S.J. Mukhopadhaya, J.

1. This application has been preferred by the petitioner against the order dated 23rd March, 2001, communicated, vide Memo No. 732 dated 12th April, 2001, whereby and where under, the respondents decided to recover a sum of Rs. 60,373/- from the Gratuity and leave salary of the petitioner.

2. As the case can be disposed of on short point, it is not necessary to discuss all the facts, except the relevant one.

3. The petitioner was a Forest Guard under the respondents and was made to superannuate w.e.f. 31st January, 1997 by an order dated 7th March, 1998. Against the order of superannuation, the petitioner moved this Court in CWJC No. 1009/98(R) and raised dispute relating to date of birth, as recorded in the Service Book.

4. The respondents, on appearance, took plea that it was within the knowledge of petitioner that the date of birth in the service book was changed from 16th January, 1944 to 16th January, 1939 still was suppressing the fact he continued to work beyond the period of superannuation upto 7th March, 1998 when the order was issued.

5. A Bench of this Court, vide order dated 13th October. 1998 while observed that the responsibility remained on both the sides, held that the respondents having taken work from the petitioner, cannot deny his salary. The Court further observed that if the petitioner made any concealment knowingly, it was within the ambit of the employer to proceed against the petitioner under Section 43(b) of the Bihar Pension Rules, 1950. The matter was remanded to the respondents to proceed, in accordance with law, in the light of the observations made by this Court.

6. The Respondent Conservator of Forests thereafter having issued impugned order, as contained in Memo No. 721 dated 22nd March. 2001, the petitioner has challenged the order, as also the jurisdiction of the Officer who passed such order.

7. According to the respondents, a proceeding under Rule 43(b) was initiated of which sanction was given vide Memo No. 4078 dated 26th October. 1999 (Annexure B). After enquiry, report was submitted by Enquiry Offlcer-cum-D.F.O., Chatra. South forest Division, vide Annexure D. The petitioner having found guilty of suppression of reality and having held to have obtained salary and bonus illegally, the impugned order was passed.

8. Admittedly, the petitioner superannuated/made to superannuate prior to 8th March. 1998. No departmental proceeding was initiated against him, nor any "departmental enquiry or criminal proceeding was pending at the time of retirement.

9. In the aforesaid background, it cannot be held that any proceeding was deemed to be pending on the date of retirement under Rule 43(b) of the Bihar Pension Rules, 1950, which reads as follows :

"43(b). The State Government further reserve to themselves the right of withholding 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 or judicial proceeding to have been 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 :

Provided that-

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

(i) shall not be instituted save with the sanction of the State Government;

(ii) shall be in respect of an event which took place not more than four years before the institution of such proceeding; and

(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made;

(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during r