IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11328 of 2001 KAULESHWAR PD.SHARMA @ K.P.SHARMA Versus THE BIHAR STATE ELEC.BOARD & ORS ----------- 7. 24/09/2008 This writ application has been filed for quashing of Annexure-7, whereby 2% pension of the petitioner has been withheld on permanent basis. Prayer has also been made for a direction to the respondents to pay full pension of the petitioner, as a result of quashing of Annexure- 7, as well as to make payment of arrears on this count. Case of the petitioner is that he was appointed as Assistant Electrical Engineer in the year 1966 and joined his post on 4.4.1966 under the Respondent Board. While he was posted at Muzaffarpur as Technical Secretary to the General Manager-cum-Chief Engineer Transmission, Zone-II, he was served with a charge sheet dated 29.8.1998 for his certain acts of omission and commission while he was posted at Ranchi as Electrical Executive Engineer, Transmission. A copy of the said charge sheet has been annexed as Annexure-1. In nutshell, charges levelled against the petitioner was that he allowed - 2 - payments to the Contractor for his sub-standard and defective work in construction of residential quarters by not pointing it out promptly to the higher officials. Petitioner submitted his show cause and appeared before the Enquiry Officer and adduced evidence. After completion of the enquiry, the Enquiry Officer submitted his report dated 29.5.1999, vide Annexure-2, with a finding that the charges were not proved. However, disagreeing with the enquiry report, the disciplinary authority by resolution dated 13.9.1999, vide Annexure-3, issued show cause to the petitioner against proposed punishment. Petitioner replied to the show cause. Ultimately, the disciplinary authority passed final orders vide Resolution No.1534 dated 26.10.1999, as contained in annexure-4, imposing punishment of withholding one annual increment of the petitioner and debarring him from promotion for one year. When the punishment order was passed by the disciplinary authority, petitioner was on the verge of retirement and only after four days of the said order he retired from service on 31.10.1999. - 3 - After retirement, petitioner submitted papers for pension and other retiral benefits. While the matter with regard to fixation and payment of his final pension and other retiral benefits was pending, on the ground of non availability of service records, 90% pension was allowed to the petitioner vide order dated 2.11.1999. Finalization of his pension and other retiral benefits remained pending for some time and the petitioner was served with a show cause notice dated 24.5.2000, vide Annexure-5, to show cause as to why 2% pension amount may not be permanently withheld from his pension by withdrawing the order dated 26.10.1999 imposing punishment on him during the tenure of service on conclusion of enquiry. Petitioner filed his reply to the said notice vide Annexure-6, in which he contended that the proceeding stood concluded finally by order dated 26.10.1999, therefore, present notice amounted to third show cause which was neither permissible under the rules nor was proper. The disciplinary authority finally passed order dated 17.7.2000 vide impugned Annexure-7, by which he withdrew the order dated 26.10.1999 imposing punishment on - 4 - the petitioner during his service period, and ordered for withholding of his 2% pension on permanent basis. Contention of learned counsel for the petitioner is that once the proceeding stood concluded finally by order dated 26.10.1999, no proceeding remained pending against petitioner on the date of his retirement. Therefore, in terms of Rule 43(b) of the Bihar Pension Rules which is admittedly applicable to the employees of the Board, no order could be passed against petitioner in continuity of the proceeding which could be treated as pending on the date of his retirement, since the proceeding had finally concluded on 26.10.1999 against him. He further submitted that even though the punishment imposed by the final order could not be effected upon the petitioner, the same could not be reopened by the respondents for the purpose of passing any order against him under Rule 43(b) of the Bihar Pension Rules in continuation of the same. Learned counsel for the petitioner further submitted that upon retirement of the petitioner, relationship of master and servant - 5 - between him and the Board stood severed and respondents had control over him only for the purpose of sanction and grant of his pension and other retiral benefits, and therefore, they could take any action against him in the matter of sanction and grant of pension or otherwise only in terms of the provisions of Bihar Pension Rules. He further submitted that if withdrawal of an order by the disciplinary authority, passed finally in a concluded proceeding during service period, after retirement of an employee, is held to be permissible in law, the same shall create havoc as every disciplinary authority shall have the power to reopen any proceeding against a retired employee passed at any point of time of his service career and treat the proceeding to be pending for the purposes of passing order under First Part of Rule 43(b) of the Bihar Pension Rules. Learned counsel for the petitioner further submitted that since the proceeding stood concluded before retirement of the petitioner and there was no proceeding pending against him on the date he retired, respondents could only take action against him under proviso - 6 - to Rule 43(b) of the Bihar Pension Rules. However, the proviso to Rule 43(b) permits initiation of departmental proceeding against a Government servant after his retirement only under certain conditions, which includes that the event for which proceeding is said to be initiated, should not be of more than four years prior to institution of the proceeding. The events of omission and commission alleged against the petitioner being of prior to 1994 (as will be evident from the charges), initiation of the proceeding against him in the year 2000 was clearly barred by law. He lastly contended that there is no whisper of exercise of power by the respondents under Rule 43(b) of the Bihar Pension Rules in the impugned order (Annexure-7), and therefore, it cannot be presumed that the said order withholding 2% pension of the petitioner permanently was passed under the said provision. A counter affidavit has been filed by the respondents in the case, In the counter affidavit it is contended that since the punishment imposed by order dated 26.10.1999 could not be made operative against the - 7 - petitioner as he retired soon thereafter, the respondents thought it proper to withdraw the said order and pass orders against the petitioner in terms of Rule 43(b) of the Bihar Pension Rules. For this purpose, notice was given to the petitioner and after considering his show cause, orders were passed. Therefore, the impugned order was perfectly valid and legal and in compliance of principles of natural justice and was well within the powers of the respondents prescribed by law. Petitioner has filed rejoinder to the counter affidavit in which more or less contentions raised in the writ application have been reiterated. It is also contended that the order impugned amounts to second punishment to the petitioner for the same charges which is violative of Article 20(2) of the Constitution of India. It is also said that the petitioner did not challenge the order dated 26.10.1999 as he retired only a few days after passing of the order and upon his retirement, the said order died its natural death with the severance of the relationship of master and servant between him and the Board. - 8 - It is not a case of either party that in spite of passing of final order in the departmental proceeding dated 26.10.1999 the proceeding did not conclude and remained pending. Whereas, on the one hand, contention of the petitioner is that after final conclusion of the proceeding it could not be reopened, specially after his retirement, the contention of the respondents, on the other hand, is that since the punishment imposed by the order could not be effected on the petitioner, the authorities were well within their power to withdraw the said order of punishment even after retirement of the petitioner. It is well settled that the departmental proceeding stands finally concluded with the passing of the final order by the disciplinary authority subject to any appeal or revision as may be provided under the relevant rules. While a Government servant is in service, there may be some contingencies in which final order passed in the proceeding may be recalled or reviewed but the situation changes completely after the retirement of the incumbent from service. After retirement from service, relationship of master - 9 - and servant between the employee and the employer is severed and the employer’s obligation towards his employee and the employee’s right towards his employer is limited only to the extent of sanction and payment of his retirement benefits. Hence after retirement of the incumbent, a service rule becomes inapplicable and the rights and duties of an employee are governed only by the provisions of the Pension Rules and other laws dealing with other retiral benefits. In the circumstances, employer’s power to interfere with the sanction and payment of pension etc. to an employee is limited to the extent of powers enshrined in the Pension Rules only and not otherwise. In the background of this legal position, it is clear that the authorities of the Board could exercise power in respect of sanction and grant of pension to the petitioner or interfere with the same only under the provisions of Pension Rules. Apparently, they derive power to interfere with the sanction and payment of pension of the incumbent only in terms of Rule 43(b) and 139 and not otherwise. It is settled by judicial decisions that in case a proceeding is pending - 10 - from before, the same could be treated as continued for exercise of power under Rule 43(b) without any specific order in this regard. However, Rule 43(b) does not empower a disciplinary authority or an employer to reopen the matter which stood finally concluded during the service period of an employee for the purpose of exercise of power under Rule 43(b) and for the purpose of passing an order of withholding or withdrawing pension of an employee for a period or permanently. In case any proceeding not being pending from before, proviso to Rule 43(b) gives liberty to an employer to institute a proceeding under certain conditions which includes that the proceeding so instituted should not be for an incident of more than four years prior to the date of the said institution. In the present case, it is apparent that no proceeding was pending on the date of retirement of the petitioner. In that case, respondents could not treat it pending and proceed in the matter in terms of Rule 43(b). After retirement of the petitioner, they had also no power to recall the order of punishment passed earlier during the service period of - 11 - petitioner finally concluding the proceeding to make the proceeding revive and pass orders under Rule 43(b). Additionally, since the incident was of more than four years prior to the issue of show cause to the petitioner vide Annexure-5, initiation of a proceeding under proviso to Rule 43(b) was also clearly barred. In the circumstances, in view of the legal position enumerated above, it is clear that Annexure-7 was issued by the respondents de hors the powers vested in them by the Bihar Pension Rules, and therefore, was without jurisdiction. Thus, Annexure-7 being not sustainable in the eye of law, the same is fit to be quashed and is hereby quashed. Respondents are directed to restore the pension of the petitioner to 100% from the date of his retirement and pass orders for payment of his entire arrears on this count within two months from the date of receipt/production of a copy of this order. In the result, this writ application is allowed with the above observations and directions. Pradeep/ (J. N. Singh, J.)