Court No. - 40
Case :- WRIT - C No. - 9023 of 2012 Petitioner :- Smt. Dewanti Devi And Others Respondent :- Union Of India And Others Counsel for Petitioner :- A.K. Malviya,Mohan Tiwari Counsel for Respondent :- C.S.C.,A.S.G.I.(2012/2950),Ashok Kumar Singh,Dhirendra Kumar Dwivedi,S.K. Pal
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Abhai Kumar,J.
Heard learned counsel for the petitioners.
Learned counsel for the petitioners has vehemently urged that this liability of recovery which has been fixed under the Public Accounts Default Act, 1850 cannot be the basis of any recovery from the petitioner, inasmuch as, the liability has neither being bifurcated nor fixed after apportioning the amount, inasmuch as, it is the employees of the postal department who have infact embezzled the same. For this, the argument is that the entire computer operations is within the hands of the post office employees and any hacking or incorrect feeding of the amount is beyond the control of the petitioners. Consequently, the petitioners cannot be held liable for any act either overt or covert committed by the post office employees in facilitating the withdrawal of the amount ten times more than what had been deposited. Learned counsel submits that there was absolutely no role particularly of the petitioner nos. 1 and 2, and the involvement of the petitioner no. 3 has been shown only because he happens to be the son of the other two petitioners who are the agents of the post office.
The writ petition was entertained and the following interim order was passed on 17.02.2012 which is extracted hereinunder:-
"The submission of the learned counsel for the petitioner is that with regard to the alleged misappropriation of Government funds, an enquiry is going on against the petitioners and several other persons. Even though the said enquiry has not been completed as would be clear from the communication dated 11.11.2011 (Annexure-5 to the writ petition), the impugned recovery citation has been issued against the petitioners. It is contended that even though it has not been established that the petitioners have misappropriated any amount, the said recovery citation has been issued.
In our view, matter requires consideration.
Sri Ashok Kumar Singh has put in appearance on behalf of respondents no. 1 to 3 and the learned Standing Counsel for the respondents no. 4 and 5. They pray for and are granted three weeks time to file counter affidavit. The petitioner shall have two weeks thereafter to file rejoinder affidavit. List immediately thereafter showing the name of Sri Ashok Kumar Singh as counsel for the respondent.
Considering the facts and circumstances of this case, it is directed that till the next date of listing the recovery from the petitioners in pursuance of the impugned recovery citation dated 10.1.2012 shall remain stayed."
Thereafter a counter affidavit was filed on 6th May, 2012 by the Superintendent of Post Office, Deoria entailing therein as to the manner in which the involvement of the petitioners came to the fore. In particular, the petitioner no. 3 has been nominated in carrying out these fraudulent operations in order to facilitate the withdrawals, and then investing it either in his own name or in the name of his family members. Such facts have been stated in detail in the aforesaid counter affidavit, particularly in paragraph no. 11 thereof. A rejoinder affidavit denying the same was filed to which a supplementary counter affidavit has been filed on behalf of the respondents through the Superintendent of Post Offices, Deoria and this supplementary counter affidavit was served on the learned counsel for the petitioners in January, 2014.
There is no reply filed to the said supplementary counter affidavit.
Having perused the said affidavits and having heard Sri I.S. Tomar, learned counsel for the Union of India, we find that so far as criminal liability is concerned and the lodging of an FIR, the same is within the jurisdiction of the criminal court and that is with regard to the criminal liability arising out of any such action. The present is a case where the embezzled amount is sought to be recovered from the petitioners under the Public Accounts Default Act, 1850. There is neither any legal bar nor any prohibition on the part of the authorities to proceed to make such recovery and wait for any apportionment arising out of the criminal trial.
In the aforesaid circumstances the argument of the learned counsel for the petitioners that the recovery cannot be initiated is incorrect.
The non submission of any reply to the facts asserted in the supplementary counter affidavit further establishes that the embezzlement involves the recovery of such a huge amount of Rs. 2,15,00,000/- which is in public interest.
Consequently in the wake of the aforesaid huge nature of fraud and embezzlement, a writ petition under Article 226 cannot be claimed as a matter of right, inasmuch as, we have not been able to gather any legal infirmity in the proceedings so adopted nor it could be pointed out by the learned counsel for the petitioner so as to warrant interference under Article 226 of the Constitution of India.
We are, therefore, not inclined to keep this matter pending, the writ petition is dismissed and the interim order dated 17.02.2012 is hereby discharged.
Order Date :- 30.4.2018 S.Chaurasia