Judgment Radha Mohan Prasad, J. 1. In this application the petitioner prays for issuance of an appropriate writ/order or direction commanding the respondents to pay in full the amount of pension, gratuity leave encashment and General provident Fund, of which he has been kept denied till now, though the superannuated from service on 31-12-91 and also for a direction to pay an interest at the rate of 18% per annum on the aforesaid amount besides seeking direction against the respondents to pass final order on the disciplinary proceeding initiated against him on 8-8-91 and, further, to promote him in the next higher scale of Rs.1575-2300. from 16-12-87 when his juniors were promoted in the said scale. 2. In short, the relevant facts are that the petitioner was initially appointed as Industrial Extension Officer on 9-9-57 in the Industries Department and later promoted in the next high post of Investigator on 6-3-62. On 19-12-73 he was promoted to the post of planning-cum-Evaluation Officer and on 24-9-83 as Industrial Economist with effect from 19-12-78 in the pay scale of Rs.1350-2000. He also claims to have looked after the post of Joint Director of Industries in the own scale from 24-9-83 to 31-3-84 and later was posted as general Manager, District Industries centre, Deoghar. While the petitioner was waiting for promotion to the next higher scale of Rs.1575-2300, the State govt. vide notification, contained in memo No.13605 dated 16-9-88 promoted his juniors in the aforesaid scale with effect from 16-12-87, but the petitioner was denied the said promotion. The relevant extract of the gradation list as well as the aforesaid notification dated 16-9-88 have been annexed as annexures-1 and 2, respectively to show that the juniors had been promoted. The petitioner claims to have filed representation before the State government on 7-10-88 against his said supersession as according to him, his service record throughout has been excellent. However, under rule 74 (2) of the Bihar Service Code he was compulsorily retired from the post of General manager of District Industries Centre, deoghar on certain charges with respect to which enquiry was held by the additional Director Industries, and also by deputy Development Commission, who had submitted reports and on the basis of the aforesaid reports a memorandum was prepared by the Additional Commissioner-cum-Special Secretary and accordingly, the order of his compulsory retirement contained in memo No.435 dated 26-10-88 was issued. The petitioner, against the said order of the compulsory retirement filed a writ petition bearing C. M. J. C. No.8457 of 1988 in this Court, which was dismissed in limine on 23-11-88. The petitioner filed s. L. P. No.1038 of 1989 before the supreme Court, in which leave was granted and finally the Supreme Court, vide order dated 24-4-90 passed in C. A. No.1995 of 1990 allowed the appeal filed by the petitioner and quashed the order dated 26-10-88 of his compulsory retirement from service and, further, directed the respondents to re-instate the petitioner forthwith with full back wages. However, the copy of the said order has not been brought on the record. 3. When despite the said order the petitioner was not reinstated, he claims to have filed contempt petition No.187 of 1990 in the Supreme Court, whereafter he was reinstated on 4-12-90 with back wages and posted as Deputy director Industries, Bhagalpur, and the contempt petition was accordingly dismissed. 4. However, as no order for promotion was passed in the next higher scale of Rs.1575-2300, to which his juniors had been promoted, the petitioner claims to have filed representation before the State Government. It is alleged that instead of giving him promotion, he was suspended for the same charges on which he was earlier compulsority retired, vide order contained in memo No.348, dated 8-8-91 (Annexure-5) and his headquarters was fixed at Directorate of Industries, Patna. The State Government, vide resolution contained in memo No.349 dated 8-8-91 ordered for initiating a departmental proceeding against him on the same charges with respect to alleged illegal recommendation of or subsidies and payment of subsidies on D. C. generating set, registration of forged units, payment of beej dhan amount and illegal appointments made by him. However, on 30-12-91 the petitioners suspension was revoked by the State Government when he was going to superannuate on 31-12-91 and further, directed to continue the departmental proceeding vide annexure-7. The petitioner supperannuated from service on 31-12-91 and claims to have submitted his pension papers and other relevant papers for general provident fund. However, the petitioner was paid only 50% amount of his pension on his basic scale without dearness allowance. It is alleged that although more than 3 years have elapsed since his retirement, neither the amount of gratuity or leave encashment nor general provident fund has been paid to him. However, the petitioner was paid only 50% amount of his pension on his basic scale without dearness allowance. It is alleged that although more than 3 years have elapsed since his retirement, neither the amount of gratuity or leave encashment nor general provident fund has been paid to him. It is stated that an enquiry report was submitted on 24-4-93 finding the petitioner guilty of some of the charges. The petitioner was asked to submit his second show cause vide order contained in memo No.6926 dated 7-8-93, in which he was also required to submit show cause as to why not 50% of the pension amount be deducted from his pension. The petitioner claims to have submitted second show cause on 23-8-93, but it is alleged that till date no final order has been passed. 5. Accordingly, it is contended that withholding of the aforementioned post-retirement dues of the petitioner is clearly illegal, arbitrary and without jurisdiction and as such, he also claims to be legally entitled for full amount of pension and gratuity with 18% interest besides admissible dues. 6. A counter-affidavit and supplementary counter-affidavit have been filed on behalf of the respondent State of Bihar. In the supplementary counter-affidavit it is stated that in the enquiry report submitted on 26-4-93 charge against the petitioner was proved, according to which the amount of Rs.4,23,402/-was irregularly paid by the petitioner during his service period, the break up of which has also been given in paragraph 4 of the said affidavit. It is further stated that after careful consideration of the defence submitted by the petitioner in the second show cause the previous decision of the department was maintained and was approved by the Minister incharge and the Chief minister through the Chief Secretary. 7. It is stated that after advice of the Law Department and the Advocate-General, Bihar on the proposal of decision was taken to deduct 50% of the amount of pension per month from the amount of pension payable to the petitioner and to recover the amount irregularly paid by the petitioner under provision of rule 43 (b) of the Bihar pension Rules (hereinafter referred to as the Rules ). A request was made to the bihar Public Service Commission for concurrence, vide letter No.7443, dated 1-10-94 and the Commission vide its letter No.588, dated 22-6-95 accorded its concurrence and thereafter the said proposal was sent to the Cabinet secretariat and Co-ordination Department on 5-1-96 for obtaining approval of the Council of Ministers. 8. It is, however, contended by the learned Counsel for the State that the final decision could not be taken after retirement under misconception that no specific order under rule 43 (b) of the rules had been passed though an order to continue proceeding even after retirement was already there. Accordingly, the file was sent for legal opinion to the Advocate-General in 6-4-96 and after his advice the respondent passed the final order vide memo No.6106 dated 7-8-96 under the provision of rule 139 of the Rules for making deduction of 50% amount from the total monthly pension and 50% of the total amount of gratuity payable to him, a copy whereof was also forwarded to the Accountant-General, Bihar and all others concerned and a photo copy of the same has been annexed as Annexure-8 to the second supplementary counter-affidavit. 9. In the second supplementary counter-affidavit it is stated that the department of Industries has issued sanction order as regards payment of leave salary for the unavailed earned leave for 240 days admissible to the petitioner vide memo No.6126 dated 8-8-96 with a direction to the Accountant-General Bihar to deduct a sum of Rs.13,722/-on account of departmental dues which the petitioner owes and further, to deduct Rs.45000 on account of illegal and irregular payment of subsidy to fictitious industrial units disbursed by the petitioner during his service period. A Xerox copy of the said memo has been annexed as Annexure c to the affidavit. The details of the same have also been mentioned in the list of dues furnished by the department which is contained in annexure f. As regards the final withdrawal of G. P. F. amount, it is stated that the department has already issued sanction order vide letter No.3810 dated 18-5-94 (annexure-F) and forwarded the same to the Director, g. P. Fund. The sanction order for payment of General Insurance amount has also been issued vide Departments letter No.3378 dated 20-5-92. Accordingly, it is contended that no action is now pending in regard to the payment of post-retiral dues of the petitioner. 10. The sanction order for payment of General Insurance amount has also been issued vide Departments letter No.3378 dated 20-5-92. Accordingly, it is contended that no action is now pending in regard to the payment of post-retiral dues of the petitioner. 10. The petitioner has thereafter, filed an amendment petition on 19-8-96, in which he has sought for quashing of the orders contained in annexures 9 and 10 to the amendment petition which are annexures-8 and C in the second counter-affidavit and, further, to direct the respondents to pay his salary for the suspension period. 11. It is contended by Mr. Vishwanath pd. Singh, learned Senior Counsel appearing for the petitioner that the said orders are not sustainable as they have been passed after the superannuation of the petitioner from service. Further, it was submitted by him that even assuming that the respondents in the facts and circumstances, had the power to take action under rule 139 (b) of the rules, still the orders contained in annexures 9 and 10 are illegal and ultra vires Rule 139 read with sub-clause (ii)of clause (a) of Proviso to Rule 43 (b) of the Rules, under which no proceeding is permissible in respect of any event, which took place beyond four years before the institution of such proceeding. Initially he also ventured to submit that in fact, there was no order passed to continue the proceeding either in terms of rule 43 (b) or for acting being taken in terms of rule 139 (b ). However, when the learned Counsel was confronted with the order of the State government contained in memo No.14247, dated 30th December, 91 (annexure-7) whereby the suspension was revoked, but the departmental proceeding was directed to continue after retirement, he did not press the last submission. 12. Mr. Narendra Kishore Sinha, learned G. P.3 submitted that there is no illegality in the order under challenge. 12. Mr. Narendra Kishore Sinha, learned G. P.3 submitted that there is no illegality in the order under challenge. The State Government under rule 43 (b) of the rules has reserved the right of withholding or withdrawing pension or any part of it, permanently or for specific period, as also ordering the recovery from the pension of the whole or part of any pecuniary loss caused to the Government if finally he is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to the Government by misconduct or negligence during his service including service rendered on re-employment after retirement. According to the learned G. P. , the provision contained in the Proviso to rule 43 (b) has got application to the facts of the present case, as that relate to only where such departmental proceeding are not instituted while the Government servant was on duty either before retirement or during re-employment. It was further contended that in the present case the impugned orders have been passed in exercise of the power under rule 139 read with rule 43 (b), to which the rider of four years, contained in the Proviso to rule 43 (b) will not apply. According to him, the said rider will only apply to a case, where no proceeding was instituted before the superannuation otherwise under rule 43 (b) the State government has been vested with the power to complete the proceeding initiated and take final decision for withholding or withdrawing a pension or any part of it whether permanently or for a specific period and also for ordering 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. From the use of the word in rule 43 (b) "if the petitioner is found is in departmental or judicial proceedings, to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during his service including service record on re-employment or retirement, go to show that the proceeding already initiated can continue and is covered by rule 43 (b) and the case in which the proceeding is not initiated during the service including service rendered on re-employment after retirement, the proceeding is to be initiated in terms of proviso to rule 43 (b ). In this regard he placed reliance on the decision of the Apex Court in the case of D. V. Kapur V/s. Union of India, reported in 1990 (4) S. C. C.314 : AIR 1990 S. C, 1923 and also on the decision of the Apex Court in the case of High court of Punjab and Haryana V/s. Amrik singh, reported in 1995 Supp. (1) S. C. C.321. According to the learned G. P. the similar power has been vested in the authority sanctioning the pension under rule 139 (b) wherein if the service has not been thoroughly satisfactory, the authority should make such reduction in the amount as he thinks proper. On the other hand, the learned Counsel for the petitioner has submitted that the present case is squarely covered by the principles laid down by the Apex Court in the case of State of Bihar V/s. Md. Idris ansari, reported in 1995 (2) PLJR (SC) 51. 13. I consider it pertinent to quote rules 43 (5) and 139 in extenso: "43 (b ). Idris ansari, reported in 1995 (2) PLJR (SC) 51. 13. I consider it pertinent to quote rules 43 (5) and 139 in extenso: "43 (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 is 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 institutional of such proceedings; and (iii) shall be conducted by such 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 sub-clause (ii) of clause (a) ; and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation - 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 for an earlier date, on such date; and (b) judicial proceedings shall be deemed to have 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 the 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 such 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. " 14. In regard to the exercise of power under rule 139 (a) and (b) the state Government has laid down the following criteria: (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 such reduction In the amount as It thinks proper. " 15. Rule 139 mandates that full pension will not be admissible to a government servant as a matter of course. If the service has not been thoroughly satisfactory, the authority sanctioning the pension, should make such reduction in the amount of pension as the authority thinks proper. However, departmental proceedings against an employee who has already superannuated must be speedily concluded. This Court, in the case of deenanath Pd, V/s. State of Bihar reported in 1986 PLJR 405 held that the power to initiate proceeding must be used with care and caution and sparingly. The interpretation of the aforementioned two rules was the subject-matter before the apex Court in the case of State of Bihar v. Md. Idris Ansari, reported in 1995 (2)P. L. J. R. (S. C.) 51. 16. The short facts in the said case was that in a proceeding initiated against the respondent of that case on certain charges, the State Government awarded punishment to him as per its order dated 6-6-92. Idris Ansari, reported in 1995 (2)P. L. J. R. (S. C.) 51. 16. The short facts in the said case was that in a proceeding initiated against the respondent of that case on certain charges, the State Government awarded punishment to him as per its order dated 6-6-92. The respondent challenged the said order in the High court in a Writ Petition which was allowed, as the, Court found that the copy of the report of the flying squad was not made available to the petitioner and thus, the principle of natural justice was violated by the authorities when they passed the impugned order. However, liberty was given to the State Government to proceed afresh against the respondent. Thereafter on 31-1-93 the respondent reached the age of superannuation and retired from Govt. service. On 17-7-93 the respondent was required to submit explanation regarding irregularities, for which he was served with the notice dated 17-7-93. Before that notice could be processed further snow-cause notice was issued to the respondent No.7-9-93 intimating him that he had already retired from service and the period of charges was prior to four years no action could be taken against the respondent under rule 43 (b)of the Rules and that the Government had decided to issue show-cause notice under rule 139 of the Rules. Merely he was called upon to show cause as to deduction of 70% of his pension should not be made. In the light of the said show-cause notice the State Government passed final order on 13-12-93 in exercise of the power under rule 139 (a)and (b) withholding 70% of the pension payable to the respondents, which was challenged in the High Court in the writ petition and ultimately the same were quashed. The State of Bihar preferred the appeal before the Supreme Court. 17. The Apex Court after giving anxious consideration to the rival contention made in the said case, upheld the decision of this Court reported in 1994 (1) P. L. J. R.109 that the notice dated 17-7-93 by which fresh departmental proceeding were sought to be initiated was rightly quashed by this court as it was passed on the alleged misconduct of the respondent during 1986-87 which was more than four years prior to the issue of the said notice. The supreme Court held such a notice to be hit by the Proviso to sub-clause (b) of rule 43 of the Rules. Further, it was held that a conjoint reading of rule 43 (b) and rule 139 projects the following picture: (i) A retired Government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was not thoroughly satisfactory. (ii) Even if the service record of the concerned officer is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that there is proof of grave misconduct against the concerned officer during his service tenure, the State Government can exercise revisional power to reduce the pension but the revision is also subject to the rider that It should be exercised within 3 years from the order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond the period. The Supreme Court held that with respect to second type of case the departmental proceeding will have to comply with the requirement of Rule 43 (b ). Consequently a retired government servant can be found guilty of grave misconduct during his service period or even after his retirement but such proceedings can be initiated in connection with such misconduct which might have taken place within four years of initiation of such departmental proceeding against him. Considering the facts of the said case it was held by the apex Court that the impugned decision had to be read with Rule 43 (b), under which any misconduct, if committed within four years prior to 27-9-93 meaning thereby, it should have been committed during the period from 26-9-89 up to 31-9-93 when the respondent retired only in case of such a misconduct departmental proceeding could have been initiated against the respondent under rule 43 (b ). It was further held that in such proceeding, if he was found guilty of misconduct, he could have been properly proceeded against under rule 139 (a) and (b ). It was further held that in such proceeding, if he was found guilty of misconduct, he could have been properly proceeded against under rule 139 (a) and (b ). As the impugned notice was issued wholly on the ground of alleged past misconduct and was not passed on the ground that the service record of the respondent was not thoroughly satisfactory, the Apex Court on a conjoint reading of Rule 43 (b) and rule 139 (a) held that there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to four years from the date on which show-cause notice dated 27-9-93 was issued, the appellant authority (State of Bihar) had no power to invoke rule 139 (a) and (b) against the respondent on the ground of proved misconduct. Consequently it was held that the proceeding under rule 139 were incompetent. 18. It is pertinent to mention here that in the said case the fresh proceeding was initiated after the retirement of the respondent (government servant), whereas the facts of the present case is completely different. In the instant case no fresh proceeding was initiated against the petitioner after his retirement. In fact, the proceeding which had been initiated earlier was ordered to continue even after retirement by passing an order to that effect just before his retirement and thus, in my opinion, is not squarely covered by the principles laid down by the Apex Court in the case of State of Bihar V/s. Md. Idris (supra ). The Apex Court in the case of P. V. Kapur v. Union of India (supra) while considering the scope of rule 9 (a) of Civil Services Pension Rules, 1972, which is pan materia with rule 43 (b) (except its proviso pan) held that the disciplinary proceeding initiated under the Conduct rules must be deemed to be proceeding under the Rules and shall be continued and concluded by the authorities by which the proceedings have been commenced in the same manner as if the government servant had continued in service. The said law laid down by the apex Court is based on the provision contained in Rule 9 (2) of the Civil service Pension Rules, 1972, which provided that the departmental proceeding if instituted while the government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the government servant, be deemed to be proceeding under this rule and shall be continued and concluded by the authority, by which they were commenced in the same manner as if the government servant had continued in service. Thus, the Court held that merely because the appellant was allowed to retire, the government is not lacking jurisdiction or power to continue the proceeding already initiated to the logical conclusion thereto. 19. The Supreme Court in the case of High Court of Punjab and Haryana V/s. Amrit Singh (supra) while considering cl. (b) of rule 2.2 of the Pension Rules, which stands in pan materia with Rule 43 (b) of our Rules, placing reliance on its aforesaid decision in D. V. Kapurs case, has held that the same ratio would apply to the facts of the said case. Further, it was held that several options are open to the appointing authority and in the case the disciplinary authority also happens to be the appointing authority. Before the delinquent reaches superannuation, the enquiry should be got expedited and appropriate order passed on the basis of the finding reached by the disciplinary authority. In case the delinquent attempt to drag the proceeding or he does not co-operate in the completion of the enquiry, after giving necessary warning in writing, suitable course, appropriate to the facts is required to be adopted. In case it is not possible to complete the enquiry or to pass final order, the suspension should be extended and re-employment order or later extended and to pass appropriate orders during the extended period. In case it is found that either those courses is neither feasible nor possible and allow the delinquent to retire from service, it would be open to the disciplinary authority to record in its order that but for retirement he would pass an order of dismissal from service. In case it is found that either those courses is neither feasible nor possible and allow the delinquent to retire from service, it would be open to the disciplinary authority to record in its order that but for retirement he would pass an order of dismissal from service. Since the delinquent had retired, the apex Court held that disciplinary authority would record in the order that the delinquent committed grave misconduct of the proved charges and suitable order be made while holding that as the order of dismissal impugned therein was of no consequence and became superfluous as he was no longer in service as on that date. Accordingly, it was left open to the Chief Justice of the High court to take such action as is open to him under law. 20. It is true that the law settled is that after the retirement the government servant, ceases to be in employment and as such, no disciplinary action can be taken against him unless rule provides for that. A reference in this connection can be made to the decision of the Apex Court in the case of Kirti bhusan Singh V/s. State of Bihar and others reported in AIR 1986 SC 2116 , paras 5 and 6 and of this court in the case of shushil Kumar Choudhary V/s. . State of bihar and another reported in AIR 1966 patna 227 and in the case of Dr. Lakshmi Narain Singh V/s. State of Bihar and Ors. , reported in 1989 B. B. C. J.147 : 1989 (1) BLJ 289 . 21. It is also true that in the rules applicable to the present case there is no specified provision like the one contained in the aforementioned rule 9 (2)of the Civil Service Pension Rules , 1972, but in the governmental decision contained in P. P. Memo No.3/f 1-50/70-12753 F D dated 26-11-70 relating to continuance of a departmental or judicial proceeding initiated against the pensioner with respect to his misconduct or his negligence even after retirement, on careful consideration, the state Government decided to allow the government servant under suspension to retire on reaching the age of superannuation irrespective of the question whether enquiries into charge or departmental or judicial proceeding initiated have been concluded or not. It was further decided that the said revised procedure should take effect from 1st november, 1970. It was further decided that the said revised procedure should take effect from 1st november, 1970. Further, the enquiries or proceeding that might have been already started or likely to be taken against the government servant in future was decided to be continued even after their retirement from government service in accordance with the procedure laid down in Sec.43 (b) of the bihar Pension Rules in the light of the decision aforementioned to allow the government servant to retire on reaching the age of superannuation steps were being taken to delete Rule 73 (f) of the Bihar Sendee Code by issuing necessary correction slips and in the meanwhile, the said Rule was deemed to have ceased to be in operation with effect from 1st November, 1970. Rule 73 (f) of the Bihar Service Code provided that the government servant under suspension on charge of misconduct should not be required or permitted to retire on reaching the age of compulsory retirement and that the enquiry into the charges be concluded and final order be passed by the competent authority. The said rule However, now stands deleted from the Statute. 22. Thus, in view of the powers of the State Govt. Under rule 43 (b) to withhold or withdraw pension and also to order for recovery from a pension if the pensioner is found in departmental or judicial proceeding guilty of grave misconduct or have caused pecuniary loss to Government by misconduct or negligence and the governmental decision referred to above relating to the manner in which the superannuation of a government servant under suspension on reaching the age of compulsory retirement is to take place, it has to be held that merely because a government servant is allowed to retire the government is not lacking jurisdiction or power to continue the proceeding already initiated to logical conclusion thereto. The enquiry or proceeding initiated under rule 43 (b) is to continue even after the retirement of the government servant in accordance with the procedure laid down in terms therefor. But there must be specified order passed continuing such proceeding just before retirement as was done in the present case otherwise it will be covered by the proviso to rule 43 (b) of the Rules. But there must be specified order passed continuing such proceeding just before retirement as was done in the present case otherwise it will be covered by the proviso to rule 43 (b) of the Rules. A Division Bench of this court in the case of Jagadhari Rai V/s. State of Bihar, reported 1969 B. L. J. R.553 approved the order finding the petitioner of the said case guilty, though passed after his superannuation while departmental enquiry was pending. It was held that rule 43 of the Bihar Pension Rules authorises the continuation of a departmental proceeding initiated prior to the date of superannuation and passing of an order or punishment for recovery from the pension of the whole or in part of the pecuniary loss caused to the government during service for that purpose with the special sanction of the State Government even after the officer has retired. 23. The principle laid down by the supreme Court in the case of D. V. Kapur v. Union of India (supra) and Punjab and haryana V/s. Amrit Singh (supra) that the disciplinary proceedings initiated under the Conduct Rules must be deemed to be proceeding under the rules and shall be continued and concluded by the authority, by which the proceedings have been commenced in the same manner as if the government servant had continued in service, will apply to the present case also, and the authority, after completion of the proceedings under rule 43 (b) can pass appropriate order either under rule 43 (b) itself or under rule 139 (b) with respect to making such reduction in the amount as it thinks proper while finalising the pension of a government servant. As such, I do not find any substance in the submission of the learned Counsel for the petitioner that the orders impugned are not sustainable. 24. The learned Counsel for the petitioner also ventured to submit that even according to the decision of the apex Court in the case of D. V. Kapur, no deduction can be made from the amount of gratuity payable to the petitioner in view of the provisions contained in Sec.4 of the payment of gratuity Act, 1972. I do not find any substance in the said submission of the learned Counsel either. I do not find any substance in the said submission of the learned Counsel either. The Supreme court in the case of D. V. Kapur held that the right to gratuity is also statutory right and after noticing that the appellant was not charged with, nor was given an opportunity that his gratuity would be held as a measure of punishment and also that no provision of law has been brought to notice under which the president was empowered to withhold gratuity as well, after his retirement as a major punishment, the order to withhold gratuity as a measure of penalty was held to be illegal and devoid of jurisdiction. But in the present case I find that the State Government has been vested with the power under rule 43 (b) as well as under rule 139 of the rules to withhold or withdraw or make deduction from the pension, if pensioner is found in department or judicial proceeding to have been guilty of grave misconduct or to have caused the pecuniary loss to Government by misconduct or negligence during his service and/or if the service of the government servant has not been thoroughly satisfactory. Rule 27 of the Bihar Pension rules defines pension to include a gratuity also, inasmuch as the Payment of Gratuity Act, 1972, has got to application to the present case as well. As per the provisions contained in sub clause (3) of Section (1) the said Act apply to every factory, mines, oilfields, plantation, port and railway company, every shop or establishment within the meaning of any law of the time being in force in relation to shops and establishment in a State in which 10 or more persons are employed or were employees on any day of the preceding 12 months, such other establishment or class of establishment in which 10 or more employees are employed, or were employees on any day or preceding 12 months, as the Central Governmen may, by notification, specify in this be half. It is not the case of the petitione that he was in such an employment. As such, in my opinion, his case will be governed by the Bihar Pension Rule framed by the State Government and not by the provisions of the Payment of gratuity Act. It is not the case of the petitione that he was in such an employment. As such, in my opinion, his case will be governed by the Bihar Pension Rule framed by the State Government and not by the provisions of the Payment of gratuity Act. As such, in my opinion, the decision of the Apex Court in D. V. Kapurs case in that regard will have no application to the present case. Accordingly, I do not find any merit in the said contention advanced by the learned counsel for the petitioner. 25. However, as the necessary sanction orders for payment of the post-retiral dues payable to the petitioner have been issued to the Accountant-General, Bihar and also to the Director, provident Fund, the said authorities are directed to take all necessary steps for release of the said dues within a fortnight of the receipt of a copy of this judgment/order. The writ-application accordingly stands disposed of. Order Accordingly.