IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.831 of 2009 Ram Chandra Prasad . Versus The State Of Bihar & Ors . ----------- 2. 28.06.2011 Heard learned counsel for the petitioner and the State. The petitioner questions the departmental resolution dated 3.10.2007 converting the pending departmental proceedings against him into one under Rule 43(b) of the Bihar Pension Rules after his superannuation and the consequent show cause notice issued to him thereafter on 13.11.2007. Learned counsel for the petitioner submits that the charges related to the periods 22.2.1994 and 12.1.1996 much beyond four years from 3.10.2007 and were therefore barred under Rule 43 (b) of the Bihar Pension Rules. Learned counsel for the State invites the attention of the Court to an order dated 23.9.2004 in C.W.J.C. No. 7995 of 2001. He submits that the petitioner was exonerated in both the departmental proceedings. An order of punishment was passed without serving a second show cause notice upon him for a difference of opinion with the same contrary to procedure. That was not upheld by the Court and the order of punishment was set aside 2 remanding it to the disciplinary authority to proceed afresh from the stage of illegality. The consequent order dated 28.8.2006 issued by the authorities did not recall the charge sheet but only a punishment imposed contrary to law. It was thus not a case where a fresh departmental proceeding was sought to be initiated hit by bar of four years from the date of superannuation under Rule 43(b) of the Bihar Pension Rules. Counsel for the State is right in his submission. If the entire proceedings and the order of punishment had been quashed on its merit requiring the respondents to serve a fresh memo of charge it may then have been hit by the bar of four years under Rule 43(b) of the Bihar Pension Rules. In that event matters would have been entirely different. A departmental proceeding was initiated during the service tenure of the petitioner. The Court in C.W.J.C. No. 7995 of 2001 did not set aside the departmental proceeding or the final order of punishment on merits. It did not interfere with the departmental proceeding up to the stage of submission of the enquiry report and only directed to proceed afresh from the stage of the illegality after setting aside the punishment. If the departmental 3 proceeding had a continuity, the question of the bar of Rule 43(b) of the Bihar Pension Rules applying does not arise. No former orders converting the proceeding under Rule 43(b) are required in those circumstances. However, these questions are not relevant at this stage. In (2006) 13 SCC 460 (State of U.P. v. Harihar Bholenath) it has been observed at Paragraph- 12 and 13 as follows:- “12. It is not in dispute that the respondent was placed under suspension before he reached his age of superannuation. A departmental proceeding was not only initiated against him, but an enquiry officer was also appointed. The order of suspension, however, remained stayed by a judicial order. But the same paled into insignificance once the employee reached the age of superannuation. By reason of the same, however, the legal fiction created in regard to the point of time when the enquiry proceeding would be deemed to have commenced was not effaced. 13. Thus, only because the enquiry proceeding was actually started after superannuation of the respondent, the same would not mean that the enquiry proceeding had not been initiated. The right to initiate proceedings which would include a right to continue the proceedings was with the Governor. Sanction of the Governor is required to be obtained when proceedings are initiated by an authority other than the Governor.” The petitioner had been served with a show 4 cause notice for appropriate action under Rule 43(b) of the Bihar Pension Rules. He is stated to have replied to the same. It is the case of the State in their counter affidavit that final orders have been passed thereafter in exercise of power under Rule 43(b) of the Bihar Pension Rules. There is no challenge in the present writ application to the fresh final order dated 29.5.2009 /25.6.2009 directing that the amounts in question be recovered by him institution of a money suit. There is no occasion for the Court to adjudicate on this fresh orders of punishment passed by the respondents in absence of any challenge to the same. By subsequent developments, the writ application itself has become infructuous. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)