karn Resident of Mohalla- Laxmi Narayan Colony, Bela Road, P.S.-Mithanpura, District-Muzaffarpur.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Food and Consumer Protection Department, Government of Bihar, Patna.

2. The Managing Director, Bihar State Food Corporation, Sone Bhawan, 5th Floor, Bihar, Patna.

3. The Deputy General Manager (Administration), Bihar State Food and Civil Supplies Corporation Limited, Khadya Bhawan, Daroga Prasad Roy Path, R/Block, Road No.2, Patna.

4. The General Manager, Bihar State Food and Civil Supplies Corporation Limited, Khadya Bhawan, Daroga Prasad Roy Path, R/Block, Road No.2, Patna.

5. The Accountant General, Bihar, Patna.

6. The District Magistrate, Sitamarhi.

7. The District Manager, Bihar State Food Corporation, Sitamarhi

8. The Regional Commissioner, Provident Fund, Muzaffarpur.

9. The District Officer, Provident Fund, Sitamarhi.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s    :      Mr.Sanjay Kumar
                                    Mr. Raj Shekhar
     For the State          :       Mr.Arbind Ujjwal (SC 4)
     For the BSFC           :       Mr. Shailendra Kumar Singh

For the Accountant General : Mr. Ram Kinker Choubey ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA JUDGMENT AND ORDER ORAL Date : 22-02-2023

The husband of the petitioner was working as Assistant

Manager, in Bihar State Food and Civil Supplies Corporation

Limited (In short, 'BSFC') and died on 14.09.2010 in harness. He

rendered his services for about 35 years in different capacities in

various districts of Bihar in the BSFC before his death. After the

death of her husband, the petitioner filed a representation before Patna High Court CWJC No.270 of 2020 dt.22-02-2023

the District Manager, BSFC, Sitamarhi, on 05.01.2011 for payment

of death -cum- retiral benefits. Instead of paying the death -cum-

retiral benefits, the respondent no. 4 lodged First Information

Report against the petitioner as well as her son, bearing Dumra

Police Station Case No. 19 of 2012, under Sections

406/409/420/120-B of the Indian Penal Code, in which the police,

after completion of investigation, submitted final form,

exonerating the petitioner and her son of the offence alleged in the

First Information Report.

2. The petitioner approached this Court earlier in CWJC

No. 3216 of 2016, which was disposed vide order, dated

16.05.2016, with a direction to the respondents that the issues on

which there is no controversy should be resolved and settled

within a period of eight weeks. A contempt application, bearing

MJC No. 4539 of 2018, was also filed by the petitioner for alleged

non-compliance of the order, dated 16.05.2016, passed in CWJC

No. 3216 of 2016. After filing of the contempt application by the

petitioner, the respondent authority came out with the impugned

order, bearing memo no. 11171, dated 31.10.2019, whereby the

respondent has accepted the claim of the petitioner towards the

death -cum- retiral benefits, but at the same time, ordered for

recovery of a sum of Rs. 14,93,28,883.58/- from the petitioner on Patna High Court CWJC No.270 of 2020 dt.22-02-2023

the ground that the husband of the petitioner had defalcated the

food grains of the aforesaid amount while he was working as

Assistant Manager, at different places.

3. A counter affidavit has been filed by the BSFC,

stating therein that the Managing Director of the BSFC has

considered the claim of the petitioner towards death -cum- retiral

benefits and found that a sum of Rs. 9,86,883/- is payable to the

husband of the petitioner and while he was posted as Assistant

Manager, in Sitamarhi, Muzaffarpur and Vaishali, he defalcated

Rs. 3,18,765.01/- and also defalcated food grains, while he was

posted in Sitamarhi, worth Rs. 4,19,06,511/- and after imposing

interest over the defalcated amount and adjusting the amount

payable to the petitioner towards death -cum- retiral benefits, the

total recoverable amount comes to Rs. 14,93,28,883.58/-.

4. A certificate case, bearing Certificate Case No. 01 of

2012-13 for recovery of the defalcated amount has also been

lodged against the petitioner, which has been challenged by the

petitioner by way of filing separate writ application, bearing

CWJC No. 5673 of. 2016.

5. Learned Counsel for the petitioner, while assailing the

impugned order, dated 31.10.2019 (Annexure-11), submits that the

impugned order has been passed without initiating any Patna High Court CWJC No.270 of 2020 dt.22-02-2023

departmental proceeding or any other proceeding for recovery of

defalcated amount during the lifetime of the husband of the

petitioner. After the death of her husband, a criminal case was

lodged against the petitioner for defalcation of the food grains

allegedly done by her husband. He further submits that the

respondent-authority has not mentioned any provision of law/rules,

which authorizes the authorities to recover the death -cum- retiral

benefits from the widow. He further submits that the recovery has

been ordered against the late husband of the petitioner on the basis

of audit objection and this Court, in the case of Md. Alimuddin v.

The State of Bihar and Others, reported in 2015 (2) PLJR 184,

has held that the audit objection cannot be a proof of offence by

itself and it may be a starting point for enquiry and culminating in

an order of punishment in a departmental proceeding. The

impugned order is, therefore, completely arbitrary, mala fide and

unreasonable.

6. In support of his argument, learned Counsel relies

upon the judgment, in the case of Md. Nazim v. The State of

Bihar and Others (CWJC No. 7754 of 2017), dated 30.08.2019,

passed by a co-ordinate Bench of this Court in a case of similarly

situated person. He further submits that the aforesaid judgment

was challenged by the BSFC in the LPA, which has also been Patna High Court CWJC No.270 of 2020 dt.22-02-2023

dismissed. He further relies upon the celebrated judgment of the

Supreme Court, in the case of State of Punjab and Others v.

Rafiq Masih (White Washer) and Others, reported in (2015) 4

SCC 334 as well as a recent judgment of the Supreme Court, in

the case of Thomas Daniel v. State of Kerala (AIR 2022 SC

2153).

7. On the other hand, learned Counsel for the BSFC,

referring to the earlier order passed by this Court in the writ

application filed by the petitioner, submits that while disposing the

writ application, this Court, in its order, dated 16.05.2016, has

come to the conclusion that whatever amount is not payable to the

petitioner or was recoverable from the husband of the petitioner,

the details should be made known within the same time frame

stipulated in the order and accordingly, the respondent has passed

the impugned order (Annexure-11) for recovery of a sum of Rs.

14,93,28,883.58/- from the husband of the petitioner after

adjusting the death -cum- retiral benefits to be paid in favour of the

petitioner.

8. I have heard learned Counsel for the parties

concerned and have perused the materials available on record.

9. From the factual background of this case, it is clear

that no proceeding, departmental and/or any other proceeding for Patna High Court CWJC No.270 of 2020 dt.22-02-2023

recovery of the defalcated amount from the husband of the

petitioner, was ever initiated during the lifetime of the husband of

the petitioner. The husband of the petitioner admittedly died on

14.09.2010. For the first time, the respondent authority sought to

recover the defalcated amount from the late husband of the

petitioner after the petitioner approached this Court, in CWJC No.

3216 of 2016. The First Information Report was also lodged

against the petitioner for defalcation allegedly done by her late

husband in the year 2012.

10. The Supreme Court, in paragraph 11 of Thomas

Daniel (supra), has taken note of a judgment of the Supreme

Court, in the case of Col. B. J. Akkara (Retd.) v. Government of

India and Others, reported in (2006) 11 SCC 709, and quoted

paragraph 28 of Col. B. J. Akkara (supra), which speaks that the

relief against the recovery, restraining back recovery of excess

payment, is granted by courts not because of any right in the

employees, but in equity, in exercise of judicial discretion to

relieve the employees from the hardship that will be caused if

recovery is implemented. A government servant, particularly one

in the lower rungs of service would spend whatever emoluments

he receives for the upkeep of his family. If he receives an excess

payment for a long period, he would spend it, genuinely believing Patna High Court CWJC No.270 of 2020 dt.22-02-2023

that he is entitled to it. As any subsequent action to recover the

excess payment will cause undue hardship to him, relief is granted

in that behalf. But where the employee had knowledge that the

payment received was in excess of what was due or wrongly paid,

or where the error is detected or corrected within a short time of

wrong payment, courts will not grant relief against recovery. The

matter being in the realm of judicial discretion, courts may on the

facts and circumstances of any particular case refuse to grant such

relief against recovery.

11. The Supreme Court, in the case of Rafiq Masih

(supra), has held in paragraph 8, as follows:

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and Patna High Court CWJC No.270 of 2020 dt.22-02-2023

arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover."

12. A Division Bench of this Court, in LPA No. 1839 of

2015, refused to interfere with the order passed by the Writ Court

in CWJC No. 1581 of 2008, by which the learned Single Judge has

restrained the respondent State to effect such recovery from the

post retiral benefits of the widow, holding that such recovery could

not be made against the widow.

13. The brief facts of the aforesaid case (CWJC No.

1581 of 2008) was that the husband of the writ petitioner was a

Junior Engineer, who died in a road accident on 21.07.2004, while

on official duty. After the death of husband of the writ petitioner,

since the death -cum- retrial dues were not being settled, she filed

a writ application, bearing CWJC No. 4690 of 2005 and also

contempt application, bearing MJC No. 2365 of 2006. In the

contempt application, it emerged that the State authorities had

passed an order for recovery of a huge amount against husband of

the writ petitioner for advances, which the husband had taken for

different work. The Division Bench placed a pointed question to

the State to place the necessary provision of law, under which such

recovery could be made against the writ petitioner from the retiral Patna High Court CWJC No.270 of 2020 dt.22-02-2023

dues. No provision was shown by the State in this regard to the

Court. Accordingly, the Division Bench upheld the order passed by

the Writ Court observing that there are powers, which are granted

under the Bihar Pension Rules. One of them has been noted by the

Learned Single Judge, which is Rule 43 (b) and the other being

Rule 139. Since none of these provisions were invoked against the

husband of the writ petitioner, the Learned Single Judge has

rightly quashed the order and gave a direction for payment and

settlement of the rightful claim, including post retiral dues.

14. Coming to the facts of the present case, it is not

contended by the respondent-Corporation that prior to the death of

the husband of the petitioner, any departmental proceeding and/or

any recovery proceeding was initiated by the Corporation for

recovery of the alleged defalcated amount from the late husband of

the petitioner. The petitioner is the widow of the deceased

employee who died in harness. This Court is of the opinion, based

upon the facts of the case, that the effect of recovery from the

death -cum- retiral benefits payable to the widow would be unfair,

wrongful, improper and unwarranted as the equity lies in favour of

the petitioner and the respondent-BSFC cannot fasten direct

liability upon the petitioner, who is a widow, in absence of any rule Patna High Court CWJC No.270 of 2020 dt.22-02-2023

and/or any legal provision for recovery of the amount from the

death -cum- retiral benefits payable to the widow. The petitioner

cannot be held responsible for defalcation, if any, done by her late

husband during his service period.

15. Having regard to the aforesaid discussion, on law as

well as on facts, I am of the considered view that attempt to

recover the amount in question, as mentioned in the impugned

order, dated 31.10.2019, from the death -cum- retiral benefits,

payable to the petitioner, who is a widow, after the death of the

employee is unjustified.

16. Accordingly, the impugned order, dated 31.10.2019,

is set aside and the respondent no. 3, the Deputy General Manager

(Administration), Bihar State Food and Civil Supplies Corporation

Limited, is directed to pay the death -cum- retiral benefits to the

petitioner within a period of three months from the date of

receipt/production of a copy of this order.

17. In the result, this writ application is allowed.

18. There shall be no order as to costs.

(Anil Kumar Sinha, J.) Prabhakar Anand/-

AFR/NAFR                         AFR
CAV DATE                         N/A
Uploading Date                24.02.2023
Transmission Date                N/A