Judgment Heard the parties. 2. This writ application has been filed for quashing the order as contained in Memo No. 376 dated 11.12.2008 whereby on account of petitioner being found guilty of the charge in a departmental proceeding, a sum of Rs. One lakh has been ordered to be recovered from the amount of gratuity. Further, order dated 14.5.2007 (Annexure-3) issued by the Secretary, Water Resources Department, Ranchi under which date of joining has been taken to be 25.4.1972 in stead of 29.1.1970 for the purpose of counting length of service for pension has also been sought to be quashed. Consequently, prayer has been made to direct the Authority to refund the said amount of Rs. One lakh. 3. Learned counsel appearing for the petitioner submits that it is the case of the petitioner that the petitioner was appointed as Overseer in work-charge establishment of the Water Resources Department, Biharsharif on 29.1.1970 on a regular pay-scale of Rs. 160-10-280-10-400. After more than a year, petitioner's services were regularized in a regular cadre on 5.4.1971 and since then he worked as Overseer till 24.4.1972. On 25.4.1972 the petitioner's post of Overseer was re-designated as Engineering Assistant and this date i.e. 25.4.1972 is being considered by the Government under order dated 14.5.2007 (Annexure-3) as the date of initial appointment for the purpose of counting the length of service for pensionable purpose, which is not in consonance of the provision of law, as the petitioner right from 29.1.1970 was in regular service and was drawing salary in regular pay-scale. 4. It was pointed out that earlier when the matter had been taken, it was put forth before this Court that the petitioner was drawing salary in regular pay-scale right from 29.1.1970. The case was adjourned for today to enable the learned counsel for the State to get the matter verified as to whether the petitioner was drawing salary in regular pay-scale right from the inception in service when he had joined as Overseer in work-charged establishment on 29.1.1970 but nothing has come from the side of the State to deny that fact and, therefore, the Authority be directed to take into account the period of service from 29.1.1970 to 24.4.1972 and then from 25.4.1972 until he retired as pensionable period. 5. 5. A counter affidavit has been filed, wherein statement has been made that since the petitioner came in regular service only on 25.4.1972, the period of service has been taken into account from that date until he retired as pensionable period and, therefore, no illegality has been committed by the Authority. 6. Admittedly, the petitioner was appointed as Overseer in work-charged establishment of the Water Resources Department, Biharsharif on 29.1.1970. He was drawing salary on regular pay-scale of Rs. 160-10-280-10-400. This fact has not been denied. After more than a year, petitioner's services were regularized in a regular cadre on 5.4.1971 and since then he worked as Overseer till 24.4.1972. On 25.4.1972 the petitioner's post of Overseer was re-designated as Engineering Assistant and only from this date 25.4.1972 length of service of the petitioner is being counted for the purpose of pension leaving aside the length of service from 29.1.1970 to 24.4.1972 on the ground that the petitioner was not holding post on a permanent establishment during that period. 7. The stand of the State does not appear to be correct, as it has been held by the Full Bench of this Court in the case of Ram Prasad Singh and another Vs. State of Jharkhand and others reported in 2005(3) JLJR 38 that the work charged employees working against a post, in regular scale of pay on their retirement and after their death, their heirs/dependants are entitled to claim death-cum-retrial benefits such as pension/family pension, gratuity, leave encashment etc. apart from GPF and group insurance amount if otherwise fulfills the requisite qualifying period to earn pension, gratuity and leave encashment. 8. That apart, by virtue of the provision, as contained in Rule 61 of the Jharkhand Pension Rules, the period of service from 29.1.1970 is required to be considered as pensionable period. However, note appended to Rule 61 of the Jharkhand Pension Rules does stipulate about certain conditions when service of a person cannot be considered as pensionable. Note reads as follows :- “regarding temporary service counting for pension, it has now been decided that the temporary service or officiating service under the State Government when followed by the permanency whether in the same or any other post should count in full for pension except in respect of : (i) period of temporary service in non-pensionable establishment; and (ii)period of service paid from contingencies”. 9. 9. In the instant case, both clauses are not applicable, as it has been held by the Full Bench in the case of Ram Prasad Singh and another (supra) that the work-charged employees are entitled to have pension and secondly that the petitioner was being paid salary in regular pay-scale of Rs. 160-10-280-10-400. Thus, the period from 29.1.1970 to 24.4.1972 is required to be considered as pensionable period. 10. Apart from that, the petitioner has also challenged the order, as contained in Memo No. 376 dated 11.2.2008 (Annexure-10), to be bad whereby a sum of Rs. One lakh has been ordered to be deducted from the amount of gratuity. 11. Learned counsel for the petitioner submits that the petitioner retired from the post of Chief Engineer, Water Resources Department, Government of Jharkhand on 31.7.2003. After the petitioner got retired, a proceeding in terms of Section 43b of the Bihar Pension Rules was initiated against the petitioner on the charge that he allotted a work to one M/s Kaushik Construction though it was not eligible in terms of the notice inviting tender to get the work and that the petitioner put the State to loss of Rs. One lakh on account of the fact that when the petitioner allotted the work to M/s Kaushik Construction, other claimant M/s A. K. Construction preferred a writ petition challenging the order by which the work was given to M/s Kaushik Construction and this Court finding the action of the petitioner illegal and arbitrary awarded compensation to M/s A.K. Construction of Rs. One lakh though M/s Kaushik Construction was allowed to complete the work. 12. Learned counsel further submits that the inquiring officer also did not find any of the charges to be proved. Nevertheless he gave opinion to withhold Rs. One lakh from the petitioner's gratuity temporarily in anticipation of the result of L.P.A., but in the L.P.A. the order, by which M/s A.K. Construction was awarded compensation of Rs. One lakh, was set aside and thereby the State has not been put to loss of a single farthing due to the act of the petitioner. In spite of that, the order has been passed by the Deputy Secretary, Water Resources Department, Ranchi, whereby he by differing from the opinion given by the inquiring officer passed order for withholding/deduction of Rs. In spite of that, the order has been passed by the Deputy Secretary, Water Resources Department, Ranchi, whereby he by differing from the opinion given by the inquiring officer passed order for withholding/deduction of Rs. One lakh from the petitioner's gratuity, which is quite illegal as the Deputy Secretary simply by recording the factual aspect of charge called upon the petitioner to submits his second show cause whereas he was supposed to record the reason for disagreement and to communicate it to delinquent for filing second show cause. 13. I do find substance in the submission advanced on behalf of the petitioner. 14. The inquiring officer did not find the charges to be proved, in spite of that he passed order for withholding/deduction of Rs. One lakh temporarily awaiting the result of L.P.A. but by the time, that order was passed, order had already been passed in L.P.A. whereby, that part of the order, whereby the learned Single Judge had awarded compensation to M/s A.K. Construction, had already been quashed. Nevertheless, the Disciplinary Authority by differing with the finding given by the inquiring officer passed the order of punishment. He according to the stand of the State differed from the finding given by the inquiring officer on the three points :- (i) it was found by this Court in a writ petition that the tender was awarded to M/s Kaushik Construction by unfair exercise of executive power; (ii) M/s Kaushik Construction was given tender by illegal means; (iii) On account of giving tender to M/s Kaushik Construction, the Government was put to loss of Rs. One lakh. 15. But factually, as has been stated above, the State had not been put to loss, as part of the order, by which compensation was ordered to be given to M/s A.K. Construction, was set aside by this Court in L.P.A. No. 494 of 2004. 16. So far other grounds relating to work being given to M/s Kaushik Construction illegally is concerned, the inquiring officer had exonerated the petitioner from the charge but the Disciplinary Authority while calling for the second show cause simply stated the factual aspect of charge though he was required to record the reason for disagreement and to communicate it to delinquent so that delinquent may file show cause. Since reason for disagreement had never been communicated, the order passed for deducting a sum of Rs. Since reason for disagreement had never been communicated, the order passed for deducting a sum of Rs. One lakh from the petitioner's gratuity gets vitiated. In this connection, I may refer to a decision recorded in a case of State Bank of India and others Vs. Arvind K Sukla {2001–1–LLJ 313}. Thus, the order, as contained in Memo No. 376 dated 11.2.2008 (Annexure-10), is not sustainable. 17. Accordingly, both the orders, as contained in Memo No. 2011 dated 17.5.2007 (Annexure-3) as well as in Memo No. 376 dated 11.2.2008 (Annexure-10) are hereby quashed. 18. Thus, the Authority is directed to take into account period from 29.1.1970 until he retired as the period of pensionable service for the purpose of fixation of pension. Further, the concerned respondent is directed to refund the amount which has been deducted from the gratuity and to make payment other retrial dues admissible to the petitioner within two months from the date of production/receipt of a copy of this order. 19. In the result, this application is allowed.