IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5379 of 2002 RAJ BAHADUR PRASAD SHARMA Versus THE STATE OF BIHAR & ORS For the petitioner : Mr. Sudhir Singh,Adv. Mr. Akhilesh Kumar, Adv. For the State : Mr. A.A.G. I. ----------- 6/ 20/01/2009. Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 30.11.1999 passed by respondent No.3 ordering 5% withholding of his pension, as also the appellate order dated 1.9.2000 passed by respondent No.2 modifying the same to the extent of 5% of pension shall be withheld for five years only. The petitioner was suspended on certain current charges on 2.9.1992. Memo of charges was served on him on 10.2.1994. An enquiry report came to be submitted on 30.6.1994 exonerating him from the charges. Nothing transpired further when he retired on 31.12.1997. On 6.7.1998 the departmental proceeding were sought to be converted into one under Rule-43B of the Bihar Pension Rules and a show cause notice was issued to him for appropriate punishment when the impugned orders have followed. Learned counsel for the petitioner submitted that after the report of exoneration was submitted in a 2 departmental proceeding on 30.6.1994, the authorities had the option to differ with the enquiry report by giving notice to the petitioner of tentative reasons for the disagreement and the punishment proposed. The authorities did not choose to do so. It shall, therefore, be deemed that the report of exoneration was accepted. The petitioner superannuated on 31.12.1997. The master-servant relationship came to be severed. It was also urged that there is no sanction of the State Government to the proceeding sought to be converted into Rule-43B of Bihar Pension Rules. The departmental proceedings sought to be continued are on a ground, in any event, more than four years and therefore barred under Rule-43B of Bihar Pension Rules. Learned counsel for the State urged that an F.I.R. has been lodged against the petitioner also and the matter remains pending. The facts revealed that the petitioner was proceeded departmentally on allegations of in or around the period 1992. An enquiry report of exoneration came to be submitted. The authorities had the option to differ with the same and proceed. They chose not to do so and permitted the petitioner to retire on 31.12.1997. If that be so, the master-servant relationship stood severed. The petitioner could be proceeded under Rule-43B of 3 Bihar Pension Rules only. In view of the limitation of four years prescribed in law and that too with the sanction of the State. This Court finds it difficult to uphold the action of the State in taking no action on the report of exoneration dated 30.6.1994 and to urge on that basis that the departmental proceeding had remained pending. This Court holds that the respondents are deemed to have dropped the proceedings on the facts of the case. In any event of the matter, the proceedings sought to be converted into one under Rule-43B of Bihar Pension Rules do not have the sanctity of the law as they related to an event beyond four years from the date of occurrence. The Supreme Court in (2005) 3 SCC 501 (RAM DAYAL RAI Versus JHARKHAND STATE ELECTRICITY BOARD AND OTHERS) in the relevant extract at paragraph-17 as follows:- “…….If the pensioner’s benefit is cut at 5% out of the total amount of pension payable to the appellant, the appellant will suffer an irreparable loss and injury since, after retirement, the pensionary benefit is the only amount available to eke out a livelihood for the retired employees of the Government.” In the aforesaid judgement the Supreme Court clearly held that even 5% deduction of pension for a retired Government servant in the evening of his 4 life who has no other source of survival will amount to irreparable loss and injury. The application is allowed. The impugned orders dated 30.11.1999 and 1.9.2000 are accordingly set aside. Let the dues of the petitioner be paid to him after recalculation of his pension within a maximum period of three months from the date of receipt/production of a copy of this order. The court makes no observations on the F.I.R. stated to have been filed against the petitioners and with regard to which the law shall take its own course. KC ( Navin Sinha, J.)