IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14211 of 2006 BALMIKI MAHTO Versus THE BIHAR STATE ELECTRICITY BOARD & OTHERS ----------- For the petitioner: M/S. Narendra Kumar Jha and Nitesh Kumar Nirala. For the respondents: Mr. Ratan Kumar Sinha. ------ 03. 10.09.2008 Petitioner superannuated on 31.1.2000 on the post of Assistant Executive Engineer (Fuel), Barauni Thermal Power Station, Barauni. After his retirement, on 25.8.2000 an order has been passed withholding two percent of his pension in exercise of power under Rule 139 of the Bihar Pension Rules. In the present writ application petitioner has challenged this order to be an illegal order without sanction of authority of law and rule in this regard. The primary contention of the learned counsel for the petitioner is that Rule 139 of the Bihar Pension Rules lays down certain parameters before the respondents can withhold either full or part pension given to an employee. There are certain inherent safeguards which have been laid down in Rule 139 (c) . It is submitted on behalf of the petitioner that at no point of time any departmental enquiry was held against him where a finding of misconduct was recorded and a commensurate punishment order has been passed against him. Though he does not deny that on 25.11.1999 a few months before the retirement of the petitioner, a kind of show cause was issued indicating as to why disciplinary action be not taken against him if his explanation is not found satisfactory. The petitioner - 2 - responded to the show cause with his reply as is evident from annexure-4. Finding the explanation to be unsatisfactory the authorities decided to impose punishment of stoppage of one annual increment with non cumulative effect and also censure to be recorded in the ACR for the year 1999-2000. This order of punishment is dated 6.4.2000 and is contained in annexure-2. After passing of this order of punishment the respondents realized that since the petitioner has already superannuated on 31.1.2000, this punishment had no meaning and therefore, they issued show cause asking him as to why punishment of withholding of two per cent of his pension be not passed. Based on that show cause, impugned order dated 25.8.2000, contained in annexure-1, has come to be passed which is under challenge in the present writ application. A counter affidavit has been filed by the respondent board and they have justified the imposition of this punishment under Rule 139 of the Bihar Pension Rules. They have indicated the background under which this punishment order had to be passed against the petitioner. But the question in the present case is whether in the given background and with the material on record, the same satisfies the conditions laid down in Rule 139 (c) of the Bihar Pension Rules? The provision is very clear on the issue that there has to be finding of grave misconduct on the part of the petitioner when he was in service. In the present case no finding of the kind has ever come to be recorded or any punishment imposed against the petitioner while he was in - 3 - service. Though a minor punishment in terms of annexure-2 had been issued but then this had come to be issued after the superannuation of the petitioner. From the very nature of the punishment contained in annexure-2 which is withholding of increment with non cumulative effect for one year, it cannot be concluded that petitioner was found to be guilty of grave misconduct. In view of the above, the Court is of the opinion that the requirements of Rule 139 especially sub clause (c) of the Bihar Pension Rules are not fulfilled and the respondents have exceeded their power by invoking Rule 139 in imposing punishment in question. The impugned order dated 25.8.2000, contained in annexure-1, is hereby quashed with a direction upon the respondents to decide the retiral dues of the petitioner as if punishment in question was not passed against him. The writ application is allowed. rkp (Ajay Kumar Tripathi, J)