Full Judgment
R.N. Prasad, J.
1. The petitioner was appointed as a Junior Engineer in the year 1970. He was promoted to the post of Assistant Engineer in 1978. In 1986 he was promoted to the post of Executive Engineer. He retired from service on 31.7.1999. A proceeding was initiated against him vide letter dated 2,11.1999 (Annexure-2) under Rule 43(b) of the Bihar Pension Rules (in short 'the Rules') with respect to the incident/omissions and commissions of an act in the years 1987-88 to 1989-90. Charge was furnished to the petitioner. The petitioner made a demand of the relevant documents but in spite of the demands those documents were not supplied to him. However, he filed show cause against the charge. The Inquiry authority, after inquiry, submitted report to the Disciplinary Authority. The Disciplinary Authority awarded two punishments, i.e., withholding of 50% pension and also withholding of 50% amount of gratuity under Rule 43(b) of the Bihar Pension Rules vide letter dated 21.7.2003 (Annexure-1). The petitioner has challenged the said order in this writ petition on the ground that initiation of the proceeding under Rule 43(b) of the Rules is illegal as it was with respect to the incident which took place in the years 1987-88 to 1989-90, i.e., much more than four years from the date of initiation of the proceeding, after retirement.
2. A counter-affidavit has been filed on behalf of the respondents in which it has been admitted that a proceeding under Rule 43(b) of the Rules after retirement of the petitioner was initiated with effect from 2.11.1999 with respect to the incident which occurred in the years 1987-88 to 1989-90. Some explanation also has been given with respect to delay in initiating the proceeding.
3. On consideration of the submissions made by the counsel for the parties and the materials available on the record, this much is obvious that the petitioner retired from service on 31.7.1999. A proceeding under Rule 43(b) of the Rules was initiated against him with effect from 2.11.1999 with respect to the incident/ misconduct which took place in the years 1987-88 to 1989-90, i.e., the incident took place much before four years from the date of initiation of the proceeding. Rule 43(b) of the Bihar Pension Rules reads as follows :
'43(b). The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement :
Provided 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; and
(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.'
4. It is evident from the aforesaid provisions that power under Rule 43(b) of the Rules can be exercised in connection with the alleged misconduct of a retired government servant if it is shown that in a departmental proceeding or a judicial proceeding the concerned government servant has been found guilty of grave misconduct and also the proceeding must be with respect to the misconduct which took place not more than four years before the initiation of the proceeding. In the instant case the proceeding was- initiated on 2.11.1999 with respect to an incident/ misconduct alleged to have been committed in the year 1987-88 to 1989-90, i.e., the incident which took place about ten years ago from the date of initiation of the proceeding after retirement of the petitioner, although, Rule 43(b) of the Rules does not conform to such proceeding. In the case of State of Bihar and Ors. v. Mohd. Idris Ansari, 1995 (2) PLJR 51 (SC) and also in the case of Shyamsunder Prasad v. The State of Bihar and Ors., 2002 (4) PLJR 80 (SC), it has been held by the Apex Court that no proceeding under Rule 43(b) of the Bihar Pension Rules can be initiated with respect to the incident/misconduct which took place more than four years from the date of initiation of the proceeding against a retired employee.
5. Thus, on consideration of the relevant rules as well as the decisions of
the Supreme Court discussed above, the impugned order (Annexure-1) cannot be
held to be legal. Accordingly, this application is allowed. The order (Annexure-1)
is hereby quashed.