JUDGMENT
Radha Mohan Prasad, J.
1. The petitioner who retired as Junior Engineer on 31-10-1993 while posted in Minor Irrigation Circle, Muzaffarpur, is aggrieved on account of deduction of Rs. 27,436.13 pension and adjustment of Rs. 13,640/- from the sanctioned amount of leave encashment against the temporary advance received by him and has thus sought for direction to the respondents to pay him the said amount.
2. The petitioner during the period of his service had taken advance for execution of certain work and the dispute is with respect to utilisation of amount. According to the petitioner the work was executed and the amount advanced to him was utilised. The respondents also admit that the work has been done and bills were submitted by the petitioner but the work done by him was not for which the advance was received by him. Annexure-4 which is the letter of the Superintending Engineer, Minor Irrigation Circle, Muzaffarpur, also supports the said facts. However, the matter was inquired into at different times and it has been found that the petitioner is liable to refund a sum of Rs. 51,076/-.
3. It is contended on behalf of the petitioner that as the work in respect of which the petitioner received the advance was executed he cannot be held liable for refund, etc. It is contended that in any view of the matter, recovery is not permissible except after taking recourse of provision contained in Rule 43(b) of the Bihar Pension Rules after the retirement of the petitioner from service in October 1993 itself and that too only, if the case is covered by the rider clause of the said provision which provides that:
(a) Such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment,
(i) shall not be instituted save with the sanction of the State Government;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings;
It is submitted that in the present case, the period in question relates to the year 1990, i.e. much beyond four years and as such no action even under the said provisions is permissible. It is contended that the petitioner cannot be denied of the pensionary benefits.
4. Learned Counsel for the respondents, on the other hand, has submitted that there is no question of initiation of any departmental proceeding in the present case as the amount sought to be recovered is on account of non-adjustment of the amount received by the petitioner as advance. The Court does not find any substance in the said submission of the learned Counsel for the respondents.
5. That facts of the case show that there is no dispute that the work was executed by the petitioner for which the advance was received by him. The only dispute is as to whether the advance received by him has been utilised for the work for which he received it. Under such circumstances, there is no question of adjustment of any amount taken by the petitioner for which it may not be necessary to take recourse to the provisions of Rule 43(b) of the aforesaid Rules. In fact, in the present case, the charge, if any against the petitioner is that he utilised the amount received by him as advance for executing of the work of the Government but not for the work for which advance was received for which an action could have been initiated against him while he was in service or even after retirement but in terms of the provisions contained in Rule 43(b) of the said Rules. As no such action has been initiated against the petitioner in my opinion, the respondents are not legally justified in withholding the payment of the remaining pensionary dues.
6. Accordingly, this writ petition is allowed. The respondents are directed to issue necessary sanction order/authorisation for payment of the aforementioned remaining retiral dues to the petitioner within two weeks of the receipt/production of a copy of this order, failing which the authority concerned shall not draw his salary and allowances till compliance of the order and he shall also be liable to pay cost of Rs. 1,000/- to the petitioner from his pocket.