Purnendu Singh, J. – Heard Ms. Sweta Raj, learned counsel appearing on behalf of the petitioner, Dr. Anand Kumar, learned counsel appearing on behalf of the Bihar State Road Transport Corporation, Patna and Mr. Prabhat Kumar Verma, learned counsel for the petitioner.

2. The petitioner is aggrieved by the Memo No. 1944 dated 29.06.2016 whereby the petitioner was found guilty of defalcating Rs.1,34,973/- and the respondent had directed for recovery of 25% of the total embezzled amount from head of gratuity.

3. Learned counsel appearing on behalf of the petitioner submits that the petitioner was working as Divisional Accounts Officer in Bihar State Road Transport Corporation, Patna Division. A charge Memo No. 6389 dated 26.10.2007 was issued to the petitioner by which the petitioner was directed to submit a show cause to Shri Yatindra Nath Jha, Director, Vigilance and Security, within 15 days and failure to do so would raise a presumption that he had nothing to say in the matter and decision could be taken ex parte.

4. It is further submitted that, the petitioner had submitted his show cause vide memo No. 4148 dated 07.11.2007, whereby he had denied the charges leveled against him in Memo No.6389 dated 26.10.2007. Subsequently, the petitioner was placed under suspension and a departmental proceeding was initiated.

5. It is submitted that the petitioner retired from service on 31.01.2010, during the pendency of the departmental proceeding initiated against him.

6. Learned counsel submits that, the report of the first departmental inquiry which was conducted by Director, Vigilance and Security, was closed on 21.02.2015. The Audit report Officer shows that there had been no embezzlement no financial loss has been caused to the corporation and that the guilt of the petitioner was not proved.

7. However, defying the procedural norms, the respondent authorities had appointed Chief of Administration as conducting officer vide Memo No. 254 dated 04.05.2011, much before the report of first departmental inquiry was concluded on 21.02.2015.

8. Learned counsel submits that on the same set of charge Memo No. 6389 dated 26.10.2007 the Chief of Administration without following the due process of law had passed order contained in Memo No. 1944 dated 29.06.2016, whereby the petitioner was found guilty of defalcating Rs.1,34,973/- and 25% of the total embezzled amount from head of gratuity was ordered to be recovered from the petitioner. Being aggrieved by the order the petitioner has prayed for setting aside the order of recovery contained in Memo No. 1944 dated 29.06.2016 in view of the audit report.

9. Per Contra, Learned counsel appearing on behalf of the respondent-State submits that the petitioner was found to have committed the act of negligence, defalcation and financial irregularity in connivance with the then Cashier and helped him in the embezzlement of the sum of Rs.1,34,973/- by not properly discharging his duty and physically having verified the cash book receipt with malafide intentions. Therefore, in the light of Clause-8(2)(b) of Bihar State Road Transport Corporation Regulation(Annexure-C to the supplementary counter affidavit on behalf of respondent no. 1, 2 and 3), the penalty amount has been recovered from the gratuity amount payable to the petitioner.

10. It is further submitted that the Competent Authority/ Disciplinary Authority did not agree with the findings of the Inquiry Officer(Director, Vigilance and Security) and before passing final order, the Competent Authority sent the file for necessary inquiry to the Chief Accounts Officer. It is submitted that the Competent Authority concluded that the first inquiry conducted by the Director, Vigilance and Security did not conduct said inquiry/investigation properly. Therefore another Inquiry Officer i.e. the Chief of Administration was appointed as conducting officer by Memo No.254 dated 04.05.2011. But the inquiry report could not be submitted by him because he was transferred to oth