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. 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 pecunia