JUDGMENT :

1. Heard Mr. Shekhar Prasad Sinha, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Amitesh Kumar Geasen, learned counsel appearing on behalf of the respondents.

3. This writ petition has been filed for the following reliefs:

“(A) For quashing the Office Order contained in Memo No. 4560(S) Ranchi dated 16.08.2010 issued by Engineer-in-Chief (Respondent No. 5) whereby Office Order has been passed, (without consultation before passing Final Order with the Bihar Public Service Commission which is mandatory requirement as laid down Under Rule 43(c) of Jharkhand Pension Rules) that charge levelled against the Petitioner has been proved in the Departmental Proceeding on which account a Decision has been taken for making deduction of 10% from the amount of Pension and Gratuity of the Petitioner and also a further Decision has been taken that for the period from 22.11.06 to 27.09.2008 when the Petitioner had remained under suspension, only subsistence Allowance for the aforesaid period would be paid to the Petitioner and no payment of salary for the said period would be made to the Petitioner;

(B) The Petitioner who was superannuated on 31.01.2009, prays for issuance of appropriate Writ(s), Order(s) or Direction(s) commanding upon the Respondents to make payment of arrears of salary for the period w.e.f. 01.01.1998 to 11.05.2000 including D.A. after commutation of Revised Higher Scale with 18% Interest, to make payment of full Pension amount, and Gratuity after commutation of Revised Higher Scale pending the Final Disposal of Criminal Case against the Petitioner and others being registered as Vigilance Case No. 9/97 dated 29.05.1997 alleging interalia involvement of Petitioner alongwith others with respect to misappropriation of Rs. 32,05,000/-;

(C) And the Petitioner further prays for issuance of Writ(s), Order(s) or Direction(s) to the Respondents to make payment of full amount of Earned Leave Encashment after commutation of Revised Higher Sale with 18% Interest on the ground that in view of Full Bench Decision of this Hon’ble Court reported in 2007(4) JCR 1 (Dr. Dudhnath Pandey versus The State of Jharkhand and Others) in which it has been held that there is no Power at all in the State Government to withhold the Earned Leave Encashment under Rule 43(b) at any stage.”

Arguments on behalf of the Petitioner

4. The learned counsel for the petitioner submits that the petitioner had superannuated from service on 31.01.2009 and he filed the writ petition before this Court on 01.06.2010 seeking a direction upon the respondents to make payment of full Pension amount, Gratuity, amount of earned leave encashment, arrears of salary with effect from 01.01.1998 to 11.05.2000 after commutation of revised Higher Scale with Statutory interest by relying upon a judgement passed by Hon’ble Full Bench of this Court reported in 2007 (4) JCR 1 (Dr. Dudh Nath Pandey Vs. State of Jharkhand and Others) wherein it was held that the government has no power to withhold pension or gratuity on ground of pendency of judicial or departmental proceedings.

5. The learned counsel for the petitioner further submits that at the time of filing of the writ petition, the departmental proceedings was pending and 10% of the pension of the petitioner was withheld at that stage.

6. The learned counsel submits that during the pendency of this writ petition, the petitioner filed one interlocutory application challenging the final order passed in the departmental proceedings which is dated 16.08.2010 and the interlocutory application was allowed. Consequently, the final order dated 16.08.2010 issued by the respondent no. 5 is under challenge.

7. The learned counsel for the petitioner, while assailing that impugned order dated 16.08.2010, has advanced two arguments;

(i) The petitioner was never served with a copy of the enquiry report of the enquiry officer and therefore, the impugned order has been passed in gross violation of principles of natural