JUDGMENT :

Heard learned counsel for the parties through V.C.

2. The instant application was initially preferred by the petitioner for payment of full salary to the petitioner after deducting the suspension allowance along with interest.

During pendency of this writ application an order of punishment has been passed as contained in Memo No.2366 dt. 13.4.2010; whereby several punishments were imposed upon the petitioner. The petitioner filed an interlocutory application being I.A No.3667 of 2012 for challenging the aforesaid order dated 13.4.2010 by making amendment in the prayer portion of writ application. The said application was allowed vide order dated 07.01.13.

3. Mr. Krishna Murari, learned counsel for the petitioner submits that this petitioner retired from service on 31.01.2009 and admittedly; no departmental proceeding was initiated against him while he was in service.

He further submits that the charge sheet issued on 07.10.2009 under 43 (b) of Bihar Pension Rules is non-est in the eye of law, inasmuch as, the same is permissible subject to the limitation of four years from the date of occurrence and also it has to be initiated with the sanction of a competent authority, i.e. the State Government which is absent in this case.

Mr. Murari further contended that from the enquiry report it would transpire that the Inquiry Officer fixed 14.12.2009 as the date of appearance of the petitioner but the petitioner could not appear on that date as he did not receive any such information and thereafter, on 17.12.2009 itself the Inquiry Officer had submitted the enquiry report. This clearly goes to show that no proper opportunity has been given to the petitioner to defend himself.

He further assailed the entire proceeding on the ground that no witness has been examined from either side and only to complete the formality; the enquiry proceeding has been conducted and the charge has been proved.

Learned counsel for the petitioner has reiterated his claim that though the petitioner was suspended initially but no departmental proceeding was ever initiated or concluded during his service period and the proceeding which was initiated subsequent to his retirement is non est in the eye of law for following reasons:

(A) The cause of action indicated in the memo of charge is up to the year 1994 and as such as per the specific provision under Rule 43 (b) of the Bihar Pension Rules; the same is beyond the period of four years from the date of issuance of charge sheet.

(B) The charge sheet has not been issued by a competent authority, inasmuch as, after retirement of any government servant; as per Rule 43 (b) of Bihar Pension Rules, it is only the State Government which is empowered to initiate such proceeding.

(C) There is a gross violation of Principle of natural justice, inasmuch as, the date of appearance was fixed on 14.12.2009 and since the petitioner could not appear on that date, the Inquiry Officer had submitted the enquiry report on 17.12.2009.

(D) From the impugned order it does not transpire that proper opportunity had been given to the petitioner and it is a completely non-speaking and non-reasoned order.

4. Mr. Pankaj Chowdhary learned counsel for the respondent State tries to defend the impugned order and submits that a complaint was received by the Headmaster, wherein it has been stated that the petitioner had tried to commit rape upon a Scheduled Caste girl of Class X.

Thereafter, an enquiry was set up by the Deputy Director, Secondary Education, Patna and the petitioner was suspended vide memo no. 694 dated 27.11.1990. A departmental proceeding was initiated. The petitioner was asked to report in the office of the District Education Officer, Ranchi, however the petitioner never reported there and he completely absconded for the entire period so much so that the departmental proceeding could not culminate into conclusion and the petitioner retired on 31.01.2009.

However, after his retirement, a fresh charge sheet was issued against this pe