Harish Kumar, J.—Heard Mr. Pankaj Kumar Sinha, learned counsel for the petitioner and Mr. Ravi Kumar, learned counsel for the State.

2. The petitioner is aggrieved with the order dated 11.08.2021 as contained in Memo No. 589(9)/Swa. Patna dated 13.08.2021, whereby he has been inflicted with the punishment of stoppage of 100% pension permanently and withholding of 10% Gratuity.

3. The short facts which led to the filing of the present writ petition are that the petitioner was initially appointed as Medical Officer and was posted at Beldaur Primary Health Centre, Munger, where he submitted his joining on 16.07.1981. While the petitioner was posted at Palasi Additional Primary Sub-Centre Araria, all of a sudden on 01.04.2023, he had to proceed on leave on account of serious condition of his wife and thus he sent his leave application. The ailment of petitioner’s wife continued for a pretty long time and when she recovered from her ailment, the petitioner submitted his joining at his Headquarter (Secretariat) on 14.12.2010; and kept on waiting for posting.

4. Learned counsel for the petitioner contended that after submission of his joining in the Headquarter (Secretariat), time without number, the petitioner had been regularly submitting his application before all the authorities concerned requesting them for his posting but his request was unheeded. Lastly, vide Notification No. 2/T-22/2011 dated 30.06.2012, the petitioner was posted at Khagaria where he joined in the office of Civil Surgeon, Khagaria on 04.07.2012. It is the contention of the petitioner that the period on which the petitioner remained on leave in between 01.04.2003 and 13.12.2010, on account of ailment of his wife, he requested for regularization of the said period but that was not acceded to, compelling the petitioner to approach before this Court in C.W.J.C. No. 13725 of 2017. The said writ petition was disposed off with a direction to the petitioner to file a representation agitating his grievance before the respondent no. 2. In pursuant thereto, the petitioner submitted a detailed representation, explaining the reason for unauthorized absence for the period afore-noted. The request of the petitioner was turned down vide order dated 28.09.2018 issued by the Joint Secretary, Department of Health, Bihar.

5. Aggrieved with the order afore-noted, the petitioner preferred C.W.J.C. No. 5769 of 2019, and finally the learned Court vide order dated 17.04.2019 has set aside the order dated 28.09.2018 with a direction to the petitioner to make a fresh representation, annexing all his documents and evidence in support of his contention and the respondent(s) shall pass a reasoned order in accordance with law. However, in the meantime, the petitioner superannuated on 28.02.2019. Despite the aforesaid fact, a departmental proceeding was initiated under Rule 43(b) of the Bihar Pension Rules, 1950 (for short ‘the Rules, 1950’) vide Departmental Resolution No. 1259(9) dated 23.09.2019.

6. Learned counsel for the petitioner has thus submitted that the incident, if any, of unauthorized absence which took place in between 01.04.2003 and 13.12.2010, neither any action has been taken nor any any proceeding has been initiated till the date when the petitioner remained in service. However, upon his superannuation, the department has proceeded under Rule 43(b) of the Rules, 1950, which is wholly without jurisdiction. It is further contended that the very initiation of the departmental proceeding is void ab initio; irrespective of the fact that the petitioner submitted his explanation to the memo of charges, but without considering his written explanation, the Enquiry Officer submitted his report, on the basis thereof, the impugned order withholding of 10% Gratuity and stoppage of 100% pension permanently came to be passed.

7. Drawing the attention of this Court to Rule 43(b)(a) (ii) of the Rules, 1950, Mr. Sinha, learned counsel for the petitioner contended that specific prescription has be