ORDER : 1. With consent of the parties, hearing of the matter was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality. 2. The instant appeal, with the consent of the learned counsel for the parties, is being disposed of at this stage. 3. The instant intra-court appeal is directed against part of the order dated 08.03.2018 passed by learned Single Judge of this Court in W.P. (S) No. 3064 of 2013 whereby and whereunder the direction sought upon the respondents for payment of pension and other post-retiral benefits in favour of the writ petitioner has been refused to be granted by dismissing the writ petition. 4. The brief facts of the case which are required to be enumerated read as under:- The writ petitioner was appointed on 21.09.1978 as an employee of the respondent Central Coalfields Limited, in short CCL, in Pindra Colliery and was transferred from one place to another. He had also been promoted to the post of Tyndel Zamadar, Cat-V. While discharging duty as such, he had been served notice dated 06.09.2011 to the effect that the writ petitioner will retire with effect from 30.09.2011 from the service of Central Coalfields Limited, Karma Project. He is entitled for all terminal benefits as per the provision of NCWA-VII and for which he had been advised to submit his claim for gratuity, C.M.P.F. and pension. The aforesaid post-retiral benefits had not been released in favour of the writ petitioner. The writ petitioner had been asked to submit his explanation in respect of charges leveled against him vide letter dated 16.08.2011 issued under the signature of Respondent No. 5 and accordingly, the writ petitioner had submitted his explanation on the same day, i.e. on 16.08.2011 denying the charges leveled against him. The writ petitioner had also filed an application before the Controlling Authority at Hazaribagh for payment of amount of gratuity under the Payment of Gratuity Act, 1972. The writ petitioner had no option but to move before this Court under its writ jurisdiction for issuance of direction upon the respondents for disbursement of post-retiral dues i.e. amount of Provident Fund, pension, leave encashment and statutory interest thereon. The writ petitioner had no option but to move before this Court under its writ jurisdiction for issuance of direction upon the respondents for disbursement of post-retiral dues i.e. amount of Provident Fund, pension, leave encashment and statutory interest thereon. The respondent CCL appeared and filed counter affidavit inter alia stating therein that the writ petitioner was appointed in CCL under VRS claiming to be brother of one Smt. Amelun Khatoon on 21.09.1978 and superannuated from service with effect from 30.09.2011. The said Amelun Khatoon had submitted a complaint on 27.05.2011 stating therein that the writ petitioner had fraudulently and deceiving her entered into the employment of the company imposing himself as her brother but the fact remains that she is not his sister. The respondent authorities, after receipt of the complaint, had started a preliminary enquiry in which it was found that the writ petitioner is not the own brother of Smt. Amelun Khatoon, rather, he was son of one of the cousin sister of mother of Smt. Amelun Khatoon. It has further been stated that in the preliminary enquiry, the writ petitioner had accepted the said facts basis upon which a charge-sheet dated 11/12.08.2011 was issued to the writ petitioner. The writ petitioner had submitted his reply on 19.08.2011 denying the charges leveled against him but the same having not been found satisfactory, decision was taken to initiate departmental enquiry vide order dated 29.08.2011. An Enquiry Officer was appointed who had proceeded with the enquiry in which the writ petitioner had appeared. The Enquiry Officer found the charges leveled against him as proved and accordingly, a report dated 29.09.2011 was submitted before the competent disciplinary authority but in the meanwhile, the writ petitioner had superannuated from service with effect from 30.09.2011 and as such, the respondent authorities were prevented from taking action on the finding of the Enquiry Officer. It has been stated therein that legal opinion was obtained from the Legal Department of the CCL with respect to payment of post-retiral dues wherein it was opined that the writ petitioner is not entitled to get any post-retiral benefit. It has been stated therein that legal opinion was obtained from the Legal Department of the CCL with respect to payment of post-retiral dues wherein it was opined that the writ petitioner is not entitled to get any post-retiral benefit. The Writ Court, accepting the contention agitated by the respondent CCL and putting reliance upon the judgment rendered by the Hon'ble Apex Court in State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Another, (2013) 12 SCC 210 has passed the order by coming to the finding about commission of fraud by the writ petitioner and as such, holding him not entitled for the retiral benefits and accordingly the writ petition was dismissed which is the subject matter of the present intra-court appeal. 5. Mr. Navin Kumar Singh, learned counsel appearing for the appellant/writ petitioner, has submitted by pointing out the infirmity in the impugned order that once the appellant/writ petitioner has been allowed to be superannuated from service with effect from 30.09.2011 without passing any final order in the departmental proceeding, the post-retiral benefits cannot be withheld. The learned Single Judge has come to a finding about commission of fraud merely on the basis of the finding recorded by the Enquiry Officer but so long as the finding of the Enquiry Officer is not accepted, the said finding cannot take a conclusive shape as because as per the position of law, the finding recorded by the Enquiry Officer may be accepted or may not be accepted. In case of acceptance, the Disciplinary Authority is to impose punishment and in case of non-acceptance, there is no question of inflicting any punishment. According to learned counsel, reliance placed by the learned Single Judge on the enquiry report for coming to the finding of commission of fraud is absolutely illegal and improper as because merely by assertion of commission of fraud, it cannot be said that the fraud has been committed, rather, fraud will be said to have been committed if conclusively proved and that proof will only be said to be available when the finding of the Enquiry Officer will be accepted by the Disciplinary Authority. He, therefore, submits that withholding of the post-retiral benefits i.e. pension, provident fund and leave encashment is not permissible in absence of any authority of law. He, therefore, submits that withholding of the post-retiral benefits i.e. pension, provident fund and leave encashment is not permissible in absence of any authority of law. According to him, learned Single Judge has not appreciated all these legal propositions and has merely on the basis of the finding of the Enquiry Officer, has come to a conclusive finding about commission of fraud by the appellant/writ petitioner and, therefore, the order impugned is not sustainable in the eyes of law. 6. Per contra, Mr. Amit Kumar Das, learned counsel appearing for the respondent CCL, has submitted on the basis of the relevant records put forth by way of affidavit that in the preliminary enquiry the charge of impersonation having been committed by the writ petitioner has been found to be proved on the basis of admission of the writ petitioner and hence, the contention raised by the learned counsel for the appellant/writ petitioner in this regard is having no force. He submits that even Amelun Khatoon, the complainant, has admitted in the preliminary enquiry about the aforesaid impersonation by the appellant/writ petitioner and, as such, according to him, once the allegation has been found to be proved in the preliminary enquiry, it is not available to the appellant/writ petitioner to make a defence that the fraud will only be said to be proved when the finding of the Enquiry Officer will be accepted by the Disciplinary Authority. He in this pretext, therefore, submits that the decision of the authority in not releasing the post-retiral dues i.e. pension, provident fund and leave encashment suffers from no infirmity and taking into consideration the aforesaid fact, the learned Single Judge has rightly passed the order. 7. In response, Mr. Singh, learned counsel appearing for the appellant/writ petitioner has submitted that the appellant/writ petitioner had approached the Controlling Authority under the Payment of Gratuity Act, 1972 for release of amount of gratuity which was conclusively decided by the Controlling Authority after hearing the CCL as also Coal Mines Provident Fund (CMPF) holding the appellant/writ petitioner entitled to get the amount of gratuity which order has never been assailed by the CCL, hence, amount of gratuity is payable to the appellant/writ petitioner. He, in continuation, has submitted by placing the finding recorded by the Controlling Authority with respect to the same issue of denial of the claim of the appellant/writ petitioner as was agitated before the Controlling Authority but the same has conclusively been answered by the Controlling Authority and after dealing with the said factual aspect, has passed an order and as such, the learned Single Judge ought not to have taken a contrary view from the finding recorded by the Controlling Authority under the Payment of Gratuity Act since the said order is operating against CCL and in favour of the appellant/writ petitioner and if at all the CCL was aggrieved with the said order, the same ought to have been challenged before the appropriate forum. Having not done so, it suggests that the direction as also finding recorded therein has been accepted by the CCL. He further submits that so far as pension, provident fund and leave encashment are concerned, the same cannot be withheld without any authority of law and so far as reliance put by the learned Single Judge upon the judgment rendered by the Hon'ble Apex Court in State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Another (Supra), the factual aspect of the present case is totally different from that case. 8. Ms. Preety Sinha, learned counsel has put her appearance on behalf of respondent CMPF and has submitted that in pursuance to the order passed by the Controlling Authority under the Payment of Gratuity Act, 1972, the necessary steps have been taken by the authorities of CMPF and the same has been forwarded before the authority of CCL but no action on the part of CCL has yet been taken and that is the reason the amount of gratuity could not have been paid in favour of the appellant/writ petitioner. She, therefore, submits that the statutory duty required to be followed by the CMPF authority has already been followed. 9. She, therefore, submits that the statutory duty required to be followed by the CMPF authority has already been followed. 9. This Court, after having heard the learned counsel for the parties and on perusal of material available on record as also the finding recorded in the impugned order deems it fit and proper to reflect some undisputed facts in this case which reads as under:- The writ petitioner was appointed on 21.09.1978 and was allowed to discharge his duty fairly for a period of 33 years and at the fag end of service, i.e. when the retirement notice was issued to the writ petitioner on 06.09.2011 for his superannuation with effect from 30.09.2011, a memorandum of charge was issued to the writ petitioner on 11/12.08.2011 alleging therein that by commission of fraud/impersonation he got employment under VRS impersonating himself as the own brother of Amelun Khatoon. The aforesaid allegation has been leveled on the basis of the complaint made by said Amelun Khatoon basis upon which a preliminary enquiry was conducted in which said Amelun Khatoon as also the appellant/writ petitioner had participated. In the said preliminary enquiry, prima facie it has been found by the fact finding authority that the allegation leveled in the complaint was correct and therefore, decision to initiate a departmental proceeding has been taken. An Enquiry Officer was appointed before whom the writ petitioner had appeared. The Enquiry Officer has recorded the statement of the writ petitioner and the witnesses produced on behalf of the management and found the charges proved against the writ petitioner by submitting a report in this regard dated 29.09.2011. The said report was forwarded before the Disciplinary Authority but before taking any decision on the said report, the writ petitioner attained the age of superannuation and accordingly, he was allowed to be separated from service with effect from 30.09.2011. Admittedly, no conclusive decision has been taken by the Disciplinary Authority on the basis of the finding recorded by the Enquiry Officer due to his separation from service with effect from 30.09.2011 and in that pretext the writ petitioner had made an application before the competent authority for disbursement of post-retiral dues i.e. pension, amount of provident fund and leave encashment. He had separately made an application before the Controlling Authority for disbursement of amount of gratuity in pursuance to the provision of Payment of Gratuity Act, 1972 wherein direction has been passed upon the concerned respondent to disburse the amount of gratuity. So far as the disbursement of amount of pension, provident fund and leave encashment are concerned, decision has been taken by the authority not to disburse the said amount on the ground that the writ petitioner had obtained employment by commission of fraud which led the writ petitioner to approach this Court by filing writ petition under Article 226 of the Constitution of India for issuance of direction upon the respondent authorities for disbursement of post-retiral benefits i.e. pension, provident fund and leave encashment. The learned Single Judge has dismissed the writ petition by putting reliance upon the judgment rendered by the Hon'ble Apex Court in State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Another (Supra) wherein it has been held that if in the departmental proceeding it found that the employee has committed grave misconduct while in service, his retiral benefits can be withheld/forfeited and according the writ petition has been dismissed by denying the aforesaid claim. 10. This Court has found from the impugned order that mainly reliance has been placed upon the judgment rendered by the Hon'ble Apex Court in State of Jharkhand and Others v. Jitendra Kumar Srivastava and Another (Supra) and as such, it would be relevant for us to first deal with the factual aspect leading the case of State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Another (Supra). We, after going across the factual aspect of the said case, have found that the said case pertains to the provision of Rule 43(b) of the Jharkhand Pension Rules which contains a provision conferring power upon the State to withhold full pension or part of it in case of finding recorded in the departmental or judicial proceeding that the employee had committed grave misconduct in discharge of his duties while in office. In the said case, decision was taken by the authority not to make payment of leave encashment since the circular prohibits disbursement of the said amount in case of pendency of a departmental or judicial proceeding. In the said case, decision was taken by the authority not to make payment of leave encashment since the circular prohibits disbursement of the said amount in case of pendency of a departmental or judicial proceeding. The appellant of the said case was proceeded against but no final finding of misconduct was arrived at and in course thereof, the pensionery benefit was withheld. Further, leave encashment was also withheld on the basis of the decision of the State Government by way of executive instruction. The issue fell for consideration in the said case as to whether on the ground of pendency of a departmental or judicial proceeding, the pensionery benefit can be withheld and further, whether on the basis of executive instruction the amount of leave encashment can be withheld. The Hon'ble Apex Court, by dealing with the provision of Rule 43(b) of the Bihar Pension Rules, has come to a finding that in absence of a finding of misconduct either in departmental or judicial proceeding, the power conferred to the State under Rule 43(b) cannot be exercised, rather the said power can only be exercised if there is a finding of misconduct either in departmental or judicial proceeding, meaning thereby, in course of pendency of either departmental or judicial proceeding, the pensionery benefit of retired employee cannot be withheld. 11. We have examined the factual aspect in the light of the proposition laid down by the Hon’ble Apex Court in the aforesaid case and found from the material available on record that admittedly there is no finding recorded in the departmental proceeding against the writ petitioner. We are saying so because if a departmental proceeding has been initiated against a public servant/employee, the same will be said to have been initiated on the day when the memorandum of charge is issued to the concerned employee and so far as judicial proceeding is concerned, the day when cognizance would be taken by the competent court of criminal jurisdiction, the judicial proceeding will be said to have its motion. Once the departmental proceeding commences after issuance of memorandum of charge, as per the procedure for imposing major penalty, Enquiry Officer has to be appointed before whom the delinquent is required to put forth his defence and the Enquiry Officer, after assessing the deposition of delinquent employee vis-a-vis the employer, is to record his finding and thereafter the said finding is to be forwarded before the Disciplinary Authority, if the Enquiry Officer and Disciplinary Authority are two different identities. If the Enquiry Officer and the Disciplinary Authority are the same identity, in that situation, there is no need to forward the enquiry report before the Disciplinary Authority since the Disciplinary Authority himself has acted as an Enquiry Officer and in that situation second show cause notice will also not be required to be issued. So, in case of two different identities and if there is adverse finding recorded by the Enquiry Officer, the Disciplinary Authority if accepts the finding of the Enquiry Officer, he will require to issue second show cause notice to the delinquent employee. The Disciplinary Authority has two options, in a situation where the Enquiry Officer has recorded a finding dropping the charge as not proved which may be accepted by the Disciplinary Authority and the same may not be accepted by the Disciplinary Authority. In case of acceptance, the second show cause notice is required to be issued by the Disciplinary Authority, if the situation so arises but in case of non-acceptance of the finding of the Enquiry Officer if the charge has not been found to be proved, in that situation, by recording the difference of opinion with the report of the Enquiry Officer, a notice is required to be issued to the delinquent employee to put forth his defence on the point of difference of opinion between the Enquiry Officer and the Disciplinary Authority, meaning thereby, it is not sufficient that if the Enquiry Officer has found the charge proved, the same has attained its finality, rather, the finality will only be said to have been attained when the report will be accepted by the Disciplinary Authority and a final order would be passed on that basis then only it will be said that the disciplinary proceeding has come to its logical end. 12. 12. This Court, considering the aforesaid procedure of the departmental proceeding, has found that although the Enquiry Officer has found the charge proved against the writ petitioner, but before taking a conclusive decision the writ petitioner has superannuated from service with effect from 30.09.2011 and as such, the disciplinary proceeding has remained inconclusive. The question is that when the disciplinary proceeding remains inconclusive, can the post-retiral benefits i.e. pension, provident fund and leave encashment be withheld. It has been settled by the Hon’ble Apex Court in Deokinandan Prasad vs. State of Bihar and Others, (1971) 2 SCC 330 wherein the right to receive pension has been held to be property within the meaning of Article 31(1) of the Constitution of India and by mere executive order the State has no power to withhold the same. Even in State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Another (Supra), it has been held that no person shall be deprived of his property save by the authority of law. Further, in State of Rajasthan and Others vs. Mahendra Nath Sharma, (2015) 9 SCC 540 , the Hon’ble Apex Court has reiterated the same view that the pension is not a bounty within the meaning of Article 300 A of the Constitution of India. Recently the Hon’ble Apex Court in Dr. Hira Lal vs. State of Bihar and Others, (2020) 4 SCC 346 has been pleased to hold that in course of pendency of departmental or judicial proceeding, the pension cannot be withheld. It is evident from the aforesaid proposition of law as has been settled by the Hon’ble Apex Court that the pension being a property within the meaning of Article 300-A of the Constitution of India, cannot be withheld save by the authority of law. The authority of law means that a competent authority within the domain of rule of law if passed an order withholding the pension and in absence thereof if any decision would be taken by the authority, the same will be said to be without jurisdiction. Admittedly herein, there is no decision of the authority for withholding the pension. 13. Mr. Amit Kumar Das, learned counsel, however has taken the plea that even in absence of any authority of law the pension can be withheld if the appointment has been obtained by commission of fraud since, according to him, fraud vitiates everything. 14. Admittedly herein, there is no decision of the authority for withholding the pension. 13. Mr. Amit Kumar Das, learned counsel, however has taken the plea that even in absence of any authority of law the pension can be withheld if the appointment has been obtained by commission of fraud since, according to him, fraud vitiates everything. 14. The question herein would be that merely by saying that fraud has been committed, is not sufficient, rather the alleged fraud has to be established either in the departmental proceeding or in the judicial proceeding. It is not in dispute so far as legal position is concerned that the fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice but in order to sustain an action to impeach a judgment, actual fraud must be shown. Reference in this regard is made to the judgment rendered by Hon’ble Apex Court in Hamza Haji vs. State of Kerala and Another, (2006) 7 SCC 416 wherein at paragraphs 10 to 13 it has been held:- 10. It is true, as observed by De Grey, C.J. in R. vs. Duchess of Kingston [2 Smith LC 687] that: “Fraud” is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical and temporal.” 11. In Kerr on Fraud and Mistake, it is stated that: “In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest court of judicature in the realm, but in all cases alike it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud.” 12. It is also clear as indicated in Kinch vs. Walcott, 1929 AC 482 : 1929 All ER Rep 720 : 141 LT 102 (PC) that it would be in the power of a party to a decree vitiated by fraud to apply directly to the court which pronounced it to vacate it. According to Kerr: “In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient......but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury.” 13. According to Kerr: “In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient......but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury.” 13. In Corpus Juris Secundum, Vol. 49, Para 265, it is acknowledged that: “Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgments.” In Para 269, it is further stated: “Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action.” It is also stated: “Fraud practised on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair.” The Hon’ble Apex Court in A.V. Papayya Sastry and Others vs. Govt. of A.P. and Others, (2007) 4 SCC 221 while dealing with the definition of ‘fraud’ has been pleased to hold that fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. At paragraph 39 of the aforesaid judgment it has been laid down that once the fraud has been established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is evident from the aforesaid judgment that merely taking a plea of fraud is not sufficient unless the fraud is established. Fraud will only be said to be established if there is a conclusive finding recorded by the competent authority and in the matter of departmental proceeding, it is always the Disciplinary Authority. It is evident from the aforesaid judgment that merely taking a plea of fraud is not sufficient unless the fraud is established. Fraud will only be said to be established if there is a conclusive finding recorded by the competent authority and in the matter of departmental proceeding, it is always the Disciplinary Authority. In the facts of this case, it is admitted position that after the charge having been proved by the Enquiry Officer, there is no finding of the Disciplinary Authority. In view of that the writ petitioner was allowed to be superannuated from service with effect from 30.09.2011 and as such, as per the ratio laid down by the Hon’ble Apex Court in Hamza Haji vs. State of Kerala and Another (Supra) and in A.V. Papayya Sastry and Others vs. Govt. of A.P. and Others (Supra), the fraud having not been established in absence of the acceptance of the finding recorded by the Enquiry Officer, it cannot be said that the fraud has been committed by the writ petitioner. 15. Mr. Das, learned counsel for the respondent CCL, has further relied upon the finding recorded in the preliminary enquiry where, according to him, the writ petitioner has also accepted the fact about commission of the alleged impersonation and, therefore, he submits that in pursuance of the finding of the preliminary enquiry, the charge of fraud will be said to have established. However, this argument is not acceptable to this Court as the finding recorded in the preliminary enquiry cannot be said to be conclusive rather it is only a fact finding one and it is a pre-initiation step of departmental proceeding and that is the reason it has been held by the Hon'ble Apex Court in Nirmala J. Jhala vs. State of Gujarat and Another, (2013) 4 SCC 301 , by dealing with the issue as to whether the finding recorded in the preliminary enquiry can be said to have evidentiary value in the departmental proceeding, it has been laid down by Hon’ble Apex Court as under paragraph 47 to 51 that it is not permissible for the Disciplinary Authority to rely upon the preliminary enquiry as because the preliminary enquiry is only to be used to make a prima facie view as to whether there can be some substance in the allegation made against the employee which may warrant a regular enquiry. The proposition laid down in the aforesaid case also suggests that merely on the basis of the finding of the preliminary enquiry no conclusion can be arrived at save and except there is a concrete finding by way of a regular enquiry. In view of the aforesaid discussion, the ground agitated by the learned counsel appearing for the respondent CCL with respect to establishment of commission of fraud is having no force and, therefore, the same is hereby rejected. 16. So far as the finding recorded by the Enquiry Officer proving the charge against the writ petitioner is concerned, the major lacunae has been committed by the respondent CCL since the complainant was not allowed to be produced before the Disciplinary Authority and it is settled that non-examination of complainant amounts to violation of principle of natural justice due to which proceeding is to be vitiated. Reliance in this regard may be made to the judgment rendered by Hon’ble Apex Court in Hardwari Lal vs. State of U.P. and Others, (1999) 8 SCC 582 , in particular at paragraph 3, it has been held that non-examination of the complainant amounts to non-observance of principle of natural justice and as such, the order of dismissal has been quashed and set aside. 17. This Court has also considered the order passed by the controlling authority under the Payment of Gratuity Act, 1972 and found therefrom that the plea of commission of fraud was agitated before the Authority by the CCL. Taking into consideration the aforesaid issue having been agitated by the respondent CCL, one of the issues framed by the Controlling Authority was: “Is the applicant really an impersonator working in the name of another person?” The Controlling Authority has answered the aforesaid issue against the respondent CCL by recording a finding that if the writ petitioner has impersonated why Amelun Khatoon signed a form filling details of applicant and later filed a complaint that too after 33 long years, has no explicable explanation. Secondly, complainant never turned up during enquiry proceedings as mentioned in findings submitted by opposite party. Even if it will be assumed that the applicant is not the real brother of Smt. Amelun Khatoon, the real brother did not turn up in 33 years. The relevant paragraph of the order passed by the Controlling Authority is being referred herein for ready reference:- “This whole act seems doubtful. Even if it will be assumed that the applicant is not the real brother of Smt. Amelun Khatoon, the real brother did not turn up in 33 years. The relevant paragraph of the order passed by the Controlling Authority is being referred herein for ready reference:- “This whole act seems doubtful. First, Smt. Amelun Khatoon signed a form filling details of applicant and later files a complaint that too after 33 long years has no explicable explanation. Secondly, complainant never turned up during enquiry proceedings as mentioned in findings submitted by opposite party. Even if we assume that Applicant is not the real brother of Smt. Amelun Khatoon, the real brother did not turn up in 33 years. Thirdly, it could be seen that disciplinary proceedings was started on 06.09.2011 and concluded on 29.09.2011 as Applicant was due to retire on 30.09.2011. Charges were also established on the basis of preliminary enquiry. It is to be noted that no documents of preliminary enquiry was submitted to this forum. In the view of the above analysis, this forum finds that established charges of impersonation on the basis of preliminary enquiry leaves enough doubt and hence does not attract Sec 4(6)(b) of Payment of Gratuity Act, 1972.” Although the order passed by the Controlling Authority is not binding upon this Court but the fact remains that when there is adverse finding on the same plea which was being agitated before the writ court as also before this Court which has been answered against CCL but the CCL chose not to challenge the same before any higher forum and as such, the CCL authorities cannot be allowed to take the same plea once it has been accepted by them. 18. 18. This Court, therefore, is of the view that the learned Single Judge, without appreciating the legal vis-a-vis factual position, has incorrectly applied the judgment rendered by the Hon’ble Apex Court in State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Another (Supra) as because in the aforesaid case specifically it has been laid down that only in case of finding either in the departmental or judicial proceeding, pension can be withheld but herein as would be evident from the facts as discussed hereinabove, based upon the materials available on record, that the finding recorded by the Enquiry Officer has not been acted upon by Disciplinary Authority by taking a decision and, therefore, there is no finding of misconduct in the departmental proceeding against the writ petitioner, hence the judgment rendered in the case of State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Another (Supra) is not applicable in the facts of this case but the learned Single Judge has not appreciated this aspect of the matter. Further, basing upon the finding recorded by the Enquiry Officer about commission of fraud, although the same has not been accepted by the Disciplinary Authority by not passing any conclusive order in this regard, the respondent authority has come to the conclusion of commission of fraud which, according to us, cannot be said to be proper. Furthermore, as has been settled by Hon’ble Apex Court, without any authority of law the amount of pension, provident fund and leave encashment cannot be withheld. Admittedly, there is no authority of law withholding the said amount as also the order passed by the Controlling Authority under the Payment of Gratuity Act, 1972 has not been taken into consideration, therefore, according to our considered view, the order passed by the learned Single Judge suffers from error and hence not sustainable in the eyes of law. Accordingly, the same is quashed and set aside. In the result, the writ petition stands allowed. 20. In consequence thereof, the respondents are directed to disburse the amount of pension, provident fund, leave encashment and gratuity as has been directed by the Controlling Authority under the Payment of Gratuity Act, 1972, if not already paid, in favour of the appellant/writ petitioner within a period of three months from the date of receipt of copy of this order. 21. Accordingly the instant appeal stands allowed.