Allowed

Arabinda Das v. the State of Assam and 2 Ors.

Gauhati HC6 May 2019WP(C)/122/2016

Case brief

AI extract

What is this about?

The Gauhati High Court quashed the Assam Khadi and Village Industries Board's order demanding retirement dues for alleged misappropriation found in an audit. The Court held that recovering money without a prior disciplinary enquiry and without the Board producing the audit report violated natural justice and the Evidence Act. The Board was directed to release any recovered funds.

What did the court decide?

The recovery order was set aside, retirement dues should be released, and any money recovered is to be returned to the petitioner.

Arabinda Das Vs the State of Assam and 2 Ors. — Pension and Retirement Benefits | Gauhati HC (2019)

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Page No.# 1/6

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GAHC010006022016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 122/2016

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1:ARABINDA DAS

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S/OLT. HARAKANTA DAS R/O SUALKUCHI PUKHURIPARA P.O. SUALKUCHI DIST. KAMRUP, ASSAM.

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VERSUS

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1:THE STATE OF ASSAM AND 2 ORS

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HANDLOOM AND TEXTILE DEPARTMENT, DISPUR, GUWAHATI.

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2:ASSAM KHADI AND VILLAGE INDUSTRIES BOAD REP. BY ITS CHAIRMAN CHANDMARI GUWAHATI-3.

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3:THE CHIEF EXECUTIVE OFFICER ASSAM KHADI and VILLAGE INDUSTRIES BOARD CHANDMARI GUWAHATI-3

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Advocate for the Petitioner : MS.M KALITA

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Advocate for the Respondent : SC, KHADI and VILLAGE INDUSTRIES BOARD

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 06.05.2019

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Heard Ms. P. Bhattacharyya, learned counsel for the petitioner. Also heard Mr. S.K.

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Chakraborty, learned counsel appearing for respondent Nos. 2 and 3.

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By this writ petition filed under Article 226 of the Constitution of India, the case projected by the petitioner is that the petitioner, who was then serving as Organiser in Assam Khadi & Village Industries Board (hereinafter referred to as ‘Board’ for short) had superannuated from service on 31.03.2015. After retirement, except for a sum of Rs.50,000/as one time financial retirement benefit and Group Insurance amount, the petitioner was not paid any other retirement benefit. It is projected that without any enquiry or issuing show cause to the petitioner and giving any opportunity to the petitioner to reply, by an order Memo No. KBE-169/87-88/244 dated 18.12.2015, the Board issued an order directing the petitioner to deposit the misappropriated sum of Rs.2,86,588/- within 30 days on the ground that in audit it was detected that the said money was misappropriated by the petitioner during the period between 1997-98 to 2003-04 while working at Sualkuchi Khadi Production Centre. It is projected that the petitioner was posted at Sualkuchi Khadi Production Centre on 30.12.1999, as such he was never in the said centre during the period from 1997 to 30.12.1999. Hence, the said letter dated 18.12.2015 has been challenged.

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Surprisingly, although this writ petition was filed on 06.01.2016, and after advance notice to the respondents No.2 and 3, notice in this matter was issued by order dated 08.01.2016, but till date none of the three respondents have filed their affidavit- inopposition. Upon a pointed query by this Court, the learned counsel for the respondents No.2 and 3 had submitted that he has not been instructed to file affidavit – in – opposition. Hence, by issuing Rule returnable forthwith, the matter has been heard.

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Counsel for both sides have been heard. It is seen that in the letter dated 18.12.2015, demand for money was made in the following manner, viz., (1) Cash Short – Rs.72,420/-, (2) Stock Short – Rs.1,23,314/-, (3) Circulation Stock (as per Office Notice No. KBE-139/87-88/184 dated 06.05.2006 – Rs.90,854/-, total Rs.2,86,588/-. However, after filing of the writ petition and upon receipt of notice of this writ petition, the Chief Executive Officer of the Board by letter under No. KBE-169/87-88/297 dated 30.04.2016, had modified the office order No. KBE-169/87-88/244 dated 18.12.2015. The said letter is quoted herein

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below:-

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OFFICE OF THE ASSAM KHADI AND VILLAGE INDUSTRIES BOARD, CHANDMARI, GUWAHATI-3

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KBE-169/87-88/297 Date: 30.04.2016

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To,

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Sri Arabinda Das, Organizer (Retd.), Sualkuchi K.P.C. P.O.:- Sualkuchi, Dist. Kamrup ®

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Sub.: Modification of Office Order.

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Ref.:- KBR-169/87-88/244 dtd. 18-12.12015

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In partial modification of the previous office letter No. KBE-169/87-88/244 dtd. 18.12.2015. It is detected by the Audit Report up to 2013-14 at Rampur K.P.C. Bamundi K.P.C., Gahpur K.P.C. and, Sualkuchi K.P.C. where is you are liable to pay an amount of Rs.2,86,588/- during your service period (Audit Report for the pertaining year are enclosed).

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The misappropriated amount are stated below:-

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1 .	Rampur K.P.C. Cash Short Rs. Stock Short Rs. Interest(Cash+ Stock)Rs.	1,596.00 3,647.00 23,039.00	Remitted to Centre A/C’s Remitted to Centre A/C’s Remitted to H.Q. A/C’s
2 .	Gahpur K.P.C. Cash Short Rs. Stock Short Rs. Interest(Cash+ Stock)Rs.	310.00 900.00 4358.00	Remitted to Centre A/C’s Remitted to Centre A/C’s Remitted to H.Q. A/C’s
3 .	Bamundi K.P.C. Cash Short Rs. Stock Short Rs. Interest(Cash+ Stock)Rs.	350.00 825.00 2538.00	Remitted to Centre A/C’s Remitted to Centre A/C’s Remitted to H.Q. A/C’s
4 .	Sualkuchi K.P.C. Cash Short Rs. Stock Short Rs. Interest(Cash+ Stock)Rs.	19,357.00 27,105.00 1,11,709.00	Remitted to Centre A/C’s Remitted to Centre A/C’s Remitted to H.Q. A/C’s
5	Circulation Stock Rs.	90,854.00	Remitted to H.Q. A/C’s
.
	TOTAL Rs.	2,86,588.00

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You are therefore asked to deposit the aforesaid amount of Rs.2,86,588/- in the a/c’s of above mention.

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Chief Executive Officer, Assam Khadi & Vill.Ind.Board 3 Memo No.KBE-169/87-88/297 Copy of information & necessary action:- Date: 30.04.2016

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Guwahati-

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The Executive Officer, i/c, (P) Assam K.V.I. Board, Guwahati-3.

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The Accounts Officer, (Bill/ Budget/ Accounts) Assam K.V.I. Board, Guwahati-3.

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The i/c, Audit, Assam K.V.I. Board, Guwahati-3.

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The District Office, Kamrup, Hengrabari, Assam K.V.I. Board, Guwahati.

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Chief Executive Officer, Assam Khadi & Vill.Ind.Board Guwahati-3

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As per the submissions made by the learned counsel for the Board, the Board has to pay interest and, as such, interest was imposed on the cash and stock shortage attributable on the petitioner.

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It is seen from the letter dated 30.04.2016, that out of a sum of Rs.2,86,588/- claimed by the Board, a sum of Rs.1,41,644/- is towards interest and Rs.1,44,944/- was towards cash shortage, stock shortage and circulation stock. There is no material on record showing existence of any contract between the Board and its employees including the petitioner to pay interest if any stock or cash is found short in audit. There is also no material on record that at any point of time during 1997-98 to 2003-04, any shortage was attributable to the petitioner. Moreover, it is seen that during his service period, the Board or its officials had not issued any letter to the petitioner, demanding payment of money alleged to be misappropriated by the petitioner. Furthermore, there is no denial of the fact that the claim by the Board was made for the first time vide letter dated 18.12.2015, as modified by letter dated 30.04.2016. As the petitioner had superannuated on 31.03.2015, no departmental proceeding appears to have been initiated against the petitioner.

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The allegation about alleged misappropriation of money casts a serious stigma on the petitioner and is required to be established in accordance with law. Therefore,

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in the opinion of this Court, unless the Board is able to establish such grievous charges, the claim as well as the allegation of misappropriation would remain unsubstantiated, which cannot be permitted to entail any recovery after the petitioner has superannuated without any departmental proceeding having been initiated against the petitioner. If the audit report has arrived at a finding that money was misappropriated by the petitioner, there was absolutely no reason for the Board to shy away from filing any affidavit- in- opposition and to bring to the notice of this Court and to the petitioner the finding recorded in the audit report, as such, this Court is inclined to invoke the presumption available under Section 114 Illustration (g) of the Evidence Act, 1972 to presume that the document, if produced, would have been adverse to the interest of the respondents. The audit report alone would not be sufficient to saddle the petitioner with the liability of paying the sum of Rs.2,86,588/- as demanded by the respondents No.2 and 3.

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Moreover, the order dated 18.12.2015, as modified by order dated 30.04.2016, being in the nature of penalty imposed upon the petitioner without there being an enquiry, the same is hit by the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 and the respondent No.2 and 3 cannot be allowed to recover any amount from the petitioner without there being an enquiry. Hence, this Court has no hesitation to set aside and quash the office order No. KBE-169/87-88/244 dated 18.12.2015 issued by the respondent No.3 as well as modification of office order vide Memo No. KBE169/87-88/297 dated 30.04.2016, being hit by denial of principles of natural justice to the petitioner.

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Resultantly, the respondents No.2 and 3 i.e. the Board and its CEO cannot recover any amount of money from the retirement dues payable by the Board to the petitioner. Accordingly, if any recovery of money has been made from the retirement dues of the petitioner, the same shall be returned back to the petitioner as early as possible, and at any rate, not later than 31.07.2019. It is made clear that if the retirement dues that has become payable to the petitioner as on date is not released to the petitioner within the time allowed, such money would carry interest @ 9% on and from 01.08.2019 till such money is actually received by the petitioner in his bank account.

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Accordingly, the Rule is made absolute in terms of this order. Ordered accordingly. The parties are left to bear their own cost.

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The petitioner shall produce a certified copy of this order before the Chief Executive Officer, Assam Khadi & Village Industries Board (respondent No.3) within a period of 2 (two) weeks from today so as to enable timely compliance of this order by the respondent No. 3.

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JUDGE

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Comparing Assistant

Arabinda Das v. the State of Assam and 2 Ors.

Case brief

What is this about?

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Arabinda Das v. the State of Assam and 2 Ors.

Case brief

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