JUDGMENT :

Heard Mr. Prashant Sinha, learned counsel for the petitioner as well as Mr. Kumar Alok, learned Standing Counsel-7 for the State.

2. Petitioner is aggrieved by the order dated 20.3.2019 (annexure E to the supplementary counter affidavit filed on behalf of respondent no. 3 to 6) by which show cause has been issued to the petitioner under Rule 139 of the Bihar Pension Rules, 1950 with a proposal to withholding 10% pension for further five years. Petitioner is also aggrieved by order dated 2.6.2020, issued by the Additional Secretary, Rural Works Department, Government of Bihar, Patna by which he has been awarded with punishment for withholding of 10% of his pension for a further period of five years in exercise of power under Rule 139 of the Bihar Pension Rules.

3. Short facts giving rise to the writ petition is that the petitioner was initially appointed as Assistant Engineer under the Road Construction Department, Government of Bihar, Patna on 28.9.1981 and superannuated from the Rural Works Department, Government of Bihar, Patna with effect from 31.5.2016. While in service, he was departmentally proceeded by the Road Construction Department against the charge of committing irregularities in construction of Imamganj-Karpi-Shahar-Telpa road as work of SDBC/BM/BUSG/WMM in Km 2 to Km 24. After issuance of show cause dated 20.3.2019 and on consideration of his reply, vide Memo no. 1011 dated 2.6.2020 he has been inflicted with the punishment of withholding of 10% pension for the further period of five years in exercise of power conferred under Rule 139 of the Bihar Pension Rules, 1950.

4. The short issue raised by the learned counsel for the petitioner is that Rule 139 of the Bihar Pension Rules does not permit exercise of such power on ground of alleged misconduct.

5. Learned counsel for the State submits that Rule 139 of the Bihar Pension Rules gives ample power to the respondent authorities to withhold either wholly or in part pension of retired Government servant if requirements of the Rules were satisfied. In the present case, service records of the petitioner was not satisfactory and he was also involved in grave misconduct in construction of Imamganj-Karpi-Shahar-Telpa road, as the work SDBC/BM/BUSG/WMM in Km 2 to Km 24 was not found to be as per prescribed specification. The Rural Works Department having reviewed the matter vide its Departmental letter dated 20.3.2019 issued show cause to the petitioner. Respondents, on duly consideration the petitioner’s reply and having not found the services of the petitioner to be satisfactory, vide Memo no. 1011 dated 2.6.2020 inflicted the punishment of withholding of 10% pension for the further period of five years in exercise of power conferred under Rule 139 of the Bihar Pension Rules, 1950.

6. Learned counsel for the petitioner submits that, in the case in hand, proceedings under Rule 139 of the Bihar Pension Rules is barred under Rule 43(b) of the Bihar Pension Rules. He submits that the show cause was sought from the petitioner on 1.12.2010 which was replied by him on 28.2.2011. Thereafter, nothing happened and the petitioner retired on 31.5.2016 and now after about three years of his retirement, the authorities issued another show cause in 2019. He submits that the respondents cannot take recourse to Rule 139 of the Bihar Pension Rules and withhold pensionary benefits as the purported show cause dated 20.3.2019 (Annexure E) had not been issued to the petitioner on the grounds that his service record was not thoroughly satisfactory rather the same has been issued on the ground of petitioner’s alleged past misconduct which took place almost five years prior to his retirement. Learned counsel for the petitioner submits that the show cause notice dated 20.3.2019 is in respect of occurrence of 2010. He submits that such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii) of the Bihar Pension Rules. In support of the submission, learned counsel for the petitioner