JUDGMENT :

1. Heard learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the State.

2. Petitioner is aggrieved by the order contained in Memo No. 63 dated 02.03.2017 as contained in Annexure-8 whereby in purported exercise of jurisdiction under Rule 43(a) of the Bihar Pension Rules, 1950 (in short, ‘Pension Rules’), respondents have decided to forfeit full pension and gratuity of the petitioner permanently.

3. Learned counsel appearing on behalf of the petitioner has referred to Rule 43(a) of the Pension Rules to contend that Rule 43(a) is attracted in the case of future conduct of the pensioner. Referring to the instant case, learned counsel submits that the petitioner superannuated on 31.07.2013 whereas the decision to forfeit the pension in purported exercise of power under Rule 43(a) of the Pension Rules was taken in the light of the judgment of the conviction dated 28th of January 2011 and as such, the conviction prior to attaining the age of retirement cannot be construed as future conduct of the petitioner and therefore the entire exercise is without jurisdiction.

4. Earlier on behalf of the State, counter affidavit has been filed in which the respondents have relied upon the decisions of the Division Bench of this Court (Annexures R/1 & 2/B series). So far as Annexure-R/1 is concerned, it has been examined by this Court and the order dated 07.01.2021 clearly indicated that there was not occasion for this Court to decide the applicability of Rule 43(a) of the Pension Rules. Another decision of the Division Bench of this Court which has simply rejected the contention was not supported by any reason for rejecting the contention of the petitioner that Rule 43(a) of the Pension Rules is not attracted in case conviction is prior to the date of retirement.

5. Today on behalf of the State, the Division Bench judgment of this Court in the case of Nityanand Kumar Singh Vs. The State of Bihar & Others reported in 2016 (2) PLJR 315 has been cited. In that in fact the Division Bench has drawn distinction between Rule 43(a) and 43(b) of the Pension Rules.

6. From discussion in the case of Nityanand Kumar Singh (supra), it is evidently clear that the decision to forfeit pension of the pensioner for the conduct or conviction anterior to retirement is alien to Rule 43(a) of the Pension Rules. The relevant discussion of the judgment of the Division Bench in the case of Nityanand Kumar Singh (supra) is quoted hereinbelow:-

“5. Rule 43 (a) and Rule 43 (b) on account of similarity of expression and words used, appear to be overlapping and that has led to issue at hand. However, the opening sentence of Rule 43

(a) provides the key to answer the issue. Future good conduct will be implied condition of every grant of pension would mean that a pensioner who has been granted pension is expected to maintain a good conduct in future and in case a pensioner is convicted of serious crime or held guilty of grave misconduct, the Provincial Government has the power granted by Rule 43 (a) to withhold or withdraw the pension or any part of it and its decision has been made final and conclusive. So far as Rule 43 (b) is concerned, this also confers power upon the State Government to withhold or withdraw a pension or any part of it, either permanently or for a specified period (this expression is not provided in Rule 43 (a) ) if the pensioner is found, in a departmental or judicial proceeding, 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 after retirement (emphasis supplied by us). Under Rule 43 (b), the Government also has the right of ordering recovery from a pension of the whole or part of any pecuniary loss caused to Government on the basis of finding in departmental or judicial proceeding.

6. Before coming to the proviso which consists of three clauses (a), (b) and (c) along with an explana