JUDGMENT S.J. Mukhopadhaya, A.C.J. 1. As both the writ petitions have been preferred by common petitioner; one for payment of salary as also other dues and the other against an order of recovery; they have been heard together and are being disposed of by this common judgment. 2. WP (S) No. 2658 of 2001 has been preferred by the petitioner for a direction on the respondents to fix his salary in the then pay scale of Rs. 2200-4000/- with effect from 17th May, 1989 i.e., the date on which he was promoted to the post of Assistant Conservator of Forests, and to pay him the difference of salary till 31st July, 1994 i.e., the date on which he superannuated from the services of the State. Further prayer has been made to pay him the arrears of salary against the post of Range Officer of Forests with effect from 1st January, 1996 up to 17th May, 1989, after proper fixation in the pay scale of Range Officer of Forests. 3. During pendency of the writ petition, the respondent-State of Bihar issued Resolution No. 2946, dated 7th December, 2002 and ordered to recover a sum of Rs. 1,34,139.90 paise from the retiral benefits of the petitioner, such as, gratuity and leave encashment. It has also been ordered to deduct 10% of pension permanently. The said resolution No. 2946, dated 7th December, 2002 has been challenged in WP (S) No. 5382 of 2004. 4. Relevant facts for determination of both the cases are as follows : The petitioner was initially appointed as Forest Guard in the Forest Department of the then Government of Bihar. He was promoted to the post of Range Officer of Forests and then to the next higher post of Assistant Conservator of Forests vide Notification No. 65/87-4465, dated 6th October, 1987 in the then pay scale of Rs. 1000-1820/- as revised to Rs. 2200-4000/-with effect from 1st January, 1986 vide Resolution No. 6021, dated 18th February, 1989. Subsequently, while posted as Assistant Divisional Manager in Minor Forest Product Project Division, Daltonganj, the Division Manager of the said Project issued a show cause notice to the petitioner to explain as to why a sum of Rs. 1000-1820/- as revised to Rs. 2200-4000/-with effect from 1st January, 1986 vide Resolution No. 6021, dated 18th February, 1989. Subsequently, while posted as Assistant Divisional Manager in Minor Forest Product Project Division, Daltonganj, the Division Manager of the said Project issued a show cause notice to the petitioner to explain as to why a sum of Rs. 1,51,517.73 paise be not recovered from him, he having not adjusted the advance amount, as given to him from time to time or the advance, given by him to others from time to time, but not recovered, as detailed in the show cause notice itself. His reply to the said show cause notice not being satisfactory, a departmental proceeding was initiated against him vide Order No. Kendu-27/92, Memo No. 4213, dated 24th August, 1992, issued by the Secretary, Forest & Environment Department, Govt. of Bihar. It was shown that the petitioner had taken advance or had given advance, which has either not been returned or has not been recovered, due to which the State had incurred loss to the tune of Rs. 1,33,879.33 paise + Rs. 29,094.40 paise. The petitioner filed his show cause reply on 31st March, 1992. The State of Bihar not being satisfied with the same, put him under suspension with effect from 7th July, 1992 and appointed one Mr. N.P. Singh as Enquiry Officer. The petitioner was asked to appear in day-to-day enquiry. However, the petitioner appeared on certain dates only. Another show cause notice was issued on him on 16th April, 1993, alleging certain irregularities in the account of September, 1991, to which the petitioner replied. Not being satisfied with the reply, the State of Bihar initiated another departmental proceeding vide Memo No. 17 of 1993, dated 1st June, 1993, issued under the signature of Secretary, Forest & Environment Department, Govt. of Bihar. The petitioner was asked to show cause as to why a sum of 1,02,864.85 paise be not recovered for the alleged irregularity, committed by him, details of which was shown in the charge-sheet, including the loss incurred by the State. On Mr. N.K.N. Singh was appointed as Enquiry Officer in respect to the second proceeding. The petitioner participated in the enquiry, held on 5th April, 1994, 15th July, 1994 and so on. However, the petitioner retired on 31st July, 1994. On Mr. N.K.N. Singh was appointed as Enquiry Officer in respect to the second proceeding. The petitioner participated in the enquiry, held on 5th April, 1994, 15th July, 1994 and so on. However, the petitioner retired on 31st July, 1994. After retirement, the retiral benefits not having been paid, the petitioner preferred a writ petition being CWC No. 3421 of 1998 (R). The said writ petition was disposed of on 17th August, 1999, directing the respondents to decide the claim and to pay him the admitted retiral benefits. It was, however, observed that if the respondents dispute any claim and/or part thereof and/ or withhold any amount from pension/ gratuity, they will give reason and communicate the decision to the petitioner. In pursuance of the first proceeding, the respondent State of Bihar issued Resolution dated 25th April, 2001 and ordered to recover a sum of Rs. 1,34,139.90 paise from the pension/gratuity of the petitioner and also ordered to deduct 10% pension permanently. The petitioner challenged the said order before this Court in WP (S) No. 2741 of 2001. A Bench of this Court vide order dated 4th December, 2001 having noticed that the order purported to have been passed under Rule 43(b) of the Bihar Pension Rules, 1950 and the fact that no ground was shown as to whether the enquiry officer has held the petitioner guilty for the charges, held the Resolution dated 25th April, 2001 illegal and thereby set aside the said resolution. The respondents, however, were given liberty to pass appropriate order after serving a copy of the enquiry report on the petitioner within four- months and on failure it was ordered that they will pay the retiral benefits as per law. In the 2nd enquiry the petitioner participated even on 3rd July, 1996, 6th August, 1996 and 16th August, 1996. He submitted that the T.A. Bills on 24th October, 1997. The respondents, thereafter, served on the petitioner a copy of the show cause notice along with the enquiry report and on receipt of reply, issued the impugned resolution dated 7th September, 2002 and ordered for recovery from the retiral benefits, such as, gratuity and leave encashment, and 10% of pension was withheld permanently. 5. The respondents, thereafter, served on the petitioner a copy of the show cause notice along with the enquiry report and on receipt of reply, issued the impugned resolution dated 7th September, 2002 and ordered for recovery from the retiral benefits, such as, gratuity and leave encashment, and 10% of pension was withheld permanently. 5. In WP (S) No. 2658 of 2001 stand taken by the State is that on the basis of pay slip, produced by the petitioner, salary was fixed in the pay scale of Rs. 2200-4000/- with effect from 17th May, 1989, the date on which the petitioner was promoted to the post of Assistant Conservator of Forests. The difference mean amount payable was Rs. 4335.50 paise. But there being excess amount, paid to him towards salary, amounting to Rs. 9964.86 paise during the period from 7th August, 1992 to July, 1994, it was adjusted with the arrears. Further amount of Rs. 33,387.70 paise has been adjusted towards the financial loss, estimated to be Rs. 1,34,139.90 paise, which is to be recovered as per the Govt. of Dinars Memo No. 1157, dated 25th April, 2001. 6. So far as WP (S) No. 5382 of 2004 is concerned, the grievance of the petitioner is that the penal order of recovery from retiral benefits have been made in violation of the rules of natural justice. The enquiry report was submitted by the Enquiry Officer without examining any evidence and without taking into account any document. Thus, no opportunity was given to the petitioner to cross-examine the witnesses. It is alleged that the copy of the enquiry report was not served on the petitioner. Though such allegation has been made, this Court is not inclined to accept any of such pleas, in view of the pleadings, made by the petitioner, and the enclosures, attached thereto. In the charge-sheet No. 27/92, dated 24th August, 1992, the respondents have given the details of dates, on which advances were given by the petitioner to one or other person, showing exact amount of advance. It has been alleged that such advances were neither adjusted nor any step was taken by the petitioner to recover such amount. The petitioner has given advances to a number of persons on different dates but has neither given any account of adjusting the amount nor had taken any step to recover the same. It has been alleged that such advances were neither adjusted nor any step was taken by the petitioner to recover such amount. The petitioner has given advances to a number of persons on different dates but has neither given any account of adjusting the amount nor had taken any step to recover the same. In the show cause reply, he has accepted that a number of Munshis were appointed and advances were given. In respect to some of the advances, while he pleaded that they were made by the predecessor, it has not been denied by the petitioner that he having been posted subsequently, had also not taken any step to recover the amount. It has only been alleged that another person, having been posted, it became difficult to recover the advance amount. The petitioner has neither requested any authority to allow him to verify any record nor any such request was made by him to the Enquiry Officer. On the other hand, from the reply, as contained in Annexure 5/1, it appears that the petitioner after going through the records, submitted reply. From page 73 of the writ petition, it appears that the petitioner has given the details of amount, pending with the Munshis and has stated that after verification, he found the amount not adjusted. Therefore, it can not be alleged that the petitioner was not given any opportunity or his right was violated in absence of examination of any witness. Admittedly, the respondents have not cited the name of any witness nor the petitioner has given any list of witnesses. Therefore, the question of examining the witnesses does not arise. 7. The only question arises as to whether the petitioner can be blamed and any amount can be recovered from his pension and gratuity for his failure to recover the advance money from the Munshis ? One can get the reply from Rule 43(B) of the Bihar Pension Rules, 1950, which empowers the State Government to withhold or withdraw a pension or any part of it, permanently or for specified period, and can order the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if the pensioner is found in departmental or judicial proceeding to have guilty of grave misconduct; or to have caused pecuniary loss to the Government by misconduct or negligence, during his service. (Emphasis given by Court). 8. In the present case, the allegation has been made by the State that because of negligence on the part of the petitioner pensioner, pecuniary loss was caused to the State Government. This was found proved in the departmental proceeding. In such a situation, even if it is presumed that the petitioner had not defalcated any amount, it is open to the State to order for recovery from the pension, the pecuniary loss having caused to the State Government because of the negligence on the part of the petitioner. 9. The allegation of the petitioner that the copy of the enquiry report was not served on him can not be accepted, the petitioner having been served with a copy of the show cause vide Memo No. 712, dated 26th February, 2002 [Annexure 11 to WP (S) No. 5382 of 2004]. At page 3 of the said show cause notice, it has been mentioned that a copy of the enquiry report was enclosed therewith and the petitioner was asked to submit show cause reply within fifteen days as to why a sum of Rs. 1,34,139.90 paise be not recovered from his pension/gratuity. The copy of the enquiry report dated 26th October, 1994 has also been enclosed by the petitioner as Annexure 11/1 to WP (S) No, 5382 of 2004, which was supplied to him along with the show cause notice. The petitioner submitted his show cause reply, as contained in Annexure 11/2, wherein, he has accepted that the copy of the enquiry report has been forwarded to him. 10. In the circumstances, the resolution dated 7th September, 2002, whereby, the respondents have decided to recovery a sum of Rs. 1,34,139.90 paise from the pension/gratuity of the petitioner can not be held to be illegal. Further the State Government having right to curtail 10% of pension permanently under Rule 43(b) of the Bihar Pension Rules, 1950, Resolution No. 2946, dated 7th September, 2002 to that extent can not be held to be illegal. 11. However, from the impugned resolution dated 7th September, 2002 it appears that recover has been ordered to be made from the retiral benefits, such as, gratuity and leave encashment. 11. However, from the impugned resolution dated 7th September, 2002 it appears that recover has been ordered to be made from the retiral benefits, such as, gratuity and leave encashment. In this connection, it is made clear that under Rule 43(b) of the Bihar Pension Rules, though it is open to the respondent-State to recover any amount from pension, including gratuity, of a pensioner, the aforesaid Rules does not provide recovery of any amount from the leave encashment of a pensioner. There being no such rule to recover any amount from the leave encashment of a pensioner, except by a certificate proceeding, it was not open to the respondents to order such recovery from the leave encashment of the petitioner. Resolution No. 2946, dated 7th September, 2002 to the extent it relates to recovery from leave encashment of the petitioner, is declared illegal and such part of the order is set aside. The respondents are directed to pay back the petitioner the admitted leave encashment amount within three months from the date of receipt/production of a copy of this order, if no certificate proceeding for such recovery has been initiated. 12. So far as payment of any other amount or fixation of pay is concerned, the petitioner may bring it to the notice of the competent authority, who will decide the same. Both the writ petitions stand disposed of with the aforesaid observations and directions.