The main legal point established in the judgment is the interpretation and application of rule 43(b) of the Bihar Pension Rules, emphasizing the significance of the date of initiation of the disciplinary proceeding and the continuation of the proceeding after superannuation.

B.P.Singh, J.

1. This Letters Patent Appeal has been preferred by the State of Bihar against the judgement and order of a learned Judge of this Court dated 26.7.1999 in CWJC No. 10452 of 1998 whereby the learned Judge quashed the impugned orders passed under Rule 43(b) of the Bihar Pension Rules impounding 100% pension payable to the respondent no. 1 for five years.

2. The facts giving rise to the instant appeal are not in dispute. A proceeding was initiated under rule 55 of the Bihar Civil Services (Classification, Control & Appeal) Rules against respondent no. 1. The resolution of the Government initiating the disciplinary proceeding against respondent No. 1 was issued by the order of the Governor and is dated 25.4.1996. A photocopy of the aforesaid resolution was annexed by respondent No. 1 to the writ petition as Annexure-12 from which it appears that the said resolution along with its enclosures, was communicated to respondent No. 1 under memo dated 25.4.1996. By the said resolution, an inquiry officer was appointed to conduct the proceeding. It is not in dispute that respondent No. 1 superannuated from service on 30th of April, 1996 only five days after the initiation of the disciplinary proceeding. The resolution initiating the disciplinary proceeding was served upon respondent no. 1 on May 2, 1996, after his superannuation.

3. It is not in dispute that since respondent No. 1 superannuated from service on 30th April, 1996, a government order was issued by the order of the Governor on September 2, 1997 stating that since the departmental proceeding could not be concluded before the super-annuation of respondent No. 1, the said proceeding shall be continued for action under rule 43(b) of the Bihar Pension Rules even after his superannuation. The said order has been annexed as An-nexure-14 to the writ petition. Thereafter the proceeding under rule 43(b) of the Bihar Pension Rules continued and culminated in the impugned order, Annexure-18 dated September 11,1998. Four charges were found proved against respondent No. 1 and in view of the proved charges against respondent No. 1 in the disciplinary proceeding, an order was passed under rule 43(b) of the Bihar Pension Rules withholding 100% of the pension payable to respondent No. 1 for a period of five years.

4. Two orders Annexure-14 dated September 2, 1997 continuing the departmental proceeding for the purpose of action under rule 43(b) of the Bihar Pension Rules and Annexure-18, dated September 11, 1998 the order withholding pension for five years passed under rule 43(b) of the Bihar Pension Rules, were impugned in the writ petition filed before this Court, and they have been quashed by the learned Judge by the impugned judgment and order which is in appeal before us.

5. Before the learned Judge it was submitted that the charges related to the period 3rd July, 1981 to 31st October, 1984 and therefore no proceeding could be initiated against respondent No. 1 in terms of rule 43(b) of the Bihar Pension Rules with respect to an event which admittedly took place much beyond four years before the institution of the proceeding. In any view of the matter, the continuation of such proceeding initiated under rule 55 of the Bihar Civil Services (Classification, Control & Appeal) Rules was not permissible in law without extending the service of the concerned employee in the light of the provision contained in rule 73 of the Bihar Service Code. On the other hand it was contended on behalf of the State relying upon the decision of the Supreme Court in the High Court of Punjab and Haryana vs. Amrik Singh [1995 Supp (1) SCC 321] that the continuation of such a proceeding was permissible.

6. The learned judge distinguished the decision of the Supreme Court in the aforesaid decision and held that Rule 43(b) of the Bihar Pension Rules which permitted the State to take such action even after the retirement of the government servant, placed a limitation upon the power of the Governmen