Orissa High Court
Sri Ajay Kumar Das vs State Of Odisha & Ors. .... Opposite ... on 19 January, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OA) No.2727 of 2015
Sri Ajay Kumar Das .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
11.01.2023 Order No
05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard Mr. R.K. Bisoi, learned counsel for the Petitioner and Mr. N.N. Satapathy, learned Standing Counsel appearing for the Department.
3. The Petitioner who happens to be the husband of the deceased employee Smt. Subasini Das has filed the present writ petition challenging the communication issued by the O.P. No. 4 on 24.03.2015 under Annexure-10, wherein an amount of Rs.2,13,686/- (Rupees two lakh thirteen thousand six hundred eight six) was kept withheld from the retirement gratuity of his wife toward recovery.
4. Learned counsel for the Petitioner contended that Petitioner's wife while working as a Headmistress in Nuasahi Primary School, Nuasahi in the district of Keonjhar, a sum of Rs. 9,00,000/- (Rupees Nine lakh) was transferred to the joint account held by wife and the president of the Village Education Committee on 25.01.2011. Out // 2 // of the said amount of Rs. 9,00,000/- (Rupees Nine lakh) a sum of Rs. 4,50,000/- (Rupees Four lakh fifty thousand) was withdrawn on different dates and the said fact is reflected in the pass book available at Annexure-3. It is further contended that out of the withdrawal amount of Rs. 4,50,000/- (Rupees Four lakh fifty thousand) the V.E.C. in its proceeding dtd.27.06.2012 resolved that out of the said amount, an amount of Rs. 44,652/- (Rupees Forty four thousand six hundred fifty two) is available with the wife of the present Petitioner and the balance amount has been spent towards construction of the school building up to nimital level. It is also contended that the balance amount after withdrawal of the amount of Rs. 4,50,000/- (Rupees Four lakh fifty thousand) is available with Bank of India, Keonjhar branch. It is also contended that because of dispute with regard to utilization of the fund, the Petitioner's wife was transferred from the school in question and subsequently she died on 24.07.2014. After the death of his wife when the Petitioner raised the claim for sanction of the pension and other pensionary benefits, the impugned communication was issued under Annexure-10, wherein an amount of Rs.2,13,686/- was withheld from the retirement gratuity of his wife. Accordingly, it is contended that without determining the recoverable amount with initiation of a duly constituted proceeding, no order of recovery can be made and/or issued.
5. Mr. Bisoi further submitted that after receipt of Annexure-10 though the Petitioner moved a detailed representation before the O.P. No. 4 on 15.04.2016 under Annexure-11, but no decision was taken and the said amount has been kept withheld till date.
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6. Mr. Satapathy, learned Standing Counsel on the other hand made his submission basing on the stand taken in Para 4 of the counter affidavit filed by the O.P. No. 4. The stand taken in Para 4 is reproduced hereunder:-
"4. That, It is humbly submitted that the fund amounting to Rs.9,00,000/- (Nine Lakhs) has been released to the account of VEC out of the total sanctioned amount of Rs. 9,20,000/-(Nine Lakh Twenty Thousand). As per the Utilization Certificate submitted by the then Head Master vide her letter No. 49 dated 22/07/2013 in which it has been reflected that the construction work has progressed up to the Lintel Level utilizing amounting to Rs. 2,45,245/-(Two lakh forty five thousand two hundred forty five) only. After check measurement by the Technical consultant and Sr. Technical consultant an amounting to Rs.2, 41,654/- (Rupees Two lakhs forty one thousand six hundred and guideline thereof. The then Headmaster and President, Village Education Committee (VEC) have executed the agreement on 11/01/2011 with the District Project Co- ordinator, RTE-SSA, Keonjhar on behalf of State Project Director, OPEPA, Odisha and funds amounting to Rs.9, 00,000/-(Nine Lakh) only has been released on 11/01/2011to the VEC joint account after administrative approval of Collector-cum-Chairman, RTE-SSA, Keonjhar as advance before starting up the construction work basing on the SSA Financial Management and Procurement Rule. As per the agreement the work was to be completed in stipulated period within 6 months from the date of execution of agreement i.e. by 11/01/2011. The then Headmaster late Subasini Das has failed to fulfill the terms and condition of agreement executed by her. The copy of agreement executed by the Headmaster and President, VEC and the District Project Co-ordinator, SSA, Keonjhar dated 11/01/2011."Page 3 of 5
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7. A rejoinder has been filed by the Petitioner stating therein that out of the total sanctioned amount of Rs.9,00,000/- (Rupees nine lakhs) a sum of Rs.4,59,969/- (Rupees Four lakh fifty nine thousand nine hundred sixty nine) has been spent and the said fact is approved by the V.E.C. in its proceeding dtd.27.06.2012 available at Annexure-4. The balance amount of Rs.4,40,031/- (Rupees four lakh forty thousand thirty one) is available in the joint bank account and accordingly, it is contended that no recovery is permissible on the face of the resolution passed by the V.E.C. under Annexure-4 and the balance amount available in the joint account with Bank of India, Keonjhar Branch.
8. Having heard learned counsel for the Parties and taking into account the fact that no proceeding was ever initiated against the wife of the present Petitioner to determine the amount alleged to have been misappropriated by her, no order of recovery should have been issued while issuing Annexure-10. Therefore, in view of such factual position this Court is inclined to quash the letter available at Annexure-10 to the writ petition. While quashing the same, this Court directs O.P. No. 4 to take a fresh decision on the matter by giving a personal hearing to the Petitioner.
9. However, it is observed that while taking such a decision the resolution passed by the VEC under Annexure-4 and the amount available in the joint bank account of the school shall be taken into consideration by the O.P. No. 4. The entire exercise shall be completed by the O.P. No. 4 within a period of two (2) months from the date of receipt of this order. If on such reconsideration it is found that no recovery can be effected, then the amount kept withheld from the retirement benefits of the Petitioner's wife be Page 4 of 5 // 5 // released in favour of the Petitioner within a further period of one (1) month.
10. The writ petition is disposed of with the aforesaid observation and direction.
(Biraja Prasanna Satapathy) Judge Sneha Page 5 of 5