1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5219/1997 Mukand Singh vs. State Date of order : 1/4/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Prasad for the petitioner. Ms. Raj Sharma, Addl. Govt. Counsel for the respondents. ****** REPORTABLE This writ petition is directed against the order of penalty dated 25.2.1997 by which the disciplinary authority has awarded to the petitioner penalty of stoppage of 40% pension for the period of 10 years. It was an order passed in a joint departmental proceedings against petitioner and two others namely Deputy Superintendent District Jail, Shri Rajendra Singh Chauhan and Jailor Shri Laxmi Lal Bhatnagar, whose 40% pension was also withheld for 10 years and Guard Shri Fateh Mohammad, whose three grade increments were withheld with cumulative effect. Shri Rajendra Prasad, learned counsel for the petitioner has argued that the petitioner was deputed on the main gate as 2 Gate Keeper in District Jail from 6.00 to 10.00 AM on 28.10.1985. On that date, two prisoners Hanuman and Satya Narain escaped from District Jail. A charge sheet was therefore served upon four persons including the petitioner on 5.5.1989 under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and a joint enquiry under Rule 18 was ordered. The enquiry officer submitted his report, which was forwarded to the petitioner along with letter dated 28.4.1994. Petitioner submitted a detailed representation disputing correctness of the finding. In the meantime and before any final order could be passed, petitioner stood retired from service on attaining the age of superannuation. It is contended that only charge against the petitioner was that when he was deputed on duty as Head Guard at the main gate of District Jail on 28.10.1985 from 6.00 to 10.00 AM, he did not diligently discharge his duties, as a result of which, two prisoners escaped form the said jail. Had he been alert on duty, the incident of 3 escapement would not occasion. The petitioner was thus negligent in discharge of his duties and this amounted to dereliction of duty on his part. Learned counsel submitted that the findings recorded by the enquiry officer clearly show that the petitioner was not held responsible either for grave misconduct or grave negligence of duty. While one witness produced by the department namely Umed Singh, PW-8 supported the charge against the petitioner, as against this, three of their witnesses namely Hari Singh, PW-1, Nawab Ali, PW-2 and Sajjan Singh, PW-3 have clearly stated that while on duty at the main gate, it was not possible for the petitioner to watch the inside activities in the jail because there were in between four Neem trees and one Imli tree, which obstructed the free vision. The enquiry officer has accepted their evidence by recording a finding that on account of these trees, it did not seem possible for the petitioner to watch from outside as to what was going on inside the jail. It is contended that the enquiry officer has 4 accepted the explanation given by the petitioner by observing that there appear to be some substance in the explanation submitted by him. The final conclusion that has been recorded by the enquiry officer was that the challan against the petitioner was only partly proved because petitioner could be held responsible for negligence and carelessness to some extent only. Shri Rajendra Prasad, learned counsel submitted that according to Rule-7 of the Rajasthan Civil Services (Pension) Rules, 1996, in the case of retired government servant, who has been proceeded against in disciplinary enquiry, a Governor could withheld a pension or part thereof, whether permanently 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 or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. Learned counsel submitted that there is no finding of guilt recorded against the petitioner 5 either of grave misconduct or grave negligence. On the contrary if the petitioner had left his duties at the main gate and went inside the jail to check the activities of the prisoners, that would have amounted to dereliction of duties because in that event, he would have been directly responsible for whatever would happen at the main gate. Learned counsel further submitted that the disciplinary authority has on its part not made any additional observations as to the guilt of the petitioner. He is simply agreed with the findings of the enquiry officer and mechanically awarded penalty of withholding of 40% of pension of petitioner for a period of 10 years. The same penalty was awarded to the co-delinquent Rajendra Singh Chauhan, the Deputy Superintendent and Laxmi Lal Bhatnagar, the then Jailor whereas it would be evident from the report of the enquiry officer that they have been held guilty of much graver misconduct and charges against them were that they did not properly manage the administration of the jail and assigned such additional duties to the jail 6 guards including the petitioner, which interfered with their efficient functioning as Guards. Learned counsel cited the judgement of coordinate bench of this Court in R.C. Lal Agrawal vs. State & Ors.-2005 (5) WLC (Raj.) 13 wherein para materia provisions contained in Rule 170 of the Rajasthan Service Rules, 1951, the predecessor Rule 7, supra was interpreted and it was held that without there being any finding of grave misconduct or grave negligence, neither pension, nor any part thereof, can be withheld. Ms. Raj Sharma, learned Additional Government Counsel opposed the writ petition and submitted that it is not that there is no evidence against the petitioner to hold him guilty of the charges levelled against him. The only charge against him was that he did not diligently discharge the duties at the main gate as the Head Guard. Had he done so, the incident of escape of two persons would not happened. Learned counsel submitted that apart from PW-8, there was other evidence also including the 7 documentary evidence that he initially made an entry in the record showing departure of Sweeper at 6.30 AM on the main gate, but later on by making overwriting, he struck off the name of the Sweeper and instead indicated the name of Jailor and the departure time was indicated as 6.15 AM. The gate register was exhibited as Ex.P17 wherein such entry was made at S.No.12. It is submitted that even if the petitioner was deputed as a Guard on the main gate, still he was not free from his responsibility to keep a vigil on all the activities made inside the jail. Had he been vigilant, the incident of escape could be avoided. Learned counsel submitted that apart from grave misconduct referred to in Rule 7, supra, negligence by itself would be sufficient basis for withholding pension or part of the pension of the delinquent and in the present case when the matter was sent to Rajasthan Public Service Commission (for short-RPSC) for consultation, it was proposed to award penalty of full pension of the petitioner and two others namely Rajendra Singh Chouhan 8 and Laxmi Lal Bhatnagar, but eventually after consultation with the RPSC, penalty of only 40% of pension was imposed. The respondents have thus already taken lenient view in the matter. No interference is therefore called for. In order to appreciate the point of law involved in the matter, it would be apposite to extract hereunder Rule 7(1) of the Rules of 1996. “7. Right of Governor to withhold or withdraw pensioner (1)The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently 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 or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement.” A perusal of the aforesaid Rule would show that in case of a Government servant who has retired, the Governor reserves to himself the right to withhold or withdraw a pension or part thereof, whether permanently 9 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 or judicial proceedings, the pensioner is found guilty of “grave misconduct” or “negligence” during the period of his service. The rule making authority has thus laid emphasis that the misconduct or negligence for which part or whole of the pension of a retired government servant can be withheld has to be such which can be described as a grave misconduct or negligence. In other words, ordinary cases of misconduct or negligence are not considered as grave enough to justify withholding full or part of the pension of a retired government servant. Gravity of the misconduct or for that matter, guilt of the delinquent should be very serious in nature which must be proved to be either grave misconduct or gravel negligence, which is the sine-quo-non for invocation of provision like Rule 7. This rule carves out an exception to the general rule for imposition of penalty upon a 10 government servant, who though may have otherwise retired from service but by virtue of the said provision, is deemed to be subject to the provisions of Rajasthan Civil Services (Classification, Control & Appeal), Rules, 1958 because otherwise the definition of a government servant in Rule 2(f) of the CCA Rules defines a government servant to mean a person, who is member of a service or holds a civil post under the Government of Rajasthan and includes any such person on foreign service or whose services are temporarily placed at the disposal of a local or other authority, and also any person in the service of a local or other authority whose services are temporarily placed at the disposal of Government of Rajasthan or a person in service on a contract or a person, who has retired from Government service else where and is re- employed under the Government of Rajasthan etc. Contention that in view of the language employed in the Rule 7 only misconduct is required to be a grave misconduct and not 11 negligence because it appears after the use of the disjunctive word “or“ is noticed only to be rejected because in my considered view, the use of the word “grave” in the setting of the language employed by the rule making authority qualifies both misconduct as well as negligence. The finding that is required for invocation of the said rule has to be therefore of both, either of grave misconduct or of grave negligence and therefore it cannot be accepted that mere negligence, which may not otherwise be grave enough, would be sufficient to invoke the said rule. This issue fell for consideration of coordinate bench of this Court in R.C. Lal Agrawal, supra, albeit in the context of para materia provisions contained in Rule 170 of the Rajasthan Service Rules, 1951, the predecessor Rule of Rule 7, supra. This Court in para 19 to 24 of the judgement after making elaborate discussion of law on the subject held as under: “19. Thus from a careful perusal of scheme of R.170, RSR, it is clear that the Governor has reserved the right to 12 (1) withhold or withdraw a pension wholly or any part of it, either permanently or for a specified period and (2) recover from a pension of the whole or part of any pecuniary loss caused to Government, subject to the minimum. The condition precedent is that in departmental inquiry or judicial proceedings, pensioner is found guilty of grave misconduct or negligence during period of his service of the original or on re- employment. However, condition precedent is that there should be finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in RSR. The scope in wide of mark dependent on the facts & circumstances of each case. 20. Employee's right to pension is a statutory right. Measure of deprivation, therefore, must be correlative to or commensurate with gravity of grave misconduct or negligence as it offends the right to assistance at the evening of his life as assured under Art. 41 of the Constitution of India. 21. It is not necessary for me to further probe into scope and meaning of grave misconduct or negligence and under what circumstances, the findings of guilt are held proved. Suffice it to say that charge in present case against petitioner was that he was willfully absent for not reporting on duty despite his application seeking voluntary retirement was declined by competent authority. 22. Rule 169 of RSR prescribes `Good Conduct' as a pre-condition for grant of pension. U/r 169(1), future good conduct is an implied condition of every grant of pension and the pension sanctioning authority is empowered to 13 withhold or withdraw pension or part thereof whether permanently or for a specified period, if pensioner is convicted of a serious crime or is found guilty of grave misconduct. R.169(2) deals with cases of pensioner who is convicted of a serious crime by a court of law, and 169(3) deals with the matter pertaining to grave misconduct or of negligence. Relevant R.169(3) of RSR reads thus: (3) In a case not falling under clause (2) if the competent authority under clause (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under Clause (1): (a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal, and (b) take the representation, if any, submitted by the pensioner under Clause (a) into consideration.” 23. It is seen from scheme of R.169 read with R.170, RSR that exercise of power by the Governor is hedged with a condition precedent that a finding should be recorded either in departmental inquiry or judicial proceedings that the pensioner has committed grave misconduct or negligence in discharge of his duty while in office. In the absence of such a finding, the authority is not competent to impose penalty of 14 withholding of pension as 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 the minimum. 24. In the present case, from a bare perusal of impugned order dt. 12.12.96, it reveals that the authority has only held the petitioner guilty of willful absence for the period in question, but has failed to record a finding as to whether the charge stood proved against him, was at all an act of grave misconduct or of negligence, if any committed by him while holding public office. In my opinion, in the absence of which, very action of inflicting penalty upon petitioner vide order dt. 12.12.96 (Ann.23) for withholding whole pension permanently, is in violation of R.170, RSR so also of Art. 14 & 21 of the Constitution of India.” In view of the discussion made above, on the first argument raised by the learned counsel for the petitioner, I need not examine other arguments advanced by him because the condition precedent for invocation of Rule 7, supra, in that there should be a finding of `grave misconduct' or `grave negligence', having not been fulfilled, the disciplinary authority in my opinion, has acted wholly illegally in withholding 40% pension of the petitioner 15 for a period of 10 years. The impugned order of penalty, therefore, cannot be sustained. In the result, this writ petition is allowed. The impugned order of penalty dated 25.2.1997 is quashed and set aside. The petitioner is held entitled to all the consequential benefits with interest @ 6% per annum. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/