JUDGMENT : 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 is listed under the heading for ‘Admission' and with the consent of learned counsel for the parties, the same is being disposed of at this stage itself. 3. This intra-court appeal is preferred against the order/judgment dated 16.04.2019 passed by learned Single Judge in W.P. (S) No. 1152 of 2016, whereby and whereunder the writ Court has declined to interfere with the order of punishment, passed against the writ petitioner, as contained in Memo No. 6350 dated 28.12.2015, issued by the Deputy Secretary (Vigilance), Water Resources Department, Government of Jharkhand, Ranchi, whereby the writ petitioner was awarded punishment of curtailment of 5 % pension for a period of three years. 4. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis, are as under : The writ petitioner, who was an Assistant Engineer and while posted in Minor Irrigation Division, Bokaro, was entrusted with construction work of Lachhua Bandh Talab, Jaridih and Baru Koop (Well), Jaridih. But some irregularities were found in execution of the aforesaid work, therefore, preliminary enquiry was directed to be conducted, basing upon which, regular departmental proceeding was initiated against the writ petitioner with the allegation that excess payment to the tune of Rs. 2,18,930.48 paise was made for construction work of Lachhua Bandh Talab, Jaridih and further excess payment to the tune of Rs. 58,124/-was made, so far Baru Koop (Well), Jaridih is concerned as depth of the well was short by 9.34 feet. After enquiry, the enquiry officer submitted inquiry report dated 15.01.2014 finding the charges leveled against the writ petitioner not proved. In the meantime, the writ petitioner was separated from service on attaining the age of superannuation on 30.06.2013. After his superannuation, the proceeding has deemed to be converted under Rule 43 (b) of the Jharkhand Pension Rules. The disciplinary authority did not agree with the inquiry report submitted by the enquiry officer, hence issued second show cause notice dated 09.07.2015, annexing therewith copy of inquiry report, to the writ petitioner proposing the punishment of curtailment of 10% pension. In response thereof, the writ petitioner submitted detailed reply to the second show cause. The disciplinary authority did not agree with the inquiry report submitted by the enquiry officer, hence issued second show cause notice dated 09.07.2015, annexing therewith copy of inquiry report, to the writ petitioner proposing the punishment of curtailment of 10% pension. In response thereof, the writ petitioner submitted detailed reply to the second show cause. Considering the said reply, impugned order dated 28.12.2015 was passed whereby pension of the writ petitioner was curtailed by 5 % for a period of three years. Aggrieved thereof, the writ petitioner approached this Court by invoking writ jurisdiction of this Court under Article 226 of the Constitution of India mainly on the ground that reply to the second show cause notice was not properly considered by the respondents-authorities but the learned Single Judge refused to interfere with the impugned order on the ground that the procedure of departmental proceeding was properly followed, which order is the subject matter of present intra-court appeal. 5. Mr. Prabhat Kumar Sinha, learned counsel for the writ petitioner has submitted that basic procedure for imposing punishment of curtailment of 5 % pension from the pensionary benefit of the writ petitioner was not followed to the extent that when the enquiry officer had submitted enquiry report finding charges not proved against the writ petitioner and in that circumstance, if the disciplinary authority differs with the findings recorded by the enquiry officer reason, was to be recorded and copy of such reason of difference was to be furnished to the delinquent-officer but instead of doing so, a second show cause was issued with proposed punishment of curtailment of 10 % pension, which is not permissible in a case where charges were found not proved by the enquiry officer. Further ground has been agitated that principle of parity in imposing punishment was not followed as for the similar set of charges, the Junior Engineer was exonerated while the writ petitioner has been imposed with a punishment of curtailment of 5 % pension for a period of three years. 6. Mr. Om Prakash Tiwari, learned G.P. III appearing for the respondents-State has defended the order passed by the learned Single Judge and submitted that learned Single Judge committed no error while declining to interfere with the impugned order of punishment taking into consideration the limited scope of power of judicial review under Article 226 of the Constitution of India. 6. Mr. Om Prakash Tiwari, learned G.P. III appearing for the respondents-State has defended the order passed by the learned Single Judge and submitted that learned Single Judge committed no error while declining to interfere with the impugned order of punishment taking into consideration the limited scope of power of judicial review under Article 226 of the Constitution of India. It has further been submitted that the writ petitioner was afforded with all opportunity to defend his case and after considering the reply furnished by the writ petitioner, the disciplinary authority imposed the impugned punishment of curtailment of 5 % pension for a period of three years and as such the same may not be interfered with. 7. We have heard learned counsel for the parties and perused the documents available on record as also the findings recorded by the learned Single Judge. Admitted fact herein is that a departmental proceeding was initiated against the writ petitioner on the allegation that excess payment to the tune of Rs. 2,18,930.48 paise was made in respect of construction work of Lachhua Bandh Talab, Jaridih and further excess payment to the tune of Rs. 58,124/-was made so far construction work of Baru Koop (Well), Jaridih is concerned, as depth of the well was short by 9.34 feet. The writ petitioner appeared before the enquiry officer and defended his case. The enquiry officer, on the basis of materials available before him, found the charges not proved against the writ petitioner and submitted enquiry report dated 15.01.2014 before the disciplinary authority. The disciplinary authority issued second show notice with proposed punishment of curtailment of 10 % pension, as during pendency of the departmental proceeding the writ petitioner was superannuated from service w.e.f. 30.06.2013 and the proceeding got converted under Rule 43(b) of the Jharkhand Pension Rules, to which writ petitioner replied and the disciplinary authority considering the reply and also the other materials available before it, imposed the punishment of curtailment of 5%, pension for a period of three years. 8. This Court, before proceeding to assess the legality and propriety of the impugned order passed by the respondent-authority as also the findings recorded by the learned Single Judge, deem it fit and proper to discuss about settled position of law in a case where enquiry officer found the charges ‘not proved’ against the delinquent-officer. 8. This Court, before proceeding to assess the legality and propriety of the impugned order passed by the respondent-authority as also the findings recorded by the learned Single Judge, deem it fit and proper to discuss about settled position of law in a case where enquiry officer found the charges ‘not proved’ against the delinquent-officer. Such issue fell for consideration before the Hon’ble Apex Court in Punjab National Bank & Ors v. Kunj Behari Misra, [ (1998) 7 SCC 84 ], wherein proposition has been laid down that in a case where the enquiry officer has found the charges not proved against the delinquent-officer, the disciplinary authority while disagreeing with such finding must has to record its reasons for such difference. The relevant paragraph 19 of the said judgment is quoted hereunder as: “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” It is, thus, evident that whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before recording its own findings on such charge, it must record its tentative reasons for such disagreement and provide an opportunity to the delinquent officer to represent before recording its findings. The report of the enquiry officer containing its findings will have to be conveyed to the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The report of the enquiry officer containing its findings will have to be conveyed to the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. Further, settled position is that in a departmental proceeding where the enquiry officer has found the charges proved against the delinquent-employee, in such circumstance when the enquiry officer will forward the enquiry report to the disciplinary officer, if the enquiry officer and the disciplinary are two separate identity, the disciplinary authority will issue second show cause with proposed punishment for providing an opportunity to rebut the finding recorded by the enquiry officer. It is, only, thereafter the disciplinary authority is required to inflict punishment on appropriate consideration of reply to second show cause furnished by the delinquent officer. 9. We have considered the factual aspect of the matter and found therefrom, more particularly from the enquiry report wherein both the charges leveled against the writ petitioner had been found not proved by the enquiry officer and as per law laid down in Punjab National Bank & Ors v. Kunj Behari Misra (supra) it was incumbent upon the disciplinary authority while differing with the finding recorded by the enquiry officer to record the reasons of difference and thereafter provide opportunity to the delinquent-officer to defend on the point of difference by filing representation but herein aforesaid procedure has not been followed rather second show cause has been issued on 09.07.2015, as has been annexed as Annexure 7 to the writ petition, whereby and whereunder the disciplinary authority completely ignoring the findings recorded by the enquiry officer and putting reliance upon fact finding enquiry conducted by the departmental flying squad proposed the punishment of curtailment of 10 % pension. However, the writ petitioner submitted reply to the said second show cause notice, whereupon the disciplinary authority imposed punishment of curtailment of 5 % pension for a period of three years. 10. The issue of deemed conversion of the departmental proceeding from proceeding initiated under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules to proceeding under Section 43(b) of the Pension Rules is no more in dispute. 10. The issue of deemed conversion of the departmental proceeding from proceeding initiated under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules to proceeding under Section 43(b) of the Pension Rules is no more in dispute. Further, it would be evident from the order passed by the learned Single Judge that, the legal issue of procedure to be followed in case of not finding the charges proved by the enquiry officer, was not raised by the writ petitioner before the writ Court as such the same was not dealt with by the learned Single Judge. However, the same being legal issue since has been raised ion behalf of appellant as such the same has been thought to be proper to be considered. 11. Further illegality committed by the disciplinary officer, as would appear from second show cause, is that the report of departmental flying squad, by way of preliminary enquiry, was given much emphasis which is not permissible as the fact finding enquiry is always before initiation of the departmental proceeding for the purpose of prima facie assessing charges leveled against the delinquent officer. It is not that the report of the departmental flying squad by way of preliminary enquiry cannot be considered but the same has to be considered in course of enquiry but after going across the enquiry report, it is found that the report of the departmental flying squad was never considered by the enquiry officer and after considering the materials produced before it, the enquiry officer had found the charges not proved against the writ petitioner. The question of putting reliance upon the report of the departmental flying squad by way of preliminary enquiry if allowed to be considered the same will be highly prejudicial to the interest of the delinquent officer, as the document which was never before the enquiry officer was relied upon by the disciplinary authority and in that way the same will be against the principles of natural justice. It requires to refer herein that under provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules for imposing major punishment all relevant document is to be annexed with the memorandum of charge but no such document like that of the report of departmental flying squad was made part of the memorandum of charge, therefore, the same did not find place for its consideration by the enquiry officer. 12. In that view of the matter, this Court, is of the considered view that the principle laid down in case of charge having not been proved by the enquiry officer as has been held in Punjab National Bank & Ors v. Kunj Behari Misra (supra) since has not been followed the impugned order of punishment cannot be said to be sustainable in the eyes of law. 13. Accordingly, the impugned order of punishment dated 28.12.2015 is quashed and set aside and also the order passed by the learned Single Judge, refusing to interfere with the impugned order of punishment, is quashed and set aside. 14. One of the arguments has been raised by learned counsel for the writ petitioner is that the principle of parity in imposing punishment has not been followed as against the Junior Engineer the similar nature of charge was leveled but he was let free, hence the principle of parity was to be followed as has been held by Hon’ble Apex Court in Rajendra Yadav Vs. State of Madhya Pradesh & Ors [ (2013) 3 SCC 73 ]. With respect to this aspect of the matter since same pertains to factual aspect of the issue and as would appear from the impugned order that such fact has not been agitated before the learned Single Judge, therefore, we are not expressing any opinion on the aforesaid aspect of the matter at this stage. Though we have quashed and set aside the impugned order dated 28.12.2015, but the question herein is that can on technicality the delinquent officer be made scot free. The answer of this question would in ‘Negative’ as if any charge is leveled against any person the same has to be dealt with on merit. Though we have quashed and set aside the impugned order dated 28.12.2015, but the question herein is that can on technicality the delinquent officer be made scot free. The answer of this question would in ‘Negative’ as if any charge is leveled against any person the same has to be dealt with on merit. Therefore, we are of the considered view that the matter requires to be remitted before the disciplinary authority from the stage of issuance of notice by reflecting the reasons of difference with the finding recorded by enquiry officer and to take final decision after providing an opportunity of adequate and sufficient opportunity of hearing to the delinquent officer. 15. In that view of the matter, the matter is remitted before the disciplinary authority from the stage of issuance of notice reflecting therein the reasons of difference with the finding recorded by enquiry officer. The disciplinary authority is directed to issue notice of difference of finding with the enquiry officer in order to provide an opportunity of hearing to the delinquent officer, as per the principles laid down in Punjab National Bank & Ors v. Kunj Behari Misra (supra). The writ petitioner would be at liberty to raise the issue of principle of parity in imposing punishment before the disciplinary authority for its factual determination by deciding the case in accordance with law after issuing charges leveled against the writ petitioner vis-à-vis the Junior Engineer. It has been contended by learned counsel for the appellant that the curtailment of 5 % pension from the pension of the writ petitioner has already been done, we are of the view that the aforesaid deduction would depend upon the final decision of the authority as directed herein above. The disciplinary authority is directed to complete the whole exercise within a period of six months from the date of receipt/production of copy of this order in accordance with law without being prejudiced by the order passed by this Court and observations made herein above. 16. Since, we have quashed and set aside the impugned order dated 28.12.2015 passed by respondent no. 3-Deputy Secretary (vigilance), Water Resources Department, Government of Jharkhand, Ranchi, resultantly the order passed by learned Single Judge is also quashed and set aside. 17. Accordingly, the present intra-court appeal is allowed to the extent as indicated herein above.