IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8520 of 2003 Deep Narain Singh, Son of late Askrit Singh, Resident of Village Bagh Majhawa, Police Station Koilwar in the district of Bhojpur (Ara). ------- Petitioner Versus 1. The State of Bihar. 2. The Commissioner and Secretary, Home (Police) Department, Government of Bihar, Patna-15. 3. The Director General and Inspector General of Police, Bihar, Patna-15. 4. The Inspector General of Police Special Branch, Bihar, Patna- 15. 5. The Deputy Inspector General of Police, Special Branch, Bihar, Patna-15. 6. The Superintendent of Police (A) Special Branch, Bihar, Patna- 15. ------- Respondents ----------- 3 7.1.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That this writ petition is for the issuance of a writ in the nature of writ of certiorari, for quashing the orders, contained in memo no. 4605 dated 1.8.2002, (Annexure-3) issued under the signature of the Deputy Inspector General of Police, Special Branch, Bihar, Patna whereby the Respondent No.5 has imposed the following punishment after superannuation of the petitioner on 31.5.2000:- i. Forfeiture of last two increments 2 given to him while in service. ii. The suspension period (from 22.4.1999 to 23.7.1999 = 90 days) will be treated as on extra ordinary leave.” Learned counsel for the petitioner, with regard to the aforementioned prayer, has made a very short but yet very effective submission, inasmuch as, he is of the view that if a departmental proceeding against the petitioner was drawn by framing charge against him in the month of March, 1999, any order of punishment in terms of Rule 49 of the Civil Services (Classification, Control and Appeal) Rules could have been passed only during period the petitioner had remained in service. Counsel for the petitioner explains that the petitioner had retired from service on 31.5.2000 and till that day, no order of punishment was passed against him and as such, the order of punishment dated 1.8.2002 (Annexure-3) passed by the Deputy Inspector General of Police, Special Branch, Bihar withholding/forfeiting last two increments of the service period of the petitioner as also denial of payment of full salary for the period of suspension and treating the said period of suspension (22.4.1999 to 23.7.1999) as 3 extraordinary leave was/is wholly impermissible either on fact or in law. Counsel for the State on the other hand has submitted that the departmental proceeding against the petitioner was drawn while he was in service and when the petitioner himself had been responsible in delaying the disposal of the departmental proceeding, he cannot take advantage of his own wrong and therefore, in the facts and circumstances of this case, the order of punishment is befitting to the misconduct alleged against the petitioner. In this context, counsel for the State has also submitted that the petitioner was holding a responsible post of Inspector of Police and he was under bounden duty to immediately report at his place of deputation at Arwal for which an order was passed by his superior authority on 18.3.1999. Counsel for the state, in fact, by referring to the findings in the enquiry report has submitted that the petitioner also had admitted the fact with regard to the non-compliance of the order of deputation/transfer at Arwal and therefore, this Court should not interfere with the order of punishment. 4 In the opinion of this Court, once the petitioner had gone beyond disciplinary control on account of his superannuation with effect from 1st of June, 2000, he could not have been subjected to any punishment as provided under Rule 49 of the Civil Services (Classification, Control and Appeal) Rules. A punishment in the nature of forfeiture/withholding of increment can be made only against a government servant in service but once the petitioner had retired from service, such punishment was not permissible unless the Government could have extended his services even after his superannuation and till conclusion of the departmental proceeding and passing of the final order. It is true that a departmental proceeding drawn during service period can be continued as was held by the Full Bench judgment of this Court in the case of Shambhu Saran Vs. The State of Bihar & Ors. reported in 2000(1)PLJR 665 but then such departmental proceeding would be limited for the purposes of withholding/forfeiting the full or part of the pension for making recovery of any loss caused to the Government exchequer in terms of Rule 43 5 of Bihar Pension Rules. As a matter of fact, there is also another rider under Rule 43 of the Bihar Pension rules which contemplates an action only if the misconduct is a “grave misconduct” or there has been pecuniary loss to the State Government. Any other type of misconduct not being of aforementioned two types of misconducts cannot be, in fact, made subject matter of continued departmental proceeding for the purpose of Rule 43 of Bihar Pension Rules. In that view of the mater, the impugned order passed by the Deputy Inspector General of Police, Special Branch, Bihar dated 1.8.2002 as contained in Annexure-3 so far it relates to an award of punishment to the petitioner must be held to be bad and is hereby quashed. The respondents have taken a plea that the said order of punishment has also been affirmed in appeal by the Inspector General of Police, Special Branch, Bihar vide Memo No. 441/ROSB dated 27.1.2003. Though, an appellate order has not been brought on record by the respondent in their counter affidavit or the petitioner in the writ application/rejoinder, the fact that the 6 said order of punishment was affirmed in appeal would by itself mean that the aforesaid impermissible order of punishment was affirmed and as such, the appellate order is also hereby quashed. Normally, this Court, after taking into account that the petitioner has retired from service in the year 2000, would have directed the respondents to close the matter, but, in this case, the misconduct would definitely be one which would be “gross misconduct” in terms of the Rule 43 of the Bihar Pension Rules. A police officer in the rank of Inspector cannot be expected to disobey the order of transfer/deputation. The petitioner had also admitted the fact that he did not comply the order of transfer/punishment to Arwal and therefore, this Court is constrained to reject that part of prayer of the petitioner that the matter should be closed and the respondents be directed to release the payment of full amount to which he was deprived on account of the impugned order of punishment. What, however, be the punishment in the given facts can always be decided by the 7 disciplinary authority taking into account the gravity of situation in which the said order of transfer/deputation was issued and violated by the petitioner. Consequently, this Court would direct the concerned disciplinary authority to proceed from the stage of submission of enquiry report and give a show-cause notice to the petitioner with regard to the proposed punishment to be inflicted in terms of Rule 43 of the Bihar Pension Rules. The petitioner upon receipt of such show-cause notice will submit his explanation, whereafter, the concerned disciplinary authorities shall pass final orders quantifying the punishment in terms of Rule 43 of the Bihar Pension Rules. Such exercise, as a whole, by the disciplinary authority, must be completed within a period of six months from the date of receipt/production of a copy of this order. Any financial benefit to the petitioner, which had been withheld on account of the impugned order, will, however, be restored only after fresh order is passed by the disciplinary authority. 8 With the aforesaid observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)