The main legal point established in the judgment is that the imposition of a penalty of withholding pension on a retired Government servant requires a definite finding with respect to the gravity of the misconduct and its potential result if the Government servant had remained in employment. The proprietary nature of pension rights and the necessity to follow proper legal procedures before imposing such a drastic penalty were emphasized.

K.K. Trivedi, J.

1. This writ petition under Article 226 of the Constitution of India is directed against the order dated 27.06.2008 passed by the respondent No. 2 as also the order dated 24.05.2011 passed in appeal of the petitioner by respondent No. 1. By the impugned final order dated 24.05.2011, a penalty of withholding of 10% pension of the petitioner is imposed on the petitioner under Rule 9(1) of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (herein after referred to as 'Pension Rules'). By the order dated 27.06.2008, recommendation is made by respondent No. 2 for imposition of penalty of withholding of 5% pension of the petitioner for a period of one year under the aforesaid Pension Rules.

2. The facts giving rise to the present writ petition are that while the petitioner was in service as Food Inspector, a charge-sheet dated 19.02.2002 was issued to him under the provisions of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (herein after referred to as 'CCA Rules') for conducting a regular departmental enquiry for alleged misconduct, in terms of Rule 14 of the CCA Rules. The petitioner attained the age of superannuation and stood retired during the pendency of the departmental enquiry. However, in view of the provisions of Rule 9 of the Pension Rules, the enquiry remained pending against the petitioner. In terms of the Pension Rules, the matter was referred to the competent authority for passing an order.

3. From the order impugned it is clear that the matter was referred to the higher authority, i.e. the State Government, by the respondent No. 2 only because the petitioner had retired during the pendency of the departmental enquiry and penalty was to be imposed by the competent authority. The respondent No. 2 proposed only withholding of 5% of pension for a period of one year. Probably this was done because only Charge No. 7 was said to be partially proved against the petitioner by the Enquiry Officer and to that extent the report of the Enquiry Officer was accepted. However, the State Government was of the view that instead of withholding of 5% pension for a period of one year, looking to the grave misconduct of the petitioner, he should be visited with a penalty of withholding of 10% pension permanently and accordingly the order was issued on 24.05.2011. It is this order which is sought to be challenged in the present writ petition mainly on the ground that opportunity of hearing was not given to the petitioner in appropriate manner, inasmuch as the petitioner was ill. This fact was brought to the notice of the Enquiry Officer and on account of his illness, the petitioner could not appear in the enquiry. Even when the charges were said to be not proved fully against the petitioner and the misconduct alleged in Charge No. 7 was not such grave that a penalty of withholding of pension could be imposed, such order of imposition of penalty was issued. It is contended in the writ petition that no opportunity of personal hearing was given and without following the procedure laid-down under Rule 14 of the CCA Rules, the enquiry report was sent to the higher authority. This order was sought to be challenged in an appeal before the respondent No. 1 and that appeal ought to have been decided in appropriate manner, whereas the order impugned has been passed imposing the aforesaid penalty.

4. As has already been noted down in the order-sheet, the notices after admission of this writ petition were issued in the year 2012 granting sufficient time to the respondents to rebut the allegations made by the petitioner but no return whatsoever has been filed. Looking to this conduct as well as the fact that the order of penalty amounts to taking away proprietary right of the petitioner, the matter has been heard finally.

5. The moot question, which is to be looked into, is what should be the procedure for imposing penalty on a retired Government servant and to what extent penalty can be