The legal principle established is that Rule 43(a) of the Pension Rules applies to a pensioner's future conduct after retirement, and forfeiture under this rule is not applicable to misconduct during the pensioner's service period.

JYOTI SARAN, J.

1. Heard Mr. Braj Nandan Tiwary, learned counsel for the petitioner, Mr. Ashutosh Kumar Jha, AC to GA-11 for the State and learned counsel for the Accountant General.

2. The petitioner is aggrieved by the Notification bearing No. 1009 of the State Government in its Personnel and Administrative Reforms Department whereby the pension payable to the petitioner has been forfeited in exercise of powers vested under Rule 43(a) of the Bihar Pension Rules, 1950 (hereinafter referred to as the Pension Rules), a copy of which is impugned at Annexure-5 to the writ petition.

3. Facts of the case briefly stated is that the petitioner superannuated from the post of Registrar, Water Resources Department, Government of Bihar on 31.12.1997 on completion of 58 years. It is thereafter that he was granted promotion vide notification no. 576 dated 17.8.1998 on the post of Under Secretary with effect from 1.12.1995. It is 9 years after the retirement that show cause was issued to the petitioner vide letter no. 250 dated 19.1.2007, in purported exercise of power under Rule 43(b) of the Pension Rules requiring a response from the petitioner. A copy of such notice is impugned at Annexure-1 and the petitioner filed his reply vide Annexure-2 on 19.2.2007. The reply was followed by another show cause vide letter no. 1329 dated 7.3.2008 and this time the show cause was under Rule 43(a) of the Pension Rules and the foundation lay on the conviction of the petitioner by a criminal court. A copy of such notice is impugned at Annexure-3 and the petitioner filed his explanation vide Annexure-4 which has been rejected by the impugned notification dated 19.12.2008 impugned at Annexure-5 and feeling aggrieved he is before this Court.

4. The core issue raised in the writ petition is whether the State is within its jurisdiction to issue a notice under Rule 43(a) of the Pension Rules to the petitioner for exercising powers of forfeiture of pension.

5. A coordinate bench, in consideration of the argument advanced by parties on the scope and extent of exercise of power under Rule 43(a) of the Pension Rules in comparison to the restrictions present in proviso attached to Rule 43(b), referred the matter for an authoritative pronouncement by the Division Bench vide order passed on 30.11.2010. The opinion of the Division Bench is recorded in the order dated 30.2.2012. The Division Bench has explained the distinct nature of the exercise underlying Rule 43(a) and Rule 43(b) of the Pension Rules together with the aims and objects accompanying the exercise.

6. The division bench taking note of the stipulations present in Rule 43, while accepting that the provisions are overlapping, has held that under rule 43(a) it is future good conduct which is an implied condition for grant and continuation of pension of pensioner who is expected to maintain a good conduct in future and in case a pensioner is convicted of a serious crime or held guilty of grave misconduct then the provincial Government is within its jurisdiction to withhold either partially or as a whole, the pension being paid to the pensioner.

7. In so far as Rule 43(b) is concerned, the division bench has explained that such power is exercisable if the pensioner in a departmental or judicial proceeding is held guilty of grave misconduct or have caused pecuniary loss to the Government by misconduct or negligence during his service including service rendered after reemployment. The relevant part of the order which would govern the issue raised herein, is reproduced herein-below for ready reference:

“............Before coming to the proviso which consists of three clauses (a), (b) and (c) along with an explanation provided after clause (c), it is obvious from a comparison of Rule 43 (a) with Rule 43 (b) that the former relates to future good conduct of a pensioner and the same may be invoked if he is convicted of serious crime or is held guilty of grave misconduct. The serious crime or grave misconduct und