IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.142 of 2010 1. Sheo Bachan Sahu S/O Late Jafar Sahu R/O Vill- Bishunpura, P.S- Bihta, Distt- Patna Versus 1. The State Of Bihar Through The Secretary Water Resources Department, Govt.Of Bihar, Patna 2. The Engineer In Chief, Water Resources Department, Govt. Of Bihar, Patna 3. The Superintendent Engineer, Planing Organizer And Monitoring Circle, Anisahabad, Patna 4. The Executive Engineer, Durgawati Project Right Canal Division, Water Resources Department, Chenari, Rohtas At Sasaram 3/ 26/08/2011 Heard learned counsel for the petitioner and the State. The petitioner is stated to have superannuated as a Junior Engineer in the Water Resources Department in December, 2002. The respondents proposed to recover Rs.6, 24,383.60 by order dated 12.10.2002. The petitioner came to this Court in C.W.J.C. No.13219/02 questioning the same. On 8.7.2003 a Bench of this Court returned a finding that no charge-sheet was ever issued to the petitioner much less any opportunity of hearing or enquiry was made. The order was set aside with liberty to make enquiry and then act in accordance with law. Learned counsel for the petitioner submits that the only power available to the respondents for proceeding against a superannuated employee was 2 under Rule-43(b) of the Pension Rules No proceedings in law had been initiated in service under law. He submits that it was mandatory for them to hold a departmental proceeding in accordance with the procedure applicable for major punishment. The petitioner is required to be served a memo. of charges with an opportunity to defend only whereafter a serious punishment affecting his rights to pension may have been passed. No such procedure has been followed. The respondents have invented a novel procedure of only an enquiry report even under which the petitioner was exonerated on one of the charges. Learned counsel for the State submitted that there has been no order of punishment under Rule- 43(b) of the Pension Rules. A mere decision to file a money suit does not tantamount to punishment as a decision is yet to follow. The petitioner was given a second show cause notice for a difference of opinion on the exonerated charge and therefore has not been prejudiced in any manner. The only disciplinary power available to the respondents against a superannuated employee is under Rule-43(b) of the Pension Rules. The respondents are under no misconception with regard to the same. This is more than apparent from the recitals contained 3 in the order dated 16.10.2009 when it states that proceedings under Section-43(b) of Pension Rules were initiated and difference of opinion caused on the enquiry report on the exonerated charge. The order then concludes that in pursuance of the final order passed (obviously referring to Rule-43(b)) recovery of the amount of Rs.23, 78, 192.34 was not possible from his pensionary resources and thus the decision to file a money suit for recovery as a measure of punishment. There can be no two opinions that the respondents are drawing their powers from Rule-43(b). If that be so, it was mandatory for them to initiate a regular departmental proceeding by serving a copy of memo. of charges along with evidence in support of the charges, appointing a presenting officer, an enquiry officer, giving the petitioner an opportunity for defence and then arrive at a conclusion. The respondents have not been able to demonstrate that this procedure was followed by them. An order affecting pensionary rights of a superannuated employee in the evening of his life when he may have no other source of income to survive is a serious matter. The Court therefore holds that the impugned order, insofar as it seeks sanction and protection of Rule-43(b) of the Pension Rules is not sustainable and is completely arbitrary, devoid of 4 jurisdiction. But, the Court is of the opinion that the order is severable. Even if Rule-43(b) be held to be bad, the right of the State for a money suit to effect a money recovery in accordance with law by proving the allegations in a proceeding under Section-9 of C.P.C. subject to the laws of the land including limitation cannot be denied. The impugned order dated 6.10.2009 is set aside with the aforesaid observations. Learned counsel for the petitioner next submits that on account of the impugned order his pensionary rights are being affected. There are no pleadings to that effect. It is not possible for the Court to deal with that aspect of the matter. If so advised, the petitioner may represent before the authorities when they are now required to act in accordance with law on that aspect also considering the discussions contained in the present order. The writ application stands allowed. KC ( Navin Sinha, J.)