1. Petitioner retired from the post of Executive Engineer on 31.1.2000. Post superannuation, petitioner was sanctioned full pension and other retiral dues on 16.3.2000. There is no dispute on this issue because Annexure-1 has been brought on record as proof of grant of pension to the petitioner. The reason why the petitioner has approached this Court is that post sanction of pension sometime in the year 2003 a punishment dated 7.4.2003 contained in Annexure-6 has come to be issued against him. The punishment in question is withholding of 10% pension from the full pension sanctioned to the petitioner earlier. This punishment has been imposed in the purported exercise of power under Rule 139 of the Bihar Pension Rules.

2. While the petitioner was still in service on 14.1.1999 he was issued a show-cause asking him to explain as to under what circumstances he fail to take any action against a consumer under Section 138 of the Negotiable Instruments Act, 1981, in view of the fact that a cheque of Rs.27.01 lacs, which was a payment for energy charges had bounced. Petitioner responded to the said communication and then there was a lull. Petitioner was allowed to superannuate as already recorded earlier final pension sanctioned and thereafter on 20.11.2002 yet another show cause under Rule 139 of the Pension Rules was issued. This show-cause has been brought on record as Annexure-4 to the writ application. In the said show cause besides the bouncing of cheque some other aspect of the matter was also highlighted. Vide a detailed response contained in Annexure-5 petitioner placed his case and explanation. The explanation did not satisfy the authorities, therefore, the order dated 7.4.2003 contained in Annexure-6 imposing punishment of withholding of 10% pension has been passed.

3. Learned counsel appearing on behalf of the petitioner submits that the entire exercise including the punishment imposed against the petitioner is in teeth of various pronouncements on this issue by the High Court. His basic contention is that the respondents could exercise this power of withholding pension under Rule 139(c) provided the service record of the petitioner was not thoroughly satisfactory or there was proof of grave misconduct on his part while in service. According to the petitioner there is nothing adverse, in his service record to allow the respondents to invoke the power under Rule 139. In so far as the second aspect of proof of grave misconduct is concerned this has already been well interpreted and decided that a finding has to be recorded based on a departmental enquiry while the pensioner was still in service. Attention of this Court has been drawn to a decision which has been rendered in the case of Muneshwar Prasad Sinha vs. State of Bihar, 2004(3) PLJR 708. The Court in a similar kind of dispute has taken pains to tay down the parameters of the powers which the State can exercise either under Rule 43(b) or Rule 139. It is worthwhile to reproduce paragraph nos. 7, 8, 9 and 10 of the said decision, which lays down the law on the issue:

" 7. The submission" of Mr. Shahi appears to be well founded. The provisions of Rule 43(b) and Rule 139 are completely different in their nature, scope and ambit. Rule 43(b) vests in the Government (or the Board in this case) the power to withhold or withdraw pension for a misconduct or to recover any pecunia loss caused to the Government resulting from any misconduct or negligence from the pension provided the pensioner was found guilty of a grave misconduct in a departmental or judicial proceeding. The provision of Rule 43(b) thus deals with specific and separate acts of grave misconduct which in case proved against the pensioner in a departmental or judicial proceeding may form the basis for withholding or withdrawing his pension or recovery from his pension of any pecuniary loss caused to the Government or the Board.

8. Unlike Rule 43(b) that deals with specific and individual act(s) of grave mi