IMPORTANT POINT
The withholding of pension requires a clear finding of grave misconduct or negligence, which must be recorded by the competent authority, not merely inferred from the enquiry report.

ORDER :

1. Heard.

2. The order passed by the learned Single Judge is assailed in this appeal. The learned Single Judge, by the impugned order, has dismissed the writ petition filed by the appellant in the matter of challenge to the order dated 08.12.2000, by which the competent authority directed withholding 100% pension of the appellant on the basis of charges of negligence/misconduct in a departmental enquiry, which was initiated before retirement while the appellant/ delinquent employee was in service.

3. Quintessential facts necessary for deciding instant appeal and the legal issues arising for consideration are that while the appellant was continuing in services of State Government as member of RAS (Selection Scale), a charge-sheet was issued to him on 30.03.1993, levelling as many as nine charges. After appointment of Enquiry Officer, the enquiry continued. However, before it could be concluded, the appellant retired upon attaining the age of superannuation on 29.02.1996. The Enquiry Officer submitted his enquiry report to the disciplinary authority on 31.07.1996. During the period after the date of retirement, the appellant was getting provisional pension from 01.03.1996. The Enquiry Officer found the charges proved and the disciplinary authority proceeded to issue a show-cause notice to the appellant on 12.11.1997, requiring the appellant to show cause against proposed penalty/ punishment of withholding 100% pension for five years. The appellant submitted his reply to the show-cause notice. Thereafter, a fresh show-cause notice came to be issued on 10.04.1999, which now proposed withholding of 100% pension for lifetime. The appellant again replied to the show-cause notice. However, the competent authority, dissatisfied with the reply and concurring with the findings of the Enquiry Officer on various charges levelled against the appellant, passed order of penalty on 08.12.2000. Aggrieved by the said order, the appellant preferred writ petition, which came to be dismissed by the impugned order, giving rise to instant appeal.

4. Learned counsel for the appellant, assailing correctness and validity of the order passed by learned Single Judge as also by the Governor, contends that the impugned order is liable to be set aside on the ground that necessary satisfaction required to be arrived at to invoke power under Rule 170 of the Rajasthan Service Rules, 1951 (for short ‘the Rules of 1951’ as it existed on the date of exercise of power), has not been recorded by the disciplinary authority much less any reasons for such satisfaction. It is argued that power under Rule 170 of the Rules of 1951 could be invoked to withhold pension fully or in part, only when there is a satisfaction recorded by the competent authority that it is a case of grave misconduct or grave negligence, upon which the competent authority exercise powers to withhold pension, fully or in part and may also direct recovery of any pecuniary loss caused to the Government. Neither the charges alleged it to be a case of grave misconduct or grave negligence nor was any such finding recorded by the Enquiry Officer. The competent authority also did not record any finding based on any material on record to reach to a conclusion that it was a case of either grave misconduct or grave negligence. Therefore, the order impugned is in excess of jurisdiction conferred under the law.

5. Second submission of learned counsel for the appellant is that the power conferred under Rule 170 of the Rules of 1951 is in essence, power reserved to the Governor to withhold pension only in order to recover pecuniary loss caused to the Government and unless there are charges and finding of pecuniary loss caused to the Government, only because the delinquent employee is found guilty of misconduct or negligence, the power of withholding pension fully or in part, could not be invoked.

6. Third submission of learned counsel for the appellant is that even in the charges and the findings recorded by th