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2023 DIGILAW 350 (JHR)

Brij Kumar v. State of Jharkhand

2023-03-20

SUBHASH CHAND, SUJIT NARAYAN PRASAD

body2023
JUDGMENT : 1. The instant intra-court appeal under Clause 10 of the Letters Patent has been preferred against the order/judgment dated 09.09.2020 passed by learned Single Judge in W.P. (S) No. 2005 of 2018 by which the writ petition was dismissed declining to interfere with notification dated 26.12.2017 as contained in Memo No. 4582 whereby decision has been taken that 10% pension of the petitioner will be deducted from the pension for the next five years. 2. Brief facts of the case, as per the pleadings made in the writ petition, read as under: The petitioner was appointed on 01.03.1979 on the post of Assistant Superintendent, Sales Tax Department. The petitioner-appellant vide notification no. 80 dated 15.01.1988 was promoted on ad hoc basis to the post of Assistant Commissioner of Commercial Taxes w.e.f. 01.02.1988. While working as such, a departmental proceeding was initiated by serving memorandum of charge on 11.05.1999 on the allegation that the petitioner had misused his official power and wrongly issued 142 number of Form ‘F’ in favour of M/s. Eastern Spinning Mill & Industries, Jamshedpur to aid the dealer in evasion of tax and thereby caused loss of revenue. Pursuant thereto, the enquiry officer was appointed who after enquiry found gross negligence and violation of departmental orders by the petitioner. In the meantime, the petitioner superannuated on 31.03.2007 while working as Assistant Commissioner of Commercial Taxes. After superannuation of the petitioner, the proceeding was converted into proceeding under Section 43(b) of the Pension Rules and accordingly, show cause notice was served upon the petitioner and thereafter vide order dated 12.01.2010 punishment was imposed upon the petitioner by which 50% pension on month to month basis from the pension of the petitioner was directed to be deducted till the loss incurred to the department to the extent of Rs. 14,63,825.46/- is being recovered. Aggrieved thereof, the petitioner approached this Court by filing writ petition being W.P. (S) No. 3679 of 2010 which was allowed vide order 16.09.2016 by which the impugned order of punishment dated 12.01.2010 was quashed and set aside and the matter was remitted to the respondents-authorities to consider the case of the petitioner afresh on the quantum of punishment within stipulated period of time. In compliance thereof, the respondents-authorities vide order dated 17.10.2016, constituted a Two-Member committee to re-examine the issue of loss of revenue and to decide the quantum of punishment. In compliance thereof, the respondents-authorities vide order dated 17.10.2016, constituted a Two-Member committee to re-examine the issue of loss of revenue and to decide the quantum of punishment. But the said two-member committee did not provide clear finding as such the respondents vide order dated 01.11.2017 the Additional Commissioner & Joint Commissioner, Head Quarters was authorized to submit report with detailed discussion on the issue of loss of revenue. The two-member committee submitted its report finding gross negligence and breach of statutory rules against the petitioner. Accordingly, the respondents vide notification dated 26.12.2017 passed final order whereby punishment of 10% pension from the pension of the petitioner was passed for the term of five years, subject to judicial proceeding pending against the petitioner. Being aggrieved with punishment order dated 26.12.2017, the petitioner again approached this Court by filing writ petition being W.P. (S) No. 2005 of 2018, which was dismissed vide order dated 09.09.2020 declining to grant any relief to the petitioner, which is the subject matter of instant intra-court appeal. 3. Learned counsel for the appellant has assailed the order passed by learned Single Judge on the ground that impugned order 26.12.2017 has been passed by invoking the provision as contained under Section 139(C) of the Jharkhand Pension Rules and as such the order of punishment passed under Section 139(c) of the Pension Rules cannot be said to be justified reason being that once the proceeding has been converted under Rule 43(b) of the Pension Rules there was no authority to the State Government to take decision of reduction of 10% pension by invoking the jurisdiction conferred under Rule 139(c) of the Pension Rules. 4. It has been contended by referring to the provision as contained under Rule 139(C) of the Pension Rules, that it is having different jurisdiction to be exercised by the State taking into consideration the period of limitation of three years in taking decision for revising the pension from the date of sanction of the pension. 4. It has been contended by referring to the provision as contained under Rule 139(C) of the Pension Rules, that it is having different jurisdiction to be exercised by the State taking into consideration the period of limitation of three years in taking decision for revising the pension from the date of sanction of the pension. But herein in the instant case, the writ petitioner although was superannuated way back in the year 2007 but after lapse of 10 years the order has been passed on 26.12.2017 by invoking jurisdiction conferred under Rule 139(C) of the Pension Rules as such the said order since has not been passed during the period of three years, therefore, it cannot be said to be in consonance with the provision as contained under Rule 139(c) of the Pension Rules. 5. It has further been contended by referring to order passed by learned Single Judge wherein the aforesaid aspect of the matter has not been appreciated in right prospective since the learned Single Judge even though had adjudicated the aforesaid issue and discarded the issue merely on the ground that the same is considered only to be referring of the wrong provision having its no material effect upon the decision so taken by the State. 6. According to learned counsel for the appellant-writ petitioner such observation which has been made ignoring the applicability of Section 139(c) of the Pension Rules and merely by making observations of reference of making wrong provision is having no material effect cannot be said to be justified reason to discard the aforesaid plea since the scope of provision of Section 139(C) of the Pension Rules is to be exercised only in a case where the revision in the pension is to be made by the State within the period of three years from the date of sanction of the pension but herein the pension was sanctioned and it is after expiry of period of three years the decision was taken on 26.12.2017 and therefore the order passed by learned Single Judge suffers from patent illegality. 7. Per contra, Mrs. 7. Per contra, Mrs. Darshana Poddar Mishra, learned AAG-I appearing for the State has submitted that is incorrect on the part of appellant-writ petitioner to take the ground that the order impugned has actually been passed under Section 139(c) of the Pension Rules rather the same is on misconstrued reference of the provision of Rule 139(c) of the Pension Rules since if the entire fact will be appreciated it would be evident that the proceeding was vide order dated 11.05.1999 initiated against the writ petitioner while he was in service under Rule 55-A of ‘The Central Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as ‘CCS Rules’) and while the aforesaid proceeding was pending the departmental proceeding since remained inconclusive, therefore, the same deemed to have been converted under Rule 49(b) of the Pension Rules wherein decision was taken to deduct 50% pension so as to compensate the State exchequer due to pecuniary loss sustained on account of action of the writ petitioner. But the Co-ordinate learned Single Judge while showing interference with the said order has gone into its quantum without showing interference with enquiry report, by which the charge was proved against the writ petitioner and remitted the matter before the authority concerned to take decision on quantum of punishment. The competent authority, in the light of said order dated 16.09.2016 passed by learned Single Judge passed in W.P. (S) No. 3679 of 2010, calculated the loss sustained by constituting a two-member committee and thereafter a notice was given to the writ petitioner which having been responded and after having been not found satisfactory a fresh decision was taken by which 10% Pension was directed to deducted for the period of five years. 8. Therefore, it has been submitted that it is not the fact that it is a fresh proceeding under Section 139(C) of the Pension Rules rather a fresh order was passed which is in the light of the order passed by Co-ordinate learned Single Judge and hence the reference of provision of Rule 139(C) of the Pension Rules which has been considered by learned Single Judge to be wrong reference of provision, the same cannot be said to be unjustified. Therefore, the impugned order passed by learned Single Judge requires no interference. 9. Therefore, the impugned order passed by learned Single Judge requires no interference. 9. We have heard learned counsel for the parties, perused the document available on record and the finding recorded by learned Single Judge. 10. The undisputed fact in this case is that the petitioner while working on the post of Assistant Commissioner of Commercial, a departmental proceeding was initiated by serving memorandum of charge on 11.05.1999 in exercise of power conferred under Section 55-A of the CCS Rules. The writ petitioner participated in the inquiry proceeding and defended his case as per allegation made against him in the memo of charge. The enquiry officer found the charge proved against the petitioner and forwarded the enquiry report before the disciplinary authority but before passing of the order by the disciplinary authority, the petitioner stands superannuated from service on 31.03.2007. After superannuation of the petitioner, the proceeding initiated under Section 55-A of the CCS Rules has deemed to have been converted into proceeding under Section 43(b) of the Pension Rules and accordingly, after following the requirement as contained under Rule 43(b) of the Pension Rules, punishment was imposed upon the petitioner vide order dated 12.01.2010 by which 50% pension was directed to be deducted till the loss incurred to the department to the extent of Rs. 14,63,825.46 is being recovered. 11. The said order was challenged by the writ petitioner by filing writ petition being W.P. (S) No. 3679 of 2010 which was allowed vide order 16.09.2016 by which the impugned order of punishment dated 12.01.2010, pertaining to imposition of punishment for deduction of 50% pension, and order dated 04.02.2010 by which the petitioner was communicated that he would not be paid anything other than the subsistence allowance during the period of suspension and the said period of suspension shall not be counted from the pension, were quashed and set aside and the matter was remitted to the respondents-authorities to consider the case of the petitioner afresh on the quantum of punishment within stipulated period of time. 12. 12. It is evident from order dated 16.09.2016 passed in W.P. (S) No. 3679 of 2010 that prayer was also made for quashing of the enquiry report dated 28.07.1999 but from perusal of order dated 16.09.2016 it is evident that Coordinate learned Single Judge has not interfered with the finding so recorded by the enquiry officer in the enquiry report dated 28.07.1999, however, quashed and set aside the order of punishment 12.01.2010 and 04.02.2010 and remitted the matter before the authority concerned for passing fresh order on the quantum of punishment in accordance with law within stipulated period. 13. The relevant paragraph of the order passed by learned Co-ordinate Single Judge is required to be referred, along with the prayer so made by the writ petitioner as mentioned in the order passed by the learned Co-ordinate Single Judge, which read as under: “Prayer: In the accompanied writ application, the petitioner has inter-alia prayed for quashing the notification no. 157 dated 12.01.2010 (Annexure-15) pertaining to imposition of punishment for deduction of 50% pension every month from the total pension of the petitioner till the loss incurred to the department to the extent of Rs. 14,63,825.46/- is being repaid and for direction upon the respondents to release 100% pension. The petitioner has further prayed for issuance of writ of certiorari for quashing the second show cause issued to the petitioner vide letter no. 1513 dated 23.06.2009 (Annexure-14) and for quashing the letter no. 557 dated 04.02.2010 (Annexure-16) by which the petitioner has been further communicated that he will not be paid anything other than the subsistence allowances during the period of suspension and the said period of suspension shall not be counted for the pension that means there is break in continuation of the service of the petitioner and for direction to respondents to treat the period of suspension as 2 duty period for the purpose of pensionary benefits and also to pay forthwith the salary other than the subsistence allowances for which the petitioner was under suspension and for quashing the enquiry report dated 28.07.1999 (Annexure-12). Finding: On the cumulative effect of the aforesaid reasons, the impugned order of punishment dated 12.01.2010 vide Annexure-15 and 04.02.2010 vide Annexure-16 is hereby quashed and set aside and the matter is remitted back to the respondents to consider the case of the petitioner afresh on the quantum of punishment in accordance with law within a period of 12 weeks from the receipt of the copy of the order. With the aforesaid direction, the writ petition stands allowed.” 14. The finding recorded by the enquiry thus has been refused to be interfered with. The matter on remand was re-considered by the respondents by constituting a Two-Member committee to re-examine the issue of loss of revenue and to decide the quantum of punishment. The two-member committee submitted its enquiry report finding gross negligence and breach of statutory rules against the petitioner. Accordingly, the respondents vide notification dated 26.12.2017 passed final order whereby punishment deduction of 10% pension from the pension of the petitioner was passed for the term of five years, subject to judicial proceeding pending against the petitioner. 15. It is evident from bare perusal of impugned order of punishment dated 26.12.2017 that the same has been passed by making reference of provision as contained under Section Rule 139(C) of the Jharkhand Pension Rules. Therefore, the ground has been taken that order dated 26.12.2017 since has been passed by making reference of provision of Rule 139(c) of the Pension Rules, which does not confer power upon the State to revise the pension after lapse of period of three years from the date of sanction of the pension by the sanctioning authority. 16. The position of law is well settled that provision as contained under Rule 43(b) and 139(c) of the Pension Rules are having two jurisdictions. 17. For ready reference, Rule 43(b) and 139(c) are quoted as under: 43(b). 16. The position of law is well settled that provision as contained under Rule 43(b) and 139(c) of the Pension Rules are having two jurisdictions. 17. For ready reference, Rule 43(b) and 139(c) are quoted as under: 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 petitioner 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: – (i) 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. 139 (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, nor any such power shall be exercised after expiry of three years from the date of the order sanctioning the pension was first passed. 18. 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, nor any such power shall be exercised after expiry of three years from the date of the order sanctioning the pension was first passed. 18. It is thus evident from Rule 43(b) of the Pension Rule that the same is to be taken recourse in case of finding of misconduct either in the judicial proceeding or departmental proceeding for compensating the pecuniary loss sustained to the government. But the aforesaid proceeding is required to be initiated subject to certain condition as stipulated under sub-proviso (b) to Rule 43(b) wherein it has been stipulated that it shall be in respect of an event which took place not more than four years before the institution of such proceedings and it cannot be initiated after lapse of four years form the date of occurrence. While from bare perusal of Rule 139 (c) of the Pension Rule, it would be evident that power has been conferred upon the State Government to revise the pension after the same has been sanctioned by the sanctioning authority but such revision of pension is to be passed within a period of three years from the date of order sanctioning the pension was first passed. 19. The applicability of the aforesaid provisions has been considered by Hon'ble Apex Court in the case of State of Bihar v. Mohd. Idris Ansari, (1995) 2 PLJR 51 (SC), the relevant paragraph 9 of which is quoted as under: “9. So far as the ground was concerned on a conjoint reading of Rule 43 (b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which show cause notice dated 27.9.1993 was issued, the appellate authority had no power to invoke Rules 139(a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent.” 20. In the case of. Dr. Satyendra Narain Singh v. State of Bihar, (1999) 3 PLJR 939 , relevant paragraph 10 of which is quoted as under: “10. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent.” 20. In the case of. Dr. Satyendra Narain Singh v. State of Bihar, (1999) 3 PLJR 939 , relevant paragraph 10 of which is quoted as under: “10. The Division Bench of this Court in the case of Bajrangdeo Narain Sinha v. State of Bihar (supra) held that pensionary dues payable to the appellant including gratuity, which is also pension within the meaning of the Bihar Pension Rules, cannot be withheld tilt such time as an order is passed under Rule 43(b) of the Bihar Pension Rules. Similarly, the leave encashment dues also cannot be withheld since that is paid in lieu of the unutilised leave and, therefore, partakes the character of salary. 21. In this connection, reliance may be placed on the judgment rendered in Ram Punit Kumar v. The State of Bihar, (2001) 2 PLJR 600 wherein placing reliance upon the judgment rendered by Hon'ble Supreme Court in the Md. Idris Ansari (supra), it has been held at Paragraph 5 as follows: “5. This Court is unable to accept the said submission of the learned counsel for the State. Rule 139(b) provides that if the service has not been thoroughly satisfactory, the authority sanctioning pension should make such reduction in the amount as it thinks proper. Thus, it is evident that the provisions contained in Rule 139 can be invoked only where the service of a Government servant has not been throughly satisfactory and not merely because of some findings against him recorded in the enquiry by the Enquiry Officer on which the competent authority was yet to take final decision and Government servant retired before any such decision of the competent authority. Apart from the question as to whether such proceeding which remained inconclusive on account of non-passing of the final order before the Government servant retired could continue or not or that a fresh order in terms of Rule 43 (b) in such cases is warranted, this Court finds it difficult to accept the contention on behalf of the State that the State Government was well within the power to invoke the provisions contained in Rule 139(b) in pursuance to the findings recorded by the Enquiry Officer on which the competent authority was yet to apply his mind and to hold the petitioner guilty of alleged misconduct. The reasons mentioned in the impugned order for purported exercise of the power under Rule 139(b) is not that the services of the petitioner has not been thoroughly satisfactory. It is solely based on the findings recorded by the Enquiry Officer on enquiry on which the competent authority was yet to take decision and in the meantime petitioner superannuated and the enquiry report remained unattended. Therefore, in my opinion, such notice (Annexure-6) and the action taken in pursuance thereof are wholly misconceived and without jurisdiction specially when the alleged misconduct was even beyond the scope of Rule 43 (b) as it relates to the period beyond four years. According to the decision of the Apex Court in the case of State of Bihar v. Md. Idris Ansari (supra) only in such a proceeding if the petitioner is found guilty of misconduct he could have been appropriately proceeded against under Rule 139(a) & (b). The facts of the present case clearly demonstrate that the notice (Annexure-6) invoking powers under Rule 139(b) was issued solely on the ground of alleged past misconduct during the period 30.10.1978 to 1.4.1980, which was the subject matter of the departmental proceedings initiated against the petitioner but not that it was based on the ground that service record of the petitioner was not thoroughly satisfactory. Under such circumstances, the Apex Court on a conjoint reading of Rule 43 (b) and Rule 139(a) held that there was no escape from the conclusion that as the alleged misconduct was committed by the respondent in the said case prior to four years from the date on which show cause notice dated 27.9.1993 was issued, the State had no power to invoke Rule 139(a) and (b) against the said Respondent on the ground of proved misconduct, and consequently, held that the proceedings under Rule 139 were wholly incompetent. Further the Apex Court did not find any question of remanding the proceedings under Rule 139(a) and (b) as it could not survive as the alleged grave misconduct could not be established in any departmental proceedings after expiry of four years and such proceedings would be clearly barred by Rule 43 (b) proviso (a) (ii), and treated the show cause notice itself as stubborn and ineffective from its inception.” 22. In Besh Lal Singh v. State of Bihar, 2001 (2) BBCJ 300 : (2001) 2 PLJR 711 , the Patna High Court at paragraph 12 held as under: “12. This Court does not find force in the said submission of the learned Additional Advocate-General. In my opinion, such notice (Annexure 8) and the action taken in pursuance thereof are wholly misconceived and incompetent, especially when the alleged misconduct was even beyond the scope of Rule 43(b) as it relates to the period beyond four years before the retirement of the petitioner. According to the apex Court, in the case of State of Bihar v. Md. Idris Ansarl (supra), if in such proceeding a person was found guilty of misconduct, he could have been properly proceeded against under Rule 139 (a) and (b). The facts of the present case clearly demonstrate that the notice (Annexure 8) invoking power under Rule 139(b) was issued solely on the basis of past misconduct during the period 1979-1980 to 1990-1991, which was the subject-Tiatter of the departmental proceeding initiated against him but not finalised before his retirement and not that it is based on the ground that the service record of the petitioner is not thoroughly satisfactory. In the said circumstances, the apex Court on a conjoint reading of Rule 43(b) and Rule 139 (a) of the Rules held that there is no escape from the conclusion that as the alleged misconduct was committed by the respondent in the said case prior to four years from the date on which show cause notice dated 27-9-1993 was issued, the State had no power to invoke Rule 139 (a) and (b) against the said respondent on the ground of proved misconduct and consequently held that the proceeding under Rule 139 was wholly incompetent. Further, the apex Court did not find any question of remanding the proceedings under Rule 139 (a) and (b) as it could not survive as the alleged grave misconduct could not be established in any departmental proceeding after expiry of four years and such proceeding would be clearly barred by Rule 43(b) proviso (a) (ii) and treated the show-cause notice itself as stubborn and ineffective from its inception.” 23. It is, thus, evident from the consideration so made by Hon'ble Apex Court in the case of Idris Ansari (supra) and the judgment rendered by Hon'ble Patna High Court, as referred above, that the scope of provision of Rule 43(b) and 139(c) of the Pension Rule is on different context and provision of Rule 139(c) cannot be said to be substitute of Rule 43(b) of the Pension Rules. 24. The provision of Rule 139(c) confers power upon the State to revise pension, which is to be made within a period three years from the date of sanction of the pension by the sanctioning authority with the condition that if they are satisfied that the service of the pensioner was not thoroughly satisfactory or there was proof of grave misconduct on his part while in service. 25. Thus, it is evident from the provision of Rule 139(c) that the State has been conferred with the power to revise pension if the service of the concerned pensioner is not found to be thoroughly satisfactory but such decision is to be taken within the period of three years from the date of sanction by the sanctioning authority. 26. While on the other hand, the provision of Rule 43(b) of the Pension Rule confers power upon the State Government to withhold or withdraw a pension or any part of it, if the petitioner 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. 27. Vacuum of law in this context is that what recourse is available if a departmental proceeding has been initiated while the public servant is in service but during its pendency if the public servant superannuates then what recourse is to be taken. 28. Such aspect of the matter has been considered by Patna High Court in Sambhu Sharan Singh v. State of Bihar, (2000) 1 PLJR 665 wherein the law has been laid down that in such a situation the proceeding initiated under the Classification, Control and Appeal Rules will deemed to have been converted under Rule 43(b) of the Pension Rule. 28. Such aspect of the matter has been considered by Patna High Court in Sambhu Sharan Singh v. State of Bihar, (2000) 1 PLJR 665 wherein the law has been laid down that in such a situation the proceeding initiated under the Classification, Control and Appeal Rules will deemed to have been converted under Rule 43(b) of the Pension Rule. But if no action has been taken and if due to action of the concerned public servant whose complicity has been found after retirement the recourse has been made available under the proviso to initiate a proceeding under Rule 43(b) but subject to condition of applicability of limitation of four years from the date of occurrence to the date of institution. 29. This Court is now proceeding to examine the argument advanced on behalf of petitioner that the impugned order dated 26.12.2017 is improper since the same has been passed under the provision of Rule 139(C) of the Pension Rules and as such cannot be said to be sustainable since has been passed beyond the period of three years. The said contention will be said to be acceptable, according to our considered view, if a fresh proceeding would have been initiated against the pensioner under the provision of Rule 139(c) and then in such circumstance said proceeding is to be initiated under the provisions of Rule 139(c) within a period of three years from the date of sanction by the sanctioning authority. 30. But coming to the facts of the case, it would be evident that the departmental proceeding had already been initiated while the writ petitioner was in service and the charge having been proved but the final order of punishment could not have been passed since in the meanwhile the writ petitioner had superannuated from service. 31. 30. But coming to the facts of the case, it would be evident that the departmental proceeding had already been initiated while the writ petitioner was in service and the charge having been proved but the final order of punishment could not have been passed since in the meanwhile the writ petitioner had superannuated from service. 31. The State by applying the principal laid down by Patna High Court in the Case of Shambhu Sharan (supra) has converted the proceeding initiated under the CCS Rules to proceeding under Section 43(b) of the Pension Rules and thereafter issued second show cause notice and accordingly passed order of deduction of pension to the extent of 50% The Said order dated order dated 12.01.2010, pertaining to imposition of punishment for deduction of 50% pension, and order dated 04.02.2010 by which the petitioner was communicated that he would not be paid anything other than the subsistence allowance during the period of suspension and the said period of suspension shall not be counted for the pension as also for quashing for enquiry report, were challenged by filing writ petition being W.P. (S) No. 3679 of 2010. The learned Co-ordinate Single Judge while allowing the writ petitioner vide order the writ petition vide order dated 16.09.2016 although did not interfere with the enquiry report but on the issue of quantum of punishment quashed and set aside order dated 12.01.2010 by which 50% pension was directed to be deducted and order dated 04.02.2010 by which petitioner was communicated that he would not be paid anything other than the subsistence allowance during the period of suspension; and remitted the matter to the authority concerned to pass fresh order on the quantum of punishment. 32. The authority concerned, in the light of such direction, has passed an order on 26.12.2017 for reducing the pension to the extent of 10% from the pension of the writ petitioner although in the said order dated 26.12.2017 the reference of Rule 139 (c) of the Pension Rules has been mentioned. 33. Aggrieved thereof, the petition again approached this Court by filing W.P. (S) No. 2005 of 2018. 33. Aggrieved thereof, the petition again approached this Court by filing W.P. (S) No. 2005 of 2018. The learned Single Judge on the issue being raised by the appellant-writ petitioner that how such order has been passed under Rule 139(c) of the Pension Rules has come to a finding that the reference of Rule 139(c) of the Pension Rule is the reference of a wrong provision and merely because reference of wrong provision has been made the decision so taken cannot vitiate. 34. This Court considered the aforesaid reason of showing no interference with the impugned order dated 26.12.2017 to be proper for the reason of the background of the facts of the case that it is not a fresh proceeding said to have been initiated under Rule 139(c) of the Pension Rules rather it is in furtherance of the proceeding already initiated while the writ petitioner was in service, which subsequently have been converted under Rule 43(b) of the Pension Rules wherein order of punishment was passed of deduction of 50% of the Pension but subsequently when the same has been quashed on the ground of quantum by the Court of law then fresh order was passed on 26.12.2017 although by making reference of Rule 139(c) of the Pension Rules. 35. Since the impugned order dated 26.12.2017 is not passed on the basis of initiation of proceeding under Rule 139(c) of the Pension Rules and therefore, it is not required to look into the question of limitation of three years from the date of sanction rather the same will be said to be under the provision of Rule 43 (b) since the said order has been passed on remand by the High Court in an order dated 16.09.2016 passed in W.P. (S) No. 3679 of 2010 and hence if in such premise, the learned Single Judge has referred in the impugned order of making reference of wrong provision does not vitiate the entire order, which according to our considered view cannot be said to suffer from error. 36. 36. Further the impugned order passed by learned Single Judge according to considered view do not suffer from any infirmity reason being that it is not a case of the appellant that the State was not having power to take such decision and once State has taken such decision in a continuing proceeding which was initiated way back when the writ petitioner was in service the same will be said to have been passed under Rule 43(b) of the Pension Rules and it cannot be said to have been passed under Rule 139(C) of the Pension Rules since order has not been passed in fresh proceeding. 37. Otherwise also the settled position of law is that power which is to be exercised by the authority is said to be the actual power provided under the statute and if such power is not available to the concerned authority then certainly any decision taken will be nullity in the eyes of law. But herein the power is there under the provision of Rule 43(b) as such by making reference of provision of Rule 139(C), the same will not vitiate the proceeding 38. This Court, on the basis of discussions made hereinabove and in entirety of facts and circumstances, is of the view that the order passed by the learned Single Judge requires no interference. 39. Accordingly, the intra-court appeal fails and is dismissed.