ORDER M.Y. Eqbal, J. 1. In this writ application the petitioner has prayed for quashing the ex parte enquiry report dated 5.10.1999 and also the order dated 29.11.1999 as contained in Annexure 9 to the writ application whereby, on the basis of the said enquiry report, the petitioner has been directed to show cause as to why the amount allegedly defalcated be not recovered from his pension/gratuity and why the pension and gratuity be not forfeited. The petitioner by amendment petition also challenges the order/resolution dated 15.6.2000 whereby during pendency of this writ application the respondents have taken a decision to recover Rs. 1,47,88,673 from the petitioner and also to forfeit the entire pension amount. 2. The petitioner was appointed as Range Officer of Forests in 1956 and was ultimately promoted to the post of Divisional Forest Officer in 1990 and, thereafter he was superannuated in the said post on 30.11.1994. Two days after his superannuation a first information report was lodged against the petitioner on the allegation of defalcation on public money. Simultaneously a departmental proceeding was initiated and by letter dated 23.11.1996 the petitioner was directed to appear before the conducting officer- The petitioner said to have received that letter on 9.1.1997 and then moved this Court by filing CWJC No. 635/97(R). The writ application was heard and a Bench of this Court passed an order dated 6.3.1997 staying the departmental proceeding. The said writ application was finally heard and dismissed on 23.3.1998 holding that both the departmental proceeding and criminal case may proceed simultaneously. Aggrieved by the said order the petitioner filed LPA No. 207/98(R) which was finally heard and dismissed on 25.2.1999. It is contended that without asking the petitioner to participate in the departmental proceeding and without giving any opportunity of hearing the impugned show-cause notice dated 29.11.1999 was issued along with ex parte enquiry report dated 15.10.1999 directing the petitioner to show-cause why the entire retiral dues be not forfeited on the ground that he was found guilty in the enquiry report for misappropriation of Government money. 3. A counter affidavit has been filed wherein it is, inter alia, stated that by resolution dated 23.11.1996 Sri A.K. Sinha was appointed as Enquiry Officer and because of his death another Conservator of Forest, namely, Rabindra Kumar was appointed as Enquiry Officer. 3. A counter affidavit has been filed wherein it is, inter alia, stated that by resolution dated 23.11.1996 Sri A.K. Sinha was appointed as Enquiry Officer and because of his death another Conservator of Forest, namely, Rabindra Kumar was appointed as Enquiry Officer. The petitioner was asked to submit his defence before the Enquiry Officer but he did not appear before him. The Enquiry Officer again issued a letter dated 30.12.1996 asking him to appear on 10.1.1997 but he did not appear. Accordingly notice of his appearance was published in the Newspaper asking the petitioner to appear on 20.2.1997. It is further stated that after the order dated 1.12.1998 passed in LPA No. 333/98(R) directing the petitioner to appear before the Enquiry Officer within a month, when he did not appear before the Enquiry Officer, the Enquiry Officer was forced to conclude the departmental proceeding on the basis of the available records. It is further stated that a second show-cause notice was issued and the same was published in the newspaper and also pasted on the door of the premises of the petitioner. It is stated that in pursuance of the second show-cause notice the petitioner gave his reply vide letter dated 17.1.2000. The matter was thereafter examined in the department of Forest and it was found that ail the charges are proved. It was only after the approval by the Bihar Public Service Commission, final decision was taken for recovery of a sum of Rs. 1,47,80,673/-. 4. I have heard Mrs. Ritu Kumar, learned counsel appearing for the petitioner and Mr. R.K. Marathia, learned Government Pleader No. 2. 5. Before deciding the question on merits, it would be useful to refer some of the admitted facts of the case. 6. The petitioner was posted as D.F.O. Gumla on 30.11.1994. Two days after his retirement a first information was lodged alleging defalcation of Government money and a criminal case was instituted. Simultaneously, a departmental proceeding was also initiated against the petitioner and one Rabindra Kumar, Conservator of Forest, Ranchi Anchal, was appointed as Enquiry Officer. The petitioner moved this Court by filing CWJC No. 635/97(R) for quashing the notice of initiation of departmental proceeding. On 6.3.1997 interim order was passed by this Court and the departmental proceeding was stayed. Simultaneously, a departmental proceeding was also initiated against the petitioner and one Rabindra Kumar, Conservator of Forest, Ranchi Anchal, was appointed as Enquiry Officer. The petitioner moved this Court by filing CWJC No. 635/97(R) for quashing the notice of initiation of departmental proceeding. On 6.3.1997 interim order was passed by this Court and the departmental proceeding was stayed. The said CWJC No. 635/97(R) was finally heard and dismissed on 23.3.1998 holding that there is no bar for continuance of both the departmental proceeding and the criminal case simultaneously. The petitioner then filed LPA No. 207/98(R) which was dismissed on 25.2.1999. In the meantime, when the petitioner was not paid his retirement benefits, he moved this Court by filling CWJC No. 3038/97(R) and the matter ultimately came in appeal before a Davision Bench in LPA No. 333/98)(R). The said appeal was finally disposed of on 1.12.1998 with the following directions : "In view of the facts and circumstances of the case, we dispose of this appeal with the following order :-- (i) The appellant is directed to participate in the disciplinary proceedings initiated against him by the Government and in this connection, he will appear before the Enquiry Officer within a month from the date. The Enquiry Officer will thereafter proceed expeditiously and conclude the departmental proceeding in accordance with law at the earliest. (ii) The respondents shall pay to the appellant such amount of pension as may be admissible under the law to a person against whom any disciplinary or judicial proceeding has been initiated as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order. (iii) As regards payment of GPF and gratuity is concerned, it will be subject to the order of the Criminal Court, under order of which the payment of these dues has been withheld. (iv) As regards the other dues, it will be open to the appellant to make proper representation before the authority concerned. If such a representation is made the same shall be decided in accordance with law. Sd/R.A. Sharma, J. Sd/A.K. Prasad, J." 7. In pursuance of the aforesaid order passed in appeal, the petitioner filed representation before the Principal Chief Conservator of Forest requesting for compliance of the order and direction passed in appeal by this Court. 8. If such a representation is made the same shall be decided in accordance with law. Sd/R.A. Sharma, J. Sd/A.K. Prasad, J." 7. In pursuance of the aforesaid order passed in appeal, the petitioner filed representation before the Principal Chief Conservator of Forest requesting for compliance of the order and direction passed in appeal by this Court. 8. In the light of all these admitted facts, the only question which falls for consideration is as to whether the departmental proceeding was concluded without giving reasonable opportunity of hearing to the petitioner and whether the enquiry report is violative of principles of natural justice and not in conformity of the order passed by this Court. 9. A copy of the enquiry report has been annexed as Annexure 10 to the counter affidavit. It is worth to mention here that by resolution dated 12.7.1996 one Sri A.K. Sinha, Chief Conservator of Forest was appointed as Enquiry Officer. However, after his death, by another resolution dated 23.11.1996, one Sri Rabindra Kumar, Conservator of Forest, was appointed as Enquiry Officer. The departmental proceeding remained stayed by the order of this Court from 6.3.1997 to 23.3.1998. In the meantime Sri Rabindra Kumar, Enquiry Officer, was promoted from the post of Conservator of Forest and ultimately during the period he conducted departmental enquiry, he was posted as Director, Social Forestry, Bihar, Patna which is evident from the enquiry report. The relevant portion of the enquiry report may be reproduced hereinbelow for better appreciation of the case of the parties. The relevant portion of the enquiry report may be reproduced hereinbelow for better appreciation of the case of the parties. Jh ,- ds- nkl dks v/kksgLrk{kjh us vius i=ad 1110 fnukad 10-12-1996 }kjk 30-12-1996 dks tkap inkf/kdkjh ds le{k mifLFkr gksdj viuk Li"Vhdj.k izLrqr djus dks dgk A ijUrq Jh nkl fu;r frfFk dks mifLFkr ugha gq;s vkSj uk gh mUgksus dksbZ mj fn;k vuq- Jh nkl dks iqu% bl dk;kZy; ds i=kad 1140 fnukad 30-12-1996 }kjk 10-1-1997 dks tkap inkf/kdkjh ds le{k mifLFkr gksdj viuk i{k izLrqr djus gsrq Lekj fn;k x;k A Jh nkl ls bl ckj Hkh dksbZ mj izkIr ugha gqvk vkSj u gh ;s tkap inkf/kdkjh ds le{k mifLFkr gq;s A vuq- rRipkr~ lekpkj i=ksa ds ek/;e ls lwpuk izdkfkr dj Jh nkl dks 20-2-1997 dks v/kksgLrk{kjh ds le{k i{k izLrqr djus gsrq lwfpr fd;k x;k ijUrq Jh nkl u rks tkap inkf/kdkjh ds le{k mifLFkr gq;s vkSj u gh mUgksus fdlh Hkh izdkj ls bl lwpuk dk mkj v/kksgLrk{kjh dks fn;k A vuq- tkap ls lacaf/kr vfHkys[kksa dks izLrqr djus gsrq ou izeaMy ink-] xqxyk] jktdh; O;kikj izeaMy dks bl dk;kZy; ds i=kad 214 fnukad 20-2-1996 }kjk fy[kk x;k rFkk iqu% i=kad 449 fnukad 11-4-1997 }kjk fy[kk x;k rFkk fnukad 13-10-1999 dks ;s mifLFkr gksdj vuq-& 4 miyC/k lk{; izLrqr fd;s A iwjh tkap ds nkSjku Jh ,-ds- nkl] lsok fuo`r ou izeaMy inkf/kdkjh tkap inkf/kdkjh ds lkeus mifLFkr ugha gq;s vkSj u gh mUgksus fdlh Hkh :i esa viuk i{k v/kksgLrk{kjh ds le{k izLrqr fd;k A ekuuh; mPp U;k;ky;] iVuk] jkaph csap esa Jh ,- ds- nkl }kjk nk;j ,y-ih-,- ua- 333 vkWQ 1996 vkj- vftr dqekj nkl cuke jkT; ljdkj ,oa vU; esa fnukad 4-2-1996 dks ekuuh; mPp U;k;ky; us Jh nkl dks ,d ekg ds vUnj foHkkxh; tkap inkf/kdkjh ds le{k mifLFkr gksus dk funsk fn;k A ijUrq vkt rd Jh nkl dh vksj ls bl laca/k esa v/kksgLrk{kjh dks fdlh Hkh izdkj dk laokn izkIr ugha gqvk gS vuq- 10 d 10. From perusal of the enquiry report it is evident that no notice of the departmental proceeding was issued by the Enquiry Officer after 10.1.1997 or after 23.3.1998. As noticed above, the departmental proceeding was stayed by the order of this Court on 6.3.1997 and it continued, upto 23.3.1998. From perusal of the enquiry report it is evident that no notice of the departmental proceeding was issued by the Enquiry Officer after 10.1.1997 or after 23.3.1998. As noticed above, the departmental proceeding was stayed by the order of this Court on 6.3.1997 and it continued, upto 23.3.1998. It further appears from the aforementioned quoted paragraph of the enquiry report that although the departmental proceeding was stayed by this Court in terms of the order dated 6.3.1997, the Enquiry Officer, by letter No. 449 dated 11.4.1997, directed the respondents to produce the witnesses and also submit documents. 11. As noticed above, Sri Rabindra Kumar was posted as Conservator of Forest, Ranchi Anchal in 1996-97 when he was appointed as Enquiry Officer but when he proceeded with the enquiry and submitted the enquiry report, he was posted as Director, Social Forestry, Bihar, Patna. Admittedly, no notice whatsoever, was given by the Enquiry Officer or any of the respondents informing the petitioner that the Enquiry Officer has been promoted and posted as Director, Social Forestry, Bihar, Patna. It further appears that after disposal of LEA No. 333/98(R) on 1.12.1998 with certain directions for concluding the departmental proceeding at the earliest and also for payment of admissible pension to the petitioner within 3 months, the petitioner made representation to the Chief Conservator of Forest for payment of pension and other retiral dues. A copy of the said representation has been annexed as Annexure 7 to the writ application. By the said representation the petitioner also stated that he visited twice in the office of the Principal Chief Conservator of Forest to know the where about of the Enquiry Officer who has to conduct the disciplinary proceeding. Admittedly, neither the admitted pensionary amount was paid to the petitioner even after the direction of this Court in the order dated 1.12.1998 passed in LPA No. 333/98(R) nor the date and place of the enquiry was fixed or communicated to the petitioner. On the contrary, when the petitioner filed a contempt petition being MJC No. 440/99(R) for the alleged violation of the direction for payment of admitted pensionary benefits during the pendency of the departmental proceeding, the respondents have come with a show-cause stating that the Enquiry Officer submitted his report finding the petitioner guilty of the charges and on that basis second show-cause notice dated 29.11.1999 was issued. The petitioner then immediately filed a detailed show-cause/explanation against the second show-cause notice and also filed the instant writ application challenging the ex parte enquiry report and the second show-cause notice. Surprisingly when the validity of the enquiry report and the second show-cause notice was subjudice in the instant writ application, the respondents have passed final order imposing punishment by way of forfeiture of the entire retiral dues including provident fund and gratuity and for recovery of Rs. 1,47,80,673.05 paise. 12. Admittedly, the petitioner superannuated from service on 30.11.1994 and the State Government, vide resolution dated 23.11.1996, decided to continue the departmental proceeding against the petitioner under Section 43(b) of the Bihar Pension Rules. This fact has been admitted in para 9 of the counter affidavit. It is also the admitted fact that two years after the superannuation charge memo was served on the petitioner vide memo dated 12.7.1996. In the meantime, after superannuation the petitioner made several representations for payment of retiral dues and then filed a writ petition being CWJC No. 3038/97(R) which was disposed of with a direction for payment of retirement benefits. It is well- settled that even if the departmental proceeding continued after superannuation of a Government Servant, he is entitled to get certain amount of provisional pension so long as the departmental proceeding is not concluded. In this respect it is worth to mention here the Finance Departments letter No. EC-11-40-28/74-9144-F dated 22.8.1974 which provides that a Government Servant who has retired and against whom any departmental or judicial proceedings are instituted or are continued, shall be paid provisional pension to the extent of 75% of the admissible pension. In the said departmental letter stress has been given that payment of provisional pension under the said order, is mandatory. All heads of the departments were, therefore, requested to bring to the notice of pension sanctioning authorities so that payment of 75% provisional pension is not denied to the retired Government Servant. 13. In the said departmental letter stress has been given that payment of provisional pension under the said order, is mandatory. All heads of the departments were, therefore, requested to bring to the notice of pension sanctioning authorities so that payment of 75% provisional pension is not denied to the retired Government Servant. 13. It is, therefore, clear that despite mandatory provisions under the Bihar Pension Rules and the Finance Departments letter, referred to hereinabove, and also inspite of the direction of this Court in the writ petition and also in the letters patent appeal, not a single penny towards pensionary benefits, was paid to the petitioner and on the other hand, the departmental proceeding was concluded by the Enquiry Officer while he was posted as Director, Social Forestry, Bihar, Patna although when he was appointed as Enquiry Officer, he was holding the post of Conservator of Forest at Ranchi and that too without giving any intimation to the petitioner about the time and place of the enquiry and the date, when the evidence adduced by the department, was admitted into evidence. In my opinion, in these circumstance, the ex parte enquiry is vitiated in law. If a departmental proceeding is continued against a retired Government Servant, he is not supposed to participate in the departmental proceeding at a different place unless the Government pays him the provisional pension as permissible under the mandatory provisions of the Bihar Pension Rules and under the special instruction by the Finance Department. 14. In the case of Ghanshyam Das Srivastava v. State of Madhya Pradesh, 1971 (3) SCC 802 , the Apex Court, while considering the validity of the ex parte enquiry against a suspended employee who was not paid his subsistence allowance, has held that if the employee was not paid subsistence allowance and on that account he was unable to make himself present before the Enquiry Officer, the proceeding before the Enquiry Officer shall be vitiated and the final order of the appointing authority cannot be sustained. 15. Recently in the case of Jagdamba Prasad Shukla v. State of U.P. and Ors., (2000) 7 SCC 90 the Apex Court held :-- "The payment of subsistence allowance, in accordance with the rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. 15. Recently in the case of Jagdamba Prasad Shukla v. State of U.P. and Ors., (2000) 7 SCC 90 the Apex Court held :-- "The payment of subsistence allowance, in accordance with the rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for nonpayment of the subsistence allowance all though the period of suspension i.e. from suspension till removal. One of the reasons for not appearing in enquiry as intimated to the authorities was the financial crunch on account of non-payment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to the show-cause notice stated that even if he was to appear in enquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus the departmental enquiry and the consequent order of removal from service are quashed." 16. In the case of Kumaon Mandal Vikas Nigam v. Girja Shanker Pant and Ors., 2001 (1) Jharkhand Civil Reports 88 (SC) : 2001 (1) Jharkhand Cases Reporter 88 (SC), the Apex Court held : "The factual score depicts that the Inquiry Officer, however, on supposed ex- animation of the records and admittedly, without giving any notice and without fixation of any date or time or any venue for the inquiry or for examination or cross- examination of the witnesses and upon purported consideration of the so called reply of the respondent herein as noticed above, proceeded to complete the inquiry. Even no presenting officer was appointed and, as a matter of fact, the report itself says that the Inquiry Officer dealt with the matter himself without any assistance whatsoever." Their Lordships further observed :-- "It is on this factual backdrop that the matter was taken before the High Court under Article 226 of the Constitution wherein upon due consideration of the factual matrix, the order of dismissal was set aside on the ground of being prejudicial thus resulting in total miscarriage of justice and hence the appeal before the Court by the grant of special leave." 17. In the representation filed by the petitioner to the Principal Chief Conservator of Forest it was repeatedly requested that he is atleast entitled to get 75% of the admissible pension during the pendency of the departmental proceeding and because of non-payment of pension amount and unawareness about the time and place of the enquiry, he is unable to participate in the departmental proceeding. Inspite of that the respondents neither paid the pensionary benefits admissible under the Pension Rules and as per instruction of the Government nor was the petitioner informed about the date, time and place fixed for inquiry. Taking all these facts and the law discussed hereinabove into consideration I am of the definite view that the ex parte inquiry report and the final order passed on the basis thereof cannot be sustained in law. 18. This writ application is, therefore, allowed and the ex parte inquiry report and the impugned order dated 15.6.2000 as contained in Annexures 10 and 12 are hereby quashed. The matter is remitted back to the Enquiry Officer to proceed with the enquiry afresh after giving notice and opportunity of hearing to the petitioner. The Enquiry Officer shall in- form the petitioner the date and place of the inquiry which shall be fixed within 30 days from today and the petitioner shall appear before the Enquiry Officer on the date fixed. In the meantime, the respondents shall release 75% of the pension admissible under the rules within 30 days from today and shall go on paying the same till final order is passed in the departmental proceeding. 19. Appeal allowed.