IMPORTANT POINT
The main legal point established in the judgment is that the deceased employee must be served with a show cause notice specifying the action proposed under Rule 170 of the Rajasthan Service Rules, 1951, as mandated by the administrative instruction, and the imposition of penalty must be in compliance with the binding provisions.

JUDGMENT :

1. Heard.

2. A short issue arises for consideration in this writ appeal preferred against the order dated 29.11.2022 passed by learned Single Judge.

3. The essential facts necessary for determination of controversy involved in this present appeal are that the writ petitioner Chotu Singh (since deceased) while working as Constable was subjected to departmental inquiry on certain charges of misconduct. Initially, he was exonerated but later on de novo inquiry was directed which culminated in an order of withholding 15% of the pension as, in the meanwhile, the employee retired. The order of withholding of 15% of the pension was assailed by filing the writ petition. The writ petition was dismissed by the learned Single Judge against which this appeal has been preferred.

4. Pointed submission of learned counsel for the appellant is that the learned Single Judge while holding that the order of withholding 15% of the pension did not warrant any interference ignored the mandate of the binding instructions issued by the Government itself that after holding the inquiry, once an action is proposed, Government was obliged under the law to serve upon the person concerned a show cause notice specifying the action proposed to be taken under Rule 170 of Rajasthan Service Rules, 1951.

5. It is the contention that the decision of learned Single Judge in the case of Manorama Asopa Vs. State of Rajasthan & Ors. reported in (2009) 3 WLN 77 and earlier J. N. Purohit Vs. State of Rajasthan & Ors.: SBCWP No.396/1977 was not correctly and properly appreciated. He would submit that the mandate of the instruction obliged the authority to serve a show cause notice specifying the action proposed. Therefore, it is argued, even though opportunity of hearing was afforded during departmental inquiry, a second stage show cause notice was clearly contemplated under the binding instructions.

6. Per contra, learned Additional Advocate General would submit that the deceased employee was given a charge-sheet, afforded opportunity of hearing in the departmental inquiry and then only inquiry report was submitted before the competent authority by the inquiry officer. He would submit that the deceased employee was thereafter supplied with the copy of the inquiry report and also afforded an opportunity to submit his representation. Therefore, it is the contention, the principles of natural justice were fully complied with and technical violation of the administrative instruction would not come to the aid of the deceased employee. That is what has been held by the learned Single Judge.

7. We have heard learned counsel for the parties, perused the records and also the order under challenge.

8. Indisbutably, the deceased employee was subjected to departmental inquiry by issuance of a charge-sheet. It is also not in dispute that in the departmental inquiry he was afforded due and proper opportunity of hearing. The inquiry officer upon consideration of the material evidence both oral and documentary on record, came to the conclusion of fact with regard to proof of some of the charges, though not all, as levelled against the deceased employee. Thereafter, the deceased employee was supplied with the copy of the inquiry report and his comments were also sought vide memo dated 11.01.2000. Since, in the meantime the deceased employee had already retired from service, an order of withholding his pension to the extent of 15% was passed.

9. The learned Single Judge dismissed the petition holding that once the deceased employee was granted an opportunity of hearing during the course of inquiry, the principles of natural justice were fully complied with and the decision rendered in the case of Manorama Asopa (supra) was distinguishable on facts. For taking that view what has mainly prevailed in the consideration is that in the departmental inquiry, an opportunity of hearing was afforded.

10. We, however, find that under an administrative instruction (clarification) inserted vide F.D.