JUDGMENT : 1. Heard the parties. 2. The instant writ petition has been preferred by the petitioner for quashing and setting aside the order dated 08.02.2019 (Annexure-7), issued by the respondent No. 2, whereby the petitioner has been held guilty for temporary embezzlement of Rs. 2,41,850/- and therefore, respondents have passed order for deduction of 5% from the pension of the petitioner for 10 years under Rule 43(b) of Jharkhand Pension Rules. Further prayer has been made to direct the respondents to return the amount of Rs. 2,41,850/- to the petitioner, which the petitioner under direction of the respondent Nos. 4 and 5 had to deposit before the respondent No. 4 through the respondent No. 5 much before the initiation of departmental proceedings. 3. The factual exposition as has been delineated in the writ petition is that petitioner, who was a government employee, has retired from the post of Assistant Engineer, Minor Irrigation Division, Godda. It is the further case of the petitioner that to purchase the agricultural tools and implements for agricultural purpose/ for its free distribution to the labourers engaged in the implementation of National Rural Employment Guarantee Act Scheme (for short “NREGA Scheme”), the then Deputy Commissioner-cum-District Progragmme Coordinator, Godda sanctioned allotment of funds from the Contingency Head to the Executive Engineer, Minor Irrigation Division, Godda on different dates viz. on 18.11.2008, Rs. 10,00,000/- and on 05.02.2009, Rs.25,00,000/- in total Rs. 35,00,000/- as mentioned in Article of Charge. The Executive Engineer, in turn disbursed a sum of Rs. 2,41,850/- to the petitioner as advance, who disbursed the same to Junior Engineer, namely, Ramesh Kumar Nirala, for purchase of the agricultural tools and implements. Upon receipt of the amount, the said Junior Engineer purchased various agricultural tools and implements, which were later on distributed amongst the farmers through various Labour Co-operative Societies/Committee of Beneficiaries and the purchase so made was duly entered in the Measurement Book bearing No. 086340 and thereafter, the same were verified, passed and signed by the then Executive Engineer, Minor Irrigation Division, Godda. 4. It is the specific case of the petitioner that much before initiation of the departmental proceeding, at the instance of the Deputy Commissioner, Godda, the petitioner and the said Junior Engineer, under duress had to deposit Rs. 2,41,850/- to the respondent No. 4 through the respondent No. 5, even after purchase and proper distribution of agricultural tools and implements. 4. It is the specific case of the petitioner that much before initiation of the departmental proceeding, at the instance of the Deputy Commissioner, Godda, the petitioner and the said Junior Engineer, under duress had to deposit Rs. 2,41,850/- to the respondent No. 4 through the respondent No. 5, even after purchase and proper distribution of agricultural tools and implements. Thereafter, after almost two years, surprisingly, a departmental proceeding was initiated against the petitioner along with other concerned Engineers, whereby charges of violation to the instructions issued vide letter dated 30.03.2007, by Ministry of Rural Development Department, Govt. of India, has been levelled against them, wherein there was no provision for purchase of gaita, kudaal, belcha, dhama, etc. under the Administrative head. Further allegation has been levelled that the petitioner in violation of Rules, 235 and 241 of Bihar Finance Rules, without calling for tenders and on the basis of forged receipts had purchased the agricultural tools and implements and thereby embezzled Rs. 9,93,740/-. The petitioner filed his show-cause and thereafter, the Executive Engineer, Minor Irrigation Division, Godda-cum-Presenting Officer filed his comments vide letter dated 18.11.2014 to the show-cause reply filed by the petitioner, in which the Presenting Officer very categorically support the stand of the petitioner that there seems to be no case of embezzlement of money. Thereafter, the Enquiry Officer also submitted his enquiry report holding therein that there is no case of embezzlement of money. However, surprisingly the department awarded punishment of deducting 5% from the petitioner’s pension amount for 10 years and asked the petitioner to file his second show-cause. However, as no heed was paid to his second show-cause reply, the petitioner has been constrained to knock the door of this Court. 5. Mr. Arun, learned counsel appearing for the petitioner strenuously urges that petitioner has not caused any pecuniary loss to the State Authorities to render him liable for punishment under Section 43(b) of Bihar Pension Rules, 1950. Learned counsel further argues that there is complete violation of provisions of Article 14 of the Constitution of India and in the garb of some financial rules, which is not consistent with MGNREGA Scheme, the respondent-authorities had instructed the petitioner to deposit the amount which was spent on purchase of agricultural tools and implements. Learned counsel further argues that there is complete violation of provisions of Article 14 of the Constitution of India and in the garb of some financial rules, which is not consistent with MGNREGA Scheme, the respondent-authorities had instructed the petitioner to deposit the amount which was spent on purchase of agricultural tools and implements. Learned counsel further argues that there is neither any pecuniary loss to the State Exchequer nor the petitioner was held guilty of any serious crime or grave misconduct so as to render him liable for punishment under Section 43 of the Jharkhand Pension Rules. Learned counsel lastly submits that the punishment imposed upon the petitioner is wholly arbitrary, illegal, highly disproportionate and unknown to the service jurisprudence, particularly, the Jharkhand Pension Rules. 6. Per contra, counter-affidavit has been filed. Learned counsel appearing for the respondent-State vehemently opposes the contention of the learned counsel for the petitioner and argues that as per the letter of National Level Monitor, the tools and implements are to be supplied to the labour free of cost and should be purchased through the material head but the then Executive Engineer allotted the amount to the petitioner from the contingency fund and against the provision to purchase tools and implements. Learned counsel submits that admittedly in fear of the departmental proceeding and departmental action, the petitioner along with other Junior Engineers deposited the defaulted amount with the respondents, but the fund was misused by the petitioner in the year 2009 and he deposited the same in the year 2011, hence, a case of temporary embezzlement of money is made out against the petitioner. Learned counsel further argues that the Enquiry Officer found the petitioner guilty of purchasing the non-scheduled items and hence, the department has rightly imposed the punishment of deduction of 5% from the petitioner’s pension amount for 10 years towards interest of the advanced amount to the petitioner. Learned counsel submits that though the petitioner had deposited the amount after 2 years but it is still a case of temporary embezzlement and department has rightly ordered to deduct 5% from his pension amount for 10 years. Learned counsel lastly submits that in view of the aforesaid facts and circumstances, the present writ petition filed by the petitioner has no merit and hence, is liable to be dismissed. 7. Learned counsel lastly submits that in view of the aforesaid facts and circumstances, the present writ petition filed by the petitioner has no merit and hence, is liable to be dismissed. 7. Be that as it may, having heard the rival submissions of the parties, this Court is of the considered opinion that the case of the petitioner needs consideration. From perusal of the documents it appears that in the departmental proceeding, the Presenting Officer very categorically support the stand of the petitioner that there seems to be no case of embezzlement of money. Further, the Enquiry Officer also submitted his enquiry report holding therein that no case of embezzlement of money is made out against the petitioner. Meaning thereby, the petitioner was not held guilty of the charges levelled against him, rather, he was exonerated from the same but surprisingly, the department awarded the punishment of deducting 5% from the pension of the petitioner for 10 years. It appears that admittedly neither any pecuniary loss was caused to the State Exchequer nor the petitioner was held guilty of grave misconduct so as to made him liable him for punishment under Rule 43(B) of the Bihar (Jharkhand) Pension Rules. 8. The issues to be decided in the instant case are: (i) Whether the concerned authorities are obliged to give opportunity to a retired employee to explain as to why the proposed withholding of his pension should not be made? (ii) Whether the petitioner has been held guilty of grave misconduct or to have caused pecuniary loss to the Govt. by misconduct or negligence during his service tenure? 9. For better appreciation of the case, it would be apt to go through the provisions of Rule-43 of the of the Bihar (Jharkhand) Pension Rules. Rule 43 reads as under: “43. (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. 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 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 departmental proceeding, if not instituted while the Government servant was on duty either before retirement or during reemployment:- (i) shall not be instituted save with the sanction of the State Government. (ii) shall not be in respect of an event which took place not more than four years before the institution of such proceedings. (iii) shall be conducted by such authority and at such place of 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). (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation - For the purposes 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. (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. (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a Civil Court.” 10. From a bare perusal of the provisions of Rule 43(a) and (b), it appears that the State Govt. (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a Civil Court.” 10. From a bare perusal of the provisions of Rule 43(a) and (b), it appears that the State Govt. reserves right to themselves withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension either of the whole or part of any pecuniary loss caused to the Government but only 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 Government by misconduct or negligence. The Rule, therefore, implies that if a departmental proceeding has already been initiated, it may be continued after the retirement of the Government servant but only for the purpose of Rule 43(b) of the Pension Rules. In any event, the requirement of the departmental/judicial proceeding is essential only to find out as to whether the pensioner has been found guilty of any grave misconduct and also to find out as to whether by such acts of proved misconduct, the Government servant had caused pecuniary loss to the Government during his service tenure. From perusal of Rule 43(B), it is crystal clear that exercise of jurisdiction under Rule 43(b) of the Pension Rules for withholding the pension amount cannot be resorted to arbitrarily and without affording opportunity to the petitioner of being heard. 11. The Hon’ble Patna High Court in case of Md. Fakhruddin vs. State of Bihar and Others, 2001 (3) PLJR 687 has clearly observed that without affording any opportunity of hearing and without coming to a definite finding that employee has been found guilty of grave misconduct or has committed pecuniary loss to the Govt. no order for withholding or withdrawing of pension can be passed. Admittedly, in the instant case the petitioner has been exonerated from the charges levelled against him by the Enquiry Officer and in absence of any further charge, the order of withholding 5% of pension for 10 years is not tenable in the eyes of law. no order for withholding or withdrawing of pension can be passed. Admittedly, in the instant case the petitioner has been exonerated from the charges levelled against him by the Enquiry Officer and in absence of any further charge, the order of withholding 5% of pension for 10 years is not tenable in the eyes of law. The mandatory requirement of giving adequate opportunity to the proceedee to defend his case has to be followed, and no order for recovery of any amount from the pension of the petitioner could have been passed even under Rule 43(b) of the Bihar (Jharkhand) Pension Rules without following the procedure as laid down. Further, in the departmental proceeding nothing has been brought on record by the respondents for assessing as to whether any pecuniary loss has caused to the government and if so, to what extent has such loss been occasioned by the alleged misconduct of the petitioner. No explanation has been offered as to the basis on which the decision for withholding 5% of the petitioner's pension amount for a period of ten years has been passed. 12. As a sequitur to the aforesaid observations, rules, guidelines, judicial pronouncements and in view of the fact that petitioner has been fully exonerated by the Enquiry Officer as well as by the Presenting Officer, nothing remains to be adjudicated by this Court. As a result therein, the order of punishment of withholding 5% of pension for 10 years is not tenable in the eyes of law and is fit to be quashed and set aside. Resultantly, the impugned order dated 08.02.2019 (Annexure-7) is hereby quashed and set aside. The respondents are restricted from withholding 5% pension of the petitioner and further direction is given to refund the deducted amount, if any, on the garb of 5% deduction from the petitioner’s pension. 13. Accordingly, writ petition stands allowed.