Judgment B.C.Basak, N.Pandey and G.C.Bharuka JJ. 1. In this case a short point has been referred for decision to a larger Bench by a Division Bench of this Court by its order dated 20th of August, 1991. This reference is occasioned by an earlier Division Bench decision of this Court in the case of Singheshwari Sahay V/s. The State of Bihar and others reported in 1979 B.B.C.J. 735. The previous Division Bench decided that in a case where a Departmental Proceeding was started against the petitioner when he was in service, if before such deartmental proceeding came to an end, the petitioner has superannuated, in that case without any specific order of the Government, the departmental proceeding could not be continued. It was further held by the earlier Division Bench that since in the facts of that case it has not so ordered to be continued, after the superannuation of the petitioner,- it will be deemed to have been dropped against him. The subsequent Division Bench differed from the same and referred this matter to a larger Bench. This has now come up before us on this short point alone and we are not concerned with any other point at this stage. 2. Before we deal with such contention, in our opinion, it is fit and proper that we set out hereunder Rules 43 and 139 of the Bihar Pension Rules, 1950 (hereinafter referred to as the Rules) :- "43. (a) Future good conduct is an implied condition of every grant of a pension. The Provincial Government reserve to themselves the right of with holding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. (b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: Provided that (a) such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with subclause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanations.For the purposes of the rule (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an.earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted :- (i) in the case of criminal proceedings, on "the date on which a complaint is made or a charge sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which a complaint is presented, or as the case may be, an application is made to a civil court." "139. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the Pension should make each reduction in the amount as it thinks proper. (c) The State Government reserve to themselves the powers of revising an Order relating to pension passed by subordinate authorities under their control, if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, or any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed." 3. It is submitted before us, relying on the earlier Division Bench decison, that in a case where a disciplinary proceeding has been initiated against any employee, after his superannuation, such departmental enquiry cannot be continued against him; at least not unless there is a specific order of the Government to that effect. It is further argued that in any event in such a case proceeding can be taken only under rule 139 and not under Rule 43(b). 4. In our opinion, the scope of Rule 43(b) and Rule 139 are quite different. There is no question of applicability of Rule 139 if Rule 43 is attracted. Rule 139 deals with a different kind of situation. 5. The only point involved before us is whether Rule 43(b) is attracted in the facts of this case and whether under the said Rule, even when such disciplinary proceeding was initiated before the retirement, whether it could be continued after the retirement under the provisions of Rule 43(b). It is true that Rule 43 does not say expressly that such proceeding may be continued after such superannuation. However, in our opinion, it is inherent in the said Rule. The opening words of proviso (a) state that "such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during reemployment". It is true that Rule 43 does not say expressly that such proceeding may be continued after such superannuation. However, in our opinion, it is inherent in the said Rule. The opening words of proviso (a) state that "such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during reemployment". In our opinion such expression makes it quite clear that such enquiry if initiated before, may be continued even after such retirement. In any event, by necessary implication also it is quite clear that continuance of such enquiry after superannuation is permitted by the said Rules. In this context, it may be pointed out that if the Government servant is in service, the disciplinary proceeding can be initiated against him and certain punishments may be imposed upon him as provided in the relevant Classification, Control and Appeal Rules. However, such punishments cannot be imposed upon him if retired from service. After his retirement he cannot be punished otherwise but pension can be withheld and other steps taken as contemplated by the said Rule 43. Punishments, major or minor, like dismissal or removal from service or withholding of increments etc., which contemplates that he is still in service, cannot be imposed upon him. In such view of the matter, if such a person has committed some wrong, merely because he retires and no remedy remains available to the Government even if there was good case against him, then it would be incongruous. Accordingly such a provision was made to that effect. It is in order to fill up this lacuna that provisions like rule 43(b) has been introduced. 6. In this context we may point out that Rule 43(b) is not something unique in nature. In this connection we may refer to Rule 9 of the Central Civil Services (Pension) Rules, 1972, which contains a similar provision. 7. As pointed out, the scope of the proceeding under rule 43 in case of a retired servant is completely different from the scope of a proceeding in an ordinary disciplinary enquiry against a person in service because, as pointed out, in ordinary disciplinary proceeding when the person concerned is still in service, he can be subjected to any of the punishments referred to in the Classification. Control and Appeal Rules, but, in case he retires, the only action which can be taken against him, if the charges are proved against him, is only those provided in Rule 43(b) of the Rules. 8. The other point to be noticed is that a distinction is made in Rule 43(b) between a case where a disciplinary enquiry is already pending at the time of such superannuation and where no such disciplinary enquiry is pending at the time of retirement. Certain safeguards have been provided so that there may be no undue harassment after retirement when no proceeding had been initiated before his retirement. Even though there is no pending disciplinary proceeding at the time of such retirement, certain conditions, as contemplated by clauses (i), (ii) and (iii) thereof, are imposed for safeguarding the interest of the Government Servant concerned. Certain limitations on the powers of the authority concerned to initiate a fresh proceeding after retirement, where no such proceeding was initiated before such retirement, have been provided for to prevent any misuse of such power. But the question of providing such safeguard does not arise if there is already a disciplinary proceeding pending at the time of the superannuation of the Government Servant concerned. There is no question of any harassment in such a case and, accordingly, no condition has been imposed. These is a good reason for the same. Unless that power is conferred by virtue of the said provision, once a retirement takes place, then the employee concerned can easily say that he was beyond the scope of any action whatsoever. In that view of the matter, this provision has been made in the rule itseif and the rule itself contemplates that a disciplinary proceeding, if already initiated, can be continued even after retirement. As we have already stated, that can be spelt out from the language of the provision itself, and, in any view of the matter, that can be spelt out by necessary implication. Accordingly, in our view, it is open to an authority concerned to continue with a disciplinary enquiry which was initiated before his retirement. In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue. In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue. No such condition has been laid down in rule 43 in respect of a case where such a proceeding has already been initiated as required by the three conditions in respect of initiation of a fresh proceeding after such retirement. We cannot import the requirement of such a condition which is not in the rules. This would be against the principle of cassus omissus. If we accept the contention that such an order of the Government is required before such proceeding can be continued, then we shall be introducing a condition in the rule, which the rule does not provide for. In that view of the matter, we agree with the views expressed by the latter Division Bench and we hold that the Division Bench decision in the case of Singheshwari Sahay V/s. State of Bihar and others reported in 1979 BBCJ 735 has not been correctly decided. 9. Before we conclude, we shall deal with the three cases which were cited before us on behalf of the petitioner. In the case of Dr. Lakshmi Narain Singh V/s. The State of Bihar and others, reported in 1989 BBCJ 147 it was a judgment of a learned single Judge (in the event of difference of opinion). In that decision in paragraph 8 it was stated that in the absence of specific rule disciplinary action is not maintainable after retirement of a Government Servant. In our opinion, that was decided in the facts and circumstances of that case which were different from those in the case before us. As we have already held, in the facts of this case there is such a provision which is contained in Rule 43 itself. 10. The other judgment relied upon is a judgment of a learned Single Judge in the case of Bindhya Nath Jha and another V/s. The Patna Regional Development Authority and others reported in 1991 (2) PLJR 204. It was a case of Patna Regional Development Authority. 10. The other judgment relied upon is a judgment of a learned Single Judge in the case of Bindhya Nath Jha and another V/s. The Patna Regional Development Authority and others reported in 1991 (2) PLJR 204. It was a case of Patna Regional Development Authority. We do not find anything from the judgment as to what were the rules which were applicable in the case of employees of Patna Regional Development Authority and whether Rule 43(b) or any other similar Rule was applicable in that case. In that case the learned Judge held as follows : "In my view a disciplinary proceedings against a Government servant comes to an end when he retires. He can be retained in. service after his retirement so that a punishment may be imposed on him in a pending disciplinary proceeding. In the aforementioned view of the matter, I am of the view that the departmental proceeding can not be allowed to be continued against the petitioners. The proceedings for the said reason are quashed." This case is not an authority for the proposition that no such pending enquiry can be continued under any circumstances. As pointed out, in that decision Rule 43 or any other similar rule was not under consideration. 11. The other decision cited before us is the case of State of Uttar Pradesh V/s. Shri Brahm Datta Sharma and another, AIR (1987) SC 943. In that case Article 470 of the Civil Service Regulations was involved and not any provision which was in pari materia with rule 43. On the contrary there are certain observations in the said judgment which go against the contention raised on behalf of the petitioner before us. We set out hereinbelow the relevant observations : "....but if the disciplinary proceedings could not be completed and if the charges of serious allegations are established, which may have bearing on the question of rendering efficient and satisfactory service, it would be open to the Government to take proceedings against the Government servant in accordance with rules for deduction of pension and gratuity." 12. In that view of the matter, we answer the reference by holding as follows: (i) In a case where a disciplinary proceeding has already been started, even if the person concerned attains the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of the Government is necessary. (ii) The decision of the Division Bench in case of Singeshwari Sahay V/s. The State of Bihar and others reported in 1979 BBCJ 735 and the law laid down therein were not correctly decided. We answer the reference accordingly. 13 This case will now go back before the Division Bench for final disposal of the same in accordance with law in the light of this decision.