JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant application has been preferred by the petitioner for quashing the order, as contained in Memo No.600 dated 30.3.2013 (Annexure-3), whereby an order of punishment for recovery of an amount of Rs.3,51,307/- has been passed against the petitioner without initiating any departmental proceeding against the petitioner even under Rule 55A of Civil Services (Classification, Control & Appeal) Rules, 1930. 3. The facts of the case lie in a very narrow compass. The petitioner was working as Class-II Gazetted Officer with respondent- State and while he was posted as Project Manager, District Industries Centre, Ranchi, he superannuated from service on 31.03.2013. Further case of the petitioner is that while he was posted as Principal, Jharkhand Silk Technical Development Institute, Chaibasa and was also in-charge of Pilot Project Centre, Chaibasa as well as Pilot Project Centre, Bharbharia, it was alleged that certain irregular payments were made by the petitioner resulting into pecuniary loss to the State Government. The said allegation was made by virtue of a complaint made by one Anil Kumar Sinha describing himself as social worker, to the Advisor of His Excellency, the Governor of Jharkhand, Ranchi. Pursuant to said complaint, the State Government vide its letter no.1111 dated 30.07.2010 directed the Director, Handlooms, Sericulture & Handicrafts, Ranchi to frame charge sheet in Prapatra- ‘Ka’ against the petitioner and to make available the same to the department. Pursuant to said direction, draft charge sheet in Praptra-‘Ka’ was framed by the Director, Handlooms, Sericulture & Handicrafts, Ranchi, finding the allegations to be true prima-facie. Pursuant thereto, a show cause notice was issued to the petitioner vide letter no. 241 dated 25.02.2012 (Annexure-1) asking the petitioner to file its reply to the show cause notice. A perusal of said letter would reveal that ‘draft memo of charge’ was forwarded to the petitioner directing him to submit his reply to the same and it was further categorically stated in the said show cause notice that, in the event no reply is received from the petitioner within the stipulated time, the petitioner shall be put under suspension and departmental proceeding would be initiated against him. 4. From the record it further transpires that the petitioner, pursuant to receipt of the said show cause notice containing the draft charge sheet, submitted its detailed reply vide his letter no. 4. From the record it further transpires that the petitioner, pursuant to receipt of the said show cause notice containing the draft charge sheet, submitted its detailed reply vide his letter no. 930 dated 19.03.2012 (Annexure-2) denying the allegations levelled against him in the said letter. However subsequent to said reply submitted by the petitioner, no opportunity of hearing was granted to the petitioner, nor any communication was made with the petitioner and the petitioner was directly served with an order of punishment passed by the Secretary, Department of Industry, Government of Jharkhand, being order dated 30.03.2013 contained in memo no. 600 dated 30.03.2013(Annexure-3). The said order is assailed in the present writ application. 5. Mr. Sumeet Gadodia, learned counsel for the petitioner submits that the order imposing punishment has been passed against the petitioner without even initiating any departmental proceeding as mandated under Rule 55A of Civil Services (Classification, Control and Appeal) Rules [hereinafter referred to as ‘Service Rules’]. It has been further contended that the impugned order has been passed by the Secretary, Department of Industry, without independent application of mind and from the impugned order itself it would be evident that an opinion was sought from three separate officials, namely the Departmental Accounts Officer, the Director, Handlooms, Sericulture and Handicrafts and the Deputy Secretary, Department of Industry and on the basis of such opinion, without independent application of mind, order imposing punishment was passed against the petitioner. It has been further contended that even the copy of the opinion given by the officials, which was relied upon by the Secretary, Department of Industry, was never supplied to the petitioner. 6. He further contended inter-alia that a bare reading of show cause notice dated 25.02.2012 would reveal that in the said show cause notice itself it was stated that on consideration of reply filed by the petitioner, decision would be taken to initiate departmental proceeding against the petitioner and despite the fact that the petitioner filed his reply, even without considering the said reply and even without initiating any departmental proceeding impugned order dated 30.03.2013 was passed straightway against the petitioner, inflicting punishment of recovery of the alleged loss caused to the State Government. It has been further contended that reply filed by the petitioner was not even discussed in the impugned order and thus, the impugned order is also violative of principles of natural justice. It has been further contended that reply filed by the petitioner was not even discussed in the impugned order and thus, the impugned order is also violative of principles of natural justice. The petitioner in support of its contention has relied upon the following decisions, namely; (1) Order dated 03.04.2014 passed in W.P.(S) No. 4169 of 2013[Rajendra Kishore Vs The State of Jharkhand and Ors] (2) Order dated 09.12.2013 passed in W.P.(S) No. 478 of 2013[Satya Prakash Vs The State of Jharkhand & Ors] (3) Order dated 26.11.2018 passed in W.P.(C) No. 382 of 2018 [ Shree Om Metals Pvt. Ltd Vs The Union of India and Ors] (4) 1993(1) SCC 13 [State Bank of India & Ors Vs. D.C. Agarwal & Anr). (5) (1989) 2 SCC 505 [State of U.P. and Ors. Vs. Maharaja Dharmander Pd. Singh] 7. Per contra, Mr. Aatanu Banerjee, learned counsel for the State supported the impugned order and contended inter-alia that the impugned order cannot be termed to be an order imposing punishment upon the petitioner. It has been vehemently argued that from bare reading of the impugned order itself it would be evident that the petitioner made irregular payments beyond his authority in violation of Rule- 403 and 404 of the Jharkhand Treasury Code read with Rules 8, 9, 10, 12 and 20 of the Financial Rules, causing monetary loss to the State Government and the impugned order is merely an order directing for recovery of said loss being caused to the State Government and cannot be termed to be an order of punishment warranting initiation of departmental proceeding in terms of Service Rules. 8. While relying upon the statements made in paragraph-7 of the counter affidavit, it has been contended that on the draft memo of charges served upon the petitioner, opinion was sought from three separate officials including the Departmental Accounts Officer who is representative of the Accountant General, Jharkhand and the said Accounts Officer has opined that “the entire expenditure under observation/mentioned in the charge sheet appears to be recoverable”. He further contended that in view of aforesaid facts and opinion given by the Departmental Accounts Officer and other officials of the State Government, it would be clear that the petitioner has made expenditure contrary to the relevant financial rules and, therefore, the said amount was recoverable from the petitioner and accordingly, an order was passed by the Secretary, Department of Industry, Jharkhand. 9. While countenancing the arguments of the petitioner on the issue of violation of principle of natural justice, it has been contended by the respondents that the principle of natural justice cannot be held to be an unruly horse and the person alleging violation of principle of natural justice has to demonstrate the prejudice caused to it due to non-compliance of said principle. It has been further contended that since the petitioner made expenditure which were irregular in nature, the said amount was automatically recoverable from the petitioner, and no prejudice was caused to the petitioner by not granting him any opportunity of hearing. He concluded his arguments by submitting that a proper show-cause notice was issued to the petitioner and the order has been passed on the basis of his reply. In order to buttress his contention learned counsel for the respondent has relied upon the following decisions:- (i) A.I.R. 1970 SC 679 [State of U.P. Vs. Om Prakash Gupta] (ii) (1976) 4 Supreme Court Cases 765 [H.C.Sarin Vs Union of India and Ors] (iii) (1977) 2 Supreme Court Cases 256 [The Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr Vs. Ramjee] 10. Learned counsel for the petitioner replying to the arguments advanced by learned counsel for the State has contended inter-alia that the order of recovery is nothing, but an order imposing punishment and even the respondents have considered the said order to be an order imposing punishment and it is not open for the respondents to contend at this stage that the order in question is not an order of punishment. He further relied upon the provision of Rule 49 and 55A of the Civil Services Rules, to contend that in the said Service Rules, under Rule 49, penalties which can be imposed upon a government servant has been enumerated and one of the penalties enumerated under Rule- 49 relates to recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. 11. Having heard the learned counsel for the parties and having considered the rival contentions, this court is of the opinion that the issue involved in the instant case requires consideration. 12. A bare reading of the order impugned dated 30.03.2013 would reveal that an order of recovery from the pay of the petitioner was passed by the Secretary, Department of Industry on the ground that expenditure made by the petitioner of government funds were irregular and beyond the powers conferred upon the petitioner and said payments were made contrary to the provisions of Rule 403 and 404 of the Jharkhand Treasury Code read with rule- 8, 9, 10, 12 and 20 of the Financial Rules. The said order, on the face of it, is an order imposing penalty in terms of Rule 49 of the Service Rules and initiation of departmental proceeding is mandatory under Rule-55A of the Service Rules before passing such order. 13. Rule-49(iv) of the Service Rules provides for imposition of penalty upon an employee in the nature of recovery from pay of the whole or part of any pecuniary loss caused to Government by said employee due to negligence or breach of orders. In the instant case, sole allegation levelled against the petitioner is that the petitioner has caused loss to the Government due to negligence or breach of orders in as much as the petitioner has incurred expenditure beyond the powers vested upon him and contrary to the provisions of the Jharkhand Treasury Code and Financial Rules. Thus, the impugned order dated 30.03.2013 is an order of penalty and the contention of the respondent-State of Jharkhand that the said order cannot be treated as an order of punishment, is not sustainable in the eye of law. Thus, the impugned order dated 30.03.2013 is an order of penalty and the contention of the respondent-State of Jharkhand that the said order cannot be treated as an order of punishment, is not sustainable in the eye of law. Since admittedly, in the present case no departmental proceeding was initiated against the petitioner under Rule-55A of the Service Rules, the order imposing punishment/penalty of recovery from the pay of the petitioner is not sustainable in the eye of law. 14. This Court in the case of Rajendra Kishore Vs The State of Jharkhand and Ors (W.P.(S) No.4169 of 2013), vide its order dated 3.4.2014 set aside the order passed by the State Government wherein five increments with cumulative effect of the delinquent employee was withheld and further an amount of Rs.1,62,489/- was directed to be recovered from the salary of the petitioner of that writ petition in monthly instalments. In the said case, although departmental proceeding was initiated, but the procedure for conduct of departmental proceeding as stipulated under Rule-55 of the Service Rules was not adhered to, as the delinquent employee was not served with copy of inquiry report and second show cause notice before passing the aforesaid order of punishment. In the said background, this Court quashed and set aside the order imposing punishment upon the delinquent employee in the said case. 15. In the instant case, admittedly no departmental proceeding was initiated against the petitioner and in fact from bare perusal of show cause notice dated 25.02.2012 issued to the petitioner, it would be evident that in the said show cause notice the petitioner was served with the memo of charge sheet which was described as “draft charge sheet” and it was further categorically mentioned that if the petitioner does not submit his reply within the stipulated time, the petitioner would be put under suspension and departmental proceeding would be initiated against the petitioner. Thus, the respondents themselves were aware that if the reply submitted by the petitioner was not found satisfactory, they were required to initiate departmental proceeding and it is in that background, in the show cause notice itself it was indicated that departmental proceeding would be initiated in the event his reply is not found satisfactory. Thus, the respondents themselves were aware that if the reply submitted by the petitioner was not found satisfactory, they were required to initiate departmental proceeding and it is in that background, in the show cause notice itself it was indicated that departmental proceeding would be initiated in the event his reply is not found satisfactory. However, without initiating any departmental proceeding the impugned order of punishment has been passed by the respondent-Secretary, Department of Industry, Jharkhand, Ranchi which is not sustainable in the eye of law. Further, from bare perusal of the impugned order as well as counter affidavit filed on behalf of respondents, it would be evident that Disciplinary Authority has passed the order of punishment merely on the basis of the opinion given by the Departmental Accounts Officer, Director, Handlooms, Sericulture & Handicrafts, Jharkhand and Deputy Secretary, Department of Industry, without independent application of mind. Admittedly, copy of the aforesaid opinion was never supplied to the petitioner. The Hon’ble Supreme Court in the case of State Bank of India and ors Vs. D.C.Aggarwal and Anr, reported in (1993) 1 SCC 13 has held that an order imposing punishment on an employee passed on materials which were not supplied or disclosed to the said employee, cannot be countenanced in law. Relevant paragraph-4 of the said judgment is quoted hereunder. 4. Although correctness of the order passed by the High Court was assailed from various aspects, including the power of the High Court to interfere on quantum of punishment in writ jurisdiction, but we propose to confine ourselves only to the question of effect of non-supply of CVC recommendation and if the order was invalid and void on this score only, it is not necessary to decide any other issue. Law on natural justice is so well settled from a series of decisions of this Court that it leave one bewildered at times, that such bodies like State Bank of India, who are assisted by a hierarchy of law officers, commit such basic and fundamental procedural errors that counts are left with no option except to set aside such orders. Imposition of punishment on an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself. 16. Imposition of punishment on an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself. 16. Further, the Hon’ble Apex Court in the case of State of U.P. and Ors. Vs. Maharaja Dharmander Pd. Singh, reported in (1989) 2 SCC 505 ] wherein at paragraph-55 the law has been laid down as under:- “55. It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasi-judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion. It would then not be the authority’s discretion that is exercised, but someone else’s. If an authority “hands over its discretion to another body it acts ultra vires’. Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority..................” 17. In the instant case, it appears that the Disciplinary Authority i.e. the Secretary, Department of Industry, Government of Jharkhand, Ranchi has acted merely on the opinion of the officials of the department including the Departmental Accounts Officer and has passed the impugned order without independent application of mind and on this ground also, the impugned order is quashed and set aside. 18. It is an admitted position that the petitioner has already superannuated from service as far back as on 31.3.2013 and further the amount of Rs.3,51,307/- has already been recovered from the salary/pensionary benefits of the petitioner. Ordinarily, this court would have remitted the matter back to the Disciplinary Authority giving liberty to the said authority to initiate departmental proceeding against the petitioner in accordance with law. But in the present facts and circumstances of the case and also keeping in view the fact that the petitioner has already superannuated from service almost 7 years back, this Court is not resorting to the aforesaid exercise. But in the present facts and circumstances of the case and also keeping in view the fact that the petitioner has already superannuated from service almost 7 years back, this Court is not resorting to the aforesaid exercise. During course of arguments, the counsel for the petitioner relied upon Rule 43(b) of the Jharkhand Pension Rules, 2000 and has contended inter-alia that since already 4 years have elapsed from the date of superannuation of the petitioner, no fresh departmental proceeding for recovery of alleged amount can be initiated against the petitioner. I have carefully perused the provision of Rule 43(b) of the Jharkhand Pension Rules, 2000 which enables the State Government to initiate departmental proceeding against an employee for withholding or withdrawing a pension or any part of it, including the right of ordering the recovery from a pension of the said employee, if the said employee, in the departmental proceeding or judicial proceeding, has been found guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence and it is provided in the said rule that departmental proceeding can be initiated in respect of an event “which took place not more than 4 years before institution of such proceeding”. Admittedly, no departmental proceeding was initiated against the petitioner for his alleged misconduct and now, the petitioner has already superannuated from service on 31.3.2013, under the said circumstances in view of restriction imposed under Rule 43(b) of the Jharkhand Pension Rules, 2000, at this stage, no fresh departmental proceeding can be initiated against the petitioner, as it would be contrary to the restriction imposed under the said Rules which restricts initiation of departmental proceeding in respect of an event which took place beyond 4 years before the initiation of such departmental proceeding. The Hon’ble Apex Court in the case of State of Bihar and Ors Vs. Mohd. Idris Ansari, reported in (1995) Supp (3) SCC 56, has held as under:- “7. A mere look that these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the concerned government servant is found guilty of grave misconduct. A mere look that these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the concerned government servant is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four year before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b) in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years old, Rule 43(b) was out of picture.................” 19. In view of cumulative facts and circumstances mentioned hereinabove, the impugned order contained in Memo No. 600 dated 31.3.2013 (Annexure-3 to the writ application) wherein order of punishment of recovery of an amount of Rs.3,51,307/- has been passed against the petitioner is hereby quashed and set aside. It is further directed that respondent-State would refund the said amount to the petitioner within a period of 4 months from the date of receipt of copy of this order. If the amount is not refunded within the aforesaid period, the said amount shall also bear interest @ 9% per annum from the date of this order till the date of refund. 20. The writ application is accordingly allowed.