JUDGEMENT 1. The petitioner has challenged the order dated 30.9.2008 by which a departmental proceeding has been initiated and the petitioner has been served with a charge-sheet after his retirement on 29.2.2008 under Section 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as the Rules). 2. The facts are that the petitioner was initially appointed as Assistant Engineer and was promoted to the post of Superintending Engineer. While the petitioner was working as Superintending Engineer, the petitioner was also given the additional charge of the Director, Purchase & Transport from 27.1.1994 to 17.8.1994. As the Director, Purchase & Transport, he was made accused in six cases investigated by the Central Bureau of Investigation, which are popularly known as BITUMEN SCAM. As a result of the criminal case, the petitioner was arrested on 11.1.2000 and remained in custody till 12.4.2000. The petitioner submitted his joining after being released on bail on 15.4.2000. The petitioner was put under suspension under Rule 100 of the Bihar Service Code (hereinafter referred to as the Code) and his suspension order was set aside by this Court vide order dated 9.3.2005 passed in CWJC No. 13777 of 2003. The said order indicates that during the period of suspension, no departmental proceeding was drawn by the department. It is also not in dispute that the period when the alleged act was committed relates back to the year 1994. 3. It may be brought on record that six criminal cases were filed against the petitioner. The details of the criminal cases relates to BITUMEN SCAM are as follows: (i) RC 42(A)/97(P) (ii) RC 9(S)/97(R) (iii) RC11(4)/97(D) (iv) RC 8(S)/97(R) (v) RC 2(A)/97(R) (vi) RC 32(A)/97 (vii) GANDHI MAIDAN P.S. CASE No. 208/2008 4. In all the above cases, except Gandhi Maidan P.S. Case No. 208/2008, the petitioner was released on bail and cognizance has been taken, but there is no further progress. It has been submitted that charges has only been framed in RC 9(S)/97(R), RC 8(S)/97(R) and RC 2(A)/97(R). 5. In the meantime, the petitioner retired and was granted 90% pension. It has been pleaded by the petitioner on the basis of the information obtained under the Right to Information Act that other co-accused persons involved in the BITUMEN SCAM are being granted full pension and other retiral benefits. 6. 5. In the meantime, the petitioner retired and was granted 90% pension. It has been pleaded by the petitioner on the basis of the information obtained under the Right to Information Act that other co-accused persons involved in the BITUMEN SCAM are being granted full pension and other retiral benefits. 6. A counter affidavit has been filed in which it has been stated that the petitioner is accused in six cases in which it has been categorically stated in paragraph 19 that the petitioner cannot claim payment of his entire pension due to the criminal cases pending against him wherein it has been alleged that he is responsible for defalcation of Rs. 50 lakhs. It has also been stated that the petitioner cannot claim full pension on the ground that other co-accused persons have been granted full pension as the cases of others differ from the case of the petitioner, besides which it has been stated that some of them have been granted only 90 per cent of the pension amount. The representation of the petitioner against the initiation of the department proceeding has been rejected by the Government and the State justifies the impugned order on the ground that there are serious allegation against the petitioner. 7. In this background, the main contention of the petitioner is that the entire proceeding is barred by the provisions of Rule 43(b) of the Rules. 7. In this background, the main contention of the petitioner is that the entire proceeding is barred by the provisions of Rule 43(b) of the Rules. Rule 43(b) of the Rules reads as follows: "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 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. 8. On perusal of Section 43(a) of the Rules, it is clear that the State Government is perfectly justified in reserving the right of withholding the part of the pension where there are serious allegations against the incumbent concerned, whereas Section 43(b) of the Rules similarly has given the right to the State Government for withholding or withdrawing a pension or any part of it for a permanent or specified period and the right of ordering the 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 or to have caused pecuniary loss to Government. The proviso further envisages that a departmental proceeding if not instituted while the Government servant was on duty either before retirement or during re-employment: (a) shall not be instituted save with the sanction of the State Government; (b) shall be in respect of an event which took place not more than four years before the institution of such proceedings. The explanation to Rule 43(b) of the Rules further specifies that a departmental proceeding shall be considered to be instituted when the charges are framed and issued to the person concerned, or if the Government servant has been placed under suspension from an earlier date on such date. 9. The argument on behalf of the State is that the petitioner was put under suspension from 20.11.2000 to 18.3.2005 and as such the date of initiation of the departmental proceeding would date back to the year 2000. 10. The contention, on the other hand, is that the case of the petitioner would be covered by the provision of sub-clause (b) of Rule 43(b) of the Rules inasmuch as it specifies that a departmental proceeding should not be instituted with respect to an event which took places not more than four years before the institution of such proceedings. 11. This Court will first deal with the question of delay in the initiation of the departmental proceeding. The Road Construction Department was very well aware of the fact that the petitioner was made accused in six criminal cases and that he was taken into custody in one such case being R.C. Case No. 42(A) of 1997 which led to his suspension in the year 2000 under Rule 100 of the Code. Till the year 2005, till the date on which the suspension order was set aside, it is recorded that departmental proceeding was not initiated against the petitioner in fact it is submitted that the departmental proceeding was only initiated and charge-sheet was submitted till the retirement of the petitioner. 12. Till the year 2005, till the date on which the suspension order was set aside, it is recorded that departmental proceeding was not initiated against the petitioner in fact it is submitted that the departmental proceeding was only initiated and charge-sheet was submitted till the retirement of the petitioner. 12. Rule 99 of the Code provides that a Government servant against whom proceedings have been taken either for his arrest for debt or on a criminal charge, or who have been detained under the provisions of any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment, whereas Rule 100 of the Rules envisages that "a Government servant against whom a criminal charge or a proceeding for arrest for debt is pending should also be placed under suspension by the issue of specific orders to this effect during periods when he is not actually detained in custody or imprisoned if the charge made or proceeding taken against him is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude. In regard to his pay and allowances, the provisions of Rule 99 shall apply". 13. The petitioner was put under suspension under Rule 100 of the Code after his release on bail rather he continued to be under suspension without there being any decision of the State Government to initiate a departmental proceeding against the petitioner. The Road Construction Department, Government of Bihar was well aware of the fact that the petitioner is accused in criminal cases and as such inaction, non-application of mind on this aspect of the matter is writ large which on the face of the facts. After a delay of 14 years, the State Government has come out with the impugned order serving the charge-sheet against the petitioner. 14. Counsel for the State emphasized the fact that the explanation of Section 43(b) of the Rules provides that the date on which departmental proceeding was to be deemed to have been instituted should be counted from the date on which the incumbent was put under suspension. Learned Counsel for the State refers to the decision rendered in the case of Tripurari Sharan Singh V/s. The State of Bihar & Ors., reported in 2006 (2) PLJR 11 . Learned Counsel for the State refers to the decision rendered in the case of Tripurari Sharan Singh V/s. The State of Bihar & Ors., reported in 2006 (2) PLJR 11 . The facts in the case of Tripurari Sharan Singh are quite different from the facts in the present case. Tripurari Sharan Singh, Block Supply Officer, was put under suspension on 19.1.1998. The order of suspension was revoked by this Court on 31.8.1998 with an observation that the suspension order shall remain quashed and "it is further stated that many a attempts have been made to serve charge-sheet, the petitioner must accept the service, in default that will amount in law to a valid service of charge-sheet". The Court also expressed the views that the proceeding should be concluded within six months from the date of its initiation. Subsequently, Tripurari Sharan Singh did not accept the charge-sheet and claimed that it was never validly served on him. Attempts were made to inform Tripurari Sharan Singh with regard to the departmental proceeding through a newspaper advertisement which also failed. After the departmental enquiry was concluded, Tripurari Sharan Singhs pension was reduced to the extent of 50%. In the present case, the facts are different. A charge was made that the proceeding was initiated after the retirement of the petitioner and therefore, was hit by Rule 43(b) of the Rules. In the context of the facts of the case, the Court took into consideration that the proceeding was initiated while the petitioner was in service, attempts were made to serve charge-sheet on him after revocation of the suspension order which got delayed on account of the fact that the petitioner refused to acknowledge the service of the charge-sheet and thereafter has come forth to challenge the very initiation of the departmental proceeding. In this context, the Court was of the view that the date of initiation of the departmental proceeding would be from the date on which the petitioner was put under suspension and not from the date the charges were framed and served on the petitioner. The Court refused to interfere on the ground that the refusal to accept the service of the charge-sheet would amount to valid service in view of the previous order of the High Court, in which it is specifically stated that the refusal to accept service of charge-sheet would amount to valid service of charge-sheet. The Court refused to interfere on the ground that the refusal to accept the service of the charge-sheet would amount to valid service in view of the previous order of the High Court, in which it is specifically stated that the refusal to accept service of charge-sheet would amount to valid service of charge-sheet. Such being the facts, the State Government cannot contend in the present case that the date of initiation of departmental proceeding should be from the year 2004, which is within four years from the date on which the actual occurrence took place in the year 1996. Moreover, the petitioner was not put under suspension in contemplation of departmental proceeding after his release on bail. Besides which a show cause was served on the petitioner for conducting a departmental enquiry which in fact did not take place. Therefore, the contention advanced on behalf of the State Counsel is not a valid objection and this Court would therefore, hold that the order i.e. initiation of the departmental proceeding has to be reckoned from the date on which the charges were framed and issued to the petitioner. My view is also based on the decision of the Supreme Court in the case of U.P. Warehousing Corporation V/s. Vijay Narayan reported in AIR 1980 SC 840 wherein the Supreme Court has held as follows: "A regular department proceeding takes place only after the chargesheet is drawn up and served upon the delinquent and the latters explanation is obtained." 15. An argument is put forth that the decision for initiating a departmental proceeding after 14 years, that to after the retirement of the petitioner will cause prejudice to the petitioner. For this purpose, learned Counsel for the petitioner refers to the decision of P.V. Mahadevan V/s. M.D., T.N. Housing Board, reported in (2005) 6 Supreme Court Cases 636. The submission made on behalf of the appellant before the Apex Court was that though the records were very much available with the respondents, no action had been taken against him for about ten years, no explanation whatsoever was offered by the respondents for the inordinate delay in the initiation of disciplinary action. The fact was that the memo of charge was served on the appellant after ten years when he was at the threshold of being promoted on the post of Chief Engineer of the Housing Board. The fact was that the memo of charge was served on the appellant after ten years when he was at the threshold of being promoted on the post of Chief Engineer of the Housing Board. The Supreme Court held that after a delay of ten years, the initiation of the departmental proceeding would be vitiated on account of delay. However, while doing so, the Court has taken into account and quoted paragraph from the case of State of A.P. V/s. N. Radhakishan, (1998) 4 SCC 154 , wherein the Apex Court has emphasized that while considering the point of delay, the Court should consider the nature of charges, its complexity and on what account the delay has occurred. In the present case, no explanation has been offered for the delay in the initiation of the departmental proceeding. Similarly, in the case of M.V. Bijlani V/s. Union of India and Others reported in (2006) 5 Supreme Court Cases 88, a similar view was taken by the Apex Court. In both the cases referred to above, the incumbent was in service and the proceeding was initiated after a delay without there being any explanation. Perhaps these cases would not apply to the facts of the petitioners case, as the petitioner is a retired person, whereas, the incumbent in the two aforesaid cases were in service, and there was an inordinate delay in initiating the proceedings. The case of the petitioner would rather be covered by the provisions of Section 43(b) of the Bihar Pension Rules. 16. The main contention of the petitioner is that the departmental proceeding has been initiated after the petitioner has retired from service is contrary to the provisions of Rule 43(b) of the Rules, in my opinion is the mainstay of allowing this application. The fact have already been stated which indicate that the alleged mis-conduct/misappropriation took place in the year 1994, the petitioner was put under suspension for being detained in jail and subsequently allowed to re-join after the revocation of his suspension in the year 2005, had been served with a copy of the charges on 30.9.2008, after his retirement on 29.3.2008. The fact have already been stated which indicate that the alleged mis-conduct/misappropriation took place in the year 1994, the petitioner was put under suspension for being detained in jail and subsequently allowed to re-join after the revocation of his suspension in the year 2005, had been served with a copy of the charges on 30.9.2008, after his retirement on 29.3.2008. Learned Counsel for the petitioner refers to the provisions of proviso (a) to Rule 43(b) of the Rules which provides that "such departmental proceeding if not instituted while the Government Servant was on duty either before retirement or during re-employment, shall be in respect of any event which took place not more than four years before the institution of such proceedings. The alleged misconduct took place in the year 1994 and the proceeding was initiated in the year 2008 which is obviously beyond the period of four years, prior to the date of retirement of the petitioner. This question has been settled by several decisions of this Court; two of which are referred to Satish Chandra Kiran V/s. The Bihar State Electricity Board & Ors. reported in 2001 (4) PLJR 143 and the Division Bench judgment in the case of Raj Kishore Singh V/s. The State of Bihar & Others, reported in 2006 (4) PLJR 71 . In both these cases, the Court has noticed that the alleged occurrence of misconduct has taken place four years prior to the initiation of the departmental proceeding. In the case of Satish Chandra Kiran, the departmental proceeding was initiated against Satish Chandra Kiran and he was awarded punishment of forfeiting of his pension and ordering for the recovery. The case of Satish Chandra Kiran was that he was placed under suspension in contemplation of a departmental proceeding subsequently First Information Report was instituted. He retired from service on 31.5.1998. The departmental proceeding remained pending subsequently by Office Order 2064 dated 10.5.1999, another proceeding was initiated and the petitioner was noticed which he never received. Ultimately, the petitioner came to know that the date has been fixed for hearing on 6.3.2000. The son of the petitioner appeared and prayed for time which was rejected by the Disciplinary Authority. The petitioner has challenged the initiation of the departmental proceeding as it was initiated after his retirement and is ultra vires to the provisions of Rule 43(b) of the Rules. The son of the petitioner appeared and prayed for time which was rejected by the Disciplinary Authority. The petitioner has challenged the initiation of the departmental proceeding as it was initiated after his retirement and is ultra vires to the provisions of Rule 43(b) of the Rules. The Court ultimately allowed the writ application. The present case stands on a better footing from the case of Tripurari Sharan Singh inasmuch as there is a violation of the provisions of Rule 43(b) of the Rules inasmuch as the proceeding had been initiated 14 years after the alleged act of misconduct in view of the provisions, which clearly envisage that a departmental proceeding cannot be initiated in event which took place four years prior to the date of his retirement. 17. Accordingly, I quash the order issued vide memo no. 124671 dated 30.9.2008 and the charge-sheet annexed as Annexure-3. 18. This application is accordingly allowed. 19. The petitioner would be entitled to the consequential benefits and should be paid his retiral dues in view of the law laid down in the case of State of Bihar & Others V/s. Idris Ansari (1995 AIR SCW 2886) [: 1995 (2) PLJR (SC)51] and Dr. Ram Naresh Singh V/s. State of Bihar, 2008 (4) PLJR 166. In all these cases, the decision to institute a departmental proceeding, after the retirement of the incumbent were quashed, and the Court ordered that retiral dues should be paid.