ORDER : Samarendra Pratap Singh, J. 1. The petitioner prays for quashing the order contained in Letter no. 2330 dated 12.09.2011 issued by Chief Engineer, Water Resources Department (respondent no. 4) dismissed him w.e.f. 24.08.2001, and for grant of consequential benefits. 2. Before I take up the issue for consideration, it would be relevant to notice the facts of the case in brief: The petitioner was appointed as Work Sarkar by the then Executive Engineer, Irrigation Department on 27.11.1973. In 1992, the petitioner was transferred as Account Clerk to Tirhut Canal Division, Bettiah. During his posting at Bettiah, he was alleged of having misappropriated public exchequer for a sum of Rs. 1 lakh. The Chief Engineer, Water Resources Department vide his letter no. 1265 dated 13.04.1996 directed the Executive Engineer, Tirhut Canal Division to make an enquiry. On enquiry, the Executive Engineer found the allegations untrue and submitted his report vide letter no. 1233 dated 11.07.1996 to the Superintending Engineer. The Superintending Engineer after due scrutiny approved the report of the Executive Engineer and forwarded his opinion to Chief Engineer, Water Resources Department, Balmikinagar, West Champaran vide letter dated 27.07.1996 (Annexure-4). The Chief Engineer as such closed the file and the matter got dropped. For the same charge/allegation a criminal case being Bettiah Mufassil P.S. case no. 201 of 1996 under Section 409 of the I.P.C. for the alleged misappropriation of Rs. 1,15,223/- and paise 40 was instituted against the petitioner on 13.11.1996 (Annexure-5) on the basis of complaint made to the police by Executive Engineer, Tirhut Division, Circle-I, Bettiah. 3. The petitioner was placed under suspension vide order dated 04.12.1996 in contemplation of Departmental enquiry and his Headquarter was fixed at Jamshedpur. The charge Memo bearing Memo no. 6732 dated 09.12.1996 (Annexure-7) was served on 20.05.1999 and place of Departmental proceeding was fixed at Patna. 4. The petitioner moved this Court vide C.W.J.C. No. 5714 of 1997 challenging the order of suspension dated 04.12.1996 and for payment of subsistence allowance as well as arrears of salary from October 1996 to November 1996. The writ application was disposed of vide order dated 10.05.1999 whereby the prayer of petitioner for subsistence allowance was only allowed. The petitioner challenged the order dated 10.05.1999 passed in C.W.J.C. No. 5714 of 1997 by filing L.P.A. No. 668 of 1999 unsuccessfully. 5. The charge Memo dated 09.12.1996 was served on the petitioner on 20.05.1999. The writ application was disposed of vide order dated 10.05.1999 whereby the prayer of petitioner for subsistence allowance was only allowed. The petitioner challenged the order dated 10.05.1999 passed in C.W.J.C. No. 5714 of 1997 by filing L.P.A. No. 668 of 1999 unsuccessfully. 5. The charge Memo dated 09.12.1996 was served on the petitioner on 20.05.1999. Two charges were levelled against the petitioner, which are as follows: (i) The petitioner misappropriated Government money worth Rs. 1,15,223/- in between August 1992 to August 1996. (ii) The petitioner did not hand over charge of the Divisional Accountant, Tirhut Canal Division to his successor though he was relieved for the transferred place on 24.08.1996. 6. The petitioner filed an application on 04.12.1999 before the enquiry officer that as charges in criminal case and departmental proceedings are similar, the departmental proceeding be stayed, less disclosure of defence would prejudice his case in criminal proceeding. The plea of the petitioner for staying the departmental proceeding was rejected. However, his headquarter was changed from Jamshedpur to Patna. 7. The petitioner did not appear in Departmental proceeding, which proceeded ex-parte. On 30.01.2000, the enquiry officer submitted his report to the disciplinary authority namely the Chief Engineer (respondent no. 4), which incidentally was also the date of his retirement. It appears that instead of Disciplinary authority, it was the Government (the Appellate authority) that considered the enquiry report and issued second show-cause notice on 17.05.2000 (Annexure-10) enclosing copy of the enquiry report dated 31.01.2000 (Annexure-9) as to why appropriate punishment be not accorded, as the enquiry officer found him guilty. The petitioner vide his letter dated 05.06.2000 (Annexure-11) sought time on the ground that the criminal case was going on, as such he was not in a position to submit his reply to second show-cause. 8. In the meantime, the police submitted final form in criminal case bearing Bettiah Mufassil P.S. case no. 201 of 1996 in the court of learned Chief Judicial Magistrate, West Champaran. The Chief Judicial Magistrate, West Champaran issued notice to the informant for his response on final form. As no one appeared on behalf of the informant to contest the final form made in favour of the accused-petitioner, the same was accepted by Chief Judicial Magistrate, West Champaran vide order dated 27.11.2000 (Annexure-12). On 05.12.2000, petitioner submitted show-cause to respondent no. The Chief Judicial Magistrate, West Champaran issued notice to the informant for his response on final form. As no one appeared on behalf of the informant to contest the final form made in favour of the accused-petitioner, the same was accepted by Chief Judicial Magistrate, West Champaran vide order dated 27.11.2000 (Annexure-12). On 05.12.2000, petitioner submitted show-cause to respondent no. 3 pleading that as he has been acquitted in criminal case lodged for similar charges, he may not be punished in the departmental proceeding for same cause of action. 9. Being dissatisfied with the show-cause reply of the petitioner, respondent no. 3 terminated his services vide order dated 24.08.2001. Being aggrieved, the petitioner challenged the order of termination in C.W.J.C. No. 16441 of 2001. During the pendency of the writ application, the petitioner retired on 31.07.2008. The writ application was heard and was particularly allowed on 27.04.2010 on the ground that the termination order at the first instance itself has been passed by the appellate authority and not the disciplinary authority. The petitioner thus in effect is denied of his right of appeal. The learned Judge remanded the matter to the disciplinary authority to consider the matter afresh after issuing fresh show-cause which ought to be issued within a period of two months from the date of receipt/production of a copy of this order. It was further directed that the entire exercise subsequent thereto should be completed within six months thereof. Some typographical error in order dated 27.04.2010 was modified vide order dated 11.05.2010. 10. The petitioner submitted a copy of order dated 27.04.2010 to the disciplinary authority, namely respondent no. 4, on 22.05.2010, who ought to have issued fresh show-cause within two months of filing of High Court order which date expired on 22.07.2010. The disciplinary authority (respondent no. 4) on 31.12.2010 (Annexure-18) revoked/recalled the order of termination dated 24.08.2001. The disciplinary authority further vide order dated 12.02.2011 (Annexure-19) directed for payment of arrears of salary and retiral benefit to the petitioner. 11. The appellate authority (respondent no. 3) vide its order dated 10.03.2011 (Annexure-20) cancelled the order dated 31.12.2010 of the disciplinary authority and directed the latter to proceed afresh after issuing fresh show-cause. Subsequently, respondent no. 4 issued a fresh show-cause on 06.04.2011 (Annexure-21) as to why order of termination dated 24.08.2001 be not maintained. 11. The appellate authority (respondent no. 3) vide its order dated 10.03.2011 (Annexure-20) cancelled the order dated 31.12.2010 of the disciplinary authority and directed the latter to proceed afresh after issuing fresh show-cause. Subsequently, respondent no. 4 issued a fresh show-cause on 06.04.2011 (Annexure-21) as to why order of termination dated 24.08.2001 be not maintained. The show cause was issued much beyond two months time limit provided by this Court from date of receipt of its order which was produced on 22.05.2010. The petitioner filed a detailed representation on 25.04.2011 (Annexure-22) requesting the respondent no. 4 to withdraw the show-cause dated 06.04.2011 as it was barred by time frame permitted by the Hon'ble High Court. In the meantime, the petitioner filed C.W.J.C. No. 6608 of 2011 for payment of his retiral dues. The petitioner filed M.J.C. No. 2457 of 2011 alleging that the show-cause dated 06.04.2011 has been issued beyond the time prescribed by this Court vide order dated 27.04.2010 and as such is in the breach of the order of this Court. The respondent no. 4 filed show-cause (Annexure-24) in M.J.C. No. 2457 of 2011 on 17.08.2011 stating that the services of the petitioner was terminated on 24.05.2011, after due consideration of his representation dated 25.04.2011. The order dated 24.05.2011 is contained in Annexure-23. It is the case of the petitioner that order dated 24.05.2011 terminating his service was not communicated to him. 12. In paragraph 7 of the show-cause filed in M.J.C. No. 2457 of 2011, the respondent no. 4 stated that he was directed by the department to apprise it of the findings arrived at by him and to pass final order only on receiving due instructions. In paragraph 9 of the show-cause, respondent no. 4 stated that after considering the explanation submitted by the petitioner and the materials on record, he made recommendation to the Department vide letter no. 1211 dated 24.05.2011 for termination of services of the petitioner. Thereafter only, respondent no. 4 vide his order dated 12.09.2011 bearing Memo no. 2330 dismissed the petitioner from service (Annexure-26). 13. The impugned order dated 12.09.2011 of respondent no. 4, Chief Engineer, WRD dismissing the petitioner from service is in challenge in this writ application. 14. Learned counsel appearing for the petitioner submits that 1st order of dismissal dated 24.08.2001 was passed by the Government which was the appellate authority and not the disciplinary authority, respondent no. 13. The impugned order dated 12.09.2011 of respondent no. 4, Chief Engineer, WRD dismissing the petitioner from service is in challenge in this writ application. 14. Learned counsel appearing for the petitioner submits that 1st order of dismissal dated 24.08.2001 was passed by the Government which was the appellate authority and not the disciplinary authority, respondent no. 4. The petitioner was thus denied right of appeal. The submission of the petitioner found favour with this Court, which quashed the order of dismissal dated 24.08.2001 of the Government (Appellate authority) and remanded the matter to disciplinary authority with a liberty to issue fresh show-cause notice to the petitioner within a period of two months from the date of receipt of a copy of the order. The copy of the order was filed before the disciplinary authority on 25.04.2011. The disciplinary authority did not issue any show-cause within two months rather forwarded the file to the department on 12.09.2011 as the petitioner had retired on 31.07.2008 itself. The disciplinary authority vide his order dated 31.12.2010 revoked the order of termination and directed for payment of salary. 15. The petitioner submits that the appellate authority vide its order dated 10.03.2011 erred in cancelling the order dated 31.12.2010 of the disciplinary authority revoking the order of dismissal and directing him to issue fresh show-cause. Learned counsel submits that on the basis of the said direction of the appellate authority, the disciplinary authority issued fresh show-cause dated 06.04.2011 and finally terminated the service of the petitioner by the impugned order dated 19.10.2011. 16. Learned counsel further contends that the appellate authority e.g. the Government, erred in cancelling the termination order passed by the disciplinary authority. In case, the appellate authority was aggrieved by the order of the disciplinary authority, the appropriate procedure was to issue another show-cause to the petitioner stating the reasons for differing with the opinion of the disciplinary authority. It could not have straightway cancelled the order of the disciplinary authority and directed him to issue fresh show-cause. Learned counsel next submits that the disciplinary authority subsequently passed the order impugned at the behest of the appellate authority. 17. Mr. S.D. Sanjay, learned AAG-12 submits that the Government would be within its right to pass appropriate direction to the subordinate if it misdirects itself in following the appropriate procedure. Learned counsel submits that the disciplinary authority, respondent no. Learned counsel next submits that the disciplinary authority subsequently passed the order impugned at the behest of the appellate authority. 17. Mr. S.D. Sanjay, learned AAG-12 submits that the Government would be within its right to pass appropriate direction to the subordinate if it misdirects itself in following the appropriate procedure. Learned counsel submits that the disciplinary authority, respondent no. 4, did not issue show-cause, which it was obliged to do in terms of the order of the High Court on remand, rather he directed for making payment of the salary from 24.08.2001 till the date of his retirement. He submits that the Government while cancelling the order dated 31.12.2010 of the disciplinary authority directed him to consider the case on merit afresh. 18. The issue before this Court is whether the order contained in letter no. 2330 dated 12.09.2011 (Annexure-25) issued by the Chief Engineer, Water Resources Department (respondent no. 4) terminating the services of the petitioner is sustainable in law. Earlier it was the appellate authority which had inflicted the punishment of dismissal on consideration of Enquiry report. The petitioner challenged the same in C.W.J.C. No. 16441 of 2001. The learned Single Judge quashed the order of termination vide order dated 27.04.2010 (Annexure-15) as at the very first instance it was the appellate authority and not the disciplinary authority which passed the order of termination and thus the right of appeal stood denied to the petitioner. This Court on 27.04.2010 (Annexure-5) as such quashed the termination order and remitted the matter to the disciplinary authority for fresh consideration in accordance with law with a further direction that the show-cause should be issued within two months from the date of receipt/production of a copy of the order. 19. Unfortunately, no one brought to the notice of this Court that the petitioner had superannuated on 31.07.2008 prior to passing of the order by this Court on 27.04.2010. Thereafter, as per direction of this Court, the petitioner filed a copy of the order before the disciplinary authority on 22.05.2010 and in terms of the order of this Court show-cause notice ought to have been issued latest by 22.07.2010, which was not done. The disciplinary authority vide order dated 31.12.2010 revoked the order of termination dated 24.08.2001 and issued direction for payment of arrears of salary. The disciplinary authority vide order dated 31.12.2010 revoked the order of termination dated 24.08.2001 and issued direction for payment of arrears of salary. At this juncture, the Government vide its order dated 10.03.2011 interfered and cancelled the order dated 31.12.2010 and directed the respondent no. 4 to issue fresh show-cause. The respondent no. 4, subsequently, issued show-cause to the petitioner on 06.04.2011 to which he filed his show-cause on 25.04.2011 requesting respondent no. 4 to withdraw the show-cause, as it was grossly time barred. The respondent no. 4 disallowing the representation of the petitioner, dismissed him from service and made a further direction that the petitioner would not be entitled to any other emoluments save and except the subsistence allowance paid to him between 24.08.2001 till the date of his retirement on 31.07.2008. The petitioner has assailed the said order on the ground that respondent no. 4 has not applied his mind rather the order has been passed at the behest of the Government. In support of his submission, the petitioner has referred to the impugned order itself, in which respondent no. 4 stated that he has passed the order in issue on direction of the Government. Thus it is evident that the impugned order has been passed at the instance of the Government and does not reflect independent consideration of the matter by the Disciplinary authority. The order passed at the behest of others may be superior authority has been reprimanded by the Hon'ble Apex Court in case of Commissioner of Police, Bombay vs. Gordhandas Bhanji, 1952 SC 16 and the Purtabpur Company Ltd. vs. Cane Commission of Bihar and Others, AIR 1970 SC 1896 . 20. Furthermore, the first order of termination by the disciplinary authority after remand was made on 24.05.2011. However as directed, he processed the file to the Government. It would appear from own showing of disciplinary authority (respondent no. 4) that on receipt of necessary direction of Government, the impugned order of termination dated 12.09.2011 was passed. The respondent no. 4 has stated in M.J.C. No. 2457 of 2011 that he has passed the impugned order in light of the direction of the Government. 21. Furthermore, the impugned order dated 12.09.2011 dismissing the petitioner from service is without jurisdiction as on the relevant date he was not in service having reached the age of superannuation on 31.07.2008. He was not under reemployment either. 22. 21. Furthermore, the impugned order dated 12.09.2011 dismissing the petitioner from service is without jurisdiction as on the relevant date he was not in service having reached the age of superannuation on 31.07.2008. He was not under reemployment either. 22. The logic attending the proposition of law is that on retirement, the relationship of master and servant severes and no punishment under Bihar Orissa Subordinate Discipline and Appeal Rules, 1935 could be inflicted much less an order of termination. The petitioner has rightly relied upon decisions in case of Sadanand Ram vs. State of Bihar and Others, 1999 (1) PLJR 69 , State of Punjab vs. Khemi Ram, AIR 1970 SC 214 : AIR 1978 SC 1109 . On this score too the impugned order of respondent no. 4, the disciplinary authority, terminating the service of the petitioner is not sustainable in the eyes of law and is accordingly set aside. 23. Mr. S.D. Sanjay, learned counsel next contended that the instant proceeding should be considered as one under Section 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as the "Rules"). He submits that if a disciplinary proceeding is continuing from before it can continue even without there being any formal order of the Government for the limited purposes of inflicting punishment under 43 (b) of the Rules. 24. I would have no difficulty in accepting the proposition canvassed by the learned counsel for the State. In fact, a similar issue came up for consideration in case of Shambhu Saran vs. State of Bihar, 2000 (1) PLJR 665 . The relevant extracts of the Full Bench decision contained in paragraph 12 of the judgment is quoted herein below for easy reference: "12. (i) In a case where a disciplinary proceeding has already been started, even if the person concerned attains the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of the Government is necessary." 25. Mr. S.D. Sanjay, learned A.A.G. 12 realized his difficulty in arguing before this Court that the order passed by the disciplinary authority was one under Rule 43 (b) of the Rules. Firstly no penalty of dismissal of service is provided under Section 43(B) of Bihar Pension Rules. Mr. S.D. Sanjay, learned A.A.G. 12 realized his difficulty in arguing before this Court that the order passed by the disciplinary authority was one under Rule 43 (b) of the Rules. Firstly no penalty of dismissal of service is provided under Section 43(B) of Bihar Pension Rules. Furthermore, there is nothing on record to show that the proceeding was now being taken under Rule 43 of the Bihar Pension Rules. A disciplinary proceeding that has commenced prior to the retirement of an employee can continue even after retirement under Rule 43 of the Bihar Pension Rules but there must be a conscious recording in the proceeding book that it was now being continued under the Bihar Pension Rule for purposes of taking action thereunder. The reason behind recording of such note is to apprise the delinquent of both change in nature and scope of proceeding which now could continue only for the purpose of inflicting punishment under Bihar Pension Rules. The failure to record such a noting or to convey to the delinquent about change in scope of proceeding would necessarily deny one a reasonable opportunity to defend and would be violative of Articles 14 and 16 of the Constitution of India. 26. In the case in hand, there is nothing on record to suggest that the proceeding has continued under Rule 43 of Pension Rules rather the punishment of termination of service indicate that the disciplinary authority proceeded under the Discipline and Appeal Rules, which differs in scope from former. 27. In such circumstances, the next issue would be whether the disciplinary authority can still continue with the proceeding under Rule 43 of the Rules or not. The answer would though depend on facts of each case, the answer would be generally yes. The respondent in terms of Rule 43 would be within its right to continue such proceeding. 28. So far as instant case is concerned, it is not in dispute that for similar allegation of misappropriation of Rs. 1,15,000/- a criminal case was instituted in which allegations were not found to be true and final form has been submitted in favour of the petitioner. Furthermore, an internal enquiry was also held and the authority right from Junior Engineer upto the Chief Engineer found that the allegation of misappropriation against the petitioner not justified. 1,15,000/- a criminal case was instituted in which allegations were not found to be true and final form has been submitted in favour of the petitioner. Furthermore, an internal enquiry was also held and the authority right from Junior Engineer upto the Chief Engineer found that the allegation of misappropriation against the petitioner not justified. Besides this, the allegations is of the year 1992-1996 and more than 20 years have elapsed since then. On remand of the matter from this Court on 27.4.2010, show cause was only not issued to the petitioner within time frame two months from receipt of copy of remand order of High Court as directed by it, but after a delay of full nine months. On the contrary, the order of dismissal was recalled and Chief Engineer (Disciplinary Authority) directed for making payment of salary. 29. In the result, the impugned order of dismissal dated 12.09.2011 issued by Chief Engineer (Respondent no. 4) is quashed. For the reasons noted above, I do not think it to be an appropriate case in which respondents ought to convert the disciplinary proceeding into a proceeding under section 43(b) of the Bihar Pension Rules. 30. However, it would suffice to meet the ends of justice that the petitioner would not get balance of emoluments minus subsistence allowance for the period 24.08.2001 (the date of dismissal) to 31.07.2008 (date of retirement), if not already paid. 31. With the aforesaid observations, this writ application stands disposed of.