S.K.Katriar, J.

1. Mr. Satish Kumar Agarwal for the petitioner, Mr. P.K. Rajgrihar, learned junior counsel to Standing Counsel No. X for respondent Nos. 1 to 9, and Mr. J.P. Karn for respondent No. 10 [The Accountant General (Accounts and Entitlement) II, Bihar, Patna] are present.

2. According to the writ petition, the petitioner had initially joined the services of the Bihar Government as a Draftsman on 21.7.1962. He was promoted to the post of Junior Engineer on 13.12.1973, and served as such in different offices. He had been given advance in instalments for completion of a civil work. The petitioner superannuated in the same capacity with effect from 31.12.1999, which functioning as Junior Engineer in the Office of the Building Construction Division, Bettiah. The petitioner raises a grievance before this Court that a sum of Rs. 4,58,919.40 p. is sought to be adjusted against his post-retirement benefit which is impermissible in law.

3. Respondent Nos. 1 to 9 have filed their counter affidavit wherein it is stated that the petitioner was given the aforesaid sum by way of advance in different instalments to complete the civil work, only 85 per cent of which was completed and that too deficiently. Hence the deductions.

4. Learned counsel for the petitioner in reply submits that such recovery at this stage is impermissible In law. He relies on the following reported judgments :

(i) 1995 (2) PLJR 51 (SC), State of Bihar and Ors. V/s. Mohd. Idrish Ansari;

(ii) AIR 1990 SC 1923, D.V. Kapoor V/s. Union of India and Ors.;

(iii) 1999 (3) PLJR 949, Bajrang Deo Narain Sinha V/s. The State of Bihar and Ors.;

(iv) 2001 (3) PLJR 292, Pramod Kumar Sinha V/s. The State of Bihar and Ors.;

(v) 2004 (4) PLJR 236, Smt. Shanti Choubey V/s. The State of Bihar and Ors.;

(v) 2004(4) PLJR 159, Parmeshwar Dayal Verma V/s. State of Bihar and Ors.

5. I have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is that the petitioner had received the aforesaid sum of Rs. 4,58,919.40p. by way or advanced in instalments to complete the work. The work was undertaken and executed. The difference between the petitioners case and that of respondents is that, according to the former, the entire work was completed according to the specifications, whereas according to the latter, only 85 per cent work was completed and executed poorly. According to the respondents, this position became clear to the respondent authorities from the report dated 24.4.2003 (Annexure-J to the counter affidavit) which is an enquiry report submitted by the Additional Collector, West Champaran, Bettiah. This was an enquiry to ascertain the correct position and was not an enquiry contemplated in terms of Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the Rules). Taking the case of the respondents at its highest, it seems to make out a case of misconduct and/or negligence in duties, resulting in loss to the Government.

6. Rule 43(b) of the Rules is relevant in the present context and is set out hereinbelow for the facility of quick reference : "43(b) The State Government further reserve to themselves the right of withholding of 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 afterment : 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 be