This application was initially preferred by the petitioner for acceptance of his joining given on 8th September, 1997, the date on which he was released from custody and payment of subsistence allowance for the period from 19th April 94 to 8th September 97, as also arrears of salary from 8th September' 97 onwards.

2. During the pendency of the writ petition, the petitioner superannuated on 31st May, 2000. Thereafter, the Respondent-Superintending Engineer, P.H.E. Circle, Hazaribagh issued an Order No. 46 dated 17th October, 2000 punishing the petitioner with order to recover a sum of Rs. 1,49,747.83 p. from his pension, Gratuity and Leave Encashment and ordered that the petitioner will be entitled for subsistence allowance for the period of suspension, the said period will be counted towards pension etc. The aforesaid order of punishment dated 17th October, 2000 has been assailed by the petitioner by filing a petitioner for amendment.

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

4. The petitioner while posted as Senior Accounts Clerk in the Office of Executive Engineer. P.H.E. Division, Ramgarh, a criminal case was lodged on 17th January, 1994 and he was taken in custody on 19th January, 1994. The Respondents placed the petitioner under suspension from the date he was taken in custody (19th January, 1994) and after trial, in G.R. Case No. 146/94, the petitioner was convicted under section 409 I.P.C. and sentenced for three years imprisonment with fine.

5. The petitioner remained in custody during the pendency of the trial and had to move in appeal against conviction vide Criminal "Appeal No. 52/95. On hearing the parties, the learned 1st Additional District & Sessions Judge, Hazaribagh, vide his judgment dated 20th September' 99 allowed the appeal, set aside the judgment and the order of conviction.

6. During the' pendency of appeal, the petitioner was released from custody, where in after he reported on 8th September, 1997. However, his joining was not accepted inspite of repeated requests and even after decision in appeal, which gave rise to filing of the present writ petition.

7. As stated above, in the meantime, he retired from service on 31st May, 2000 and the impugned order of punishment was passed by the Superintending Engineer on 17th October, 2000.

8. The Respondents in their counter affidavit highlighted the allegations as were originally levelled in the criminal case that the petitioner defalcated a sum of Rs. 1,49,747.83 p. on 14th June, 1990. According to them, the petitioner had taken payment of such amount and entered in the Cash Book and in the Remittance Register, wherein the amount was shown to have been remitted to Treasury, Hazaribagh, but the Branch Manager, State Bank of India, Ramgarh in its report stated that a draft dated 21st December, 1989 had been paid on 14th June, 1990 to the petitioner, as a representative of the then Executive Engineer.

9. Admittedly, no departmental proceeding was initiated against the petitioner under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 (shortly referred to as the Rules). After petitioner's acquitted in the criminal proceeding, after ten years of incident, few days prior to his retirement, a letter No. 145 dated 19th May, 2000 was issued by the Executive Engineer alleging misappropriation of aforesaid amount by petitioner and he was asked as to why his name be not forwarded to the higher authority for disciplinary action. The petitioner replied to such show cause notice on 14th June, 2000 after retirement. However, in the meantime- or even thereafter, no proceeding was initiated by the competent authority.

10. It is a settled law that no departmental proceeding can proceed after retirement for inflicting any punishment as envisaged under Rule 49 of the Rules. However, it is always open to the State to initiate any proceeding under Rule 43