IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13991 of 2007 PREM SHANKAR PRASAD VERMA son of late Chatarbhuj Sahay, R/O Anand Vihar Colony, Ambedkar Path, Qtr.No.A/57, P.O.B.V.College, P.S.Shastrinagar, Distt-Patna- Petitioner. Versus 1. THE STATE OF BIHAR 2. The Principal Secretary, Water Resources Department, Govt. of Bihar, Sichai Bhawan, Patna 3. The Joint Secretary, Engineering Cell, Water Resources Department, Govt. of Bihar, Sichai Bhawan, Patna 4. The Deputy Secretary, Sichai Bhawan, Patna 5. The Engineer-in-Chief, Water Resources Department, Govt. of Bihar, Sichai Bhawan, Patna 6. The Accountant General, Bihar, Patna- Respondents. -------- For the petitioner : Mr. Ajey Kumar For the State : Mr. Satyadeo Kumar,SC.12 with Mr. Anil Kumar Sinha, AC to SC 12 For respondent no.6 : Mr. L.P.K.Rajgrihar, Addl.Standing Counsel. ---- 4. 09.10.2009. Heard learned counsel for the parties. With the consent of parties this matter has been taken for final disposal at the stage of admission. I.A.No.6903 of 2007 has been filed by the petitioner seeking amendment in the prayer portion of the writ petition and to set aside the order bearing memo no.711 dated 19.7.2007 whereby a penalty of reduction of 5 % pension of the petitioner for a period of five years 2 has been ordered and which has been brought on record by way of Annexure-10 to the application. The said order has been passed in purported exercise of the power under rule 43(b) of the Bihar Pension Rules, (hereinafter referred as „the Rule‟). During the pendency of the present proceedings, a supplementary counter affidavit has been filed on behalf of respondent nos.2 and 4 bringing on record a resolution bearing memo no.784 dated 7.8.2007 of the State Government deciding to initiate a fresh proceeding against the petitioner again in purported exercise of power under Rule 43 (b). Copy of the said resolution is on record at Annexure-A to the said supplementary counter affidavit filed on 10.8.2009. The petitioner has filed another Interlocutory Application bearing I.A.No.6272 of 2009 seeking amendment in the relief and prayer portion of the writ petition for setting aside the said resolution placed at Annexure-A to the supplementary counter affidavit. Both the interlocutory applications are allowed. 3 The petitioner has come before this Court complaining of non-payment of his pensionary benefits having superannuated from service on 30.6.2003 as Superintending Engineer, Head Works Circle, Valmiki Nagar, West Champaran. The non-payment of his retiral benefits was attributed to the proceedings initiated against him during his service period which is said to have been converted into a proceeding under Rule 43(b) of the Rules. A second supplementary counter affidavit has been filed on behalf of the State today and an effort has been made in Annexure-A to explain that the three proceedings had validly been initiated against the petitioner vide resolutions dated 4.8.2003, 24.3.2003 and 7.8.2007. The proceeding initiated pursuant to the departmental resolution dated 24.3.2003 ultimately culminated in exoneration of the petitioner from the charges levelled against him, copy of which is placed at Annxure-11 to the writ petition. The proceeding initiated under resolution dated 4.3.2003 (Annexure-3) is 4 stated to have been converted to a proceeding under rule 43(b) of the rules, after the retirement of the petitioner, which had taken place on 30.6.2003 and after following the procedure provided under Rule 55 of the Civil Services (Classification, Control and Appeal) Rule, 1930 resulted in order imposing penalty of stoppage of 5% of pension of the petitioner for a period of five years, which order of punishment dated 19.7.2007 has been annexed vide Annexure-10 and has been sought to be challenged by way of amendment application. The third proceeding initiated vide resolution dated 7.8.2007, prima facie, appears to this Court to be de hors the Rules. I shall now take up the proceedings one by one. As already seen, the petitioner was exonerated in the first proceeding vide order dated 17.11.2008 (Annexure-11). In so far as the second proceeding initiated vide Annexure-3 is concerned, this Court finds that nothing has been brought on record to demonstrate whether the said proceeding, which had been initiated during the service tenure of the petitioner, had ever been converted into proceeding under 5 Rule 43(b) of the Rules after the retirement of the petitioner on 30.6.2003.. Even presuming that the said proceeding was converted in a proceeding under rule 43(b), still it could not have continued after the retirement of the petitioner as it did not relate to any charge or action or inaction on the part of the petitioner, which ultimately resulted in a pecuniary loss to the Government. The provisions of the Rules is very clear on this issue and has been appropriately discussed in a judgment of this Court reported in 2004 (3) PLJR 708. A plain reading of the Memo of charges (Annexure-3) to the writ petition succinctly explains that all the charges were related to the Administrative efficiency of the petitioner in discharge of his duties and in the least, referred to any pecuniary loss that was caused to the Government by reason of the acts of the petitioner. Though charge no.3 feebly attempted to charge the petitioner of being a party to certain acts of omission and commission carried out by the Chief Engineer and the Executive Engineer, but the Inquiry Officer while 6 furnishing his report (Annexure-7) has exonerated the petitioner of the said charge. The two charges said to have been proved against the petitioner in the inquiry report, could under no circumstances be subject matter of a proceeding under rule 43(b) as the consequences flowing there from did not result in any pecuniary loss to the State Government. In that view of the matter, the order of punishment of stoppage of 5% of pension for a period of five years passed in purported exercise under rule 43(b) as contained in memo No.711 darted 19.7.2007 (Annexure-10) is unsustainable in law and is set aside and the petitioner would be entitled to draw his full pension which has been withheld under the impugned order (Annexure-10). The payment of the arrear of the pension should be made within a period of four weeks from the date of receipt/communication of a copy of this order. In so far as the third proceeding initiated vide resolution bearing memo no.784 dated 7.8.2007(Annexure-A) of the State Government is concerned, the decision to initiate the proceeding after a lapse of more 7 than four years since the retirement of the petitioner is arbitrary and unsustainable in law and the purported exercise itself is de hors the provisions of the Rules. The Rules in no certain terms enables the authorities to initiate any proceedings which are relatable to any event which took place within four years of the institution of the proceedings. The very fact that the proceedings in question itself have been instituted on 7.8.2008, i.e. after lapse of more than four years of the retirement of the petitioner, which took place on 30.6.2003, the same was beyond the powers conferred upon the authorities under Rule 43(b). In fact, the state Government themselves being conscious of this fact, have admitted this position in para-6 of the second supplementary counter affidavit filed by it which is reproduced herein-below for facility of quick reference: “6. That it is further humbly stated and submitted that from perusal of the memo no.784 dated 7.8.2007 whereby third departmental proceeding is initiated against the petitioner, it appears that, the same is initiated after elapse of the stipulated period i.e. 4 years from the date of occurrence. In this connection it is 8 relevant to state and submit here that the delay is procedural not intentional and as such the delay may be condone by this Hon‟ble court.” In the circumstances, the resolution bearing memo no.784 dated 7.8.2007 (Annexure-A) purporting to initiate a fresh proceeding against the petitioner in exercise of power under Rule 43(b) is not sustainable in law and is set aside. In the result, this writ application is allowed and the petitioner would be entitled to full pension including the arrears thereof, payable within the period stipulated in this order. However, there shall be no order as to costs. ahk (Jyoti Saran,J.)