JUDGMENT : 1. The present writ application was initially preferred for the following reliefs:- “(i) For payment of Pension, Leave encashment and gratuity admissible after retirement and other retiral benefits. (ii) For further direction for payment of interest of 12% upon aforesaid amount till date of actual payment. (iii) For any other relief/relief’s the petitioner entitled for in the facts and circumstances of the case.” 2. The petitioner who was holding the post of Statistical Supervisor in Bakhtiyarpur Block, Patna was arrested after he was trapped by the Department of Vigilance while accepting a sum of Rs. 8000/-in cash from the complainant. One F.I.R. being Vigilance Case Number 3 of 2014 dated 11-04-2014 under Section 7/13 (2) read with Section 13 (1) (a) of the Prevention of Corruption Act was registered, petitioner was suspended under rule 9 (2) (d) of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as ‘the Rules of 2005’) with effect from 11-04-2014. He was granted bail in the Vigilance Case and while the said case is still pending, a departmental proceeding was initiated against the petitioner and he was served with Prapatra “d” vide memo no. 771 dated 03-06-2014 (Annexure -2 series). 3. It is stated that after his release on bail, the petitioner joined at the headquarter Bettiah (West Champaran) from where he superannuated on 31-08-2015. The departmental proceeding initiated against the petitioner prior to his retirement was converted in a proceeding under Rule 43 (ka) of the Bihar Pension Rules (hereinafter referred to as ‘the Pension Rules’). By a memo no. 1390 dated 19-07-2016 (Annexure 7 to the writ application) petitioner was communicated that the departmental proceeding against him has been converted under the Pension Rules. 4. The petitioner moved this Court with a grievance that after his retirement, though, he has been provided with his General Provident Fund (GPF) and Group Insurance amount in the month of December 2016, his other retiral dues such as gratuity, leave encashment have not been paid and no step has been taken for fixation of his provisional pension. In this regard, he drew the attention of this Court towards his representation as contained in annexure 8 series to the writ application. 5. In this regard, he drew the attention of this Court towards his representation as contained in annexure 8 series to the writ application. 5. The petitioner submitted that he is suffering from diabetes and other medical problems and because of non-payment of legitimate retiral dues and in absence of commencement of his provisional pension he is on the verge of starvation. 6. In the counter affidavit filed on behalf of respondent nos. 4 and 6 it was informed that in the departmental proceeding, the petitioner has been awarded the punishment of withholding of his total pension under Rule 43 (ka) of the Pension Rules and in this regard memo no. 1533 dated 18-07-2017 has been issued. The said respondent took a stand that since vigilance case is still pending, after final judgment by the Hon’ble Court gratuity and pension order will be affected. 7. Counter affidavit has also been filed on behalf of respondent nos. 3 and 5 in which the stand of respondent nos. 4 and 5 has been endorsed. Annexure ‘E’ to the counter affidavit is the copy of Memo no. 1533 dated 18.07.2017. 8. In view of the order passed by the respondents, awarding punishment of withholdment of 100% pension which includes gratuity, the petitioner filed an application being I.A. No. 1 of 2020 seeking amendment to the writ application. In the amendment petition, the following reliefs have been prayed:- “(a) To order contained in memo no-1533 dated 18.07.2017 issued by the Director, Planning and Developmental Department (Economics & Statistics Directorate), Govt. of Bihar, Patna whereby and where under the punishment of withholding of full pension has been imposed against the petitioner. A copy of memo no. 1533 dated 18.07.2017 is annexed as ANNEXURE 9 to this application. (b) To quash the Appellate order contained in memo no. 979 dated 07.05.2018, by which the appeal filed by the petitioner against the order dated 18.07.2017 (Ann-9) has been rejected by the Secretary, Economics and Statistics Directorate, (Planning and Developmental Department). A copy of memo no. 979 dated 07.05.2018 is annexed as ANNEXURE-10 to this application. (c) To direct the respondents to pay full pension and gratuity to the petitioner with appropriate statutory interest forthwith. And for any other appropriate relief(s) as per the facts and circumstances of this case.” 9. A copy of memo no. 979 dated 07.05.2018 is annexed as ANNEXURE-10 to this application. (c) To direct the respondents to pay full pension and gratuity to the petitioner with appropriate statutory interest forthwith. And for any other appropriate relief(s) as per the facts and circumstances of this case.” 9. Earlier this Court had granted the petitioner permission to file the Interlocutory Application and learned GP-8 was given an opportunity to submit an additional counter affidavit. In response, a supplementary counter affidavit has been filed on behalf of respondent nos. 1 to 4, thus the learned counsel for the parties have argued on the basis of the statements made in the writ petition as well as the amendment petition which forms part and parcel of the writ application. 10. It is the contention of learned counsel for the petitioner that in the departmental proceeding, after submission of show cause by the petitioner, no date of hearing was ever fixed by the Inquiry Officer. No document related to alleged charges levelled against the petitioner was ever adduced and no witness was examined. It is submitted that even the Presenting Officer who is responsible for placing the case of the department has not submitted any document during the course of the departmental proceeding. 11. Learned counsel further submits that a bare reading of the inquiry report would show that the Inquiry Officer has presumed that the petitioner is guilty of the charges alleged against him. It is further submitted that the opportunity to submit a second show cause before the disciplinary authority was mere an empty formality as even the disciplinary authority has not considered the reply of the petitioner and has proceeded to simply endorse the views of the Inquiry Officer. 12. Learned counsel for the petitioner has drawn the attention of this Court towards paragraph ‘6’ and ‘17’ of its amendment petition and further submits that the respondents did not provide the provisional pension to the petitioner in the name of pendency of the departmental proceeding under the Pension Rules. 13. 12. Learned counsel for the petitioner has drawn the attention of this Court towards paragraph ‘6’ and ‘17’ of its amendment petition and further submits that the respondents did not provide the provisional pension to the petitioner in the name of pendency of the departmental proceeding under the Pension Rules. 13. Learned counsel has drawn the attention of this Court towards Rule 43 (C) of the ‘Pension Rules’ and submits that the respondents did not follow their own rules and in absence of provisional pension to the petitioner, the petitioner cannot be said to have been given proper opportunity to defend himself in the departmental proceeding and the impugned order would suffer from the vice of violation of principle of natural justice. 14. Learned counsel further submits that the petitioner retired from service on 31-08-2015, on the date of retirement of the petitioner the matters relating to payment of gratuity and pension would be guided by the provisions existing under the Pension Rules at the relevant time. It is his submission that the Hon’ble Full Bench of this Court in the case of Arvind Kumar Singh versus the state of Bihar and Others reported in 2018 (2) PLJR 933 has interpreted the relevant Rule 27 and 43 (C) of the Pension Rules as existing at that time. The Hon’ble Full Bench has held that when a government employee is facing a criminal proceeding and the same is pending, the government is well within its power to withhold his leave encashment but the gratuity cannot be withheld. 15. Learned counsel submits that the impugned order as contained in memo no. 1533 dated 18-07-2017 (Annexure 9) passed by the disciplinary authority and the appellate order contained in memo no. 779 dated 07-05-2018 (Annexure -10) passed by the appellate authority are liable to be set aside on the above mentioned grounds. 16. Learned counsel further submitted that the allegation against the petitioner is that he had demanded a bribe of Rs. 8000/-from the wife of the complainant Subodh Prasad for releasing the second installment of the sanctioned amount for construction of residential house under Indira Awas Scheme. It is submitted that on the date when the petitioner was arrested by laying down a trap, the wife of the complainant had not submitted any application for release of the second installment. 8000/-from the wife of the complainant Subodh Prasad for releasing the second installment of the sanctioned amount for construction of residential house under Indira Awas Scheme. It is submitted that on the date when the petitioner was arrested by laying down a trap, the wife of the complainant had not submitted any application for release of the second installment. In fact she had submitted her application on 06-06-2014 only which is almost two months after the arrest of the petitioner. In this regard, learned counsel for the petitioner has drawn the attention of this Court towards the letter bearing no. 1957 dated 14-04-2015 and letter number 631 dated 10-06-2014 written by the Block Development Officer, Bakhtiyarpur which is enclosed with the reply of the petitioner as contained in Annexure -‘5’ to the writ application. 17. Learned counsel for the petitioner submits that the reply of the petitioner has been completely misconstrued and the Inquiry Officer as well as the disciplinary authority reached to a perverse finding that the petitioner has admitted acceptance of bribe. It is submitted that the context in which the petitioner has explained the entire things in his written statements/submissions to the Inquiry Officer has not been appreciated by the Inquiry Officer and then the disciplinary authority. 18. Mr. Harish Kumar, learned GP-8 has opposed the writ application. It is his submission that the charges were framed against the petitioner in Appendix ‘A’, the same was made available to him and he was called upon to furnish his show cause. It is stated that the Conducting Officer provided opportunity of hearing to the petitioner on different dates and the principle of natural justice stands fully complied with. The petitioner was given opportunity to adduce evidence to rebut the charges levelled against him as contained in Appendix “k” ( izi= Þdß ) and the petitioner failed to rebut the levelled charges and failed to prove his innocence. 19. Learned counsel submits that the representation/show cause received from the petitioner was not satisfactory, the petitioner admits that he had received cash of Rs. 8000/-, the Conducting Officer drew the inference that show cause submitted by the petitioner was not satisfactory and was not based on substantial facts, the Inquiry Officer, therefore, concluded that the charges levelled against the petitioner are prima-facie true. 8000/-, the Conducting Officer drew the inference that show cause submitted by the petitioner was not satisfactory and was not based on substantial facts, the Inquiry Officer, therefore, concluded that the charges levelled against the petitioner are prima-facie true. It is submitted that after submission of the inquiry report the Directorate of Economics and Statistics provided an opportunity of hearing to the petitioner and at this stage an opportunity to submit second show cause was given to the petitioner vide letter no. 1928 dated 22.12.2014 (Annexure ‘B’ to the supplementary counter affidavit). It is submitted that the petitioner failed to produce substantial evidence in his defence and consequently the disciplinary authority imposed the punishment of withholding of full pension by the impugned order. 20. Learned GP-8 has also defended the appellate order. In course of hearing, learned counsel submitted that the word ‘pension’ includes gratuity, therefore, by the impugned order the pension as well as gratuity of the petitioner have been withheld. 21. In his rejoinder to the supplementary counter affidavit, the petitioner has submitted that the inquiry report is itself indicative of the manner in which the entire proceeding has been conducted. From the order sheet and the inquiry it would appear that on 06.08.2014 notice of departmental proceeding was received by the petitioner and thereafter only on two days i.e. 26.08.2014 and 06.09.2014 the so-called proceeding took place. On 07.09.2014, the proceeding was concluded. It is stated that after receiving the show cause from the petitioner, opinion was sought from the Presenting Officer and after receiving the same the proceeding has been concluded. It is the specific case of the petitioner that after submission of show cause no date of hearing was fixed by the Conducting Officer and no document relating to alleged charges against the petitioner was ever adduced. The assumption of guilt has been taken against the petitioner only because the petitioner has been arrested by the vigilance. 22. Learned GP 8 has relied upon a judgment of the Hon’ble Apex Court in the case of Union of India and Others Versus P. Gunasekaran reported in (2015) 2 SCC 610 (paragraph ‘12’) to submit that this Court sitting in its writ jurisdiction would not act as the appellate authority and would not appreciate or re-appreciate the evidences before the Inquiry Officer. Consideration 23. Consideration 23. Having heard learned counsel for the petitioner and learned GP-8 for the State, this Court finds that after the petitioner was arrested in the trap case and while he was on bail, the respondent no. 2 issued office order no. 144 dated 03.06.2014. On this memo, the departmental proceeding was initiated against the petitioner. Additional Collector (Departmental Inquiry), Patna was appointed as Presenting Officer on behalf of the Department. izi= Þdß was served upon the petitioner while he was still in jail on 03.06.2014. The charges framed against the petitioner are as under:- ^^izi= Þdß uke%& Jh jke dqekj flag inuke%& iz[kaM lkaf[;dh i;Zos{kd lewg%& Þ[kß osrucSaM@ xzsM is %& : 9300&34800 ¼xzsM is & 4200½ tUe frfFk %& 28-08-1955 lsokfuo`fr dh frfFk %& 31-08-2015 vkjksi@fooj.k lk{; iqfyl v/kh{kd] fuxjkuh vUos”k.k C;wjks iVuk us vius i=kad &840] fnukad & 21-04-2014 }kjk vkids fo:) 8000@& :0 fj'or ysrs jaxs gkFk idM+s tkus rFkk Fkkuk cf[r;kjiqj] ftyk iVuk ls muds iRuh Jherh lksuh nsoh ds uke ls vkoafVr bafnjk vkokl ds fuekZ.k ds fy, nqljs fdLr ds Hkwxrku gsrq 8000@& fj'or dh ek¡x dh x;h A Jh lqcks/k dqekj }kjk iqfyl v/kh{kd fuxjkuh vUos”k.k C;wjks] iVuk ds dk;kZy; esa fnukad &07-04-2014 dks vkids fo:) fj'or ekaxs tkus laca/kh f'kdk;r@ifjokn i= nkf[ky fd;k x;kA mDr ifjokn i= ds vkyksd esa fuxjkuh vUos”k.k ds /kkok ny }kjk fj'or ds jde ds lkFk vkidks fxj¶rkj fd;k x;kA ;g vkids fo:) ljdkjh lsod vkpkj fu;ekoyh dk ?kksj mYya?ku gS A 2- fj'or dh jkf'k jaxs gkFk idM+s tkus ds vkyksd esa vkids fo:) fuxjkuh Fkkuk dkaM la0 031@2014] fnukad &11-04-2014 ds rgr~ izkFkfedh ntZ dh x;h gS A izFke n`"V;k mi;qZDr vkjksi izekf.kr ik;s tkus ds QyLo:i fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh& 2005 ds fu;e 9 ¼2½ ¼d½ ds vkyksd es fgjklr esa tkus dh frfFk ls fuyafcr fd;k x;k A mi;ZqDr d`r dkjZokbZ vkids ?kksj vuq'kklughurk] dŸkZO;ghurk ,oa Hkz”V vkpj.k dk ifjpk;d gS A mDr vkjksi ds fy, fuxjkuh Fkkuk dkaM la[;k 031@2014] fnukad &11-04-2014 ls lacaf/kr foLr`r izfrosnu izkIr gq, A izkIr izfrosnu esa vkids fo:) fuEuor~ vkjksi yxk;s x;s gS %& 1- vkids }kjk Jh lqcks/k izlkn] firk&pfUnzdk izlkn] xzke & cf[r;kjiqj] iqfyl v/kh{kd] fuxjkuh vUos”k.k C;wjks] iVuk dk i=kad &840] fnukad & 21-04-2014 ¼dqy 18 i`"V½ 24. Petitioner submitted his reply dated 27.08.2014 (Annexure ‘3’ to the writ application). Petitioner submitted his reply dated 27.08.2014 (Annexure ‘3’ to the writ application). He denied the allegations of demand of bribe for release of second installment of the sanctioned amount under Indira Awas Scheme to the wife of the complainant. He also relied upon the letters written by the Block Development Officer, Bakhtiyarpur stating therein that the wife of the complainant had submitted her application for release of second installment much after the arrest of the petitioner. In paragraph ‘9’ of his reply the petitioner came out with a story and he tried to explain as to how and why the sum of Rs.8,000/-was received by him. 25. The order sheet of the departmental proceeding has been brought on record. Annexure ‘11’ to the amendment petition as contained in letter no. 336 dated 21.10.2014 written by the Additional Collector (Departmental Proceeding), Patna-cum-Inquiry Officer would show that after sending the copy of izi= Þdß to the delinquent employee directing him to submit his response before the Inquiry Officer, the Presenting Officer was called upon to adduce evidences on the date fixed in the matter. On 16.08.2014, the record was produced and the Inquiry Officer recorded that notice has been served but the delinquent employee is absent. The matter was fixed for 27.08.2014. On 27.08.2014 the petitioner appeared and filed his show cause. The Inquiry Officer adjourned the matter calling upon the Presenting officer to submit his opinion on the show cause of the petitioner. On 01.09.2014 the Presenting Officer submitted opinion and thereafter the case was fixed for 17.09.2014 and on 17.09.2014 the Inquiry Officer simply recorded that the opinion of the Presenting Officer has been received and the matter was fixed for order. On 01.09.2014 the Presenting Officer submitted opinion and thereafter the case was fixed for 17.09.2014 and on 17.09.2014 the Inquiry Officer simply recorded that the opinion of the Presenting Officer has been received and the matter was fixed for order. It further appears from the inquiry report that in his inquiry report the Inquiry Officer simply reproduced the charges against the petitioner and thereafter the Inquiry Officer proceeded to conclude the matter with his opinion as under:- ^^Lkapkyu inkf/kdkjh dk eUrO; %& vkjksih ij Jh lqck/sk izlkn] firk Jh pUnzhdk izlkn xzke & cf[r;kjiqj] ls muds iRuh Jherh lksuh nsoh ds uke ls vkoafVr bafnjk vkokl ds fuekZ.k ds fy, nqljs fdLr ds Hkqxrku gsrq eks0&8000-00 ¼vkB gtkj½ :i;s fj'or dh ek¡x djus rFkk fuxjkuh /kkok ny ds }kjk ?kwl ysxs gkFkks idM+s tkus dk vkjksi gS A vkjksih dk dguk gS fd mudh fxjrkjh dh frfFk rd blls lacaf/kr dksbZ Hkh vkosnu i= iz[kaM dk;kZy; esa tek ugha fd;k x;k Fkk vkSj u gha bfUnjk vkokl ;kstuk ls lacaf/kr dksbZ dk;ZHkkj mudas ftEesa Fkk A vkjksih dk ;g Hkh dguk gS fd vkjksih dk vkosnu bfUnjk vkokl ds osolkbV ij viyksM Hkh ugha Fkk A vkjksih dk ;g Hkh dguk gS fd ifjoknh dk gLrk{kj;qDr vkosnu i= rFkk v/kwjs bfUnjk vkokl lfgr vkosfndk dks QksVks /kkok ny }kjk tIr ugha fd;k x;k Fkk A fuxjkuh /kkok ny }kjk tCr fd;k x;k ifjoknh ds iRuh dk vkosnu ,ao QksVks euxaढr dkxtkr gSA ftls /kkokny ds izHkkjh lR;kiudrkZ rFkk ifjoknh us feydj lkft'k jpdj Qalk;k gS A vkjksih us ifjoknh dks nyky crk;k gS rFkk ;g vkjksi yxk;k gS fd viuh ea'kk esa lQy ugha gksus ds dkj.k ifjoknh us deZpkfj;ksa ds chp [kkSQ iSnk djus ds fy, mUgsa Qalk;k gS A izLrksrk inkf/kdkjh us vkjksih dh Li"Vhdj.k dks vlarks"ktud crk;k gS A lk{; ds :i esa vkjksih }kjk miyC/k djk;s x;s dkxtkr ls ;g Li"V gksrk gS fd vkjksih ds fxjrkjh dh frfFk rd ifjoknh dk bl ekeys ls lacaf/kr dksbZ Hkh vkosnu iz[k.M dk;kZy; esa tek ugha FkkA lkFk ifjoknh ds pfj= ij Hkh iz'u fpUg yxrk gS A vkjksih dk Li"Vhdj.k ekU; ;ksX; ugha gS] D;ksfd ifjoknh dk vkosnu i= mudh fxjrkjh dh frfFk rd iz[k.M dk;kZy; esa tek ugha gksus rFkk ifjoknh ds nyky gksus@xyr rjhds ls bfUnjk vkokl dh jkf'k ysus ls ;g izekf.kr ugha gksrk gS fd vkjksih funksZ"k gS A vkjksih dk dkj.k i`PNk vius d`R; dks Nqikus dk iz;kl ek= gSA rF;ksa ,oa lk{;ksa ds voyksdu ls Li"V gS fd vkjksih dks :0 eks0&8000-00 ¼vkB gtkj½ fj'or ysrs gq, fuxjkuh /kkok ny }kjk jaxs gkFk fxjrkj fd;k x;k rFkk fuxjkuh Fkkuk dkaM la[;k 031@14 fnukad 11-04-14 /kkjk 7 ¼13½ ¼2½ lg ifBr /kkjk 13¼1½ ¼Mh½ Hkz0 fu0 vf/k0 1988 ds izkFkfed vfHk;qDr gS A vkjksih ij vkjksi izi= Þdß esa xfBr vkjksi izekf.kr gksrk gS A vij lekgrkZ ¼ftrsUnz dqekj flag½ foHkkxh; tk¡p iVuk^^ 26. The disciplinary authority though gave an opportunity to the petitioner to submit his reply on the Inquiry report, but when the petitioner submitted his reply (Annexure ‘13’) and controverted the finding of the Inquiry Officer, the disciplinary authority proceeded to pass the impugned order as contained in Annexure ‘9’ enclosed with the interlocutory application without applying his own judicious mind. The disciplinary authority though gave an opportunity to the petitioner to submit his reply on the Inquiry report, but when the petitioner submitted his reply (Annexure ‘13’) and controverted the finding of the Inquiry Officer, the disciplinary authority proceeded to pass the impugned order as contained in Annexure ‘9’ enclosed with the interlocutory application without applying his own judicious mind. The disciplinary authority recorded the facts in its order and while considering the reply of the petitioner, he passed the operative order in the following terms:- ^^vkjksih ij vkjksi izi= Þdß esa xfBr vkjksi izekf.kr gksrk gS A 4- lapkyu inkf/kdkjh }kjk lefiZr tk¡p izfrosnu ij funs'kky; ds i=kad 1928 fnukad 22-12-2014 }kjk Jh jke dqekj flag ls f}rh; dkj.k i`PNk dh ek¡x dh x;h] ftlesa muds }kjk fuEufyf[kr rF; izLrqr fd;s x;s %& ¼1½ vkjksih dk dFku gS fd l0 v0 fu0] Jh banzthr flag dk lR;kiu izfrosnu fnukad 10-04-2014 esa vkjksih dh mez 50&52 o"kZ rFkk jax lkaoyk crk;k x;k gS A tcfd os lkaoys jax dk ugha gS rFkk mudh mez ml oDr 59 o"kZ FkhA ¼2½ fuxjkuh /kkok ny }kjk rS;kj fd;k x;k iksLV VSªi eseksjsaMe fnukad 11-04-2014 esa mYys[k gS fd vkjksih ds ck,a gkFk dh maxyh dks lksfM;e dkcksZusV ds ikuh ds ?kksy esa Mkyk x;k rks lQsn ?kksy jax yky gks x;k A tcfd blh izfrosnu ls Li"V gks tkrk gS fd vkjksih ;g uksV dks vius nkfgus gkFk esa j[ks gq, Fksa rFkk /kkok ny ds }kjk vkjksih dk nksuksa gkFk idM+ fy;k x;k Fkk A fQj ck,a gkFk esa fu'kku dgka ls vk x;kA 5- Jh jke dqekj flag }kjk lefiZr f}rh; dkj.k i`PNk esa mUgh rF;ksa dk j[kk x;k gS tks muds }kjk foHkkxh; dk;Zokgh lapkyu ds dze esa lapkyu inkf/kdkjh ds le{k j[kk x;k Fkk vkSj muds }kjk dksbZ lk{; vius cpko esa lefiZr ugha fd;k x;k gS A lkFk gh f}rh; dkj.k i`PNk dh dafMdk 9 esa Lohdkj fd;k x;k gS fd mUgksaus 8000@& ¼vkB gtkj½ :i;s fy, Fks A 6- mi;qZDr dafMdk esa of.kZr rF;ksa ls Li"V gksrk gS fd Jh jke dqekj flag ij yxk;s x;s nksuksa vkjksi ;Fkk 8000@& ¼vkB gtkj½ :i;s fj'or dh ek¡x fd;s tkus ,oa fj'or ysrs gq, jaxs gkFk idM+s tkuk] izekf.kr gksrs gS A 7- Jh jke dqekj flag dks fnukad 31-08-2015 dks ok/kZD; lsokfuo`r gks tkus ds QyLo:i funs'kky; ds dk0 vk0 la0 &178 lgifBr Kkikad &1390 fnukad & 19-07-2016 }kjk bu ij lapkfyr foHkkxh; dk;Zokgh dks fcgkj isa'ku fu;ekoyh ds fu;e 43 ¼d½ ds rgr lifjofrZr fd;k x;k gSA 8- fcgkj isa'ku fu;ekoyh ds fu;e 43 ¼d½ esa ;g izko/kku gS fd Hkfo"; lnkpkj gj isa'ku iznku dh ekuh gqbZ 'krZ gS A jkT; ljdkj dks isa'ku ;k mlds fdlh va'k dks jksd j[kus ;k okil ysus dk vf/kdkj gksxk A ;fn isa'kuHkksxh xaHkhj vijk/k ds fy, nks”kh Bgjk;k tk; ;k vkSj dnkpkj dk nks"kh gks A bl fu;e ds v/khu leqfpr isa'ku ;k mldk dksbZ va'k jksd j[kus ;k okil ysus ds laca/k esa jkT; ljdkj dk fu.kZ; vafre ,oa fu.kkZ;d gksxk A vr% mij of.kZr lHkh rF;ksa dks n`f"Vxr j[krs gq, pwafd Jh jke dqekj flag lEizfr lsok fuo`r duh; lakf[;dh lgk;d] ftyk lkaf[;dh dk;kZy;] if'peh pEikj.k ¼csrh;k½ ij 8000@& ¼vkB gtkj½ :i;s fj'or ysrs gq, jaxs gkFk idM+k;k tkuk izekf.kr gS tks muds Hkz"V vkpj.k dk ifjpk;d gS ,ao os ?kksj dnkpkj ds nks"kh gS vr% fcgkj is'kau fu;ekoyh 43 ¼d½ esa fufgr izko/kku ds vkyksd esa budh lewph isa'ku jksd j[kus dk naM vf/kjksfir djrs gq, foHkkxh; dk;Zokgh dks lekIr fd;k tkrk gS A bl ij jkT; ljdkj dk vuqeksnu izkIr gSA^^ 27. The appellate authority though took note of the grounds of appeal but in his order as contained in Memo no. 979 dated 07.05.2018 (Annexure ‘10’) the appellate authority did not consider the grounds of appeal. The appellate authority though took note of the grounds of appeal but in his order as contained in Memo no. 979 dated 07.05.2018 (Annexure ‘10’) the appellate authority did not consider the grounds of appeal. The relevant part of the order of the appellate authority are quoted hereunder for a ready reference”- ^^mDr vkns'k ds fo:) fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh& 2005 ds fu;e 25 ¼2½ esa fd;s x;s izko/kku ds rgr Jh jke dqekj flag }kjk vihy vH;kosnu fn;k x;k gS A vius vihy vH;kosnu esa muds }kjk eq[; :i ls fuEu rF;ksa dk mYys[k fd;k x;k gS %& 1- tc bfUnjk vkokl ls lacaf/kr dksbZ dk;Z esjs ftEesa ugha Fkk rc blls lacaf/kr iSls ekaxus dk dksbZ vkSfPkR; ugha gS A ifjoknh Jh lqcks/k dqekj vkSj mudh iRuh lksuh nsoh lq[k lqfo/kk lEiUu O;fDr gS rFkk mudk iDdk edku gS rks fQj muls bfUnjk vkokl ds nqljs fdLr ds fy, iSls ekaxus dk dksbZ vk/kkj ugha gS D;ksafd mUgs bfUnjk vkokl feyuk gh ugha Fkk A bl ekeys esa "kM;a= ds rgr eq>s Qalk;k x;k gS A lapkyu inkf/kdkjh }kjk ifjoknh vkSj u gh fdlh vfHk;kstu lk{kh ds lkFk izfrijh{k.k djok;k x;k gS A (emphasis supplied) 2- fdlh deZpkjh dk iasa'ku mlds iw.kZ lsokdky dk dek;k gqvk lEifr gS] mls fcuk i;kZIr lk{; ds tCr dj ysuk U;k;k laxu ugha gS A lEiw.kZ isa'ku jksdus dk vkns'k ikfjr djus ls iwoZ funs'kd ds }kjk ljdkj ls ijke'kZ izkIr ugha fd;k x;k gS A funs'kd us vius vf/kdkj {ks= ls ckgj gksdj vkns'k ikfjr fd;k gS A Jh jke dqekj flag ds }kjk izkIr vihy vkosnu ij fnukad 11-04-2018 dks v/kksgLrk{kjh }kjk lquokbZ dh x;h ,ao muds i{k dks lquk x;k A lquokbZ ds dze esa Jh flag ;g Li"V djus esa vlQy jgs dh fj'or ysrs gq, jaxs gkFk fuxjkuh vUos"k.k C;wjks ds /kkokny ds }kjk mUgsa fxjrkj ugha fd;k x;k Fkk A bl izdkj Jh jke dqekj flag ij 8000@& ¼vkB gtkj½ :i;s fj'or ysrs gq, idM+s tkus dk vkjksi izekf.kr gksrk gS] tks muds Hkz"V vkpj.k dks n'kkZrk gS A buds Hkz"V vkpj.k ds vkyksd esa jkT; ljdkj dk vkns'k budk lewph isa'ku jksd j[kus dk gS ftls vFkZ ,oa lkaf[;dh funs'kky; ds dk0 vk0 la0 255 lgifBr Kkikad 1533 fnukad 18-07-2017 }kjk lalqfpr fd;k x;k gS] tks fu;ekuqdqy ,oa fof/k&lEer gS A vr% Jh jke dqekj flag dk vihy vH;kosnu vLohd`r fd;k tkrk gSA^^ 28. On going through the entire materials on the record, this Court finds that the inquiry against the petitioner has been conducted in a totally perfunctory manner. After service of izi= Þdß upon the petitioner in fact the Presenting Officer for the Department did not adduce any evidence even as to form prima-facie opinion as to the proof of charges. The petitioner is correct in submitting that after submission of his show cause before the inquiry officer, the inquiry officer simply called for an opinion from the Presenting Officer and then kept the matter for order. Paragraph ‘17’ of the amendment petition reads as under:- “17. That during the course of departmental proceeding no date of hearing has ever been fixed by the conducting officer. No documents related to alleged charge against the petitioner was ever adduced. No witnesses was examined. Even the presenting officer, who is responsible for placing the case of prosecution before the conducting officer has also not submitted any document during the course of so-called departmental proceeding.” 29. The response to paragraph ‘17’ has come in paragraph ‘23’ of the supplementary affidavit which reads as under:- “23. That the statement made in Paragraph no.-17 of the I.A. is not true. The conducting officer has conducted departmental proceeding taking recourse to the legal provision as prescribed and mentioned for the conducting officer. The charges sheet framed against the petitioner was made available to him and at the same time on different fixed dates, the petitioner was provided ample opportunity of hearing and to produce substantial facts in his defence to rebut the levelled charges against him. The petitioner failed to provide substantial facts to rebut the levelled charges against him.” 30. On a reading of the stand taken in the supplementary counter affidavit, this Court has no iota of doubt that respondent nos. 4 and 5 are not correct in saying that on different fixed dates the petitioner was provided ample opportunity of hearing. Respondent nos. 4 and 5 nowhere say that after service of prapatra “ka” on the petitioner, the Presenting Officer of the Department had adduced any evidence. All that said is that the petitioner did not bring evidence to rebut the charges levelled against him. This Court is unable to appreciate the stand taken on behalf of the respondent nos. 4 and 5. 4 and 5 nowhere say that after service of prapatra “ka” on the petitioner, the Presenting Officer of the Department had adduced any evidence. All that said is that the petitioner did not bring evidence to rebut the charges levelled against him. This Court is unable to appreciate the stand taken on behalf of the respondent nos. 4 and 5. It is well-settled that the charges levelled against the delinquent employee are to be proved by preponderance of possibility in course of the departmental proceeding. Strict rule of evidence will not apply in a departmental proceeding but in a case where no evidence was adduced on behalf of the Department, the petitioner had no occasion to adduce his defence. He had already submitted his show cause pursuant to the opportunity granted to him but thereafter no date was fixed by the Inquiry Officer for adducement of evidence on behalf of the parties. 31. On reading of the inquiry report as well as the impugned order passed by the disciplinary authority, this court finds that both the authorities have proceeded on assumption of guilt against the petitioner and has awarded the impugned punishment by saying that it was the petitioner who failed to prove that he is innocent. 32. This Court further finds that before the Appellate Authority the petitioner had taken a specific plea that the disciplinary authority was not justified in withholding of the entire pension and gratuity of the petitioner. The ground taken on behalf of the petitioner has been though mentioned in the order passed by the Appellate Authority but the Appellate Authority has not considered the same. This Court finds substance in the submission of learned counsel for the petitioner that the case of the petitioner would be covered by the judgment of the Hon’ble Full Bench of this Court in the case of Arvind Kumar Singh (Supra). This was required to be examined by the disciplinary authority as well as the Appellate authority. 33. This Court also agrees with the submission of the learned counsel for the petitioner that after retirement of the petitioner on 31.08.2015, the respondents should have considered him for payment of provisional pension in terms of Rule 43(c) of the ‘Pension Rules’ for the period the departmental proceeding remained pending at the end of the disciplinary authority. 33. This Court also agrees with the submission of the learned counsel for the petitioner that after retirement of the petitioner on 31.08.2015, the respondents should have considered him for payment of provisional pension in terms of Rule 43(c) of the ‘Pension Rules’ for the period the departmental proceeding remained pending at the end of the disciplinary authority. At least after 31.08.2015 till 18.07.2017 the petitioner was entitled for his provisional pension to the extent of 90 per cent. 34. So far as the submission of learned GP 8 based on the judgment of the Hon’ble Apex Court in the case of P. Gunasekaran (supra) is concerned, this Court fully agrees with the propositions stated in paragraph ‘12’ thereof. In this case this Court has not gone into the merit of the allegations and there is no occasion for this Court to enter into appreciation or re-appreciation of evidence. 35. For the reasons stated hereinabove, this Court sets aside the impugned orders as contained in Annexure ‘9’ and ‘10’ to the writ application (enclosed with I.A. No. 01/2020). 36. Since this Court has found that the inquiry has been conducted in a most perfunctory manner, this Court grants liberty to the respondents to start afresh from the stage of inquiry, if so advised, for this purpose they can appoint any other Inquiry Officer. In case the respondents decide to proceed afresh at the stage of inquiry, the inquiry proceeding be conducted and final order be passed thereon by the disciplinary authority within a period of 4 months from the date of receipt/production of a copy of this order. 37. Needless to say that the proceeding shall be conducted in accordance with the relevant service rules and the provision of principle of natural justice shall be complied with in its terms and spirit. 38. The respondents shall look into the judgment of the Hon’ble Full Bench of this Court in case of Arvind Kumar Singh (Supra) in the matter of payment of gratuity and shall take an appropriate decision as regards the petitioner, based thereon while passing the final order within the stipulated period. 39. 38. The respondents shall look into the judgment of the Hon’ble Full Bench of this Court in case of Arvind Kumar Singh (Supra) in the matter of payment of gratuity and shall take an appropriate decision as regards the petitioner, based thereon while passing the final order within the stipulated period. 39. The petitioner has been found entitled for the provisional pension since the date of retirement till the date of passing of the impugned order dated 18.07.2017 in the disciplinary proceeding, therefore, this Court directs that for the said period the respondent shall calculate the provisional pension of the petitioner and pay the same within a period of two months from today. 40. This writ application as well as the interlocutory application 01/2020 stand allowed to the extent indicated above.