ORDER : Shree Chandrashekhar, J. The State of Jharkhand has questioned legality of the order dated 2nd March 2017 passed in W.P.(S) No.4885 of 2004 remanding the matter before the competent authority for taking a fresh decision. 2. The writ Court held that (i) proviso (c) to rule 43(b) of Jharkhand Pension Rules 2000 is mandatory (ii) issue of parity in punishment by withholding pension was not examined and (iii) prejudice was caused by not supplying enquiry report to the writ petitioner who is respondent no.1 before us. 3. On behalf of the State of Jharkhand, Mr. Ashok Kumar, the learned AAG-IV, submits that the departmental proceeding against the respondent no.1 was conducted in terms of the Civil Services (Classification, Control & Appeal) Rules, 1930 and, therefore, the writ Court exceeded jurisdiction in interfering with the order contained in notification dated 16th April 2007 by which 50% pension granted to the respondent no.1 was withheld. 4. The learned AAG-IV has relied on the judgment by the Hon'ble Supreme Court in “B.C. Chaturvedi v. Union of India & Ors.” (1995) 6 SCC 749 to fortify the above submission. 5. The respondent no.1 who was appointed on the post of Assistant Engineer in the year 1972 under State of Bihar received promotions to the posts of Executive Engineer and Superintending Engineer before bifurcation of the erstwhile State of Bihar on 30th November 2000. While posted as Secretary (Technical) to the Chief Engineer, Minor Irrigation at Ranchi, the respondent no.1 was in-charge of various projects in the district of Hazaribagh, Chatra, Koderma, Giridih and Dhanbad, besides holding the additional charge of Superintending Engineer, Minor Irrigation Circle, Hazaribagh. On 5th September 2002, he was served a charge-memo on various allegations of committing irregularity in granting administrative approval for the projects. According to the State of Jharkhand, an enquiry report was submitted on 11th November 2003 and 2nd show-cause notice was served upon the respondent no.1 vide letter dated 19th March 2004. In the meantime, the respondent no.1 superannuated from service on 31st January 2004, however, by virtue of an order dated 13th March 2004 passed by the State of Jharkhand the enquiry against him continued. 6. In the meantime, the respondent no.1 superannuated from service on 31st January 2004, however, by virtue of an order dated 13th March 2004 passed by the State of Jharkhand the enquiry against him continued. 6. The respondent no.1 set up a plea that he was not afforded opportunity to cross-examine the witnesses produced by the department who were served questionnaire by the enquiring officer and, above all, a copy of the enquiry report signed by the enquiring officer was not provided to him. 7. By an order contained in notification dated 16th April 2007, pension payable to the respondent no.1 was withheld to the extent of 50% by the competent authority and this order came to be challenged before the writ Court in W.P(S) No.4885 of 2004. 8. The writ Court held as under : “7. After giving anxious consideration to the submissions made at the Bar and on perusal of the relevant records, the notification dated 16.04.2007 pertaining to imposition of punishment of recovery of 50% pension of the petitioner, is assailable on the following grounds:- (I) In the instant case, the petitioner retired from services on attaining the age of Superannuation on 31.01.2004. Prior to his retirement, departmental proceeding was initiated on 06.07.2002 and though inquiry was conducted but there was inordinate delay in the submissions of inquiry report, even after submissions of the inquiry report, no final order was passed vide order dated 16.04.2007 (Annexure-18) and the punishment order has been passed purportedly under Rule 43 B of the Jharkhand Pension Rules. (II) For better appreciation, it would be apposite to refer Rule 43 B of the Jharkhand Pension Rules reads as under:- “Rule 43(b):-The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement. The proviso to Rule 43(b) reads as under:- Provided that- I. Such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during reemployment. II. The proviso to Rule 43(b) reads as under:- Provided that- I. Such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during reemployment. II. Shall not be instituted save with the sanction of the State Government. III. Shall be in respect of an event which took place not more than four years before the institution of such proceedings. IV. Shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. V. Judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment shall have been instituted in accordance with sub clause (ii) of clause (a) and The Bihar Public Service Commission, shall be consulted before final orders are passed. On perusal of the aforesaid rules, the concurrence of the Public Service Commission is a condition precedent, before passing the final order in a disciplinary proceeding after retirement of the Government servant. Admittedly, the Jharkhand Public Service Commission was neither consulted nor the opinion of the Commission was sought for, prior to issuance of the impugned notification vide Annexure-18. Therefore, there has been infraction of statutory provisions of Sub-rule 3 to proviso 2 Rule 43(B) of the Bihar Pension Rule, which renders of the impugned notifications invalid and non-sustainable in the eye of law. Therefore, the impugned notification vide Annexure-18, being not legally sustainable, is liable to be set aside. (III) From the bare reading of the provisions as contained in Rule 43 A and B, it would be manifestly clear that the right of Government to withhold or withdraw a pension or any part of it, whether permanently and specified period as provided under the said Rule before invoking the said provision, the Government must come to a definite finding at to the pecuniary loss caused by the delinquent to the Government Exchequer or the Government Servant has committed grave misconduct. The charge should be specific also and the findings must be pin-pointed to the amount of loss caused to the Government due to the commissions and omissions by the delinquent Government Servants. The charge should be specific also and the findings must be pin-pointed to the amount of loss caused to the Government due to the commissions and omissions by the delinquent Government Servants. Therefore, the exercise of jurisdiction under Rule 43(B) of the Pension Rule withholding or withdrawing the pension can be resorted to only by complying with the conditions prescribed therein. In the case in hand, no definite finding has been given by the inquiry officer regarding the quantified loss caused to the Government. Therefore, in absence thereof, the impugned notification cannot be sustained. (IV) In the departmental proceeding, officials alongwith other delinquents were proceeded departmentally due to faulty construction of Kodai Bandh Dam scheme in Tishi Block of Giridih District. At the relevant time, the petitioner was the Superintending Engineer. Although, Executive Engineer and Assistant Engineers were proceeded but there has been disparity in the award of punishment. The petitioner has been inflicted with recovery of the 50% pension, whereas Executive Engineer and Assistant Engineer have been exonerated from the charges. Therefore, the petitioner has made out a case on the ground of doctrine of parity so far as award of punishment is concerned 9 alongwith the co-delinquent. View taken by this Court gets fortified by the decision of the Hon'ble Apex Court rendered in the case of Rajendra Yadav Vs. State of Madhya Pradesh and Others as reported in (2013) 3 SCC 73 , in particular paragraph 9, which is quoted herein below: “9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.” 8. In the light of the aforesaid reasoning, factual and legal aspects, I am of the considered view that the impugned order contained in Annexure-18 is not legally sustainable being violative of mandatory provisions of the Rules and in breach of principle of natural justice and doctrine of parity. In the light of the aforesaid reasoning, factual and legal aspects, I am of the considered view that the impugned order contained in Annexure-18 is not legally sustainable being violative of mandatory provisions of the Rules and in breach of principle of natural justice and doctrine of parity. Therefore, the impugned notification vide Annexure-18 is hereby quashed and set aside. Accordingly, the writ petition is allowed and the matter is remitted to the respondents to take a decision in terms of Rule 43 (B) of the Bihar Pension Rules on the quantum of punishment and pass appropriate orders in accordance with law and a decision in this respect, which shall be communicated to the petitioner within a period of three months from the date of production of copy this order. 9. With the aforesaid observations and directions, the writ petition stands allowed.” 9. We have heard Mr. Rajendra Krishna, the learned counsel for the respondent no.1 on the issue whether consultation with the Jharkhand Public Service Commission is mandatory in terms of proviso (c) to rule 43(b) of the Jharkhand Pension Rules 2000. 10. The learned counsel for the respondent no.1 would submit, with reference to the orders passed in OA No.107/2001 titled “Ramesh Chandra Mathur v. Union of India & Ors.” (order dated 20th March 2002) and in OA No.170/00243/2017 titled “Shri T.C. Gupta v. Union of India & Anr.” (order dated 1st August 2019), both by the Central Administrative Tribunal, that consultation with the Jharkhand Public Service Commission is mandatory. This submission has been made on the premise that no appeal against an order passed under section 43(b) of the Jharkhand Pension Rules 2000 is provided and while so consultation with the Commission which would render its opinion on the quantum of punishment must be held mandatory. 11. Distinguishing the judgment in “State of U.P. v. Manbodhan Lal Srivastava” AIR 1957 SC 912 , the learned counsel for the respondent no.1 submits that the judgment in “Manbodhan Lal Srivastava” refers to the Constitutional protection to a public servant under Article 311 of the Constitution of India, a situation which is not obtaining in the present case. 12. In “Manbodhan Lal Srivastava” the Hon'ble Supreme Court has observed as under : “12. 12. In “Manbodhan Lal Srivastava” the Hon'ble Supreme Court has observed as under : “12. We have already indicated that Article 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Article 226 of the Constitution or of this Court under Article 32. It is not a right which could be recognized and enforced by a writ. On the other hand, Article 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a court of law. Hence, if the provisions of Article 311, have been complied with in this case — and it has not been contended at any stage that they had not been complied with — he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Article 320(3)(c) is in the nature of a rider or proviso to Article 311, it is not possible to construe Article 320(3)(c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.” 13. As we have noticed, the writ Court though did advert to the issue of consultation but there is no discussion in the writ Court's order why the Court was inclined to hold consultation with the Jharkhand Public Service Commission mandatory. In legal parlance it is well accepted that a proviso cannot substitute the main provision and, therefore, on general principles the stipulations under a proviso shall not take mandatory colour. However, we may add to this that there can be exceptions to the aforesaid general rule which we find under rule 43(b) itself; that a departmental proceeding against the delinquent public servant cannot be initiated under rule 43(b) for a misconduct committed four years prior to institution of such proceeding. This is further indicated under proviso (b) to rule 43(b) that no judicial proceeding in respect of a misconduct committed by the delinquent government servant four years prior to institution of such proceeding can be taken out. This is further indicated under proviso (b) to rule 43(b) that no judicial proceeding in respect of a misconduct committed by the delinquent government servant four years prior to institution of such proceeding can be taken out. However, we are not inclined to render a final opinion on the issue primarily for the reason that the writ Court did not reflect on this issue in detail and we would leave this issue open for a future case. 14. Apart from the above observations, we are not inclined to interfere with the order passed by the writ Court remanding the matter to the competent authority for a fresh decision. The respondent no.1 took a specific plea that in the matter of award of punishment he was not offered equal treatment inasmuch as Madan Mohan Malviya who was posted as Junior Engineer was awarded lesser punishment irrespective of opinion of the Hon'ble Chief Minister to dismiss him from service, whereas in his case the department never came to any definite conclusion as there were recommendations of withholding of three annual increments, 20% recovery from pension and withholding of 50% pension. The respondent no.1 set up a further plea of discrimination as the enquiring officer who was the Chief Engineer himself exonerated Mr. Abdul Queum, Mr. Ravibhushan, Mr. Anil Kumar Singh, Mr. Mahadeo Kumhar, all Assistant Engineers, and Mr. Binod Shrivastava, Executive Engineer, while the charge against him was erroneously held proved. 15. The writ Court referred to the judgment in “Rajendra Yadav v. State of Madhya Pradesh & Ors.” (2013) 3 SCC 73 to arrive at a conclusion that the order passed under rule 43(b) of the Jharkhand Pension Rules 2000 appears to be discriminatory. We would approve the view taken by the writ Court atleast for one reason that there is no discussion on this issue by the enquiring officer or the competent authority which passed the order contained in notification dated 16th April 2007. 16. In “Rajendra Yadav” the Hon'ble Supreme Court has observed as under : “9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.” 17. For the aforesaid reasons, we find no merit in this Letters Patent Appeal and, accordingly, L.P.A. No. 491 of 2017 is dismissed. The competent authority shall afford sufficient opportunity to the respondent no.1 to file his written defence and would examine whether the departmental proceeding conducted against him suffered from any irregularity as pleaded by the respondent no.1. We would observe that in the matters of remand the departmental Secretary should take a conscious decision on examination of the materials on record, before a decision in such matters to prefer any appeal is taken. 18. Let a copy of this order be given to the Chief Secretary, Government of Jharkhand.