ORDER M.Y. Eqbal, J. 1. This appeal under Clause 10 of the Letters patent is directed against the judgment and order dated 4 th August, 2005 passed in W.P. (S) No. 4826 of 2004 whereby the learned single Judge allowed the writ petition and set aside the final order of punishment passed against the petitioner in a departmental proceeding. 2. The facts of the case lie in a narrow compass: The writ petitioner (hereinafter referred to as the respondent) was working on the post of Accountant at Giridih Treasury. In 1999, F.I.R. was lodged against him under Sections 409, 419, 420, 467, 468, 471, 472 and 120b IPC being Giridih PS Case No. 192 of 1999 and accordingly he was taken in custody. Pursuant to that, by order dated 5.9.1999, the respondent was put under suspension and a departmental proceeding was contemplated. The allegation, inter alia, against the respondent was that Rs. 33.37 lacs was fraudulently withdrawn and paid to companies from Giridih treasury. It appears that charge sheet was served upon the respondent on 30.5.2001 and the Enquiry officer, so appointed, submitted his report on 23.10.2002 holding that the charges have not been proved. The Deputy Commissioner, who is the Disciplinary Authority, differed with the report and issued show cause notice dated 03.2.2004. After considering the reply filed by the respondent, the Deputy Commissioner again issued second show cause notice on 6.6.2003. The respondent challenged the said notices by filing a writ petition being W.P.(S) No. 3059 of 2003. A Single Bench of this Court allowed the Writ Petition in terms of order dated 11.11.2003 and set aside the second show cause notice giving liberty to the Disciplinary Authority to proceed from the stage of second show cause notice. Thereafter, the Disciplinary Authority issued second show cause notice on 11.2.2004 and simultaneously appointed the Treasury Officer, Giridih as Enquiry Officer. The Enquiry Officer, so appointed by the Disciplinary Authority, submitted his inquiry report on 12.10.2004 and on the basis of the inquiry report, the Disciplinary Authority issued second show cause notice on 17.11.2004 and finally passed the order of punishment on 17.4.2005. Considering all these admitted facts, the learned Single Judge held that after issuance of second show cause notice, there is no law for appointing Enquiry Officer for a fresh inquiry. Considering all these admitted facts, the learned Single Judge held that after issuance of second show cause notice, there is no law for appointing Enquiry Officer for a fresh inquiry. The learned Single Judge further held that the respondent has already superannuated from service on 31 stJanuary, 2002 and after his superannuation, no order of punishment can be passed. It would be useful to quote paragraphs 5 to 9 of the impugned judgment passed by the learned Single Judge: 4. As the case can be disposed of on a short point, it is not necessary to discuss all the facts, except the relevant one. While in service, the petitioner was suspended by an order issued vide memo No. 173 dated 5 th September 1999. A departmental proceeding was initiated and charge sheet was communicated, vide memo No. 110 dated 30 th May, 2001. Altogether, 8(eight) charges were levelled against the petitioner and one Enquiry Officer was appointed. The Enquiry Officer vide his report dated 23rd October, 2002 held all the eight charges not Proved. In spite of the same, the Deputy Commissioner who is the disciplinary authority without differing with the findings of the Enquiry Officer, forwarded a copy of the enquiry report to the petitioner, vide Memo No. 253 dated 3rd February, 2004 and asked him to file show cause reply. It was not made clear therein as to why a show cause reply was asked for when the petitioner was exonerated of all the charges by the Enquiry Officer. Later on, after receipt of the reply, the Deputy Commissioner, vide memo No. 1590 dated 6 th June, 2003 differed with the finding and issued a second show cause notice and also ordered for fresh enquiry. This was challenged by the petitioner before this Court in W.P. (S) No. 3059 of 2003. A bench of this Court vide order dated 11 th November, 2003, having noticed the decisions of the Supreme Court in the case of K.R. Deb v. the Collector of Central Excise, Shillong and the case of Bhupinder Pal Singh v. Director General of Civil Aviation reported in 2003(2) Supreme Today, 493, held the notice illegal and set aside the notice. However, liberty was given to the disciplinary authority to proceed from the stage of second show cause notice and to conclude the departmental proceeding in accordance with law. However, liberty was given to the disciplinary authority to proceed from the stage of second show cause notice and to conclude the departmental proceeding in accordance with law. Thereafter, while the Deputy Commissioner issued a second show cause notice, vide Memo No. 349 dated 11 th February, 2004 simultaneously appointed Treasury Officer, Giridih as the Enquiry Officer to conduct fresh enquiry. 5. Admittedly, there is no law laid down by the State to appoint any Enquiry Officer at the time of issuance of a second show cause notice. That is also not permissible under the law. Though it is always open for the disciplinary authority to order for further enquiry if one or other evidence has not been taken into consideration by the enquiry Officer or fresh material comes to his notice, the authority cannot order for fresh enquiry. 6. The procedure for conclusion of a departmental enquiry having not been followed and at the time of second show cause notice another Enquiry Officer having appointed lo hold fresh enquiry, the petitioner has raised the question of legality and propriety of notice, as contained in Memo No. 349 dated 11 th February, 2004. 7. Learned Counsel for the petitioner has rightly pointed out that the Deputy Commissioner, Giridih had no jurisdiction to engage/appoint another inquiry Officer at the time of second show cause notice nor such enquiry Officer had any jurisdiction to make afresh enquiry and to submit any fresh report as submitted on 12 th October, 2004. Such (second) enquiry report dated 12 th October, 2004 being without jurisdiction, it was not open to the Deputy Commissioner, Giridih to pass penal order on the basis of such report. The total proceeding as has been followed being illegal, this Court has no option, but to set aside all the subsequent order passed by the Deputy Commissioner, Giridh, including the order contained in Memo No. 349 dated 11 th February, 2004; enquiry report dated 12 th October, 2004; subsequent second show cause notice; and the impugned order contained in Memo No. 450 dated 17 th February, 2005. They are, accordingly, set aside. The Respondents are directed to pay the petitioner, the retirement benefits in accordance with law. 8. They are, accordingly, set aside. The Respondents are directed to pay the petitioner, the retirement benefits in accordance with law. 8. Further, this Court having noticed the petitioner has already superannuated from service on 31 stJanuary, 2002 and after his superannuation, no order of punishment can be passed and any order under Rule 43(b) the Pension rules can be passed only by the State and in spite of giving opportunity to the Deputy Commissioner, Giridih, he failed to avail such opportunity and the enquiry officer held the petitioner not guilty of all the charges, this time no liberty is given to the Respondents for making further enquiry. 9. This writ petition is allowed with the aforesaid observations and directions. However, in the facts and circumstances of the case, there shall be no order as to costs. 3. In the writ application respondent No. 3, Deputy Commissioner, Giridih filed counter affidavit wherein it is stated that petitioner is one of the accused in Giridih P.S. Case No. 192/99 for defalcation and causing illegal withdrawal of about Rs. 31,00,000/- and is facing trial in the court of law. A departmental proceeding was initiated against the respondent by the then Deputy Commissioner, Giridih and the Executive Magistrate, Giridih was appointed as Inquiry Officer who submitted his report exonerating the respondent from the charges. The then Deputy Commissioner while disagreeing with the report of the Inquiry Officer issued letter dated 6.6.2003 for fresh inquiry. The said order has been quashed by this Court in terms of order dated 11.11.2003 passed in WPS No. 3059 of 2003 with option given to the Disciplinary Authority to proceed with the proceeding from the stage of issuing second show cause notice. Thereafter, the then Deputy Commissioner, Giridih issued a notice dated 22.1.2004 assigning reason for differing with the report of the Inquiry Officer and called the respondent to show cause as to why the report of the Inquiry Officer should not be disapproved and to continue departmental proceeding. The then Deputy Commissioner on receipt of show cause from the respondent appointed Mr. Anjani Kumar Mishra, Executive Magistrate as an Inquiry Officer to enquire into the matter and to submit his report. However, the then Magistrate was transferred to Bihar under cadre division. The Inquiry Officer submitted his report and found all the charges proved against the respondent. The then Deputy Commissioner on receipt of show cause from the respondent appointed Mr. Anjani Kumar Mishra, Executive Magistrate as an Inquiry Officer to enquire into the matter and to submit his report. However, the then Magistrate was transferred to Bihar under cadre division. The Inquiry Officer submitted his report and found all the charges proved against the respondent. The Disciplinary Authority examined the report and necessary documents and agreed with the finding of the Inquiry Officer and after having satisfied that the charges have been proved issued notice dated 17.11.2004 calling upon the respondent as to why he should not be punished suitably. 4. The moot question, therefore, that falls for consideration is as to whether the learned Single Judge is correct in law in holding that the order passed by the Deputy Commissioner is illegal and wholly without jurisdiction. 5. First of all, I would like to quote relevant portion of the impugned order as contained in memo No. 349 dated 11.2.2004. The order reads as under: vkjksih }kjk izLrqr fd;k x;k Li"Vhdj.k i= ,oa lapkyu inkf/kdkjh }kjk fn;s x;s izfrosnu dk xgu tkapkijkar eSa bl fu"d"kZ ij igwprk gwW fd lapkyu inkf/kdkjh }kjk f}rh; dkj.ki`PNk es fn;s x;s foUnqvksa ij dksbZ tkap ugha fd;k x;k gS ftl dkjk buds izfrosnu ls vlger gksrs gq, vknsk fn;k tkrk gS fd tkap izf;k dks vkxs tkjh j[kuk vfuok;Z gSA pwWfd iwoZ tkapdrkZ Jh osn izdkk] dk;Zikyd n.Mkf/kdkjh] fxfjMhg dSMj caVokjk esa fcgkj LFkkukUrfjr gksdj pys x;s gS] vr% vkxs dh tkap izf;k ds lapkyu gsrq Jh vatuh dqekj feJk] dk;Zokgd n.Mkf/kdkjh dks lapkyu inkf/kdkjh] fu;qDr fd;k tkrk gS] tks vksjksih dks lwpuk nsdj muds le{k f}rh; dkj.ki`PNk esa fn;s x;s foUnqvksa ,oa vkjksih }kjk fn;s x;s Li"Vhdj.k ds vkyksd esa vkjksih ds fo:) yxk;s vkjksiksa dh tkap dj viuk izfrosnu ,d ekg ds vUnj izLrqr djsaxs dks"kkxkj inkf/kdkjh] fxfjMhg foHkkxh; dk;Zokgh lapkyu ds flyflys es vk;ksx inkf/kdkjh jgsaxsa 6. From plain reading of the aforesaid order, it is manifestly clear that the Disciplinary Authority has not appointed another Inquiry Officer for the purpose of fresh departmental inquiry and for submission of the report rather the earlier Inquiry Officer namely, Ved Prakash, Executive Magistrate was transferred to Bihar by cadre division the Disciplinary Authority appointed another Inquiry Officer, namely, Anjani Kumar Mishra, Executive Magistrate to continue the inquiry proceeding and to submit report. In the order it is clearly mentioned that earlier the Inquiry Officer in fact did not record any finding on the points mentioned in the second show cause notice and therefore it was felt necessary to continue departmental proceeding for the purpose of giving findings on those points. 7. The law with regard to the issue involved in this case has been set at rest by the Supreme Court in the case of "K.R. Deb., v. The Collector of Central Excise, Shillong . Their Lordships observed: Para 13- It seems to us that Rule 15, on the fact of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were, not available at the time of the inquiry or were not examined for other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring officer or officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. 8. Learned Single Judge in the impugned judgment has held that it is open for the Disciplinary Authority to order for further enquiry if one or other evidence has not been taken into consideration by the Inquiry Officer or fresh material comes to his notice. In our view, therefore, it is not a case of an order of fresh inquiry by appointing another Inquiry Officer by the Disciplinary Authority, rather in the circumstances of the case that the Inquiry Officer appointed was transferred to Bihar under cadre division and; therefore, Disciplinary Authority has no option but to appoint another Inquiry Officer for the purpose of continuing the departmental proceeding. It has been categorically staled by the respondent-State that further inquiry was ordered only to get specific finding on the question raised by the Disciplinary Authority in the second show cause which was necessary for coming to the conclusion on the charges levelled against the employee. 9. It has been categorically staled by the respondent-State that further inquiry was ordered only to get specific finding on the question raised by the Disciplinary Authority in the second show cause which was necessary for coming to the conclusion on the charges levelled against the employee. 9. Learned Single Judge is further of the view that since petitioner was superannuated from service on 31/1/2002, order of punishment could not have been passed and it has further been held that order under Rule 43(b) of the Pension Rules can be passed only by the State after giving opportunity of hearing. We do not agree with the view taken by the learned Single Judge. For better appreciation, Rule 43 of the Bihar Pension Rules has adopted by the State of Jharkhand reads as under: (a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the, right of withholding 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. 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 specific period, and the tight 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 (iii) shall be conducted by such 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 while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with Sub-clause (ii) of Clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation : For the purpose 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 dale on which the complaint is presented, or as the case may be, an application is made to a civil Court. 10. 10. From bare reading of the aforesaid Rule 43(b), it is manifestly clear that a departmental proceeding instituted before superannuation of the employee shall continue even after superannuation of the employee. The explanation makes it clear that departmental proceeding shall be deemed to have been instituted when the charges framed against the employee are issued to him or he was under suspension before his superannuation. A government servant under suspension may retire on reaching the age of superannuation irrespective of the question whether enquiries into charges or departmental or judicial proceedings initiated against him has been concluded or not. The law in this regard has been well settled by a Full Bench of the Patna High Court in the case of Shambhu Saran v. The State of Bihar and Ors. (2000) 1 P.L.J.R. 665 ) where their Lordships observed as under : The other point to be noticed is that a distinction is made in Rule 43(b) between a case where a disciplinary enquiry is already pending at the time of such superannuation and whereon such disciplinary enquiry is pending at the time of retirement. Certain safeguards have been provided so that there may be no undue harassment after retirement when no proceeding had been initiated before his retirement. Even though there is no pending disciplinary proceeding at the time of such retirement, certain conditions as contemplated by Clauses (i), (ii), and (iii) thereof, are imposed for safeguarding the interest of Government Servant concerned. Certain limitations on the powers of the authority concerned to initiate a fresh proceeding after retirement, where no such proceeding was initiated before such (sic) retirement have been provided for to prevent any misuse of such power. But the question of providing such safeguard does not arise if there is already a disciplinary proceeding pending at the time of the superannuation of the Government Servant concerned. There is no question of any harassment in such a case and, accordingly, no condition has been imposed. This is a good reason for the same. Unless that power is conferred by virtue of the said provision, once a retirement takes place, then the employee concerned can easily say that he was beyond the scope of any action whatsoever. There is no question of any harassment in such a case and, accordingly, no condition has been imposed. This is a good reason for the same. Unless that power is conferred by virtue of the said provision, once a retirement takes place, then the employee concerned can easily say that he was beyond the scope of any action whatsoever. In that view of the matter, this provision has been made in the rule itself and the rule itself contemplates that a disciplinary proceeding, if already initiated, can be continued even after retirement. As we have already stated, that can be spelt out from the language of the provision itself, and, in any view of the matter, that can be spelt out by necessary implication. Accordingly, in our view, it is open to an authority concerned to continue with a disciplinary enquiry, which was initiated before his retirement. In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that here must be any Government order to that effect before it can be allowed to continue. No such condition has been laid down in Rule 43 in respect of a case where such a proceeding has already been initiated as required by the three conditions in respect of initiation of a fresh proceeding after such retirement. We cannot import the requirement of such a condition, which is not in the rules. This would be against the principles of cassus omissus. If we accept the contention that such an order of the Government is required before such proceeding can be continued, then we shall be introducing a condition in the rule, which the rules does not provide for. In that view of the matter, we agree with the views expressed by the latter Division Bench and we hold that the Division Bench decision in the case of Singheshwari Sahay v. State of Bihar and Ors. reported in 1979 BBCJ, 735 has not been correctly decided. 11. Besides the above, it is apparent that although the respondent superannuated from service in January 2002 the departmental proceeding continued. reported in 1979 BBCJ, 735 has not been correctly decided. 11. Besides the above, it is apparent that although the respondent superannuated from service in January 2002 the departmental proceeding continued. In the earlier writ petition (WPS 3059 of 2003) filed by the respondent challenging the issuance of second show cause notice dated 6.6.2003 this Court after quashing the second show cause notice, directed the disciplinary authority to proceed from the stage of issuing second show cause notice. It was only, thereafter the disciplinary authority, in terms of the order passed in the writ petition, proceeded from the stage of second show cause notice and finally the impugned order of punishment has been passed. 12. Considering the entire facts of the case and the law discussed hereinabove, we have no doubt in our mind in holding that the order of punishment passed by the disciplinary authority is in accordance with law and does not suffer from any illegality or irregularity or against the provision of Rule 43(b) of the Pension Rules. 13. For the aforesaid reason, this appeal is allowed and the judgment and order passed by the learned Single Judge is set aside. However, there shall be no order as to costs.