The Court held that the proceeding was time-barred because the alleged misconduct was from 2003, far beyond the four‑year limit.
The memo initiating the Rule 43(b) proceeding was quashed.
The writ petition was allowed, stopping further action on that memo.
Case Background
The petitioner was appointed in the Agriculture Department, Government of Bihar, on 28.01.1988. Later, on 29.06.2002, he was transferred as District Agriculture Officer, Saran at Chapra.
According to the petitioner, two subordinate officers in his office were harassing him and not cooperating in official work. He claims that he informed the police about their alleged misdeeds. However, instead of action against them, a trap case was allegedly set up, and he was made an accused in Vigilance P.S. Case No. 18 of 2003.
The petitioner was taken into custody in that vigilance case and was released on bail on 08.01.2004. Following this, he was placed under suspension by order dated 21.02.2004. The suspension did not last long and was revoked by order dated 04.03.2004.
On 22.03.2005, an inquiry was instituted against the two subordinate officers mentioned by the petitioner. Meanwhile, a charge-sheet was filed in Vigilance P.S. Case No. 18 of 2003, but the criminal case is still pending before the Trial Court.
As far as the petitioner is concerned, he continued in service until his superannuation on 31.12.2019. Before he retired, a show-cause notice dated 08.01.2019 was issued to him, along with charges framed in “Prapatra (Ka)”. He was called upon to submit his written defence.
However, no final departmental order was passed before his retirement. Almost two years after his retirement, vide Memo No. 359 dated 22.10.2021, the Disciplinary Authority initiated a departmental proceeding under Rule 43(b) of the Bihar Pension Rules, 1950, in relation to alleged misconduct of 2003. This memo became the focus of the writ petition filed before the Patna High Court.
What the Court Examined and Decided
The writ petition was filed to challenge Memo No. 359 dated 22.10.2021, by which a departmental proceeding under Rule 43(b) was initiated against the petitioner after his retirement. The alleged misconduct related to events of the year 2003.
The petitioner’s main argument was based on the proviso to Rule 43(b) of the Bihar Pension Rules, 1950. He contended that Rule 43(b) allows the State to withhold or withdraw pension or recover loss from pension if a retired employee is found guilty of grave misconduct in departmental or judicial proceedings, but with strict conditions.
Specifically, the proviso to Rule 43(b) states that if departmental proceedings are not instituted while the government servant is on duty, either before retirement or during re-employment, they may be instituted after retirement only if:
(i) they are sanctioned by the State Government, and
(ii) they are in respect of an event that took place not more than four years before the institution of such proceedings.
The petitioner argued that the departmental proceeding under Rule 43(b) was initiated on 22.10.2021, whereas the alleged misconduct was of 2003. The gap was far more than four years, so the proceeding was clearly hit by the limitation built into Rule 43(b).
The petitioner also relied on the Supreme Court’s decision in State of Bihar and Others v. Mohd. Idris Ansari, 1995 Supp (3) SCC 56. In that judgment, the Supreme Court had interpreted Rule 43(b) and held that departmental proceedings under that rule, initiated after retirement, could only relate to misconduct committed within four years preceding the initiation of such proceedings.
On the other side, the State of Bihar argued that a departmental proceeding had in fact been initiated before the petitioner’s retirement by issuing the show-cause notice dated 08.01.2019 relating to Vigilance P.S. Case No. 18 of 2003. According to the State, the memo dated 22.10.2021 under Rule 43(b) was only a continuation of this earlier proceeding. Therefore, the State contended, the bar of four years under the proviso to Rule 43(b) would not apply.
The Court, presided over by Hon’ble Mr. Justice Mohit Kumar Shah, heard both sides and examined the materials on record. It noted that the misconduct referred to in the Rule 43(b) proceeding was from 2003. Yet, the memo initiating proceedings under Rule 43(b) was issued on 22.10.2021, after the petitioner’s superannuation on 31.12.2019, and clearly in relation to an event more than four years old.
The Court reproduced the text of Rule 43(b), including its proviso, to underline the legal requirements. The rule reserves to the State Government the right to withhold or withdraw pension or recover loss from pension if grave misconduct or pecuniary loss is proved, but it also imposes specific conditions for starting departmental proceedings after retirement.
The Court then turned to the Supreme Court’s judgment in Mohd. Idris Ansari. In paragraph 10 of that decision, the Supreme Court clarified that while a retired government servant can be proceeded against in departmental proceedings even after retirement, such proceedings must comply with Rule 43(b). Crucially, they can be initiated “only in connection with such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings.”
Applying this principle, the Supreme Court in that case had held that since the alleged misconduct was older than four years from the date of initiation, the proceedings were incompetent and the show-cause notice was “stillborn and ineffective from its inception.”
The Patna High Court held that the present case was squarely covered by the law laid down in Mohd. Idris Ansari. Like in that Supreme Court case, the misconduct here was much older than four years before the initiation of Rule 43(b) proceedings.
As to the State’s contention that the show-cause notice dated 08.01.2019 amounted to initiation of departmental proceedings before retirement, the Court rejected this argument. It held that the memo dated 08.01.2019 could not, “by any stretch of imagination,” be treated as initiation of a valid and legal departmental proceeding under Rule 43(b) against the petitioner.
The Court also observed that the State had not produced any order to show that an earlier departmental proceeding initiated before retirement had been converted into a proceeding under Rule 43(b) after the petitioner’s superannuation. In other words, there was no material to prove that the pre-retirement action had legally transformed into a post-retirement Rule 43(b) proceeding.
Given these facts, the Court treated Memo No. 359 dated 22.10.2021 as the first initiation of a departmental proceeding under Rule 43(b) against the petitioner, and this was done after his retirement.
Since the misconduct was from 2003 and the Rule 43(b) memo was issued in 2021, the Court held that the proceeding was barred by limitation under Rule 43(b). Therefore, the respondents had no authority to start such a departmental proceeding under Rule 43(b) after the petitioner’s retirement in relation to an event which had taken place beyond four years of the initiation of the proceeding.
On this reasoning, the Court concluded that the impugned memo dated 22.10.2021 was contrary to law and liable to be set aside. It accordingly quashed Memo No. 22.10.2021, issued by the Deputy Secretary to the Government, Agriculture Department, Government of Bihar, Patna, and allowed the writ petition.
Why This Judgment Matters
This judgment is significant for retired and soon-to-retire government employees in Bihar, particularly those facing or fearing departmental proceedings linked to old allegations.
The Patna High Court has reaffirmed that Rule 43(b) of the Bihar Pension Rules, 1950, places a strict time limit on departmental proceedings that are started after retirement. If the alleged misconduct is more than four years old at the time of starting the proceeding, such action cannot be used to affect a retiree’s pension.
For employees, this ruling offers clarity: after retirement, the government cannot indefinitely hold the threat of new departmental cases over their pension for very old incidents. For departments, it serves as a reminder to act promptly and lawfully if they intend to rely on Rule 43(b).
The judgment also clarifies that simply issuing a show-cause notice before retirement does not automatically amount to a valid Rule 43(b) proceeding, especially if there is no clear legal order converting any pre-retirement process into a post-retirement proceeding under this rule.
Legal Issues and Answers
- Issue: Can the State initiate a departmental proceeding under Rule 43(b) of the Bihar Pension Rules, 1950, in 2021 against a retired employee for alleged misconduct committed in 2003?
Answer: No. The Patna High Court held that such a proceeding is barred by the proviso to Rule 43(b) because the alleged misconduct took place more than four years before the initiation of the proceeding. - Issue: Does issuance of a show-cause notice and memo of charge before retirement automatically amount to valid initiation of a departmental proceeding that can later continue under Rule 43(b)?
Answer: No. The Court held that the memo dated 08.01.2019 could not be treated as initiation of a valid and legal departmental proceeding under Rule 43(b), particularly in the absence of any order showing that such proceeding was converted into one under Rule 43(b) after retirement.
Cases Cited by the Court
- State of Bihar and Others v. Mohd. Idris Ansari, 1995 Supp (3) SCC 56.
Case Details
Case Number: Civil Writ Jurisdiction Case No. 21071 of 2021
Case Title: Shailendra Kumar Ojha v. The State of Bihar & Ors.
Coram: Hon’ble Mr. Justice Mohit Kumar Shah
Citation: 2024(4) PLJR 894
Date of Judgment: 19.04.2024
Advocates:
For the petitioner: Mr. Ravi Kumar, Advocate
For the respondents: Mr. Raghwanand, GA-11; Mr. Sanjay Kr. Tiwari, AC to GA-11
Nature of the Case: Writ petition challenging initiation of departmental proceeding under Rule 43(b) of the Bihar Pension Rules, 1950, after retirement.
Link to Judgment: Patna High Court Judgment – CWJC No. 21071 of 2021
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