IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3466 of 2008 GANESH PRASAD SINGH . Versus THE STATE OF BIHAR & ORS . ----------- 2. 17.9.2010 I.A. No. 6778 of 2010 has been filed challenging the final order of punishment dated 02.07.2010 issued during the pendency of the writ application. It withholds the entire pension of the petitioner as a punishment. The petitioner is stated to have superannuated on 31.07.2003 from the post of Executive Engineer in the Road Construction Department. Departmental proceedings were then started against him in exercise of power under 43 (b) of the Bihar Pension Rules. A memo of charge is stated to have been issued to him on 06.07.2006 with regard to alleged defalcation of a sum of Rs.10, 00,000/-. The charges relate to the period January to July 2001. Whether the charges were served upon him on 06.07.2006 or subsequently as claimed by the petitioner is not relevant as the case can be disposed off on another aspect of the matter on a pure question of law. Learned counsel for the petitioner submits that if the allegations be correct, the memo of charge 2 dated 06.07.2006 is much beyond the period of 4 years from the date of the imputations i.e., January to July, 2001 and is barred under 43 (b) of the Bihar Pension Rules. He relies on a judgment of the Supreme Court in 1995 (2) PLJR 51 (SC) (State of Bihar Vs. Mohd. Idrish Ansari.) He therefore, submits that if the very initiation of the proceeding was contrary to law, the order of punishment based on an illegal proceeding is not sustainable ipso facto. Counsel for the State from the materials on record is not in a position to dispute the submission that the charges relate to a period much beyond 4 years from the date of the memo of charge. He however submits that no sooner that the embezzlement was detected in the audit report informed by the office of the Accountant General on 25.5.2004 action has been taken. It was next submitted from the final order dated 02.07.2010 that the petitioner steadfastly refused to participate in the proceedings leading to an ex parte conclusion holding him guilty for defalcation of an amount of Rs. 14,18,689/- Rule 43(b) of the Bihar Pension Rules has been the subject matter of interpretation in more than one judgment of this Court and the Supreme Court. 3 Learned counsel for the petitioner rightly relies upon the case of Mohd. Idris Ansari (supra) holding at Paragraphs- 6 and 9 as follows:- “6. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceedings or judicial proceedings the concerned Government servant is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rules 43(a) and (b), in connection with the alleged misconduct, as it is alleged to have taken place in the year 1986-87………. 9. So far as the second type of cases is concerned the proof of grave misconduct on the part of the concerned Government servant during his service tenure will have to be called out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired Government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceeding conducted against him even after his retirement, but such proceedings conducted against him even after his retirement, but such proceeding could be initiated in connection with only such misconduct which might have taken place within four years of the initiation of such departmental proceedings against him………..” 4 If that be the position in law, the allegation that the petitioner has allegedly defalcated a sum of Rs. 10 or 14 Lakhs is not relevant. The question is if the respondents have the authority in law to proceed in the manner that they have done? This Court shall hold the respondents bound by the same standards by which they profess to act. The concern which they now seek to show was to be more appropriately displayed by them in time. The very initiation of the proceeding being barred by Rule 43(b) of the Bihar Pension Rules as held by the Supreme Court, the order of punishment dated 02.07.2010 is not sustainable. It is accordingly set aside. Nothing in this order shall be construed as any observation or opinion in any manner on the criminal prosecution pending against the petitioner which shall proceed on its own steam in accordance with law. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)