ORDER : Heard learned counsel for the parties and perused the records. 2. Petitioner has approached this Court with a prayer for quashing the order as contained in Memo No. 6385, dated 30.12.2015 whereby and whereunder petitioner has been imposed punishment of withholding 10% of his pension permanently. Petitioner has further prayed for a direction upon the respondents to pay forthwith the benefits of 1st and 2nd Assured Career Progression Scheme and after fixation of the benefits on the basis of such Scheme, to pay the petitioner differences of retiral benefits. 3. The factual exposition as has been delineated in the instant writ petition is that petitioner was initially appointed as an Assistant Engineer in Irrigation Department on 06.02.1979 and posted as an Assistant Engineer, Swarnrekha Canal Division, Jamshedpur. On 12.08.1988, the than Executive Engineer cancelled the agreement executed in favour of M/s. Kalsi & Sons relating to earth work. Thereafter, on 24.09.1988, the petitioner was relieved from the said Division. Thereafter, on 30.03.1989, the then Chief Engineer allotted the balance work for its execution to Alok Coal Agency and on 04.05.1989, the said Agency was paid a sum of Rs.2,70,000/- as mobilization advance and further a sum of Rs.5.70 lacs as advance amount on 18.09.1989. Thereafter, on 22.09.1989, final measurement was taken by the Executive Engineer without following the direction delivered by the Chief Engineer and Superintending Engineer and himself cancelled the Measurement on 01.12.1990. On 31.10.1991, the Water Resources Department, Bihar placed the petitioner under suspension. By Resolution issued under Memo No. 2495, dated 25.11.1991, the Water Resources Department of the Government of Bihar, issued a Charge-sheet against the petitioner in respect of the period 1988 – 89 alleging inter alia therein that he was found to be prima facie involved in making excess payment to the Contractor and thereby, by an order dated 25.01.2000, petitioner was discharged from the service. However, both the orders i.e. the order of suspension dated 31.10.1991 and the order of discharge from the service dated 25.01.2000, had been set aside vide order dated 24.08.2001, passed in C.W.J.C. No. 70 of 2000 (R) with a direction to pay full salary to the petitioner. Petitioner, thereafter, took charge of the post on 23.01.2002. 4. Again on 18.06.2002, the Water Resources Department, Government of Jharkhand placed the petitioner under suspension with effect from 26.01.2000. Petitioner, thereafter, took charge of the post on 23.01.2002. 4. Again on 18.06.2002, the Water Resources Department, Government of Jharkhand placed the petitioner under suspension with effect from 26.01.2000. Petitioner preferred W.P.(S) No. 4312 of 2002 praying therein for quashing the order of suspension as well as to grant him benefits of 1st and 2nd Assured Career Progression Scheme. By resolution issued under Memo No. 3859, dated 13.12.2003, Departmental proceeding was initiated against the petitioner. However, in the report of the enquiry officer-cum-Superintending Engineer-cum-Technical Secretary (Administration), petitioner was not found guilty of alleged misconduct. Thereafter, W.P.(S) No. 4312 of 2012 was also disposed of on 24.07.2007 directing the Department to pass appropriate order in respect of benefits of 1st and 2nd Assured Career Progression Scheme. 5. It is case of the petitioner that though the Engineer-in-Chief, Water Resources Department of the Government of Jharkhand, Ranchi, vide his letter dated 06.2.2008, observed that the charges levelled against the petitioner could not be established but by an order dated 14.03.2008, the petitioner was imposed punishment of withholding of 7 increments and withholding of promotion till 2010. However, on attaining the age of 60 years, petitioner superannuated from the service on 30.06.2009 from the post of Assistant Engineer. Said order of punishment dated 14.03.2008 was challenged by the petitioner in W.P.(S) No. 2766 of 2009, which was allowed vide order dated 05.12.2012 but petitioner was not paid the benefits of 1st and 2nd Assured Career Progression Scheme nor his pay scale was fixed on the basis of such benefits. As a result, petitioner was getting lesser scale of pay. Again vide letter no. 3833, dated 15.07.2013, a show-cause notice was issued against the petitioner without initiating any proceeding in respect of the alleged charges, which was duly replied by him on 11.08.2013. Thereafter, petitioner was asked to appear before the respondent no. 2 on various occasion, which was duly complied. However, to utter surprise of petitioner, by issuance of impugned Memo No. 6385, dated 30.12.2015, petitioner has been imposed punishment of withholding of 10% of pension permanently. 6. Mr. A.K. Sahani, learned counsel appearing for the petitioner strenuously urges that impugned order is nullity in the eyes of law as the same has been issued without initiating any proceeding against the petitioner nor petitioner was ever asked to appear before any Committee inquiring the same. 6. Mr. A.K. Sahani, learned counsel appearing for the petitioner strenuously urges that impugned order is nullity in the eyes of law as the same has been issued without initiating any proceeding against the petitioner nor petitioner was ever asked to appear before any Committee inquiring the same. Petitioner was also not served with any notice regarding conversion of the alleged proceeding into a proceeding under Rule 43b of the Jharkhand Pension Rules. Learned counsel further submits that the in view of Sub-Clause (ii) of Clause-“a” to the proviso appended to Rule 43(b) of the Jharkhand Pension Rules, 1950, the impugned order of punishment is vitiated in law in view of the fact that the alleged incident is of the year 1988-89 and petitioner superannuated on 30.06.2009. The impugned order is vitiated on account of non-compliance of the provisions of Rule 43(b) of the Jharkhand Pension Rules. In absence of any finding of financial irregularity, no such proceeding could have been initiated against the petitioner. Learned counsel submits that in the circumstances the impugned order is fit to be quashed and petitioner is entitled to fixation of proper pension on the basis of benefits accrued from 1st and 2nd Assured Career Progression Scheme as well as the differences in the retiral benefits already paid to him along with statutory and penal interest from the date it fell due till the date of actual payment. To buttress his arguments, Mr. A.K. Sahani has heavily relied on the following Judgments: (i) Nirmala J. Jhala Vs. State of Gujarat and Another reported in (2013) 4 SCC 301 ; (ii) Chairman, Life Insurance Corporation of India and others Vs. A. Masilamani reported in (2013) 6 SCC 530 ; (iii) Virendra Kumar Ojha Vs. The State of Jharkhand and others and other analogous cases, reported in 2017(2) JLJR 650 ; 7. Per contra, counter affidavit has been filed. Mrs. Neelam Tiwary, AC to Sr. SC-I appearing for the respondents vehemently opposes the contention of learned counsel for the petitioner and submits that petitioner was found guilty of making excess payment of Rs.10 lacs. to the contractor in excavation work of Subarnrekha Left Main Canal. Learned counsel further submits that in view of Judgment dated 05.12.2012, the Department had issued show-cause notice to the petitioner which is contained in letter no. to the contractor in excavation work of Subarnrekha Left Main Canal. Learned counsel further submits that in view of Judgment dated 05.12.2012, the Department had issued show-cause notice to the petitioner which is contained in letter no. 3833, dated 15.07.2013, which was duly replied by him which shows that ample opportunity was given to the petitioner before passing the impugned order and due process of law has been followed by the respondents. The responsible officer indulged in the financial irregularities cannot be left scot free and as such, the punishment imposed upon the petitioner is not too harsh and as such instant writ petition is fit to be dismissed. Learned counsel further submits that there is no merit in the writ petition and hence it is fit to be dismissed. 8. Be that as it may, having gone through rival submission of the parties, this Court is of the considered opinion that case of the petitioner needs consideration. Petitioner was exonerated in the departmental proceeding. The Enquiry Officer did not find petitioner guilty of charges. The disciplinary authority without differing with the finding of the Enquiry Officer and without assigning any cogent reason, inflicted punishment on the petitioner vide order dated 14.03.2008. The said order was challenged before this Court in W.P.(S) No. 2766 of 2009. In the meantime petitioner superannuated on 30.06.2009. the impugned order of punishment was quashed by this Court vide order dated 05.12.2012 with a liberty to the respondents to pass a fresh order in accordance with law after issuance of show-cause notice. As petitioner had already superannuated, a proceeding was initiated under Rule 43(b) of the Jharkhand Pension Rules, 1950 and further petitioner was inflicted with the punishment which is subject matter of challenge in the instant writ petition. As petitioner had already superannuated, a proceeding was initiated under Rule 43(b) of the Jharkhand Pension Rules, 1950 and further petitioner was inflicted with the punishment which is subject matter of challenge in the instant writ petition. It would be relevant to quote Rule 43(b) of the Jharkhand Pension Rules, 1950 “43.(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 specified period, and the right 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 department 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 instituted 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.” From bare perusal of Rule 43(b) of the said Rule, it transpires that the State has been empowered to punish an employee even after retirement also if the pensioner is found in the departmental or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service including service rendered on re-employment after retirement. 9. 9. The issue regarding the procedure which needs to be adopted before passing any order under Rule 43 of the Jharkhand Pension Rules and the question whether the concerned authorities are obliged to give opportunity to the retired employees to explain as to why proposed withholding of his pension amount should not be made has to be answered accordingly. In any event, the requirement of the departmental/judicial proceeding is required to come to a finding as to whether pensioner has been found guilty of any grave misconduct and also to find out whether by such act of proved misconduct, the government servant has caused pecuniary loss to the government during his service tenure. It is also clear that in any view of the provision to Rule 43(b) of the Rules, the procedure to be followed in enquiry under this Rule has to be one on which an order of dismissal would have been passed. It further implies there before passing any adverse order under Rule 43(b) of the Pension Rules, the procedures adopted must be that of Rule 55 of the Civil Services (Classification, Control and Appeal) Rule, 1930 which provides for an elaborate enquiry in case the delinquent denies the charges. The evidence to that effect has to be led to prove the charges which has been earlier denied and the employee should be given an opportunity to cross examine the earlier evidence and also to lead his own evidence. If the authority is of the view that the government servant has committed the grave misconduct and has caused pecuniary loss to the government then memorandum of charge on which departmental proceeding was conducted, should be specific. On such charges of causing pecuniary loss, the finding should also be specific as to what amount of loss did the government exchequer suffered on account of misconduct of the Government servant. The exercise of jurisdiction under Rule 43(b) of the Jharkhand Pension Rules for withholding the pension amount cannot be resorted to arbitrarily and without providing ample opportunity to the pensioner of being heard. The provision of rules 43(b) of the Jharkhand Pension Rules aimed at punishing the Government servant who has committed a wrong. The exercise of jurisdiction under Rule 43(b) of the Jharkhand Pension Rules for withholding the pension amount cannot be resorted to arbitrarily and without providing ample opportunity to the pensioner of being heard. The provision of rules 43(b) of the Jharkhand Pension Rules aimed at punishing the Government servant who has committed a wrong. It was incumbent upon the disciplinary authority of the Government servant not only to give an opportunity to explain as to why proposed punishment of withholding pension should not be made but also serving him copy of the enquiry report in which the finding of proof of his alleged misconduct as well as finding that his act of misconduct has caused pecuniary loss to the State exchequer and the assessment of the amount of such loss sought to be recovered, has also to be served upon the government servant. No opportunity was provided to the petitioner to explain against the proposed punishment of withholding his pension. In fact no evidence appears to have been adduced in the disciplinary proceeding or assessing as to whether any pecuniary loss has been caused to the government and if so, to what extend such loss has occasioned by the alleged misconduct of the petitioner. No explanation has been supplied as to the basis on which the decision for withholding the 10% amount of pension for an indefinite period has been passed. Admittedly petitioner was exonerated in the departmental proceeding. The Technical Committee constituted by the Government to hold enquiry in respect of the petitioner, submitted a report on 16.05.2007 holding interalia that the allegation against the petitioner is not correct and no charge could be proved. Even the Engineer-in-Chief, Water Resources Department of the Government of Jharkhand, vide letter dated 06.02.2008, observed that the charges levelled against the petitioner could not be established. In view of the enquiry report of the Technical Report and observation of the Chief Engineer, it cannot be said that the petitioner was guilty of grave misconduct. From the enquiry report itself it transpires that the alleged amount was already recovered from the contractor who was held guilty of charges and as such, there was no loss to the State exchequer and as such the ingredients of Rule 43(b) of the said Rule is not fulfilled and no punishment could have been awarded under said Rule. From the enquiry report itself it transpires that the alleged amount was already recovered from the contractor who was held guilty of charges and as such, there was no loss to the State exchequer and as such the ingredients of Rule 43(b) of the said Rule is not fulfilled and no punishment could have been awarded under said Rule. Similar issue fell for consideration before the Hon’ble Patna High Court in the case of Md. Fakhruddin Vs. State of Bihar reported in 2001(3) PLJR 687 (relevant para-4 & 5) and the same view has been reiterated. 10. In the case of Nirmala J. Jhala Vs. State of Gujarat and Another reported in (2013) 4 SCC 301 , the Hon’ble Supreme Court has clearly held that the onus of proving various negative circumstances is upon the Department and not upon the delinquent in the enquiry. The onus lies on the department to prove the charge. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. 11. From perusal of the entire documents, finding of the enquiry report, order of the disciplinary authority, I am of the considered view that petitioner has been able to make out the case for interference on the following account: (i) Misconduct has not been proved rather petitioner has been exonerated by the Enquiry Officer as well as by the Technical Committee and the Chief Engineer in his report has stated that there was no loss to the State Exchequer. Negligence has not been proved neither any reasons have been assigned for coming to such findings which is contrary to the findings of the enquiry report which has been approved by the earlier order of this Court. The preliminary enquiry prior to the enquiry report cannot be used as an evidence against the petitioner. The finding of the disciplinary authority which was without assigning any reasons, was earlier quashed by this Court and the findings arrived at in the impugned order dated 30.12.2015 has also no legs to stand as no cogent reasons has been assigned for coming to such finding of guilt and negligence. The finding of the disciplinary authority which was without assigning any reasons, was earlier quashed by this Court and the findings arrived at in the impugned order dated 30.12.2015 has also no legs to stand as no cogent reasons has been assigned for coming to such finding of guilt and negligence. (ii) No recovery whatsoever from the pension is permissible in the eyes of law without proving of misconduct and loss to the State Exchequer. The Full Bench of this Hon’ble Court in the case of Smt. Normi Topno vs the State Of Jharkhand & Ors., reported in 2008 (1) JCR 381 Jhr., has held as under:- “After retirement, there is no relationship of employer and employee and as such no recovery can be made from the retrial benefits without following procedure of law as provided under Rule 43(b) of the Bihar Pension Rules. Hence, without fulfilling the conditions under Rule 43(b) and without cancelling the order of promotion after enquiry by the competent authority, pension and other retiral benefits cannot be recovered that too without giving opportunity to the retired employee and without giving any finding with reference to the mis-representation or misconduct on the part of the concerned employee or any other employee merely on the recommendation of audit objection.” (iii) The impugned order is cryptic, devoid of any merits and as such not tenable in the eyes of law. While differing with the findings of the enquiry officer, cogent reasons of disagreement before infliction of punishment to the petitioner would have been given and the same having not been done, the impugned order of punishment, cannot be legally sustainable. The view of this Court gets fortified by the decision of the Hon’ble Apex Court in the case of Punjab National Bank and Others Vs. Kunj Behari Misra reported in (1987) 7 SCC 84 wherein the Hon’ble Apex Court has been pleased to hold that the order of punishment would stand vitiated in case the reasons so recorded by the disciplinary authority for disagreement with the enquiry officer had not been supplied to the delinquent and his explanation had not been sought. (iv) Before imposing punishment of withholding pension amount, mandatory provision as envisaged under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, has to be followed but in the instant case, the same has not been followed. (iv) Before imposing punishment of withholding pension amount, mandatory provision as envisaged under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, has to be followed but in the instant case, the same has not been followed. (v) No evidence has been brought on record before the disciplinary authority to differ, neither any reason has been assigned. In the case of Virendra Kumar Ojha Vs. The State of Jharkhand and others and other analogous cases, reported in 2017(2) JLJR 650 it has been held that in case the disciplinary authority differs with the view taken by the enquiry officer, he is bound to give notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed. (vi) The petitioner has already retired from the service. (vii) On perusal of the impugned order, it would be crystal clear that the same is devoid of merits being cryptic and on that score, the impugned orders are assailable. 12. As a cumulative effect of the aforesaid rules, guidelines, legal proposition, I hereby quash and set aside the order as contained in Memo No. 6385, dated 30.12.2015 and further direct the respondents to re-fix the pension in accordance with law and refund the amount already deducted from his pensionary benefits. Respondents are further directed to consider grant of benefits of 1st and 2nd Assured Career Progression Scheme in accordance with law. Needless to say if petitioner is found legally entitled for the same, his pensionary benefits be fixed after granting said benefits in the revised scale and difference of retiral benefits be also paid to him. Let entire exercise be done within a period of eight weeks from the date of receipt/production of a copy of this order. 13. This writ petition is accordingly allowed. 14. Pending I.A. No. 1493 of 2016 also stands disposed of.