( 1. ) ORIGINAL petitioner Manohar Sukhija was working on the post of Superintending Engineer (Civil) in the respondent No. 1, M. P. State electricity Board {for short the Board}. He was retired voluntarily w. e. f. 30. 9. 2002 vide order dated 30. 9. 2002 (Annexure P-l ). In the said order it was made clear that he is being voluntarily retired from service without any prejudice to the outcome of the Departmental Enquiry pending / contemplated against him.

( 2. ) PRIOR to the aforesaid order of voluntary retirement of the original petitioner a charge-sheet was issued to him on 17. 9. 1992 (Annexure P-2) levelling 2 charges against him. The first charge was that when he was posted at Sarni he called in is office Lady Peon namely Smt. Sumitra Patil who was working in the office of executive Engineer of the respondent Board and misbehaved with her in as much as he caught hold of her hand. The other charge was that he sent a false affidavit in the name of said Smt. Sumitra Patil Peon so as to close the departmental proceedings initiated against him. The said affidavit on enquiry was found to be not sworn by the said Smt. Sumitra Patil.

( 3. ) THE original petitioner submitted his reply (Annexure P-3) to the said charge-sheet and denied the charges levelled against him. He stated that the said Smt sumitra Patil constructed unauthorized Hutment which was removed on the bass of the decision of the Board and the material used in the said unauthorized construction viz. G. I: Sheets were seized. She was insisting for the return of at said G. I. Sheets from him and on not getting any favourable order, she with the connivance of the others falsely implicated him by levelling baseless allegations

( 4. ) THE aforesaid reply was not found to be satisfactory and as such the enquiry officer held a Departmental Enquiry against the original petitioner. The Enquiry officer after recording the evidence led in the enquiry vide his enquiry report dated 8. 1. 2004 (Annexure P-9) exonerated the petitioner holding the on petitioner to be not guilty of any of the charge.

( 5. ) AFTER receipt of the enquiry report the Disciplinary Authority disagres with the finding of Enquiry Officer recorded the finding of guilt against the original petitioner in respect of charge No. 1 and issued a notice to the original petitioner on 15. 5. 2004 (Annexure-P-10) to show cause that on the basis of the finding of guilt recorded against him in respect of charge No. 1 why a penalty of withholding of his pension to the extent of 10% for 2 years be not finally imposed upon him.

( 6. ) THE aforesaid show cause notice was replied by the original petitioner vide his reply dated 7. 6. 2004 (Annexure P-11 ). After the receipt of the said reply the disciplinary Authority vide order dated 14. 9. 2004 (Annexure P-13) imposed upon the original petitioner penalty of withholding of 10% of his pension for 2 years. Aggrieved the original petitioner has filed this petition. During the pendency of the petition the original petitioner has died and his legal representatives were substituted in his place as petitioners.

( 7. ) THE contention of the Shri A. K. Sethi, learned Senior counsel for the petitioners is that the enquiry officer having held the original petitioner to be not guilty, the Disciplinary Authority if was not in the agreement with the finding of the enquiry officer in respect of charge No. 1 was required to have communicated the original petitioner the tentative reason for disagreeing with the finding of the enquiry officer in regard to Charge No. 1. However, instead the disciplinary authority recorded a final finding holding the petitioner guilty of the charge No. 1 and issued notice to show cause against the proposed penalty of withholding of 10% pension for 2 years. He placing reliance on the judgment of the Supreme Court in the case of [punjab National Bank Vs. Kunj Behari Mishra] AIR 1998 SC 2713 argued that the original petitioner was required to have given an o