S. N. Jha, J.

This writ petition has been filed challenging the validity of the order dated 4th May 1993 by which the amount of pension and gratuity of the petitioner has been reduced by 100 % under Rule 139 of the Bihar pension Rules (in short, 'the Pension Rules' or 'the Bihar Rules') and the order dated 11th May, 1993 by which a proceeding under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 has been initiated against him. During the pendency of the case a corrigendum order was issued on 29th June, 1993 to the effect that the aforesaid proceeding will be seemed to be under Rule 43(b) of the Pension Rules. During course of hearing of the case, Counsel for the State stated that the order dated 4th May 1993 will be withdrawn. Thus the validity of the proceeding under Rule 43(b) of the Pension Rules alone survives for consideration.

2. The petitioner retired as Chief Engineer in the Water Resources Department of the State Government on 30th November 1991. He was served with a notice dated 21st May 1992 to show cause as to why recovery of the amount of loss to the tune of Rs.24 lakhs which the State Government, has suffered on account of the purchases made by the petitioner during the tenure of his service be not made from his pension and gratuity. The petitioner filed his show cause denying the allegations. The State Government, however, came out with the aforementioned orders dated 4th May, 1993 and 11th May 1993. It is not necessary to set out the facts relating to the charges or the explanation there to.

3. Mr. S. J. Mukhopadhayaya, learned counsel for the petitioner, did not dispute the power of the State Government to withhold pension under Rule 43(b) of the Pension Rules. According to him however, such withholdment cannot exceed 10% of the amount of pension. According to him further, so far as the gratuity is concerned, the same cannot be withheld at all. In support of the latter plea, he placed reliance on D.V. Kapoor v. Union of India: (1990)4 SCC 314 and FR. Jesuratnam v. Union of India: 1990 (Supp) SCC 640. Faced, however, with the latter decision of the Supreme Court in Jarnail Singh v. the Secretary, Ministry of Home Affairs and others: AIR 1994 Supreme Court 1484 which has held that the expression 'pension' in Rule 9 of the Centeral Civil Series (pension) Rules, 1972 (in short, 'the Central Rules') includes gratuity and to that extent has overruled the contrary view taken in the aforesaid two decision, Mr. Mukhopadyaya submitted that the decision has been rendered in the context of the Central Rules and cannot be taken to be an authority on the point in the context of the Bihar Pension Rules. Counsel submitted that the decision in Jarnail Singh (supra) was rendered on a finding that the term 'pension' in the context of the Central Rules is not used in contradistinction to gratuity, Counsel contended that in the Bihar Rules, 'pension' and 'gratuity' have been assigned opposite meanings and, therefore, pension cannot be said to include gratuity.

4. I shall first take up the question as to whether the State Government is competent to withhold 100% pension of a retired Government servant. Power of withholding pension is contained in Rule 43(b) of the Pension rules. The said Rule reads as follows:-

"43(b) The State government further reserve to themselves the right of with holding 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 pensioner is found in departmental of judicial proceeding to have been guilty of grave misconduct; to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re employment after retirement:

Provided that -

(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-em