1. - 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.

2. Shri Rajendra Prasad, learned counsel for the petitioner has argued that the petitioner was deputed on the main gate as 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.

3. 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 acti