JUDGMENT : Sujit Narayan Prasad, J. 1. The instant appeal under Clause 10 of the Letters Patent has been filed for the following relief : “… for setting aside the order/judgment dated 25.03.2021 passed by Hon’ble Mr. Justice Deepak Roshan in writ petition (S) No. 5487 of 2015 whereby and whereunder the Hon’ble Single Judge has been pleased to allow the writ petition and has been pleased to set aside/quash the impugned order as contained in Memo No. 2894 dated 27.05.2016. It has been further held by the Hon’ble Singh Judge that “in the peculiar facts and circumstances of the case that there was a delay in passing the impugned order for more than six years and the present petitioner is widow of the original petitioner as such the respondents are directed to calculate the consequential benefits which has been denied to the original petitioner pursuant to the impugned order and since, it is a case of widow, as such the entire exercise shall be completed and pay the same within a period of 12 weeks from the date of receipt of the order/production of this order.” 2. The brief facts of the case as per the pleading made in the writ petition which require to be enumerated herein, read as under: The writ petitioner was appointed as Assistant Engineer on 19.03.1979 and after Bihar Reorganization Act, the writ petitioner was posted as Executive Engineer in the Waterways Division, Dhurwa, Ranchi on 04.01.2005. The office of the Superintendent Engineer, Planning and Monitoring Circle-2, Water Resources Department, Ranchi wrote a letter to Chief Engineer being Letter No. 336 dated 31.03.2006 whereby, sanction had been granted for the Waterways Division, Ranchi for the project of the year 2005-06. Thereafter, the Secretary, Water Resources Department, Government of Jharkhand, Ranchi has issued a Purchase Order No. 13 dated 30.03.2006 to M/s Lenovo (I) Pvt. Ltd. through M/s Data Tech for the supply and installation of Lenovo/IBM make computers and peripherals along with other required accessories for the various offices under the Water Resources Department. Thereafter, the Secretary, Water Resources Department, Government of Jharkhand, Ranchi has issued a Purchase Order No. 13 dated 30.03.2006 to M/s Lenovo (I) Pvt. Ltd. through M/s Data Tech for the supply and installation of Lenovo/IBM make computers and peripherals along with other required accessories for the various offices under the Water Resources Department. The Secretary, Water Resources Department, Government of Jharkhand, Ranchi has issued another Purchase Order No. 12 dated 30.03.2006 to M/s H.P. India Pvt. Ltd. through M/s Sigma Computers for the supply and installation of HP make computers and peripherals along with other required accessories for the various offices under the Water Resources Department and the Director, Purchase and Transport, Water Resources Department, Government of Jharkhand, Ranchi has issued a Purchase Order No.12/Pur-023/2005-07 dated 25.03.2006 to M/s Apex Corporation for supply & installation of Paper Fax Machine with suitable Stabilizer (Model No.L-220) for various offices under Water Resources Department. Thereafter, various consignments were received on different dates through M/s Data Tech and installed in the offices and all the products received in good working condition by the concerned competent authorities of various offices of Water Resource Department. Thereafter, a letter was received from the office of Chief Engineer, Water Resources Department, Deoghar to M/s Data Tech Services stating that the Laptop (Lenovo 3000 C 100) supplied by them is not functioning properly and in respect of which, steps were taken for removing the problem. Similarly, from the office of Chief Engineer, Jamshedpur a letter was received stating that the Note Book Computer supplied by M/s Data Tech was not functioning and thereafter, a Buff Sheet dated 31.08.2006 was issued by the Private Secretary to Minister, Water Resources Department to the Secretary, Water Resources Department stating therein that the computers and laptop received are faulty and not functioning, therefore, inquiry should be conducted by the Departmental Flying Squad. In view of the above, inquiry was conducted and report was submitted by the Departmental Flying Squad vide letter no.522 dated 04.11.2006 wherein certain irregularities were found in purchase of laptop and computers by the supplier. Thereafter, after two years of submission of the report by the Committee, Government of Jharkhand issued a resolution vide Memo no. In view of the above, inquiry was conducted and report was submitted by the Departmental Flying Squad vide letter no.522 dated 04.11.2006 wherein certain irregularities were found in purchase of laptop and computers by the supplier. Thereafter, after two years of submission of the report by the Committee, Government of Jharkhand issued a resolution vide Memo no. 3760 dated 31.12.2008, whereby, departmental proceeding was decided to be initiated against the writ petitioner alleging therein that the computers and laptops were not purchased according to the prescribed specifications and the same was accepted and paid for without verifying it from a specialist. Show cause notice was issued upon the writ petitioner which was duly replied by him denying the allegation. In the meantime, the writ petitioner retired from service w.e.f. 31.07.2009 but the departmental proceeding did not conclude and the writ petitioner was not getting his post retiral dues. Thereafter, after a period of six years, a second show cause notice was issued upon the writ petitioner on 11.08.2015 against the proposed punishment of withholding of 15% of the pension payable to the writ petitioner. Being aggrieved with the same, the writ petitioner approached this Court by filing writ petition being W.P.(S) No. 5487 of 2015 wherein the punishment order has been quashed and set aside, against which the present appeal has been filed by the appellant-State. 3. It appears from the pleading made in the writ petition that the writ petitioner while working as Superintendent Engineer, Planning and Monitoring Circle-2, Water Resources Department, Ranchi wrote a letter to the Chief Engineer, whereby sanction has been granted for the Waterways Division, Ranchi for the project of the years 2005-06. Thereafter, on 30.03.2006 the Secretary, Water Resources Department, Government of Jharkhand, Ranchi issued a purchase order bearing No. 13 to M/s Lenovo (I) Pvt. Ltd. through M/s Data Tech for supply and installation of Lenovo/IBM make computers along with other required accessories. On the same date the Secretary, Water Resources Department, Government of Jharkhand, Ranchi has issued another purchase order bearing No. 12 to M/s H.P. India Pvt. Ltd. through M/s Sigma Computers for the supply and installation of H.P. makes computers. Thereafter, on 25.03.2006, the Director, Purchase and Transport, Water Resources Department, Government of Jharkhand, Ranchi has issued purchase order to M/s Apex Corporation for supply and installation of paper Fax Machine with suitable stabilizer. Thereafter, on 25.03.2006, the Director, Purchase and Transport, Water Resources Department, Government of Jharkhand, Ranchi has issued purchase order to M/s Apex Corporation for supply and installation of paper Fax Machine with suitable stabilizer. Pursuant thereto; various consignments were received on different dates through Ms. Data Tech and reported to be in good working condition. Subsequently, it was found by the respondent authorities that the computers which were purchased by M/s Data Tech was not in order and not working properly and pursuant thereto; the petitioner has been contemplated in the departmental proceeding and a charge-sheet was issued to him for the alleged offence of payment of the entire amount to M/s Data Tech without verifying the computers. The writ petitioner participated in the enquiry. However, serious objection was raised by the writ petitioner that the departmental proceeding is based upon the report of the Departmental Flying Squad who inspected those computers supplied by M/s Data Tech and found those computers to be not in order. Further, while conducting the said preliminary enquiry, the writ petitioner was not given any opportunity and the enquiry officer based his finding on the aforesaid report of the Departmental Flying Squad and came to the conclusion about proving of charge. In the meantime, the writ petitioner retired from service on 31.07.2009 on attaining the age of superannuation. The departmental proceeding was deemed to be converted under the providing under Rule-43(b) of Jharkhand Pension Rules vide order dated 08.05.2015 and finally the impugned order dated 27.05.2016 has been passed whereby punishment has been imposed upon the petitioner for withholding of 15% of pension for a period of ten years. The said order was under challenge before the writ court taking the ground that the enquiry officer has not found the charge to be concussive charge; the entire enquiry report and charge which has been found to be proved is based upon the report of the Departmental Flying Squad, however, none of the persons involved in the inspection were either examined or its report has been proved as exhibit and; there is a delay of more than six years from the date of submission of enquiry report and the final order and no explanation has been given to that effect. 4. 4. The ground has been taken that as per Rule 43-(b) of the Pension Rules, there should be a pecuniary loss caused to the Government and the respondents have not come forward with any finding in the impugned order that there was a financial loss to the Government, inasmuch as, all those computers were in working condition and were being used by the respondent department but even without taking into consideration the aforesaid fact, 15% of the pension has been withheld in exercise of power conferred under Rule 43-(b) of the Pension Rules. 5. While the State has taken the ground that there is no infirmity in the enquiry report rather the enquiry office has found the charge proved conclusively. The said enquiry report having been accepted by the disciplinary authority, a proceeding was initiated under the conduct rules having been deemed to be converted under the provision of Rule 43(b) of the Pension Rules, as such, punishment prescribed under the Pension Rules to the extent of withholding 15% has been imposed. 6. The learned Single Judge, on appreciation of the rival submissions, came to the conclusion that the enquiry report is not conclusive and the same is based upon the report of the flying squad. The learned Single Judge based upon the aforesaid terms, has quashed and set aside the order of punishment against which the present appeal has been preferred. 7. Mr. Gaurav Raj, learned AC to AAG-II appearing for the appellant has submitted that the learned Single Judge has not appreciated the fact in right perspective since even though the enquiry report is based upon the report of the flying squad but no prejudice has been said to be caused, since, the enquiry officer has found the charge proved against the writ petitioner by taking into consideration the said report. The learned Single Judge has also not appreciated the fact that even though the members of the flying squad team have not been examined, then, it was incumbent upon the delinquent employee, the writ petitioner-respondent herein, to raise the issue of prejudice but in absence thereof, the same has been accepted and taken as a ground to interfere with the order of punishment. The learned Single Judge has further not appreciated the fact that the delay in passing the order of punishment, i.e., six years, cannot be said to be fatal so as to quash the entire proceeding. The learned Single Judge has also not appreciated the fact that the provision of Rule 43(b) can also be exercised even though the State has not sustained any pecuniary loss when the allegation is of grave misconduct having been proved either in course of departmental proceeding or judicial proceeding. 8. The learned counsel for the appellant-State on the basis of the aforesaid ground has submitted that the order passed by the learned Single Judge suffers from error and is not sustainable in the eyes of law. 9. Per contra, Mr. Dhananjay Kr. Dubey, learned counsel for the respondent-writ petitioner has submitted by defending the order passed by the learned Single Judge by taking the following grounds : (i) The law is well settled that the enquiry officer is to give independent finding being independent with the finding of the flying squad team since the flying squad team is only for the purpose of taking decision for initiation of departmental proceeding and nothing more. But herein, the report of the flying squad team has been made as a basis upon the enquiry officer while coming to the conclusion of proving the charge. (ii) The report of the enquiry officer cannot be said to be conclusive one since the enquiry officer himself has not come to the conclusion with respect to the charge said to be proved since the observation has been made in the ultimate paragraph of the enquiry report that the State may assess the fact by conducting further enquiry. This observation of the enquiry officer suggest that the enquiry officer was also not convinced with the material produced before him by the presenting officer. (iii) The learned Single Judge while considering the issue of pecuniary loss not sustained, hence, the provision of Rule 43(b) of the Pension Rules is not fit to be exercised, if such view has been taken, the same cannot be said to suffer from error since the provision of Rule 43(b) itself suggest that the pension whole or part of it is to be withheld in case of pecuniary loss sustained to the State Exchequer in the proved charge either in the departmental proceeding or judicial proceeding. But, herein, there is no finding recorded by the enquiry officer that as to what is the extent of loss caused to the State which led the State to withhold 15% of the pension. (iv) The learned Single Judge is correct in taking the ground that after conclusion of the enquiry 6 years’ time has been taken in inflicting punishment of withholding 15% of the pension but without explanation. The learned counsel for the writ petitioner on the basis of the aforesaid grounds has submitted that the order passed by the learned Single Judge suffers from no error, hence, the instant appeal is fit to be dismissed. 10. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge. 11. This Court, on consideration of the factual aspect and before considering the legality and propriety of the impugned order, deems it fit and proper to refer some undisputed facts which has got bearing in deciding the lis. Admittedly herein, the writ petitioner was proceeded departmentally based upon the report of the Department Flying Squad for commission of alleged irregularity against involvement in supply of Lenovo/IBM make computers along with other required accessories. The allegation has been levelled as per the memorandum of charge that the payment has been made to the company even though the computers have been found to be not as per the specification and was not up to the mark. The said allegation was levelled on the basis of the report of the Departmental Flying Squad Team. The decision was taken by the State to initiate departmental proceeding against the writ petitioner based upon the said decision, the enquiry officer was appointed. The writ petitioner participated in the enquiry and took his defence. It appears from the enquiry report that the enquiry officer has based his finding on the report of the Departmental Flying Squad Team. It further appears from the enquiry report, particularly, the last paragraph thereof that the enquiry officer while proving the charge has made observation that the State may conduct further enquiry for coming to the conclusive finding of commission of charge as per the allegation made in the charge sheet against the writ petitioner. It further appears from the enquiry report, particularly, the last paragraph thereof that the enquiry officer while proving the charge has made observation that the State may conduct further enquiry for coming to the conclusive finding of commission of charge as per the allegation made in the charge sheet against the writ petitioner. The said enquiry report was accepted by the disciplinary authority but while passing the final order, the writ petitioner has retired from service w.e.f. 31.07.2009. The proceeding initiated while the writ petitioner was in service under the conduct rule deemed to be converted under the provision of Rule 43(b) of the Pension Rules. Show cause notice was issued against the writ petitioner in exercise of power conferred under Rule 43(b) of the Pension Rules asking the writ petitioner as to why 15% of the pension be not withheld. The writ petitioner responded by denying the allegation but the said reply was rejected. The disciplinary authority passed the order of withholding 15% of the pension. The writ petitioner against the said order has challenged the same in the writ petition which having been quashed and set aside, present appeal has been filed. 12. There is no dispute about the position of law that if the departmental proceeding begins while the concerned employee is in service but if in course of its pendency, the departmental proceeding remains unconclusive then the same will be deemed to be converted under the provision of Rule 43(b) of the Pension Rules. The same although is not under the statutory provision but has been clarified by the Patna High Court in Shambhu Saran Vs. The State of Bihar, reported in 2000 (1) PLJR 665 , wherein at paragraph-8 it has been held as follows : "In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue." 13. The proceeding initiated against the writ petitioner under the conduct rules, i.e., Rule 55 of the CCS Rules, 1930 but after the completion of the enquiry, no order was passed and since the writ petitioner in the meanwhile had retired from service on attaining the age of superannuation, therefore, the proceeding in view of the judgment of the Patna High Court in Shambhu Saran Vs. The State of Bihar (supra) deemed to be converted under the provision of Rule 43(b) of the Pension Rules. 14. The learned Single Judge has taken the ground that the enquiry report is inconclusive. 15. This Court, in order to assess the said finding, has considered the enquiry report and has found therefrom, particularly from the last paragraph wherein the enquiry officer has found the charge proved but has made observation that the State may conduct further enquiry in order to examine the matter further. Relevant paragraphs of the enquiry report is being reproduced as under : ^^fu”d"kZ % miyC/k gq, vfHkys[kks dh lE;d foospuk ds vk/kkj ij lapkyu inkf/kdkjh dk fu"d"kZ fuEuor gS %& mM+unLrk }kjk foHkkx dks izsf”kr tkWp izfrosnu esa esllZ MkVk Vsd-- jkWph }kjk vkiwfrZ 27 ví dEIk;wVjks ds lhih;w ;wih,l ,oa 2 vnn ysiVkWi es [kjkch ik;s tkus ,oa buds Genuine ugha gksus dk mYys[k gSA dEi;wVjks esa Installed Window XP (Professional) dh tk¡p mM+unLrk ny }kjk Microsoft ds osCklkbZV ij dh xbZ gS ,oa blds Genuiness ds lEca/k esa izkIr izfrosnu Hkh Microsoft osCklkbZV }kjk gh tfur gSA bl vkyksd es ;g fufoZokn gS fd vf/k"Bkfir Winodw XP (Professional) Genuine ugha FksA Jh uohu dqekj oekZ] }kjk vius cpko C;ku esa vkiwfrZ dEI;wVjksa ds lhih;w] ;wih,l fizaVj ,oa bues vf/k"Bkfir lkWVos;jks dh tk¡p fdl vkbZ-Vh- fo'ks"kK }kjk djkus dk vuqjks/k fd;k x;k gSA mM+unLrk tk¡p izfrosnu ls v/kksgLrk{kjh lger gSaA fQj Hkh Jh oekZ ds cpko c;ku ds vkyksd es ;fn foHkkx miqDr le>rh gS rks bl fn'kk es vkbZVh fo'ks"kK ls okafNr tk¡p djkdj Jh oekZ ds fo:) xfBr vkjksiksa ds lkis{k vafre fu.kZ; ij fopkj djuk pkgsxhA^^ 16. There is no dispute in the position of law that when a departmental proceeding is decided to be initiated against a public servant under the applicable conduct rules, the requirement as per the rule is to appoint a enquiry officer who is to act as a quasi-judicial functionary. The power conferred under the conduct rule to the enquiry officer to act as a quasi-judicial functionary is for the basic object that the enquiry officer is to act independent to the disciplinary authority so as to reach to the conclusion regarding the veracity of charge as to whether the charge as alleged is proved or not. 17. The power conferred under the conduct rule to the enquiry officer to act as a quasi-judicial functionary is for the basic object that the enquiry officer is to act independent to the disciplinary authority so as to reach to the conclusion regarding the veracity of charge as to whether the charge as alleged is proved or not. 17. The aforesaid reason for appointing enquiry officer is that the enquiry officer is required to take independent view regarding the charge whether it is proved or not proved, however, after providing opportunity to the delinquent employee, vis-à-vis the presenting office. 18. The presenting officer is required to discharge duty to present the fact on behalf of the disciplinary authority. The enquiry officer, therefore, is required to give a finding regarding the charge proved or not proved based upon the consideration of the plea of the delinquent employee and the presenting officer. 19. The enquiry officer in the case in hand although has found the charge proved but he along with the aforesaid finding has made suggestion to the State Government to conduct an enquiry further to come to the truth. 20. This observation, according to our considered view, cannot be said to be justified on the ground that the enquiry officer when is to exercise duty as a quasi-judicial functionary, he is to give concrete finding regarding the charge whether it is proved or not and without any suggestion to the Government to go for further enquiry if there is any lacuna. The aforesaid observation suggest that the enquiry officer was not satisfied with the allegation said to be correct as has been levelled against the writ petitioner. 21. The learned Single Judge has considered the said enquiry report to be inconclusive. The said finding according to our considered view cannot be said to suffer from error for the reason that if the enquiry officer was of the view that the charge has been proved then there was no occasion for the enquiry officer to make suggestion to have a further enquiry to the State Government. The said finding according to our considered view cannot be said to suffer from error for the reason that if the enquiry officer was of the view that the charge has been proved then there was no occasion for the enquiry officer to make suggestion to have a further enquiry to the State Government. This observation goes to suggest that even the enquiry officer is not in conclusive mind to have a conclusive proof of the charge, therefore, this Court is of the view that in such circumstances, the learned Single Judge has come to the conclusion that the enquiry report is not conclusive which according to our considered view cannot be said to suffer from error. 22. The second ground has been taken that the enquiry officer has based his report on the basis of the report of the Departmental Flying Squad Team. 23. This Court in order to examine the aforesaid fact has considered the enquiry report and has found from various paragraphs that the enquiry officer has considered the report of the Departmental Flying Squad Team. Admittedly herein, the basis of framing the imputation/charge-sheet is the report of the Departmental Flying Squad Team. 24. The law is well settled that the report of the Departmental Flying Squad Team which is said to be preliminary report is only to take a decision for initiation of departmental proceeding, as such, has got no relevance to be considered by the enquiry officer in course of the enquiry. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Nirmala J. Jhala vs. State of Gujarat and Another, reported in (2013) 4 SCC 301 , wherein at paragaphs-47 to 51 it has been held as under : “47. The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. 48. “A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the case were [to be] believed. 48. “A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the case were [to be] believed. While determining whether a prima facie case had been made out or not the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.” 49. The issue, as to whether in the instant case the material collected in preliminary enquiry could be used against the appellant, has to be considered by taking into account the facts and circumstances of the case. In the preliminary enquiry, the department placed reliance upon the statements made by the accused-complainant and Shri C.B. Gajjar, Advocate. Shri C.B. Gajjar in his statement has given the same version as he has deposed in regular enquiry. Shri Gajjar did not utter a single word about the meeting with the appellant on 17-8-1993, as he had stated that he had asked the accused-complainant to pay Rs 20,000 as was agreed with by Shri P.K. Pancholi, Advocate. Of course, Shri C.B. Gajjar, complainant, has definitely reiterated the stand he had taken in his complaint. The charge-sheet served upon the appellant contained 12 charges. Only the first charge related to the incident dated 17-8-1993 was in respect of the case of the complainant. The other charges related to various other civil and criminal cases. The same were for not deciding the application for interim reliefs, etc. 50. The charge-sheet was accompanied by the statement of imputation, list of witnesses and the list of documents. However, it did not say that so far as Charge 1 was concerned, the preliminary enquiry report or the evidence collected therein, would be used/relied upon against the appellant. 51. There is nothing on record to show that either the preliminary enquiry report or the statements recorded therein, particularly, by the complainant-accused or Shri C.B. Gajjar, Advocate, had been exhibited in regular inquiry. In the absence of information in the charge-sheet that such report/statements would be relied upon against the appellant, it was not permissible for the enquiry officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. In the absence of information in the charge-sheet that such report/statements would be relied upon against the appellant, it was not permissible for the enquiry officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance.” Herein also, the report of the Departmental Flying Squad Team has been taken into consideration by the enquiry officer and as such, as per the settled position of law in the case of Nirmala J. Jhala vs. State of Gujarat and Anr. (supra) we are of the view that the said enquiry report cannot be said to be just and proper leading to order of punishment. 25. The ground has been taken by the learned Single Judge that the witnesses who were there at the time of preliminary enquiry has not been produced before the enquiry officer for their examination. The said fact has not been disputed by the said State appellant. 26. We have also considered the said fact by going through the enquiry report and has found therefrom that none of the members of the Departmental Flying Squad Team has been examined. The non-examination of the witnesses who were part of the preparation of the preliminary enquiry report, according to our considered view, has caused serious prejudice to the writ petitioner since the entire enquiry report is based upon the finding of the Departmental Flying Squad Team. 27. The learned Single Judge, however, has taken the ground that in the case in hand, there is no pecuniary loss and hence the provision of Rule 43(b) of the Pension Rules is not applicable. 28. This Court, however, is not in agreement with such finding even though there is stipulation to that effect in the Rule 43(b) that the State reserves its right to withhold whole or part of pension if due to misconduct either in the departmental or judicial proceeding, the State has sustained pecuniary loss. 28. This Court, however, is not in agreement with such finding even though there is stipulation to that effect in the Rule 43(b) that the State reserves its right to withhold whole or part of pension if due to misconduct either in the departmental or judicial proceeding, the State has sustained pecuniary loss. It is not that only in the case of pecuniary loss the provision of Rule 43(b) is to be made applicable in view of the judgment rendered by this court in L.P.A. No. 79 of 2013 [The State of Jharkhand and Ors. vs. Jitendra Prasad Sharma] wherein, by taking aid of the judgment rendered by the Hon'ble Apex Court in Union of India and Others vs. B. Dev, reported in (1998) 7 SCC 691 , wherein also a contention was raised that if pecuniary loss has not been caused to the Government, no order of withholding/withdrawing the pension can be made which was held unsustainable. For ready reference, paragraph-12 and 13 of the judgment rendered by this Court in L.P.A. No. 79 of 2013 reads as under : “12. The contention of the learned counsel for the respondent is not tenable. Power of the Government, to recover from pension in a case where pecuniary loss is caused, is independent and in addition to the power to withdraw or withhold pension. In “Union of India and Others Vs. B. Dev”, reported in (1998) 7 SCC 691 , a similar contention was raised that if pecuniary loss has not been caused to the Government, no order of withholding/withdrawing the pension can be made and the Hon'ble Supreme Court while rejecting the said contention observed thus : 11. “Rule 9 gives to the President the right of – (1) withholding or withdrawing a pension or part thereof, (2) either permanently or for a specified period, and (3) ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government. This power can be exercised if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. The power, therefore, can be exercised in all cases where the pensioner is found guilty of grave misconduct or negligence during the period of his service. This power can be exercised if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. The power, therefore, can be exercised in all cases where the pensioner is found guilty of grave misconduct or negligence during the period of his service. One of the powers of the President is to recover from pension, in a case where any pecuniary loss is caused to the Government, that loss. This is an independent power in addition to the power of withdrawing or withholding pension. The contention of the respondent, therefore, that Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government, is unsustainable.” 13. We accordingly hold that applicability of Rule 43(b) of the Jharkhand Pension Rules cannot be restricted only to the cases in which pecuniary loss has been suffered by the Government.” But, herein, it is to be seen that the pecuniary loss even though the same is not there and in case of proved misconduct the rule 43(b) will be held applicable but when the rule 43(b) provides that the State reserves its right to withhold whole or part of pension if the State has sustained pecuniary loss due to the conduct of the public servant, a thorough assessment of the loss is to be done so that the State comes to the conclusion that to what extent, the pension is to be withheld either whole or part of it. The State in view thereof, is having duty to make exercise to that effect before issuance of second show cause notice by referring therein the proposed punishment of withholding of whole pension or part of it by justifying the reason. The State is required to make reference of the same in the second show cause notice that due to the misconduct committed by the pensioner, the State has sustained loss so as to recover the same to that extent. 29. Herein, this Court on perusal of the second show cause notice, has found that there is no exercise conducted to that effect. 29. Herein, this Court on perusal of the second show cause notice, has found that there is no exercise conducted to that effect. Although the learned Single Judge has come to the conclusion that there is no pecuniary loss as per the finding of the enquiry officer but we, on the basis of the ratio laid down by the Hon'ble Apex Court in Union of India and Others vs. B. Dev (supra), is of the view that in absence of any pecuniary loss, the provision of Rule 43(b) is not held to be applicable, according to our considered view, the said finding is an incorrect finding. 30. The question of delay of six years has also been taken as a ground to interfere with the impugned order of punishment. 31. There is no dispute that the departmental proceeding if initiated is to be concluded at an early date. Although herein, the departmental proceeding was initiated under Rule 55 of the Conduct Rules but could not have been concluded while the writ petitioner was in service and in consequence thereof, after his superannuation on attaining the age of superannuation, proceeding initiated under the conduct rules has been deemed to be converted under the provision of rule 43(b). As per the allegation, six years’ time has been taken but now the final order has been passed inflicting punishment of withholding 15% of the pension, can it be taken as a ground to vitiate the entire proceeding, according to the considered view of this Court, on the sole ground of six years, the departmental proceeding cannot be said to be vitiated and therefore, the finding to that effect made by the learned Single Judge also suffers from error. 32. 32. Now the question is as to whether on the basis of the finding having been held by this Court so far as it relates to the applicability of rule 43(b) of Pension Rules which is to be made applicable only in case of pecuniary loss and the departmental proceeding having been concluded after six years, can the order passed by the learned Single Judge requires interference giving go-by to the other grounds, i.e., the report of the enquiry officer is not a conclusive report as it is not based on independent finding rather the report of the Departmental Flying Squad Team has been made a basis upon which the enquiry officer came to the conclusion of proving the charge. 33. We are to consider the aforesaid aspect of the matter. 34. The law is well settled that the punishment is to be based upon the finding of the enquiry officer only in case where the enquiry officer has come to the conclusive finding of the proving of charge. There is no dispute that in the departmental proceeding, the principle of preponderance of probabilities is required to be followed but it does not mean that the order is to be passed inflicting punishment without any evidence. 35. The law in this regard is required to be referred herein as has been held by the Hon'ble Apex Court in State of Karnataka and Anr. vs. Umesh, reported in (2022) 6 SCC 563 wherein at paragraphs-18 & 19 it has been held that mere on probabilities, no punishment can be imposed in the departmental proceeding. For ready reference, the relevant paragraph is being referred as under : “18. In the course of the submissions, the respondents placed reliance on the decision in Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC (L&S) 129. In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. Allowing the petition under Article 226 of the Constitution, the High Court observed that there was no evidence to hold that he was guilty of the charge of bribery since the witnesses only said that the motive/reason for not making the payment could be the expectation of a commission amount. The respondent placed reliance on the following passages from the decision : (SCC pp. 85 & 87, paras 21 & 31) “21. Such a serious charge of corruption requires to be proved to the hilt as it brings both civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond the shadow of doubt and to the hilt. It cannot be proved on mere probabilities. 31. … wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences.” 19. The observations in para 21 of Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC (L&S) 129] are not the ratio decidendi of the case. These observations were made while discussing the judgment [Union of India v. Gyan Chand Chattar, 2002 SCC OnLine Guj 548] of the High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and compliance with natural justice as laid down in Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491 : 1977 SCC (L&S) 298 : (1977) 1 SLR 750 ] was reiterated : (Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC (L&S) 129], SCC p. 88, paras 35-36) “35. … an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct. 36. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the non-existing material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eye of the law.” (emphasis supplied) On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff “could be” corruption. Therefore, the standard that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with.” 36. However, in the case of High Court of Judicature at Bombay Vs. Uday Singh and others, reported in (1997) 5 SCC 129 , the law has been laid down that in the departmental proceeding the cogent evidence is required to be there for inflicting punishment. For ready reference, paragraph-10 is being referred as under : “-------- the doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct-------.” 37. For ready reference, paragraph-10 is being referred as under : “-------- the doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct-------.” 37. Herein, the enquiry officer has based the entire finding/conclusion on the basis of the report of the Departmental Flying Squad Team. That could have been done if the copy of the enquiry report would have been served to the delinquent employee, the writ petitioner, by granting liberty to cross-examine the members of the Departmental Flying Squad Team but that has not happened herein and hence, serious prejudice has been caused to the writ petitioner by not providing opportunity to cross-examine the witnesses who were part of the Departmental Flying Squad Team basis upon which the enquiry officer has found the charges proved. 38. Further, the enquiry officer by accepting the report of the Departmental Flying Squad Team has not applied its independent mind and thereafter, he has failed to discharge his quasi-judicial functionary under which he is to apply its independent mind by considering all the factual aspect placed before it. The issue of consideration of the preliminary enquiry report fell for consideration in the case of Nirmala J. Jhala vs. State of Gujarat and Another (supra). Relevant paragraphs, i.e., paragraphs-47 to 51 which is on the issue of consideration of preliminary enquiry report has been referred above. “47. The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. 48. “A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the case were [to be] believed. While determining whether a prima facie case had been made out or not the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.” 49. While determining whether a prima facie case had been made out or not the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.” 49. The issue, as to whether in the instant case the material collected in preliminary enquiry could be used against the appellant, has to be considered by taking into account the facts and circumstances of the case. In the preliminary enquiry, the department placed reliance upon the statements made by the accused-complainant and Shri C.B. Gajjar, Advocate. Shri C.B. Gajjar in his statement has given the same version as he has deposed in regular enquiry. Shri Gajjar did not utter a single word about the meeting with the appellant on 17-8-1993, as he had stated that he had asked the accused-complainant to pay Rs 20,000 as was agreed with by Shri P.K. Pancholi, Advocate. Of course, Shri C.B. Gajjar, complainant, has definitely reiterated the stand he had taken in his complaint. The charge-sheet served upon the appellant contained 12 charges. Only the first charge related to the incident dated 17-8-1993 was in respect of the case of the complainant. The other charges related to various other civil and criminal cases. The same were for not deciding the application for interim reliefs, etc. 50. The charge-sheet was accompanied by the statement of imputation, list of witnesses and the list of documents. However, it did not say that so far as Charge 1 was concerned, the preliminary enquiry report or the evidence collected therein, would be used/relied upon against the appellant. 51. There is nothing on record to show that either the preliminary enquiry report or the statements recorded therein, particularly, by the complainant-accused or Shri C.B. Gajjar, Advocate, had been exhibited in regular inquiry. In the absence of information in the charge-sheet that such report/statements would be relied upon against the appellant, it was not permissible for the enquiry officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance.” Further, on the issue of charge to be proved based upon the material has been dealt in paragraph-11, 17 and 22. For ready reference, the said paragraphs are being referred as under : “Legal issues I. Standard of proof in a departmental enquiry which is quasi-criminal/quasi-judicial in nature 11. In M.V. Bijlani v. Union of India [ (2006) 5 SCC 88 : 2006 SCC (L&S) 919 : AIR 2006 SC 3475 ] this Court held : (SCC p. 95, para 25) “25. … Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial i.e. beyond all reasonable doubts, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures.” (emphasis added) 17. In view of the above, the law on the issue can be summarised to the effect that the disciplinary proceedings are not a criminal trial, and in spite of the fact that the same are quasi-judicial and quasi-criminal, doctrine of proof beyond reasonable doubt, does not apply in such cases, but the principle of preponderance of probabilities would apply. The Court has to see whether there is evidence on record to reach the conclusion that the delinquent had committed a misconduct. However, the said conclusion should be reached on the basis of test of what a prudent person would have done. The Court has to see whether there is evidence on record to reach the conclusion that the delinquent had committed a misconduct. However, the said conclusion should be reached on the basis of test of what a prudent person would have done. The ratio of the judgment in Prahlad Saran Gupta [ (1997) 3 SCC 585 : AIR 1997 SC 1338 ] does not apply in this case as the said case was of professional misconduct, and not of a delinquency by the employee. 22. It is settled legal proposition that judicial review is not akin to adjudication on merits by re-appreciating the evidence as an appellate authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings.” 39. The law is thus settled that even in departmental proceeding, the charge is to be proved based upon the material available on record and not to be based upon the report of the Departmental Flying Squad Team by not applying independent mind. 40. Further, the show cause notice which has been issued by the authority withholding pension to the extent of 15% also lacks the basis of withholding the pension to the extent of 15% in absence of any calculation of loss sustained said to be pecuniary. 41. This court is conscious with the fact that there be least interference by the High Court in exercise of power conferred under Article 226 of the Constitution of India in the matter of decision taken by the administrative disciplinary authority as per the judgment rendered by the Hon'ble Apex Court in Union of India Vs. P. Gunasekaran, AIR 2015 SC 545 . However, it would be evident from the aforesaid judgment that there is no embargo not to exercise the power of judicial review rather the power of judicial review can well be exercised depending upon the facts of the case as per the guidelines as formulated by the Hon'ble Apex Court. For ready reference, relevant paragraphs are being referred as under : “13. For ready reference, relevant paragraphs are being referred as under : “13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not : (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” The Hon’ble Apex Court in Management of State Bank of India vs. Smita Sharad Deshmukh and Anr., (2017) 4 SCC 75 , has laid down that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence. The Hon’ble Apex Court in Central Industrial Security Force and Ors. vs. Abrar Ali, AIR (2017) SC 200, has laid down following guidelines at paragraph 8 for interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, which is quoted herein below : “8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : ( AIR 2011 SC 1931 , Para 6), this Court held as follows: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 this Court held as follows: "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (a) the inquiry is held by a competent authority; (b) the inquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. 13. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” It is equally settled that in the departmental proceeding, the opportunity of hearing is required to be provided to the delinquent employee and if no such opportunity has been provided, certainly, the order of punishment will stand vitiated. 42. This Court, on consideration of the aforesaid principle/guidelines and applying the same to the facts of the instant case, is of the view that herein also (i) the enquiry officer has not come out with conclusive finding; (ii) the enquiry officer has based his finding upon the report of the Departmental Flying Squad Team; (iii) the writ petitioner has not been provided with an opportunity to rebut the report of the Departmental Flying Squad Team by not allowing him to cross-examine the witnesses since the persons who were members of the Departmental Flying Squad Team have not been produced before the enquiry officer and; (iv) there is no assessment of the loss sustained to the State so as to compensate the amount by making recovery under the Pension Rules. 43. This Court, based upon the availability of the reason, is of the view that it is a case where the power of judicial review is to be exercised. 44. The learned Single Judge on consideration of the aforesaid fact has exercised the said power based upon the reason that the finding recorded by the enquiry officer is not of independent observation or finding rather the same is based upon the report of the Departmental Flying Squad Team, thus, cannot be held conclusive. Therefore, we are of the view that even ignoring the finding recorded so far as it relates to no pecuniary loss sustained, hence, Rule 43(b) is not applicable, then also, the interference cannot be shown to the order passed by the learned Single Judge for the reasons referred as above. 45. Therefore, we are of the view that even ignoring the finding recorded so far as it relates to no pecuniary loss sustained, hence, Rule 43(b) is not applicable, then also, the interference cannot be shown to the order passed by the learned Single Judge for the reasons referred as above. 45. Accordingly, this Court is of the view that the instant appeal lacks merit, as such, stands dismissed. 46. Pending interlocutory application(s), if any, also stands disposed of.