The central legal point established is that Rule 43(b) of Bihar Pension Rules does not allow for the dismissal of a retired employee, and any such dismissal order is illegal.

A.K.TRIPATHI, J.

1. Heard learned Counsel for the parties.

2. By virtue of the Order contained in Annexure-1 dated 13th July, 2004, the then Chairman of Bihar School Examination Board dismissed the Petitioner from service from a restrospective dated i.e. 26th September, 2001 .This is Order of punishment which has been passed against the Petitioner while exercising power under Rule 43(b) of Bihar Pension Rules.

3. Petitioner challenges this Order to be an illegal Order on the face of it because Rule 43(b) does not envisage imposition of punishment of dismissal being passed against an employee in the given background that the Petitioner had already superannuated in November, 2002. Under Rule43(b) the pension of the Petitioner could have been reduced or withheld but that too it could be done after following the ingredients of that rule. The order of punishment being alien to Rule 43(b) the order impugned is per say bad in law.

4. A short fact may be noted in the present case which has lead to passing of the present impugned Order. Petitioner was suspended initially in the year 2001 for deriliction of duty and violation of his part to perform his official duty by going on leave when the duty was imposed on the concerned section to furnish detailed list of evaluators and examiners for the purpose of declaration of result of matriculation examination of that year. The list was to be furnished within 24 hours but it was delayed by another 24 hours, thereby causing certain annoyance and inconvenience to Examination Board, in evaluation of copies of that year.

5. A so called enquiry was held against him and based on the enquiry report an order of dismissal was passed. That order came to be challenged by filing of a writ application, namely, C.W.J.C. No. 12831 of 2001. From perusal of the order dated 5th May, 2004 passed in that writ application it seems that the debate verred around one aspect that Petitioner was not given a copy of the enquiry report and the order of punishment of dismissal came to be passed. The Court, therefore was of the opinion that there was violation of mandatory requirement of law. The Order of dismissal was therefore set aside and opportunity was however, granted to the Respondents to proceed in the matter after giving copy of the enquiry report and a second show cause in accordance with law.

6. There is evidence on record therefore, that since the Petitioner had superannuated the master and servant relationship came to an end. In that background the rule does not envisage imposition of any punishment orderwhich are there in the regulation either minor or major. This punishment can only be passed during the subsistence of master and servant relationship. For the employee who have retired the Bihar Pension rules contemplates action under Rule 43(b) or 139. Nothing beyond that is permissible.

7. There is no dispute that after the High Court had set aside the Order of dismissal the Respondents issued notice as well as passed an order that proceeding against the Petitioner shall continue under Rule 43(b) of Bihar Pension Rules. A question therefore has been raised by the Petitioner that if the power under Rule 43(b) is exercised then how come the chairman of the Board decided to dismiss the Petitioner from service that too from restrospective date? Petitioner alsocontends that once the order of dismissal was held to be bad by a declaration of this High Court can the Respondents revive that order in the garb of exercise of power under Rule 43(b) of Bihar Pension Rules? On the face of it the answer is no because Rule 43(b) does not envisage passing of an Order of dismissal against any retired employee. That maximum which the authority could have done was to either reduce or withhold the pension of a retired employee provided he is found to be guilty of grave misconduct or has caused pecuniary loss to the Government in a proven departmental enquiry held against him.

8. This contention of the Petitioner is goo