Sachchidanand Singh v. State Of Bihar — 1999 DIGILAW 919 (PAT)

Judgment R.M.Prasad, J. 1. The petitioner in this writ petition is aggrieved by the order, contained in Memo No. 3426 dated 20th December, 1997 (Annexure-7) issued by the Under-Secretary, Water Resources Department, Government of Bihar (respondent No. 5) and the order contained in letter No. 1226 dated 16th May, 1998 (Annexure-8) issued by the Joint Secretary, Water Resources Department, Government of Bihar (respondent No. 4). The order dated 20th December, 1997 (Annexure-7) has been issued in the purported exercise of the power under Rule 43 (b) of the Bihar Pension Rules, 1950 (hereinafter referred to as the Rules) imposing punishment for recovery of Rs. 2.55 lakh in one time from the dues and pensionary benefits payable to the petitioner and, further, withholding 25% of his pension for all times. By the order, contained in Annexure-8, the petitioner has been given notice purporting to be under Rule 139(a) and (b) of the Rules asking him to file his show cause within a fortnight as to why his pension should not be fixed at 75% after reducing 25% from his pension, failing which the department will be at liberty to take ex parte decision. The petitioner has also sought for an appropriate writ or direction against the respondents for promoting him to the post of Chief Engineer for which recommendation was also made by the Bihar Public Service Commission and monetary benefit in that regard. 2. In short, the relevant facts are that the petitioner, while posted as Superintending Engineer, Irrigation Circle, Jamui during the period April 1988 to October 1991 under Chief Engineer, Deoghar, was found prima facie guilty of alleged irregularity in the original work of spill channel and faulty work done under Upper Kiul Reservoir Scheme during 1988-89. This was done on the basis of spot verification report and the inquiry report of Flying Squad Wing of the Department and, accordingly, vide Departments Resolution No. 1257 dated 28-6-1996, a departmental proceeding was initiated against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as the Civil Services Rules). In the meantime, the petitioner superannuated on 30th June, 1996. The respondents claim to have continued the said proceeding under Rule 43 (b) of the rules and upon inquiry, the conducting officer found him guilty of the charges framed against him and submitted inquiry report. In the meantime, the petitioner superannuated on 30th June, 1996. The respondents claim to have continued the said proceeding under Rule 43 (b) of the rules and upon inquiry, the conducting officer found him guilty of the charges framed against him and submitted inquiry report. The said inquiry report was examined and considered at the Governmental level and certain charges have been found proved against the petitioner as per the impugned order (Annexure-7) and, consequently, the impugned punishments were imposed on him and thereafter the impugned notice, contained in Annexure-8, was issued. 3. It appears that the petitioner was put in the independent charge of Chief Engineer on 15-4-1996 but it appears from the counter-affidavit that the petitioner was deprived of his regular promotion to the post of Chief Engineer on account of the pendency of the said departmental proceeding and for want of Vigilance clearance. According to the case of the respondents in the counter-affidavit, the petitioner being incharge of the site recommended the unnecessary estimate prepared by the concerned Executive Engineer and connived with the Executive Engineer for making payment of Rs. 10,19,533.00 resulting heavy loss to the Government exchequer and, as such, besides the involvement of others, his involvement has been found in the alleged irregularity. Accordingly, 1/4th of the said amount has been ordered to be recovered besides ordering for withholding of 25% of his pension, vide impugned orders. 4. According to the case of the petitioner, no order initiating any proceeding under Rule 43 (b) of the Rules was ever communicated to him. It is alleged that even the order initiating the proceeding under Rule 55 of the Civil Services Rules was put in transmission and sent out on 1-7-1996 by registered post when the petitioner had already retired on 30-6-1996. 5. Mr. Chandrashekhar, learned Senior Counsel appearing for the petitioner, thus, contended that even the said so-called proceeding under Rule 55 of the Civil Services Rules was wholly illegal and the State Government was not empowered to take action against this petitioner in the purported exercise of the power under Rule 43 (b) of the Rules in respect to an event which took place much more than four years before the institution of the said proceeding, much less when no order initiating any proceeding in terms of Rule 43 (b) was ever communicated to the petitioner. It is contended that even the order contained in Annexure-8 is not sustainable in law as it is consequential to the order contained in Annexure-7 purported to have been passed under Rule 43 (b) and, further, that the said notice has been mala fide issued after passing of the final order (Annexure-7). 6. In regard to the fact initiating proceeding, vide Departments Resolution No. 1257 dated 28-6-1996, contained in Annexure-3, the petitioner in paragraph 31 of the writ petition has stated that the said order was put in transmission and sent out on 1-7-1996 by registered post when the petitioner had already retired from service on 30th June, 1996. This fact has not been denied in the counter-affidavit though answered in paragraph 24 of the counter-affidavit. 7. In the counter-affidavit and the supplementary counter-affidavit filed on behalf of the respondents, it is only stated that the departmental proceeding was initiated against the petitioner by the Department, vide Resolution No. 1257 dated 28-6-1996, as contained in Annexure-3, and that the same proceeding was continued under Rule 43 (b) of the Rules after the petitioner superannuated on 30th June, 1996. It is not the case of the respondents that any order in terms of Rule 43 (b) of the Rules either containing the earlier proceeding or initiating a fresh proceeding was ever issued and communicated to the petitioner. 8. By now, it is well settled that an order passed on the file and not issued does not become effective unless it is issued and communicated to the person concerned. In the case of Bachhittar Singh V/s. State of Punjab reported in -- , the Supreme Court while considering as to what can be regarded as the order of the State Government held that Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned." In this connection, the Supreme Court quoted its earlier decision in the case of State of Punjab V/s. Sodhi Sukhdev Singh -- , according to which, it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by the order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character. 9. Thus, this Court finds substance in the submission of the learned Counsel for the petitioner that the so-called entire proceeding conducted pursuant to the resolution (Annexure-3) was bad in law as undisputedly the order initiating proceeding under Rule 55 of the Civil Services Rules was issued and communicated only after the petitioner ceased to be in service and no order either converting the said proceeding or initialing a fresh proceeding in terms of Rule 43 (b) of the Rules was ever issued and communicated to the petitioner. 10. Mr. Rai, learned Additional Advocate-General No. III appearing for the State contended that the departmental proceeding was allowed to continue after superannuation of the petitioner in the light of the decision of the apex Court in the case of High Court of Punjab & Haryana V/s. Amrik Singh, reported in 1995 Supp (1) SCC 321, and placed reliance on the quotation of the following passage in paragraph 4 of the supplementary counter-affidavit: The initiation of the disciplinary proceedings against the delinquent must be deemed to be proceedings under the Pension 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 been continued in service. 11. This Court fails to appreciate as to how the said decision of the apex Court is of any help to the respondents. The afore-mentioned extract of quotation appears to be from paragraph 3 of the said decision in which the apex Court dealt with the respective contentions and noticed the law decided in the case of D.V. Kapoor V/s. Union of India, . In the said case Rule 9 of the Central Pension Rules was taken into consideration under which such departmental proceeding after retirement is deemed to be proceeding under the said rule and is to be continued and concluded in the same manner as if the Government servant had continued in service. In the said case Rule 9 of the Central Pension Rules was taken into consideration under which such departmental proceeding after retirement is deemed to be proceeding under the said rule and is to be continued and concluded in the same manner as if the Government servant had continued in service. The apex Court considering the said rule held that the initiation of disciplinary proceedings against the delinquent must be deemed to be proceedings under the Pension 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 been continued in service. In fact, the decision of the apex Court in the case of High Court of Punjab & Haryana V/s. Amrik Singh (supra) supports the case of the petitioner that after his retirement he was no longer in service and consequently, the proceeding under Rule 55 of the Civil Service Rules met its natural death after the petitioner ceased to be in service of the State. 12. Rule 43 (b) is in pari materia to Rule 9(1) of the Central Civil Service Pension Rules except the two provisos attached thereto which are not relevant for the purpose of this case. But, there is nothing in the Bihar Pension Rules like the one contained in Rule 9 (2) of the Central Civil Service Pension Rules. The relevant extract of Rule 43 of the Rules and Rule 9 of the Central Civil Services (Pension) Rules are quoted hereunder: 43. (a) Future good conduct is an implied condition of every grant of a pension. The Provincial Government reserve to themselves the right of withholding 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 Rules 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 Rules 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 (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 riot 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. * * * * * 9. Right of President to withhold or withdraw pension. -(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement; Provided that... Provided further that... Provided further that... (2) (a) The departmental proceedings referred to in sub-rule (1), 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 proceedings 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: Provided that... (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment- (i) shall not be instituted save with the sanction of the President, (ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in relation to the Government servant during his service. Clause (a) of Rule 43 of the Rules vests power in the Provincial Government to withhold or withdraw a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct, and Clause (b) vests similar power in the State Government in case the pensioner is found 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 rendered on re-employment after retirement. 13. The scope of Rules 43 (b) and 139 of the Rules was elaborately dealt with by me in the case of Ram Ekbal Sharma V/s. State of Bihar and Ors. 13. The scope of Rules 43 (b) and 139 of the Rules was elaborately dealt with by me in the case of Ram Ekbal Sharma V/s. State of Bihar and Ors. reported in 1997 (1) All PLR 61, with reference to the Governmental decision contained in F.O. 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 negligence even after his retirement and various decisions of the Supreme Court and of this Court, and it was held that the inquiry proceeding initiated can continue even after the retirement of a Government servant in accordance with the procedure laid down in Rule 43 (b) but there must be specific order passed continuing such proceeding just before retirement, obviously because unless there is an order before retirement in terms of the aforementioned Governmental decision, the proceeding initiated under any other provision meets its natural death after the employee ceases to be in employment after his retirement and the only course remains open to take action for withholding or withdrawing pension on account of conviction or grave misconduct of an employee under the proviso to Rule 43 (b) or Rule, 139 of the Rules. 14. In the case of Andrika Prasad Singh V/s. The State of Bihar and Ors. C.W.J.C. No. 7560 of 1998 and analogous case, disposed of on 29-7-1999, an attempt was made by learned Government Pleader No. VI appearing for the State to convince this Court that the aforesaid decision with respect to the requirement for passing specific order continuing such proceeding just before retirement is an obiter, but the same was repelled as in the said case the said principle was applied as the proceeding was continued by issuance of specific order in terms of Rule 43 (b) of the Rules before his retirement and the question was as to whether such an order was sustainable. The law in this regard is well settled that after a person is allowed to retire; the relationship of master and servant ceases and no order to the detriment of the employee concerned can be passed unless the rule specifically provides for it or vests power in the authority (See -- , State of Assam V/s. Padma Ram -- , Kirti Bhusan Singh V/s. State of Bihar -- , Shushil Kumar Choudhary V/s. State of Bihar and 1989 BBCJ 147 , Dr. Lakshmi Narain Singh V/s. State of Bihar. 15. Rule 43 certainly vests power in the State Government for withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct and under Clause (b) the power is there to withhold or withdraw pension or any part of it whether permanently or for a specified period and also for ordering for recovery from a pension of the whole or part of any pecuniary loss caused to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct, during his service including service rendered on re-employment after retirement. Under its proviso, for passing such an order, the Government has been vested with the power to initiate departmental proceedings if not instituted prior to the retirement of a Government servant or during his re-employment, subject to various requirements and out of which one of it is that it shall not be instituted save with the sanction of the State Government and the second requirement is that it shall not be instituted in respect of an event which took place not more than four years before the institution of such proceeding. Similar rider is applicable with respect to the judicial proceeding if, not instituted while the Government servant was on duty either before retirement or during re-employment, Under Clause (c), consultation of the Bihar Public Service Commission is mandatory before passing of the final order. 16. Bihar Rules do not provide for any similar provisions as provided for in Rule 9(2) of the CCS (Pension) Rules, 1972 that the departmental proceeding initiated while in service against a Government servant shall be deemed to be continuing even after his retirement and it shall be concluded by the authority in the same manner as if the Government servant had been continued in service. In the absence of such provision in the Bihar Rules, there cannot be any question of automatic continuance of the proceeding on cessation of the relationship of mater and servant of a Government servant on his retirement. 17. Learned Additional Advocate-General No. HI appearing for the State submitted that Rule 43 implies that where a departmental proceeding is instituted while the Government servant was on duty either before retirement or during re-employment it has to culminate into its final conclusion otherwise power of the State Government for withholding or withdrawing pension permanently or for a specified period or ordering the recovery on account of pecuniary loss caused to it provided for under sub-rules (a) and (b) of Rule 43 would become redundant. In support of this, he placed reliance on the decisions of the learned Single Judge of this Court in the case of Ram Nandan Singh V/s. The State of Bihar reported in 1998 (1) PLJR 878 and in the case of Ram Chandra Jha V/s. State of Bihar reported in 1998 (1) PLJR 376. It was also submitted by the learned Additional Advocate-General No. III that under Rule 139 (a) and (b), the full pension admissible is not to be given as a matter of course, unless the service rendered has been really approved. If the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered to make such reduction in the amount as it thinks proper. 18. This Court does not find any substance in either of the said submissions of the learned Additional Advocate-General No. III. In view of the settled principle that after a person is allowed to retire the relationship of master and servant ceases and no order to the detriment of the employee concerned can be passed unless the rule specifically provides for it or vests power in the authority. This Court fails to appreciate as to how sub-rules (a) and (b) of Rule 43 would become redundant. Under sub-rule (a) future good conduct is an implied condition of every grant of pension and the power to withhold or withdraw pension or any part of it is to be exercised after the retirement of a Government servant if the pensioner is convicted of serious crime or found guilty of grave misconduct. Under sub-rule (a) future good conduct is an implied condition of every grant of pension and the power to withhold or withdraw pension or any part of it is to be exercised after the retirement of a Government servant if the pensioner is convicted of serious crime or found guilty of grave misconduct. Thus, before the said power can be invoked, there has to be an order convicting the pensioner of serious crime or finding of his being guilty of grave misconduct. Under sub-rule (b), similar power has been vested in the State Government with further addition that the order in that regard can be passed permanently or for a specified period and, further also for the recovery from pension of any pecuniary loss caused to the Government. But, this power can also be exercised when the pensioner is found in departmental or judicial proceeding to have been guilt of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during his service. Thus, it is evident that the power under sub-rule (b) is to be exercised in respect of finding in regard to misconduct or negligence arrived either during the service tenure of a Government servant or even after his retirement, but since after retirement the proceeding initiated earlier terminates, exception has been provided in the proviso to sub-rule (b) were pensioner can also be proceeded departmentally or judicially even after his retirement with, of course, riders provided therein such as it cannot be instituted gave with the sanction of the State Government; and shall be in respect of an event which took place not more than four years before the institution of such proceedings; and 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. The rider of four years is to also apply to judicial proceedings. Under its Clause (c), the Bihar Public Service Commission is required to be consulted before final orders are passed. The rider of four years is to also apply to judicial proceedings. Under its Clause (c), the Bihar Public Service Commission is required to be consulted before final orders are passed. The power to continue such proceeding pending before retirement can at best be derived only from Rules 73 to 75 of the Bihar Service Code under which a Government servant may be retained in service after the date of compulsory retirement with the sanction of the State Government on public grounds, which must be recorded in writing and no Government Servant under suspension is to retire from service except with the specific approval of the State Government. Thus, it is evident that where a Government servant is allowed to retire without the exercise of the aforesaid power of retaining him in service, the power to continue the proceeding already initiated while in service can be exercised only in terms of proviso to Rule 43 (b) and not otherwise. 19. This Court fails to appreciate as to how the decisions in the case of Ram Nandan Singh V/s. The State of Bihar and in the case of Ram Chandra Jha. V/s. State of Bihar (supra), are of any help to the respondents. In the decision of Ram Nandan Singh (supra), the fact was that the departmental proceeding was initiated against the petitioner while he was in service and after his retirement, the proceeding was ordered to be continued to determine the guilt of misconduct of the petitioner for the purpose of passing an order in terms of Rule 43 (b) of the Rules and in that context, the learned Single Judge held that if the proceeding is instituted from before and only there is continuance of the proceeding after superannuation in terms of Rule 43 (b) of the Rules, there is no requirement that it must relate to an event, which took place not more than four years before the date of either initial institution of the proceeding or conversion of the proceeding under Rule 43 (b) of the Rules. Without concurring with the said proposition of this Court is of the view that the said principle has no application to the facts of the present case in which, undisputedly, the order initiating the proceeding under Rule 55 of the Civil Services Rules was not issued/communicated to the petitioner while in service and thus was of no consequence and became superfluous and as after the superannuation of the petitioner, there was no order to continue even the said proceeding to determine the guilt of alleged misconduct of the petitioner for the purpose of passing an order in terms of Rule 43 (b) of the Rules, no proceeding ever existed in which punishment could be imposed. 20. However, the learned Single Judge in the case of Ram Nandan Singh (supra) has placed reliance on two decisions of the apex Court; one in the case of State of U.P. V/s. Sri Krishna Pandey , and the other in the case of High Court of Punjab & Haryana V/s. Amrik Singh (supra) the apex Court consideration of the facts held that the Chief Justice was not apprised that the delinquent had already been retired from service on completion of two years period of extended service of re-employment with effect from 31-8-1982. Therefore, the order of giving effect to the order of dismissal from the date of its order was of no consequence and became superfluous as he was no longer in service as on that date." In the case of State of U.P. V/s. Sri Krishna Pandey (supra), the apex Court on consideration of the scope of Rule 351-A, which is in pari materia to the provisions of Rule 43(b) of the Bihar Pension Rules held that in absence of specific provision allowing the Officer to continue in service nor any order passed to allow him to continue on re-employment till the inquiry is completed, without allowing him to retire from service there is no provision that the proceeding be initiated as disciplinary measure and the action initiated earlier would remain unabated after retirement. It was, however, further deserved that if Regulation 351-A is to be operative in respect of pending proceedings by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. It was, however, further deserved that if Regulation 351-A is to be operative in respect of pending proceedings by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. Thus, the apex Court also had doubt that Regulation 351-A can be made operative in respect of pending proceedings by necessary implication but even if such interpretation was possible, the apex Court felt the necessity of complying with the requirement of the terms provided in the proviso to Regulation 351-A under which sanction of the Governor is required even in respect of pending proceedings and not that the other requirements of the proviso to the said Regulation shall not apply to pending proceedings. 21. In the case of Ram Chandra Jha V/s. State of Bihar (supra), the facts were that the petitioner already superannuated before 18-1-1994 and thereafter notices were issued under Rules 139 and 43 (b) of the Rules on 18-2-1995 and 16-1-1996 respectively. Another notice under Rule 139 was issued on 22-7-1995 and the validity of these notices were Under challenge. A contention was raised that the notices issued under the provisions of the Pension Rules were vitiated because of breach of the provisions of Rule 43 (b) of the Pension Rules. The learned Single Judge after noticing the fact that the proceeding was initiated while the petitioner was in service, which fact was not denied by the petitioner, held that the proceeding under Rule 43 (b) of the Rules in maintainable and in that context it was further held that were the proceeding has been initiated after his superannuation with regard to a matter for more than four years before the initiation of the proceeding and as the final decision has been taken to proceed under Rule 43 (b), the notices under Rule 139 were not sustainable. It was specifically noticed by the learned Single Judge that it is not a case where the proceeding has been initiated after his retirement with regard to a matter more than four years before the institution of the proceeding. It was specifically noticed by the learned Single Judge that it is not a case where the proceeding has been initiated after his retirement with regard to a matter more than four years before the institution of the proceeding. Thus, the said decision, in my opinion, is also of no help to the learned Counsel for the State as in the present case no order/notification under Rule 43 (b) of the Rules has been issued except with regard to the proceeding under Rule 55 of the Civil Services Rules which is also of no consequence as it was issued after the petitioner superannuated from service. 22. Learned Counsel for the State also placed "reliance on a Division Bench judgment of this Court in the case of J. Roy V/s. State of Bihar and Ors. 1968 PLJR 634-paragraph 6, The said decision, in my opinion, is also of no help to the learned State Counsel. In the said case, a regular departmental proceeding was initiated vide Government decision dated 4th April, 1959. The inquiry was held and a report was submitted by the inquiry officer on 20th February, 1961 holding the petitioner of the said case guilty. The second notice regarding the proposed punishment was issued. On 12th March, 1965, the order of suspension passed earlier was withdrawn and the Government allowed him to retire from service on his attaining 55th Year, which was the date normal for superannuation. Ultimately, in December 1966, the proceedings were closed with certain punishments. It is true that the Division Bench in the said case held that in the absence of an express prohibition in any of the Service Rules, it cannot be said as a proposition of law that merely because an officer has superannuated all the departmental proceedings pending against him must be deemed to have become ineffective. But, the Supreme Court while dealing with a case from Bihar on this aspect in the case of Kirti Bhusan Singh V/s. State of Bihar , held that after the appellant was allowed to retire he ceased to be a Government employee and any order of dismissal passed there after would be unsustainable unless it was permissible under the law to the State Government to revoke the order of retirement and to reinstate him in his former status as Government servant before the order of dismissal was passed. 23. 23. The Supreme Court in the Case of Bhagirathi Jena V/s. Board of Directors, O.S.F.C. , while considering the effect of retirement over the departmental inquiry initiated while in service, held that in the absence of any such provision, it must be held that the respondent-corporation had no legal authority to make any reduction in the appellants retiral benefits. According to the Supreme Court, once the appellant had retired from service, there was no authority vested in the Corporation for continuing the departmental inquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it was held that the inquiry had lapsed and the appellant was entitled to full retiral benefits. 24. In the case of State of Bihar V/s. Mohd. Idris Ansari reported in 1995 (3) SCC 56, the relevant facts were that after quashing of the earlier notice dated 17-10-1987 under Rule 43 (b) and the order dated 6-6-1992 passed thereon on the ground of non-compliance of the principles of natural justice, the respondent was served with a notice on 17-7-1993 and before that notice could be processed further, a show-cause notice was issued to the respondent on 27-9-1993 intimating him that due to rider of four years, no action under Rule 43 (b) could be taken against him and thus the Government decided to issue show-cause notice under Rule 139 of the Rules. Thereafter, final order dated 13-12-1993 in exercise of powers under Rules 139(a) and (b) withholding 70% of pension payable to the respondent was passed which were under challenge before the High Court. The High Court quashed the said notice and the order and thereafter the State of Bihar appealed against it before the Supreme Court. The Supreme Court in paragraph 7 of the said judgment while affirming the High Court judgment and dealing with the scope of proviso to sub-rule (b) of Rule 43 of the Rules held as follows: A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceedings or judicial proceedings, the Government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43 (a) and (b), in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years old, Rule 43 (b) was out of picture. The apex Court also considered the question whether any assistance can be derived by he appellant-authorities from Rule 139 of the Rules. 25 The apex Court in the said case held that on conjoint reading of Rule 43 (b) and Rule 139, the following picture emerges: 1. 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. 2. Even if the service record of the officer concerned is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is not thoroughly satisfactory of that there is proof of grave misconduct of the officer concerned during his service tenure, the State Government can exercise revisional power to reduce the pension but that revision is also subject to the rider that it should be exercised within 3 years from the date, an order sanctioning pension was first passed in his favour by the sanctioning authority and not beyond that period. 26. The Supreme Court, while dealing with second type of cases, held that the proof of grave misconduct on the part of the concerned Government servant during has service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But, such departmental proceedings will have to comply with the requirements of Rule 43 (b). But, such departmental proceedings will have to comply with the requirements of Rule 43 (b). Consequently, a retired Government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceeding conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within four years of the initiation of such departmental proceedings against him. The Supreme Court agreeing with the High Court that the notice dated 27-9-1993 invoking powers under Rules 139 (a) and (b) was issued wholly on the ground of alleged past misconduct and not based on the ground that service record of the respondent was not thoroughly satisfactory held that so far that ground was concerned, on a conjoint reading of Rule 43 (b) and Rule 139 (a) of the Rules, there was no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to four years from the date on which the show-cause notice dated 27-9-1993 was issued, the appellant authority had no power to invoke Rule 139 (a) and (b) against the respondent on the ground of proved misconduct. 27. However, the apex Court in the said case was not considering the applicability of the provision, contained in Rule 139 (a) and (b) on the ground that the service record of a pensioner was not thoroughly satisfactory with respect to which the State Government decision as noted below the said rule is that the pension sanctioning authority, before passing any final order regarding reduction in the amount of pension or gratuity or both shall serve upon the person concerned a notice specifying the reduction proposed to be made in such amount and the grounds therefor, and call upon such person to submit, within fifteen days of the receipt of the notice or such further time as may be allowed by that authority such representation as such person may wish to make against the proposed reduction and take into consideration the representation, if any, submitted by such person before passing the final order. This decision was taken in anticipation of the amendment of the Bihar Pension Rules, vide F.D. Memo No. PC 11-40-72/75-975 F date 19-1-1976 which is in consonance with the requirement of the rules of natural justice and there appears to be nothing wrong before exercise of such power by the authority sanctioning the pension. Sub-rule (c) of Rule 139 vests power in the State Government of revision 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. But, said power is to be exercised only after the pensioner concerned is given a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension and the said power is to be exercised within three years from the date of the order sanctioning the pension was first passed. 28. The Supreme Court in the case of State of Bihar V/s. Mohd. Idris Ansari (supra), while dealing with the question as to whether the power under Rule 139 (a) and (b) on the ground of alleged past misconduct can be invoked against a retired Government servant without complying with the requirement of Rule 43 (b), held that such proceedings could be initiated in connection with only such misconduct which might have taken place within four years of the initiation of such departmental proceedings against him and not in case where the Government is empowered to exercise the power on the ground that the service record of a pensioner was not being thoroughly satisfactory. Under such circumstances, in my opinion while exercising such power the sanctioning authority is to comply with the requirement as provided for in the aforesaid Government* decision and the State Government while exercising revisional power under sub-rule (c) of Rule 139 is to comply with the requirements provided therein. 29. In the present case it is not the case of the respondents that the power has been exercised under Rule 139 or that the petitioner was found in departmental or judicial proceeding to be guilty of grave misconduct or to have caused pecuniary loss to the Government by negligence or misconduct during his service. 29. In the present case it is not the case of the respondents that the power has been exercised under Rule 139 or that the petitioner was found in departmental or judicial proceeding to be guilty of grave misconduct or to have caused pecuniary loss to the Government by negligence or misconduct during his service. It is neither their case that there was any specific order passed continuing even the so-called proceeding initiated under Rule 55 of the Civil Services Rules just before the retirement nor it is claimed that any departmental proceeding was initiated against the petitioner in terms of Rule 43 (b). The respondents have simply pleaded that the proceeding initiated under Rule 55 was continued under Rule 43 (b) of the Rules after the petitioner superannuated on 30th June, 1996, but no order in that regard has been produced. 30. It is worth noticing here that in the absence of communication, even the earlier order before superannuation of the petitioner cannot be held to have become effective and as such the plea of continuance of the said proceeding without any specific order in the regard is wholly untenable. It was, thus, rightly contended by the learned Counsel for the petitioner that there was no question of now taking any action either under Rule 43(b) or under Rule 139 for the simple reason that the alleged misconduct of the respondent relate to an event during his posting in the year 1988-89, i.e., much beyond four years which, according to the principle decided by the apex Court in the case of State of Bihar V/s. Md. Idris Ansari (supra), is not permissible. 31. Further, this Court finds that the impugned order, contained in Annexure-8, purported to have been issued under Rule 139(a) and (b) of the Rules requiring the petitioner to file show cause as to why his pension should not be fixed at 75% after reducing 25% from his pension is purely based on the impugned order, contained in Annexure-7, passed under Rule 43 (b) and when the order, contained in Annexure-7, is not sustainable, the notice, contained in Annexure-8, cannot survive, more so because the said notice under Rule 139 (a) and (b) has been issued on the basis of the finding of grave misconduct recorded in the so-called proceeding under Rule 43 (b). According to the apex Court as held in case of Mohd. According to the apex Court as held in case of Mohd. Idris Ansari (supra), only in case of such a misconduct, departmental proceeding could have been initiated under Rule 43 (b) and in such proceedings, if found guilty of misconduct could have been properly proceeded against under Rule 139 (a) and (b). The impugned notice (Annexure-8) invoking power under Rule 139 (a) and (b) was issued wholly on the basis of alleged past misconduct and was not based on the ground that the service record of the petitioner was not thoroughly satisfactory. There cannot be escape from the conclusion that as the alleged misconduct was committed by the petitioner prior to four years from the date on which show cause notice was issued, the State had no power to invoke rule 139 (a) and (b) against him on the ground of proved misconduct, as was held by the apex Court in the said case. Consequently, it has to be held that proceedings under Rule 139 is wholly incompetent. The apex Court, under similar situation in the said case, treated such-show cause notice as stillborn and ineffective from its inception and cannot be resorted to for supporting any fresh proceeding by way of remand. 32. The writ petition is, thus, allowed and the impugned orders/notice, as contained in Annexures-7 and 8, are quashed and the respondents are directed to pay the petitioner all his retiral benefits with interest provided for in, the Government rule/circular on delayed payment within two weeks of the receipt/production of a copy of this order. Since in this writ petition learned Counsel for the petitioner has confined his relief only with respect to retirement benefit, the subject which has been assigned to this Bench, the claim of the petitioner in regard to promotion has not been considered and he will be at liberty to move for appropriate relief before the appropriate forum. In the facts and circumstances, there shall be no order as to costs.