A.K. Tripathi, J.

Petitioner retired as Assistant Electrical Engineer on 31.1.2000 from Electric Supply Sub-Division, Domchanch, Koderma. For certain omission and commission alleged to have been committed by him while he was posted at Barh, explanation was called for as would be evident from annexure-3 dated 29.9.1995. Reply to the explanation was filed by the petitioner but that did not satisfy the authority and the Bihar State Electricity Board proposed to impose punishment of withholding pension to the tune of 4% vide annexure-8. A show cause as to why the punishment be not imposed was issued. Petitioner replied to the -2- show cause vide annexure-9. But the show cause did not deter the respondents from passing the final order dated 28.3.2003 contained in annexure-10 by imposing the punishment of withholding of 4% of the pension. Aggrieved by the said order this writ application has been filed.

First contention of learned counsel for the petitioner is that a strange kind of procedure has been adopted by the respondents, Bihar State Electricity Board in imposing the punishment in question. From the various correspondences and annexures it is not even clear as to under what authority of law they have exercised the power of deducting pension to the extent of 4% permanently. Whether it was a proceeding under Rules 43(B) or 139 of the Bihar Pension Rules is not clear from the explanation sought or the second show cause issued to the petitioner. Still without any finding of guilt having ever been recorded against the petitioner during the course of service, an arbitrary decision contained in annexure-10 has come to be issued after the retirement of the petitioner.

In the counter affidavit the stand of the respondents is crystallized in paragraph 13. Where an averment has been made that the explanation was in terms of Rule 55 A of the Civil Services (Classification Control & Appeal) Rules 1930 and the proceeding automatically converted under Rule 43 of the Bihar Pension Rules after superannuation of the petitioner and the punishment order came to be passed.

This Court has serious difficulty in accepting the proposition urged by learned counsel for the respondents. The Court can only observe that many a decisions rendered by the Patna High Court has settled the issue with regard to exercise of power under Rule 43(B) of the Bihar Pension Rules. Withholding of pension partially or fully as a measure of punishment has to be for a proven misconduct during the period of service of an employee and for that there has to be a departmental enquiry, a finding of guilt and punishment before the petitioner superannuates, to enable the authority to exercise this power. In certain cases no doubt, such proceeding can continue even after retirement, but asking for explanation and rejecting the explanation may not be sufficient material to reach a conclusion that the petitioner has been found guilty of such behaviour which is serious misconduct to disentitle him from the benefit of pension which had accrued to him after his retirement.

It is apparent that the only material and the background based on which annexure-10 has come to be issued is the explanation asked for from the petitioner in the year, 1995 and the rejection of the explanation by the very authority. This in the opinion of the Court does not give sufficient strength to the respondents to exercise power under Rule 43(B) of the Bihar Pension Rules. Since the order is not in consonance with the rule or law, therefore the order dated 28.3.2003 contained in annexure- 10 is hereby quashed. Let the concerned Electricity Board -4- sanction full pension to the petitioner as if the order of punishment of deduction of 4% pension did not exist against him.

This writ application is allowed.

Patna High Court, Patna, (Ajay Kumar Tripathi,J.) Dated the 19th November, 2008 NAFR/RPS/Sr. Secy.