Judgment S. N. Jha, J. 1. This writ application has been filed for direction for payment of post-retirement benefits, salary in respect of the suspension period, time bound promotion and its consequential benefits as well as monetary benefits of the upgradation of post and revision of pay scale. 2. The petitioner was subjected to departmental proceeding and criminal prosecution. He was placed under suspension on 12-1-1978. In the criminal case he was acquitted on 9-1-1986. It is stated that in the departmental proceeding also the enquiry officer on 28 4-1986 submitted report exonerating him of the charges. His suspension was revoked on 21-5-1986 and he was reinstated on the post. The petitioner retired from service on reaching the age of superannuation on 31-1-1992. However, his claims remained outstanding on account of the pendency of the departmental proceeding as no final decision was taken even after the receipt of the enquiry report. Accordingly, the present writ application was filed on 11-3-1992. An order was passed by the competent authority, namely, registrar, Co-operative societies on 12-8-1992 directing that the petitioner will not be entitled to salary or allowance except subsistence allowance for the suspension period and that the period shall be treated as period of absence from duty. The petitioner has challenged the said order by supplementary petition. 3. Mr. Prabhat Kumar Verma, learned counsel for the petitioner, raised the following contentions (i) after retirement of the government servant, the pending departmental proceeding comes to an end and no punishment can be imposed on him (ii) no reason has been assigned for imposing punishment in disagreement with the findings of the Enquiry officer and (iii) no opportunity of hearing was given to the petitioner. 4. The first contention is squarely covered by the decision in Dr. Laxmi Narain Singh The V/s. State of Bihar, 1989 BBCJ 147 . Therein Mr. Justice L. M. Sharma, as he then was, on a reference after difference of opinion between two learned Judges, held that in the absence of specific rule, disciplinary action is not permissible after retirement of the government servant. Laxmi Narain Singh The V/s. State of Bihar, 1989 BBCJ 147 . Therein Mr. Justice L. M. Sharma, as he then was, on a reference after difference of opinion between two learned Judges, held that in the absence of specific rule, disciplinary action is not permissible after retirement of the government servant. It was, however, held that Rule 97 of the Bihar Service Code (code in short) enjoins the competent authority to pass an order at the close of the departmental proceeding as to whether the Government servant is to be paid full pay and allowance for the suspension period in terms of rule 97 (3) and whether, in that situation, the period in question is to be treated as spent on duty or absence from duty. Such an order can be passed even after retirement of the Government servant and where he has been denied reasonable opportunity to place his defence, further enquiry may also be ordered. 5. At this stage, provisions contained in Rule 97 of the Code may be noticed : "97. (1) When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make specific order (a) regarding the pay and allowance to be paid to the government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be. (3) In other cases, the Government shall be given such proportion of such pay and allowance as such competent authority may prescribe : provided that the payment of allowance under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose : provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the government servant. " 6. It would appear from bare perusal of the rule that at the time of reinstatement of a Government servant who was dismissed, removed or suspended, the competent authority is required to make specific order as to the entitlement of the person concerned to his pay and allowance with respect to the period of suspension and whether the period is to be treated as spent on duty or not, as per clause (1 ). Where the delinquent is fully exonerated by the competent authority or where the authority thinks that the suspension was wholly unjustified, he will as of right be entitled to full pay and allowance. However, in all other cases where the person is not fully exonerated or the suspension is not found to be wholly unjustified, the competent authority has to take a decision as to the entitlement of the delinquent to pay and allowance. In other words, in all other cases not covered by clause (2) it is open to the competent authority to direct payment of only part of pay and allowance. Again, in cases covered by clause (2), the period of absence has to be treated as a period spent on duty for all purposes but in cases covered by clause (3), that is in all other cases, a discretion is again vested in the competent authority to decide as to whether the period shall be treated as absence from duty or spent on duty for any specified purpose. An order directing that the Government servant concerned shall not be entitled to pay and allowance save and except the subsistence allowance, and directing that the period in question shall be treated as absence from duty has to be passed by the competent authority in every case at the stage of final conclusion of the departmental proceeding. Where the proceeding is concluded while the Government servant is still in service, there can be hardly any difficulty whatsoever in passing such an order. But whether the same can be done aferwards According to the learned counsel, this is not permissible after ones retirement. In my opinion, retirement of the person does not materially change the petition. Where the person is still in service, the departmental proceeding is concluded by an express order. Where, however, he attains the age of superannuation and retires from service before the proceeding formally concluded, the proceeding will be deemed to have come to an end but only for the purpose of imposing any penalty prescribed in the service rules Nevertheless so far as the period of suspension is concerned, an order as envisaged under sub-rules (3) and (5) has to be passed. It has to be kept in mind that such an order per se is not a penalty as enumerated in Rule 49 of the Civil services (Classification, Control and Appeal) Rules, 1930 or Rule 2 of the bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935. I am fortified in my view by the observations made in the case of Dr. Laxmi narain Singh (supra) which decision is based on authorities of the Supreme court. 7. On the question of continuance of the departmental proceeding, I hasten to add that although the same cannot be continued for the purpose of imposing any of the penalties mentioned in the service rules, it can be continued for the purpose of withholding whole or part of the pension within the meaning of Rule 43 (b) of the Bihar Pension Rules. On the facts of the case it is necessary to make that clarification since we were informed during the hearing of the case that some order has been passed by the authority on 2-12-1992 in regard to withholding of part of the pension. 8. Although my conclusion on the first question is adverse to the petitioner, he is entitled to succeed on the other two grounds. 8. Although my conclusion on the first question is adverse to the petitioner, he is entitled to succeed on the other two grounds. The Enquiry officer had exonerated the petitioner of the charges. It is true that the report of the Enquiry Officer is not binding on the disciplinary authority and for cogent reasons, which must appear from the order, the disciplinary authority may take a different view. But in such a case it is necessary that the person concerned is given further opportunity of hearing after stating the grounds of disagreement. Reference in this connection may be made to the following observations of the Supreme Court in the case of Narain Mishra V/s. State of Orissa, 1969 SLR 657 : "now if the Conservator of Forests intended taking the charges on which he was acquitted into account, it was necessary that the attention of the appellant ought to have been drawn to this fact and his explanation, if any, called for. This does not appear to have been done. In other words, the Conservator of forests used against him the charges of which he was acquitted without warning him that he was going to use them. This is against all principles of fair play and natural justice. If the conservator of the Forests wanted to use them, he should have apprised him of his own attitude and given him an adequate opportunity. Since that opportunity was not given, the order of the Conservator of Forests modified by the State Government cannot be upheld. " An order passed in terms of sub-rule (3) or (5) of Rule 97 is not in the nature of penalty within the meaning of the service rules but nonetheless its effect is penal in nature since it adversely affects the person concerned. In my opinion, therefore, the same principle should be applicable to cases where the authority, in disagreement with the report of the Enquiry Officer, decides that the persons concerned shall not be entitled to full pay and allowance and that the period in question shall be treated as the period of absence from duty. 9 A perusal of the order dated 12-8-1992 shows complete lack of awareness on the part of the authority that the petitioner had been exonerated of the charges by the Enquiry Officer. In such a situation, the order cannot be sustained. 9 A perusal of the order dated 12-8-1992 shows complete lack of awareness on the part of the authority that the petitioner had been exonerated of the charges by the Enquiry Officer. In such a situation, the order cannot be sustained. Accordingly, the order copy whereof has been marked annexure 1/1 to the supplementary petition and also Annexure-D to the supplementary counter affidavit is quashed. The Registrar, Co-operative societies, the competent authority, is directed to consider the matter afresh. If he proposes to pass any adverse order in terms of Rule 97 (3) and (5) in disagreement with the findings and recommendation of the Enquiry Officer, he shall give a proper show-cause notice to the petitioner and pass a fresh reasoned order in accordance with law. 10. The order dated 2-12-1992, referred to above, by which the competent authority has taken a decision to withhold part of the pension has not been challenged in this writ petition, perhaps on account of delayed communication to petitioner. Be that as it may, since this is one of the reliefs claimed in this writ petition, the legal position may briefly be stated thus. Rule 43 (b) of the Bihar Pension Rules empowers the State Government to withhold or withdraw whole or part of the pension or to order recovery from pension any amount of pecuniary loss suffered by the Government if the persons concerned is found in a departmental or judicial proceeding guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence. This, however, can be done only after a finding to that effect is recorded in either departmental or judicial proceeding. It is not necessary to advert to the question as to whether the petitioner has been found to be guilty of any such grave misconduct or to have caused pecuniary loss to the Government by his misconduct or negligence within the meaning of Rule 43 (b) so as to disentitle him to full pension since full materials have not been placed before us. However since the matter is being remitted back to the Registrar, it would be apt to direct him to consider the matter as to the payment of pension and gratuity in the light of the provisions under Rule 43 (b ). If, in his opinion, the petitioner has already been found to be guilty of any misconduct, etc. However since the matter is being remitted back to the Registrar, it would be apt to direct him to consider the matter as to the payment of pension and gratuity in the light of the provisions under Rule 43 (b ). If, in his opinion, the petitioner has already been found to be guilty of any misconduct, etc. he may pass an order withholding part of the pension but before doing so he shall give a show cause notice to the petitioner since the enquiry Officer had opined otherwise. If, on the other hand, no concluded finding has been recorded in the proceeding as to the misconduct etc of the petitioner, the proceeding in question may be continued against him to its logical end However, having regard to the fact that the petitioner retired from service about a year ago, it would be only just and proper that the proceeding is concluded within four months from the date of receipt of a copy of this order. 11. In the supplementary counter-affidavit, it has been stated that orders have been issued or are being issued in respect of the same of the claims, such as, pension and death-cum-retirement gratuity for the duty period, payment of unutilised leave salary, provident fund dues, group insurance dues, time bound promotion, etc. I direct that all the legal dues of the petitioner whether in the nature of post-retirement claims or claim arising out of the time-bound promotion or higher pay as a result of pay revision or upgradation of post must be finalised and necessary payment made to the petitioner within the aforesaid period of four months. 12. This application, accordingly, is allowed with the observations and directions mentioned above. Application Allowed.