Rule 43(b) of the Bihar Pension Rules, 1950, allows for the continuation of a departmental proceeding after retirement if it was initiated before retirement.

B.C.Basak, N.Pandey and G.C.Bharuka JJ.

1. In this case a short point has been referred for decision to a larger Bench by a Division Bench of this Court by its order dated 20th of August, 1991. This reference is occasioned by an earlier Division Bench decision of this Court in the case of Singheshwari Sahay V/s. The State of Bihar and others reported in 1979 B.B.C.J. 735. The previous Division Bench decided that in a case where a Departmental Proceeding was started against the petitioner when he was in service, if before such deartmental proceeding came to an end, the petitioner has superannuated, in that case without any specific order of the Government, the departmental proceeding could not be continued. It was further held by the earlier Division Bench that since in the facts of that case it has not so ordered to be continued, after the superannuation of the petitioner,- it will be deemed to have been dropped against him. The subsequent Division Bench differed from the same and referred this matter to a larger Bench. This has now come up before us on this short point alone and we are not concerned with any other point at this stage.

2. Before we deal with such contention, in our opinion, it is fit and proper that we set out hereunder Rules 43 and 139 of the Bihar Pension Rules, 1950 (hereinafter referred to as the Rules) :-

"43. (a) Future good conduct is an implied condition of every grant of a pension. The Provincial Government reserve to themselves the right of with holding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.

(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 proceedings; and

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 re-employment, shall have been instituted in accordance with subclause (ii) of clause (a); and

(c) the Bihar Public Service Commission, shall be consulted before final orders are passed.

Explanations.For the purposes of the rule (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an.earlier date, on such date; and

(b) judicial proceedings shall be deemed to have been instituted :-

(i) in the case of criminal proceedings, on "the date on which a complaint is made or a charge sheet is submitted, to a criminal court; and

(ii) in the case of civil proceedings, on the date on which a complaint is presented, or as the case may be, an application is made to a civil court."

"139. (a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been reall