ivil Appeal No 5025 of 1985
From the Judgment and Order dated 2531985 of the Delhi High Court in CWP No 686 of 1985
Arun K Sinha for the Appellant
NS Hegde Additional Solicitor General TC Sharma and Mrs Sushma Suri for the Respondents
The Judgment of the Court was delivered by 700 K RAMASWAMY J
1
This appeal by special leave under article 136 of the Constitution arises against the decision of the Delhi High Court in CWP No 686 of 1985 dated March 25 1985
The appellant was working as an Assistant Grade IV of the Indian Foreign Service Branch B  in Indian High Commission at London
On November 8 1978 he was transferred to the Ministry of External Affairs New Delhi but he did not join duty as commanded resulting in initiation of disciplinary proceedings against him on August 23 1979
Pending the proceedings on February 26 1980 the appellant sought voluntary retirement from service and by proceedings dated October 24 1980 he was allowed to retire but was put on notice that the disciplinary proceedings initiated against him would be continued under rule 9 of Civil Serv ices Pension Rules 1972 for short Rules 
His main defence in the explanation was that his wife was ailing at London and therefore he sought for leave for six days in the first instance and 30 days later which was granted but as she did not recover from the ailment he could not undertake travel
So he sought for more leave but when it was reject ed he was constrained to opt for voluntary retirement
After conducting the enquiry the Inquiry Officer submitted his report dated May 19 1981
The gravemen of charges as stated earlier are that the appellant absented himself from duty from December 15 1978 without any authorisation and despite his being asked to join duty he remained absent from duty which is wilful contravention of Rule 3iii and 3iiii of the Civil Services Conduct Rule 1964
The Inquiry Officer found that it is however difficult to say whether his absenting himself from duty was entirely wilful
In the concluding portion he says that both the articles of charges have been established the circumstances in which the appellant violated the rules require a sympa thetic consideration while deciding the case under Rule 9 of the Rules
The President on consideration of the report agreed with the findings of the Inquiry Officer and in consultation with the Union Public Service Commission decid ed that the entire gratuity and pension otherwise admissible to the appellant was withheld on permanent basis as a meas ure of punishment through the proceedings dated November 24
When the appellant challenged the legality there of the High Court dismissed the writ petition in limine on the ground that it would not interfere in its discretionary jurisdiction under article 226 of the Constitution
The contention of Mr Kapoor learned counsel for the appellant is that the appellant having been allowed to retire voluntarily the authorities are devoid of jurisdic tion to impose the penalty of withholding gratuity and pension as a measure of punishment and the 701 proceedings stand abated
We find no substance in the con tention
Rule 92 of the Rules provided that the departmen tal proceedings if instituted while the Government servant was in service whether before his retirement or during his re employment shall after the final retirement of the Government servant be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service
Therefore merely because the appellant was allowed to retire the Government is not lacking jurisdiction or power to continue the proceedings already initiated to the logical conclusion thereto
The disciplinary proceedings initiated under the Conduct Rules must be deemed to be proceedings under the rules and shall be continued and concluded by the authori ties by which the proceedings have been commenced in the same manner as if the Government servant had continued in service
The only inhibition thereafter is as provided in the proviso namely provided that where the departmental proceedings are instituted by an authority subordinate to the President that authority shall submit a report record ing its findings to the President
That has been done in this case and the President passed the impugned order
Accordingly we hold that the proceedings are valid in law and they are not abated consequent to voluntary retirement of the appellant and the order was passed by the competent authority iethe President of India
His further contention that the appellant must be found to have committed grave misconduct or negligence within the meaning of Rule 852 of the Rules which alone gives power and jurisdiction to the authority to withhold by way of disciplinary measure the gratuity and payment of pension Public employee holding a civil post or office under the State has a legitimate right to earn his pension at the evening of his life after retirement be it on super annuation or voluntary retirement
It is not a bounty of the State
Equally too of gratuity a statutory right
earned by him
Article 141 of the Constitution accords right to as sistance at the old aged or sickness or disablement
In DS Nakara  Ors
vs Union of India  the Con stitution Bench of this Court held that pension is not only compensation for loyal service rendered in the past but also by the broader significance in that it is a social welfare measure rendering socioeconomic justice by providing economic security in the fall of life when physical and mental prowess is ebbing corresponding to ageing process and therefore one is required to fall back on savings
One such saving in kind is when one had given his best in the hey day of life to his employer in days of invalidity economic security by way of periodical 702 payment is assured
Therefore it is a sort of stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service
Thus pension is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered
In one sentence one can say that the most practical raison d etre for pension is the inability to provide for one self due to old age
One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon
At page 190 D it is stated that pension as a retire ment benefit is in consonance with and furtherance of the goals of the Constitution
The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security from gradle to grave is assured at least when it is mostly needed and least available namely in the fall of life
Therefore when a Government employee is sought to be deprived of his pensionary right when the had earned while rendering services under the State such a deprivation must be in accordance with law
Rule 91 of the rules provides thus The President reserves to himself the right of withholding or withdrawing a pension or part thereof whether permanent ly or for a specified period and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government if in any departmental of judicial proceedings the pensioner is found guilty or grave miscon duct or negligence during the period of his service includ ing service rendered upon re employment after retirement
Provided that the Union Public Service Commission shall be consulted before any final orders are passed
Provided further that where a part of pension is withheld or withdrawn the amount of such pension shall not be reduced below the amount of rupees sixty per mensum
 Therefore it is clear that the President reserves to himself the right to withhold or withdraw the whole pension or a part thereof whether permanently or for specified period
The President also is empowered to order recovery from a pensioner of the whole or part of any pecuniary loss caused to the Government if in any proceeding in the departmental enquiry or judicial proceedings the pensioner is 703 found guilty of grave misconduct or negligence during the period of his service including service rendered upon re employment after retirement
Rule 85 explanation b defines grave misconduct  thus  The expression grave misconduct  includes the communica tion or disclosure of any secret official code or password or any sketch plan model article note document or information such as is mentioned in Section 5 of the Offi cial Secrets Act 1923 19 of 1923 which was obtained while holding office under the Government so as to prejudi cially affect the interest of the general public of the security of the State
 In one of the decisions of the Government as compiled by Swamy s Pension Compilation 1987 Edition it is stated that Pensions are not in the nature of reward but there is a 2binding obligation on Government which can be claimed as a fight
Their forfeiture is only on resignation removal or dismissal from service
After a pension is sanctioned its continuance depends on future good conduct but it cannot be stopped or reduced for other reasons
It is seen that the President has reserved to himself the right withhold pension in whole or in part therefore whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum
The condition precedent is that in any departmental enquiry or the judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service of the original or on re employment
The condition precedent thereto is that there should be a find ing that the deliquent is guilty of grave misconduct or negligence in the discharge of public duty in office as defined in Rule 85 explanation b which is an inclusive definition ie the scope is wide of mark dependent on the facts or circumstances in a given case
Myriad situation may arise depending on the ingenuinity with which misconduct or irregularity was committed
It is not necessary to further probe into the scope and meaning of the words grave miscon duct or negligence  and under what circumstances the find ings in this regard are held proved
It is suffice that charges in this case are that the appellant was guilty of wilful misconduct in not reporting to duty after his trans fer from Indian High Commission at London to the Office of External Affairs Ministry Government of India New Delhi
The Inquiry Officer found that though the appellants dere licted his duty to report to duty it is not 704 wilful for the reason that he could not move due to his wife s illness and he recommended to sympathetically consid er the case of the appellant and the President accepted this finding but decided to withhold gratuity and payment of pension in consultation with the Union Public Service Com mission
As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceed ings that the pensioner committed grave misconduct or negli gence in the discharge of his duty while in office subject of the charge
In the absence of such a finding the Presi dent is without authority of law to impose penalty of with holding pension as a measure of punishment either in whole or in part permanently or for a specified period or to order recovery of the pecuniary loss in whole or in part from the pension of the employee subject to minimum of Rs60 7
Rule 9 of the rules empowers the President only to with hold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum
The employee s right to pension is a statutory fight
The measure of deprivation therefore must be correl ative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to as sistance at the evening of his life as assured under article 41 of the Constitution
The impugned order discloses that the President withheld on permanent basis the payment of gratui ty in addition to pension
The fight to gratuity is also a statutory right
The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment
No provision of law has been brought to our notice under which the President is empow ered to withhold gratuity as well after his retirement as a measure of punishment
Therefore the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction
In view of the above facts and law that there is no finding that appellant did commit grave misconduct as charged for the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent grave misconduct was not proved
Accordingly the appeal is allowed and the impugned order dated November 24 1981 is quashed but in the circumstances parties are directed to bear their own costs
NPV Appeal allowed


Summary:
The appellant was charged with the murder of a co worker at the factory in which they were working
The Trial Court discarded the testimony of eye witnesses and other circum stances and acquitted the appellant by giving him the benefit of doubt
On appeal the High Court accepted the testimony of the eyewitnesses and convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment
This appeal is against the High Court s judgment
Allowing the appeal in part HELD 1
The High Court had interfered with the order of acquittal for cogent reasons and that the conclusion of the High Court that the appellant has caused the death of the deceased by stabbing with a knife in the manner alleged by the prosecution is unassailable
The approach by the trial court was clearly wrong and the finding is perverse
The testimony of the two independent eye witnesses had not been properly appreciated
Their presence at the scene could not at all be doubted in the light of what PW 3 has deposed
They are probable witnesses and there had not been any infirmity in their evidence
608F G 2
However the offence is not murder punishable under Section 302 IPC and that the act of the appellant as proved would fail only under Section 304 Part II IPC
The appel lant had admitted that there had been an altercation between the two and the deceased received the injury in the course of a scuffle
The evidence clearly established that the whole incident was a sudden development and that the appel lant had acted at the spur of the moment and without any pre meditation
607 There had been no ill will or enmity between the two
A casual remark made by the appellant provoked the deceased and the altercation ensued which culminated in the stabbing with knife
The appellant used the knife only once and did not act in any cruel manner
It was in the sudden quarrel in heat of passion that the appellant inflicted the injury on the deceased without any intention to cause death but having knowledge that such act was likely to cause the death of the deceased
609B D 3
The conviction is altered to one under Section 304 Part II IPC
Appellant had already undergone imprisonment for over one year
He had been released on bail by order of this Court
The appellant a young man who had been at large for over nearly 12 years cannot be committed to prison for any further period at this stage
609E 4
To meet the ends of justice it is directed that the appellant should pay a fine of Rs50000 in addition to the term of imprisonment he has already suffered
This amount would be paid to the father of the deceased and other legal heirs
In case of default in payment of fine the appellant should undergo further imprisonment for six months
609F G