The State of Jharkhand through Its Chief Secretary Vs Anandi Prasad Singh

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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--------

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L.P.A. No. 46 of 2023 With I.A. No. 9515 of 2023

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The State of Jharkhand through its Chief Secretary, Government of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, District Ranchi.

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The Principal Secretary, Water Resources Department of the Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi.

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The Deputy Secretary (Vigilance), Water Resources Department of the Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi.

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… … Respondents/Appellants Versus

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Anandi Prasad Singh, son of late Jag Mohan Singh, resident of H-37, Jharkhand State Housing Board, P.O. & P.S. Hazaribagh, Dipugarha, Hazaribagh.

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.. … Petitioner/Respondent

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellants : Mrs. Vandana Singh, Sr. Standing Counsel-III

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13/Dated: 19^th June, 2024 Per Sujit Narayan Prasad, J.:

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I.A. No.9515 of 2023:

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This interlocutory application has been filed for condoning the delay of 153 days, which has occurred in preferring this appeal.

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The cause has been assigned to condone the delay as available at paragraphs-3 to 8 of the said interlocutory application.

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L.P.A. No. 46 of 2023

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This Court, on consideration of the explanation as is available at paragraphs-3 to 8, is of the view that the delay in filing the instant appeal is to be condoned so as to decide the issue on merit.

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Accordingly, this interlocutory application is allowed and the delay of 153 days in preferring this appeal, is hereby condoned.

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L.P.A. No. 46 of 2023:

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Prayer:

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The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 14.09.2022 passed by the learned Single Judge in W.P.(S) No. 670 of 2016, whereby and whereunder, the learned Single Judge has quashed the order dated 28.12.2015 as contained in Memo No. 6347 by which the 10% from the pension has been ordered to be forfeited in exercise of power conferred under Rule 43(b) of the Jharkhand Pension Rules, has been quashed and set aside with a direction upon the respondents to refund the amount so deducted from the pension of the petitioner and restore his pension to the original state.

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Facts:

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The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under:

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The writ petitioner joined as Assistant Engineer in the Bihar

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State Constructions, Patna on 08.02.1979 and while working on the post of Chief Engineer (Mechanical) in Ranchi, as survey report was submitted and the material were evaluated at Rs.10,54,700/- which was approved by the writ petitioner. Thereafter, the said material was evaluated by the predecessor-in-office of the writ petitioner at Rs.7,92,000/- and thereafter, the notice was invited to sell the said material.

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The writ petitioner superannuated from service on 30.11.2012 from the post of Chief Engineer Irrigation, Ranchi.

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L.P.A. No. 46 of 2023

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Thereafter, the writ petitioner was served with the charge sheet vide memo no.1906 dated 03.03.2014. The writ petitioner submitted his reply on 22.03.2014. Thereafter, the enquiry officer-cum-Engineer-inChief-II, Water Resources Department of Government of Jharkhand, Ranchi submitted enquiry report vide letter dated 21.11.2014 holding therein that no loss has been caused to the Department.

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Pursuant thereto, vide letter dated 24.08.2015, the writ petitioner was asked to submit his reply to the second show cause in respect of the punishment of withholding of 10% from his pension.

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It is the case of the writ petitioner that the Principal Secretary, Water Resources Department of the Government of Jharkhand, while disagreeing with the enquiry report did not issue any show cause notice pointing out the point of difference and did not offer any opportunity to the writ petitioner to submit his explanation. The writ petitioner was also not provided any opportunity before the Flying Squad.

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Thereafter, the writ petitioner on 03.09.2015 submitted his explanation in regard to the report submitted by the Flying Squad and the 2^nd evaluation report. But, the reply having not found satisfactory, punishment order as contained in memo no. 6347 dated 28.12.2015 was passed withholding 10% from the pension of the writ petitioner.

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Being aggrieved, the writ petitioner preferred writ petition being W.P.(S) No. 670 of 2016 wherein the learned Single Judge has quashed and set aside the impugned order dated 28.12.2015 against which the present letters patent appeal has been preferred.

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It is evident from the factual aspect that after superannuation of the writ petitioner, proceeding was initiated under Rule 43(b) of the Jharkhand Pension Rules vide circular/charge sheet dated 03.03.2014 levelling therein the allegation that due to his conduct the department has sustained loss of Rs.25.86 lakhs but the writ petitioner rebutted the said allegation.

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The writ petitioner has taken the ground that it is not a case of putting the State Exchequer on pecuniary loss and as such, the very charge is contrary to the document. The enquiry officer has submitted the enquiry report giving therein the opinion that it is not a case of loss to be sustained by putting pecuniary loss to the State Exchequer.

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The second show cause notice dated 24.08.2015 was issued giving therein the proposed punishment as to why the 10% of the pension be not withheld.

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The detailed reply was submitted stating therein that the enquiry officer has not found the case to be of loss to the State Exchequer said to be pecuniary loss. Thereafter, the State has passed the order holding the said reply to be dissatisfactory and accordingly, 10% of the pension has been ordered to be withheld.

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The writ petitioner being aggrieved with the same, has preferred a writ petition being W.P.(S) No. 670 of 2016 by taking the ground of not putting the State Exchequer on pecuniary loss or of grave misconduct, hence, there is no question of inflicting punishment of withholding 10% of the pension from the pensionary benefit of the writ petitioner.

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The learned Single Judge has appreciated the said submission/ground and has quashed and set aside the impugned order dated 28.12.2015 as contained in Memo No. 6347 with a direction upon the respondents to refund the amount so deducted from the pension of the petitioner and restore his pension to the original state.

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Mrs. Vandana Singh, learned Senior Standing Counsel-III has taken the ground that the learned Single Judge has interfered with the order of punishment on the premise that the rule 43(b) of the Pension Rules is only applicable if there is any pecuniary loss sustained to the State Exchequer but the law is otherwise and even in the case of grave misconduct, the pension can be withheld by taking recourse of the provision of Rule 43(b) of the Pension Rules.

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She has also relied upon the order passed by the Division Bench of this Court in the case of State of Jharkhand & Ors. vs. Jitendra Prasad Sharma, reported in 2014 SCC OnLine Jhar 2811 .

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This Court has appreciated the aforesaid argument and is now proceeding to examine the finding so recorded by the learned Single Judge in the impugned order but first this Court thinks it fit to refer the undisputed fact.

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After the superannuation of the writ petitioner, proceeding was initiated under Rule 43(b) of the Jharkhand Pension Rules vide circular/charge sheet dated 03.03.2014 levelling therein the allegation that due to his conduct the department has sustained loss of Rs.25.86 lakhs but the writ petitioner rebutted the said allegation.

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The writ petitioner has taken the ground that it is not a case of putting the State Exchequer on pecuniary loss and as such, the very charge is contrary to the document. The enquiry officer has submitted the enquiry report giving therein the opinion that it is not a case of loss to be sustained by putting pecuniary loss to the State Exchequer.

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The second show cause thereafter was given to the writ petitioner making reference of the proposed punishment of withholding of 10% pension. The writ petitioner has replied but the State has found the said reply to be non-satisfactory and has passed order on 28.12.2015 withholding 10% pension from the pensionary benefits of the writ petitioner.

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The learned Single Judge, while considering the legality and propriety of the said decision taken by the State authority, has considered by going through the enquiry report that it is neither the case of pecuniary loss said to be sustained to the State Exchequer nor the case of grave misconduct, hence, the provision as contained under Rule 43(b) of the Pension Rules as per the enquiry report is not said to be validly applied.

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The ground has been taken in assailing the impugned order passed by the learned Single Judge that the provision of Rule 43(b) is applicable in both the circumstances either in the case of pecuniary loss said to be sustained to the State Exchequer or in the case of grave misconduct.

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We are not in dispute with respect to the contention as has been raised on behalf of the State reason being that the Rule 43(b) of the Pension Rules is to be exercised in two eventualities, i.e., based upon the finding either in the departmental or judicial proceeding, the State is found to be put to pecuniary loss or in the case of grave misconduct, the whole or part of the pension is to be withheld. For ready reference, the provision of Rule 43(b) is being referred as under:

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“ 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 a 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 petitioner 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 reemployment after retirement:

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Provided that:-

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(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment;

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(i) shall not be instituted save with the sanction of the State Government;

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(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

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(iii) 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;

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(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment, shall have been instituted in accordance with subclause (ii) of clause (a); and

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(c) the Bihar Public Service Commission, shall be consulted before final orders are passed.”

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The aforesaid provision thus provides that in two eventualities, the pension whole or part of it can be withheld either in the case of pecuniary loss sustained to the State Exchequer or in the case of grave misconduct if found to be proved by the enquiry officer on in case the

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proceeding having been initiated after superannuation of the concerned employee subject to fulfilment of the condition stipulated in the explanation contained under rule 43(b) of the Pension Rules based upon the specific finding of the State on consideration of the reply furnished by the employee.

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This Court, based upon the aforesaid legal provision, deems it fit and proper to consider the enquiry report since the learned Single Judge has passed the order as would be evident from paragraph-8 of the impugned order that the enquiry report does not reflect either the case of grave misconduct or the pecuniary loss said to be sustained to the State Exchequer.

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The enquiry report is appended to the paperbook but before that the memorandum of charge is also to be referred herein which has been served to the writ petitioner under Prapatra-Ka. For ready reference, the memorandum of charge appended as Annexure-1 to the writ petition is being referred as under:

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“स.स.-8/ज.स. (नि.) र ाँची-05/2013:/ र ाँची, निि ांक:- आरोप प्ቔ ्ቚप्ቔ – क

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1- पि निक री क ि म :- ्ቦी आि्቎ ी ्ቚस ि नसांह, 2- पिि म :- मु्ቅ अनियांत , 3- ्ቦेणी :- र जपनित 4- ्ቦेणी्ቦेणी :- ्ቚथम

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4- ्ቦेणी्ቦेणी आरोप वििरण

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आरोप	आरोप का वििरण
1) अिुनचत ल ि ्ቚ ्቎ करिे के उ्ቌे्ብ से सरक र के स थ िोख िडी करि ।	नसांच ई य ांनिक ्ቚमांडल, िुर् ा स्थथत य ांनिक कमाश ल पररसर िर्ि एर्ां िांड र में अिुपयोगी एर्ां बेक र पडे स म िोां क मूल् ांकण आपके ्ቛ र 10,54,700.00 रूपये करके अिुमोनित नकय गय । पुिः उन्ीां स मनियोां क आकलि 13,34,985.00 रूपये की ्ቭ ीकृनत आपके ्ቛ र िी गई एर्ां इस पर अनिकतम बोली रूपये 16.14 ल ख लग ई गई। निल मी में अनियनमतत सांबांिी पररर् ि ्ቚ ्቎ होिे पर नर्ि ग ्ቛ र गनित मूल् ांकि सनमनत ्ቛ र इसक मूल् ांकण 41,23,712.00 रूपये ्ቚ ्቎ हुआ नजसपर मूल् आमांिण सूचि में 42 ल ख रूपये सुरनित मूल् रखते हुए मूल् आमांिण नकय गय नजसमें अनिकतम 42,05,000.00 रूपये ्ቚ ्቎ हुआ एर्ां नर्ि गीय नििेश के आलोक में इसक उि र् िी नकय गय । इस तरहआपके ्ቛ र कम मूल् ांकि को

आरोप

आरोप का वििरण

1) अिुनचत ल ि ्ቚ ्቎
करिे के उ्ቌे्ብ
से सरक र
के स थ िोख िडी करि ।

नसांच ई य ांनिक ्ቚमांडल, िुर् ा स्थथत य ांनिक कमाश ल
पररसर िर्ि एर्ां िांड र में अिुपयोगी एर्ां बेक र पडे
स म िोां क मूल् ांकण आपके ्ቛ
र 10,54,700.00
रूपये करके अिुमोनित नकय गय । पुिः उन्ीां
स मनियोां क आकलि 13,34,985.00 रूपये की ्ቭ
ीकृनत आपके ्ቛ र िी गई एर्ां इस पर अनिकतम
बोली रूपये 16.14 ल ख लग ई गई। निल मी में
अनियनमतत सांबांिी पररर् ि ्ቚ
्቎
होिे पर नर्ि ग ्ቛ
र गनित मूल् ांकि सनमनत ्ቛ र इसक मूल् ांकण
41,23,712.00 रूपये ्ቚ
्቎
हुआ नजसपर मूल्
आमांिण सूचि में 42 ल ख रूपये सुरनित मूल् रखते
हुए मूल् आमांिण नकय गय नजसमें अनिकतम
42,05,000.00 रूपये ्ቚ ्቎
हुआ एर्ां नर्ि गीय नििेश
के आलोक में इसक उि र् िी नकय गय ।
इस तरहआपके ्ቛ
र कम मूल् ांकि को

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अिुमोनित नकय गय जो नकसी िोस गणि पर आि ररत िहीां है तथ स मनियोां की म ि एर्ां िर क निि ारण त्ቔ ि ररत िहीां है। इस ्ቚक र आपके ्ቛ र नर्ि ग को 25.86 ल ख क ्ቢ्ቖ तः र ज्ቭ की ह नि पहुाँच ई गई है।

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साኚ ᭻ :--

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आपक मूल् ांकि ्ቚनतर्ेिि रू. 13,34,985.00

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नर्ि ग ्ቛ र गनित मूल् ांकि सनमनत क मूल् ांकि ्ቚनतर्ेिि रू. 41,23,712.00

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अिीिण अनियांत , योजि आयोजि अांचल, र ाँची क पि ांक-326 निि ांक-11.10.12

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(शेखर कुम र र्ेम ा)

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सरक र के सांयु्ሹ सनचर्(नि.)”

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It is evident from the memorandum of charge that the sole charge levelled against the writ petitioner is that due to his conduct, the State has been put to financial loss. There is no charge that due to the conduct of the writ petitioner appears to be the case of grave misconduct. The enquiry officer has also given the finding holding therein that it is not a case of pecuniary loss. Fore ready reference, the conclusive part of the enquiry report appended as Annexure-3 to the writ petition is being referred as under:

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“्ቦी आि्቎ ी ्ቚस ि नसांह क यह कहि नक अिीिण अनियांत (नजसमें Disposal of stores हेतु पूणा शस निनहत है) ्ቛ र अिुमोिि की अिुशांस पर अिुमोिि करि मेरी पिेि ब ्ቖ त थी, यह औपच ररकत म ि थी, सही िहीां है स ኚ᭻ के रूप में उिके ्ቛ र कोई circular क हर् ल िहीां निय गय है।

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नकसी मशीि क scrap value उसके book value क 10% होत है जो ownership cost की गणि हेतु उसके Residual value के रूप की ज ती है ि नक बेचिे हेतु इस सांििा में ्ቦी नसांह क यह मांत्ቤ नक नकसी बेक र स म ि को 10% scrap value ही ्቗ू ितम िर होत है तकसांगत िहीां है जबनक सूनच में कहीां िी नकसी िी m/c क ownership cost (cost of purchase taxes cost of erection + charge other axiliary items added to it to run the m/c) िहीां िश ाय गय है। ्ቦी नसांह क यह कहि नक म ि क आांकलि तथ स मनियोां क सूनच में सम र्ेश को जर् बिेही र पूणारूपेण क याप लक अनियांत की होती है त्ቔ से परे हैं अिुमोिि के पूर्ा उिके आ्ቫ्ቜ हो लेि आर क थ । इिके ्ቛ र अिुमोनित मूल् ांकि पर 16.14 ल ख पर निल मी हुई पर्ቌु पररर् ि ्ቚ ्቎ होिे पर नर्ि ग ्ቛ र र्ቌ कर िी गई नजसमें नर्ि ग एर्ां नर्ि गीय गनित सनमनत ्ቛ र पुिः मूल् ांकि कर कर निल मी की गई नजसमें नर्ि ग को 42.05 ल ख क र ज्ቭ ्ቚ ्቎ हुआ।

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चूांनक ्ቦी नसांह ्ቛ र अिुमोनित मूल् ांकि पर की गई निल मी को र्ቌ िी गई।

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अतः नर्ि ग को र ज की िनत िही हुई।“

¶87

Thus, the fact about the case having not of financial loss said to be sustained to the State Exchequer is admitted one.

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The ground has been taken that even in absence of pecuniary loss and in the case of grave misconduct, if found to be proved either in the

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departmental or judicial proceeding, the provision of Rule 43(b) of the Pension Rules is well applicable.

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This Court has considered the aforesaid argument by again going through the memorandum of charge wherein there is no such charge said to be in the nature of commission of grave misconduct save and except the charge that due to his conduct, the State has been put to financial loss.

¶92

The enquiry officer considered the said part of the memorandum of charge and found that it is not a case of pecuniary loss. The question, therefore, is that when no charge is there said to be committed by the writ petitioner of the nature of commission of grave misconduct then how the issue of grave misconduct as per the reference made to that effect in the Rule 43(b) of the Pension Rules will be said to be applicable herein.

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The law is well settled that the interpretation of the provision of Rule 43(b) of the Pension Rules is to be made strictly in terms of the statutory provision and there cannot be any deviation. Further, the law is that no word can be inserted in the memorandum of charge. The aforesaid aspect of the matter has been admitted by the learned State counsel.

¶94

This Court on consideration of the aforesaid fact and coming to the order passed by the learned Single Judge, has found particularly from paragraph-8, which is conclusive part of the said order on interpretation of the provision of Rule 43(b) of the Pension Rules that the enquiry officer has not found anything either on the count of sustaining pecuniary loss due to the conduct of the writ petitioner or allegation of charge said to be proved on commission of grave misconduct.

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This Court, therefore, is of the view that the view which has been taken by the learned Single Judge by interfering with the impugned order, cannot be said to suffer from error.

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