JUDGMENT

Sunil Kumar Garg, J.

1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 19.1.2000 with the prayer that by an appropriate writ, order or direction, the order dated 21.4.1998 (Annex.1) passed by the State Government (respondent No. 1) by which the petitioner was awarded punishment/penalty of stoppage of 50% pension forever, after holding guilty of all the three charges levelled against him in an enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as "the CCA Rules") and the order dated 30.6.1999 (Annex.3) passed by the respondent No. 2 by which the review petition of the petitioner seeking review of the order Annex.1 dated 21.4.1998 was rejected, be quashed and set aside and the respondents be directed to pay entire pension.

2. It may be stated here that during the pendency of this writ petition, the original petitioner Durga Dan Charan (hereinafter referred to as "the deceased petitioner") had died on 13.11.2001 and vide order dated 9.7.2002, his wife Smt. Akla Devi was taken on record as his LR.

3. It arises in the following circumstances:-

The deceased-petitioner was superannuated on attaining the age of superannuation with effect from 31.1.1991.

Thereafter, after his retirement, on 25.11.1994, a charge- sheet (Annex.R/1) under Rule 16 of the CCA Rules, was served upon the deceased petitioner and in the charge sheet, three charges were levelled against the deceased petitioner and the sum and substance of the charges are as follows:-

"Charge No. 1

That deceased petitioner remained Sub Divisional Officer, Pokaran from 28.8.1989 to 9.1.1991 and he was retired from service on 31.1.1991 and though he was transferred from Pokaran vide order No. P.1(1)Karmik/Ka-4/91 dated 1.1.1991 and he received that transfer order, but still he decided cases under the Rajasthan tenancy Act, 1955 (for short "the Act of 1955") on 8.1.1991 and 9.1.1991 and thus, he misused the power and post.

Charge No. 2

That deceased petitioner on 8.1.1991 and 9.1.1991 conferred the khatedar rights against the Rules and thus, he misused his power and office.

Charge No. 3

That on 8.1.1991, in case No. 74/90, deceased petitioner conferred khatedari rights in favour of dead person-Ramratan and thus, he misused his power and he exceeded his jurisdiction by conferring khatedari rights in favour of a dead person. Thus, he lowered down the image of the post of SDO."

A detailed reply (Annex.R/2) to the said charge sheet (Annex.R/1) was filed by the deceased petitioner in which he made it clear that the order of his transfer dated 1.1.1991 was not received by him prior to 8.1.1991 and 9.1.1991 and thus, he did not misuse his power. It was further submitted by the deceased petitioner that he had acted in accordance with the powers vested in him for the post of Sub Divisional Officer under the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as "the Act of 1956"). For charge No. 3, it was specifically submitted by the deceased petitioner that none of the parties to case No. 74/90 had brought to his notice in the Court that Ram Ratan had already died.

Apart from the above, in the reply, it was specifically submitted by the deceased petitioner that he had decided the matters with regard to grant of khatedari rights in compliance of the Division Bench judgment of this Court dated 31.7.1990 passed in Saukhan v. State of Rajasthan and Ors., D.B. Civil Misc. Writ Petition No. 1786/86 and other connected matters in which directions were issued to decide the matters within a period of six months. It was further submitted by the deceased petitioner that the matters were decided by him in accordance with the powers conferred upon him under the Act of 1956 and he had not violated any of the provisions of the law and he had exercised the quasi-judicial powers as per the provisions of law. It was also submitted by the deceased petitioner that a person exercising quasi judicial function is also entitled to judicial protection and he could not be charge-sheeted in the manner as done against the deceased petitioner. Hence, it was prayed by the deceased petitioner that the enquiry initiated against him under Rule 16 of the CCA Rules be dropped and he be acquitted of the charges levelled against him.

After receipt of the reply of the deceased petitioner, Enquiry Officer was appointed, who gave his report (Annex.R/3) on 16.6.1997 and the Enquiry Officer held the deceased petitioner guilty of all the three charges levelled against him.

Thereafter, the deceased petitioner was asked to submit representation against the enquiry report (Annex.R/3) dated 16.6.1997 holding the deceased petitioner guilty of all the charges levelled against him and accordingly, the deceased petitioner submitted his representation.

Thereafter, the Disciplinary Authority (respondent No. 1) through impugned order dated 21.4.1998 (Annex.1) imposed the penalty of stoppage of 50% pension of the deceased petitioner for-ever.

Aggrieved from the said order dated 21.4.1998 (Annex.1), the deceased petitioner preferred a review petition, a copy of which is marked as Annex.2. However, the said review petition was rejected by the respondent No. 2 through order Annex.3 dated 30.6.1999.

Aggrieved form the said orders Annex.1 dated 21.4.1998 imposing penalty of stoppage of 50% pension forever and Annex.3 dated 30.6.1999 rejecting review petition against the order Annex.1, the deceased petitioner has preferred this writ petition.

In this writ petition, the following submissions were made by the learned counsel for the petitioner:-

i) That deceased petitioner decided the cases in capacity as SDO, Pokaran, in compliance of the directions of the Division Bench of this Court in the case of Saukhan (supra), that the cases be decided within a period of six months and in view of that fact, the deceased petitioner should not be charge-sheeted and penalized and furthermore, if any judgment or order delivered by the deceased petitioner was found erroneous and contrary to the Rules etc., the remedy of appeal/revision was available, but since while deciding the cases, the deceased petitioner was performing the quasi-judicial functions, therefore, even for wrong decision, disciplinary proceedings should not have been taken against him.

ii) That since by delivering the judgments on 8.1.1991 and 9.1.1991, no pecuniary loss was caused to the State and therefore, from that point of view also, the manner in which the deceased petitioner was penalized by withholding his 50% pension forever, it was nothing but an arbitrary exercise on the part of the respondents.

Apart from this, under Rule 170 of the Rajasthan Service Rules, 1951 (for short "the RSR"), only grave misconduct renders withholding of pension, but in this case, what to talk of grave misconduct, even minor misconduct was not there. Hence, all disciplinary proceedings initiated against the deceased petitioner should have been quashed.

iii) That when the deceased petitioner delivered the judgments on 8.1.1991 and 9.1.1991, he was not aware of the fact that he had been transferred. Therefore, from that point of view also, the charges levelled against the deceased petitioner cannot be sustained.

A reply to the writ petition was filed by the respondents and it was submitted by them that the plea of the deceased petitioner that he was not aware of the transfer order is nothing, but a false plea taken by him as in the reply Annex.R/2 while facing charge-sheet Annex.R/1, he had not taken that plea. Therefore, this petition deserves to be dismissed on this ground alone.

It was further submitted by the respondents that the deceased petitioner was given full opportunities as provided under the CCA Rules and after holding regular enquiry, the Enquiry Officer through report (Annex.R/3) dated 16.6.1997 found the deceased petitioner guilty of all three charges levelled against him and before imposing penalty of withholding of 50% pension forever through impugned order Annex. 1 dated 21.4.1998, the deceased petitioner was also given opportunity of hearing. Thus, from every point of view, since the deceased petitioner had delivered the judgments after receiving his transfer orders, therefore, by doing so, he had committed gross misconduct. Hence, no case for interference is made out and this writ petition deserves to be dismissed.

4. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the materials available on record.

5. So far as the point that deceased petitioner did not receive any transfer order while delivering the judgments on 8.1.1991 and 9.1.1991 is concerned, it may be stated here that since that plea was not taken by the deceased petitioner in his reply Annex.R/2, therefore, that plea could not be allowed to be raised at this stage. Hence, the submission that the deceased petitioner was not aware of his transfer orders stands rejected.

6. There is no dispute on the point that the petitioner retired from service on attaining the superannuation age on 31.1.1991 and for the period from 28.8.1989 to 9.1.1991, he remained posted as Sub Division Officer, Pokaran.

7. There is also no dispute on the point after his retirement, the deceased petitioner was served with a charge-sheet (Annex.R/1) on 25.11.1994 meaning thereby he was given charge- sheet after a period of more than three years from his retirement. The sum and substance of the three charges levelled against the deceased petitioner has already been mentioned above.

8. There is also no dispute on the point that the Enquiry Officer through report Annex.R/3 dated 16.6.1997 found the deceased petitioner guilty of all the three charges levelled against him.

9. There is also no dispute on the point that the deceased petitioner was given copy of the enquiry report Annex.R/3 dated 16.6.1997 and he submitted his representation against the said report Annex.R/3 and thereafter, he was given opportunity of hearing and thereafter, the Disciplinary Authority (respondent No. 1) through impugned order Annex.1 dated 21.4.1998 imposed the penalty of withholding of 50% pension forever against the deceased petitioner.

10. There is also no dispute on the point that deceased petitioner preferred review petition (Annex.2) against the order Annex.1 dated 21.4.1998 imposing penalty of withholding of 50% pension forever, but the same was rejected through order Annex.3 dated 30.6.1999.

11. A bare perusal of the charges levelled against the deceased petitioner through charge-sheet Annex.R/1 dated 25.11.1994 reveals that the main case of the respondents was that the deceased petitioner delivered judgments on 8.1.1991 and 9.1.1991 after his transfer and that fact itself amounted to gross misconduct.

12. On the contrary, the case of the deceased petitioner was that since there was Division Bench judgment of this Court in the case of Saukhan (supra), directing that the cases be decided within a period of six months and in compliance of the said -directions of the Division Bench of this Court, he decided the cases within six months, therefore, he had committed no misconduct.

13. To appreciate the above contentions, first the provisions of Section 170 of RSR have to be seen.

14. Under Rule 170 of the RSR, punishment of withholding of 50% pension forever, which was awarded to the deceased petitioner through impugned order Annex.1 dated 21.4.1998, can be imposed only if in the departmental proceedings or judicial proceedings, the pensioner was found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement.

15. Thus, for imposing punishment under Rule 170 of RSR, not minor or simple misconduct, but grave misconduct has to be proved on the part of the pensioner.

Legal position in respect of withholding of pension.

16. Although pension is not a bounty, but is claimable as a matter of right, yet the right is not absolute or unconditional. It is usually made conditional upon future good conduct or could be withdrawn or withheld if the pensioner is convicted for a serious crime or is found guilty of grave misconduct or even when the concerned authority considers that the pensioner is prima facie guilty of grave misconduct subject to giving him an opportunity of representation.

17. Apart from this, for valid withholding the pension, the pensioner must be found guilty of misconduct of grave character i.e., not when he was found to have committed a minor offence or mistake.

18. It may further be stated here that the State Government has no right to withhold pension. It can do so on one condition only and that is if during the tenure of office of the employee, in any departmental enquiry against him, where any gross negligence or misconduct is proved resulting in loss of any money. In the absence of such an allegation, the Government is not entitled to withhold the pension and the Government is liable to pay pension to the wife of the deceased employee together with interest, as held by this Court in Smt. Urmila Johari v. State of Rajasthan, 1992 (2) WLC 284.

19. To appreciate whether in the present case there was gross- misconduct on the part of the deceased petitioner or not, first what the word "misconduct" means has to be seen.

Misconduct

20. The word "misconduct" can be classified in three degrees; (i) miner misconduct; (ii) misconduct; and (iii) grave misconduct.

Minor misconduct

21. The expression "minor misconduct" would indicate that they are routine lapses or acts with no direct adverse financial implications or loss to the assets or pecuniary interest and for that, the decision of the Hon'ble Supreme Court in Regional Manager & Disciplinary Authority, State Bank of India, Hyderabad and Anr. v. S. Mohammed Gaffar, (2002) 7 SCC 168 may be referred to.

Misconduct

22. 'Misconduct' has been defined in Black's Law Disciplinary, Sixth Edition at page 999 thus: "A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness". Misconduct in office has been defined as "Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act".

23. P. Ramanatha Aiyer's Law Lexicon, Reprint Edition 1987 at page 821 defines "misconduct" thus: "The term misconduct implies a wrongful intention, and not a mere error of judgment. "Misconduct" is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law.

Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behavior or neglect by a public officer, by which the rights of a party have been affected".

24. Thus, the word "misconduct" though not capable of precise definition, a reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behavior; unlawful behavior, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. In this respect, the decisions of the Hon'ble Supreme Court in State of Punjab and Ors. v. Ram Singh, Ex-Constable, (1992) 4 SCC 54, Union of India and Ors. v. J. Ahmad, (1979) 2 SCC 286 and N.G. Dastane v. Shrikant S. Shvde and Anr., (2001) 6 SCC 135 may be referred to.

25. It may be stated here that what amounts to 'misconduct' is a question of fact and it would be decided with reference to the facts, situation in which the act was alleged to have been committed and the attending circumstances leading thereto.

26. Therefore, no hard and fast rule can be laid down that a particular act in a particular case amounts to misconduct.

Gross or grave-misconduct

27. The term 'grave misconduct' is wide enough to include 'corrupt practice'. In cases where the charge of corruption is proved after pension has been sanctioned, action to withhold or withdraw pension may be taken.

28. The expression "gross misconduct" in the context of the definition with reference to the various enumerated acts and omissions on the part of an employee has to be seen after taking into consideration the following two aspects:-

i) doing any act prejudicial to the interest of the State or gross negligence or negligence involving or likely to involve the State in serious loss; and

ii) knowingly making a false statement in any document pertaining to or in connection with his employment in the State.

29. Whether a person has committed gross misconduct or not, the test ii whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the service for integrity or devotion to duty as a public servant.

30. Misconduct involving dishonesty can be regarded as grave misconduct.

31. Thus, from the above, it can be concluded:-

i) That there is a distinction amongst grave or gross misconduct, misconduct and minor misconduct.

ii) That the expression "misconduct" has to be construed with reference to the subject and the context wherein the said expression occurs, regard being had to the aims and objects of the statute.

iii) That whether a particular act is a misconduct or not or whether such misconduct is a serious one or not, it all depends upon the facts and circumstances of each case.

iv) That what amounts to misconduct is question of fact and it would be decided with reference to the facts, situation in which the act was alleged to have been committed and the attending circumstances leading thereto.

v) That no hard and fast rule can be laid down exhaustively as to what would constitute misconduct and the conclusion would depend on the examination of facts in each case.

32. Keeping the above principles in mind, it has to be seen whether in the facts and circumstances of the present case, delivering of some judgments by the deceased petitioner on 8.1.1991 and 9.1.1991 after his transfer, can amount to gross-misconduct on his part or not.

33. It may be stated here that there is no dispute on the point that directions were issued by the Division Bench of this Court in the case of Saukhan (supra), that cases be decided within a period of six months and that limit was to expire on 31.1.1991. In other words, the judgments were delivered by the deceased petitioner in capacity as SDO, Pokaran before the expiry of period of six months. This is one of the aspects of the matter.

34. During the course of arguments, a question was put to the learned counsel appearing for the respondents Shri P.C. Sharma as to whether there was any standing order/circular issued by the State Government that after receiving a transfer order, cases should not be decided by the person concerned and on this point, he has submitted that there was no such order/circular.

35. In my considered opinion, delivering of judgments after receiving the transfer order, as was done by the deceased petitioner, would certainly indicate that they might be routine lapses or acts with no direct adverse financial implications or loss to the assets or pecuniary loss to the Government or not involving moral turpitude, especially when in the charges found proved against the deceased petitioner, there were no allegations that he delivered the judgments with ulterior motive or bad intention. In other words, though charges were found proved against the deceased petitioner, but the fact that the judgments were delivered by him with improper and ulterior motive or due to extraneous considerations, has not been proved.

36. Furthermore, in absence of any statutory bar, delivering of judgments by the deceased petitioner after his transfer, from propriety point of view, at the most it may amount to minor misconduct and not grave or gross-misconduct.

37. Apart from this, if for the sake of argument it is admitted that the deceased petitioner delivered wrong judgments, but for that, the law is that the act of delivering wrong judgments by the person concerned while discharging quasi-judicial functions, does not amount to either misbehavior or misconduct on his part.

38. For the reasons stated above, in absence of any specific bar not to decide cases after transfer of person/authority concerned and in absence of any proof of the fact that the deceased petitioner decided the cases with ulterior, oblique or improper motive or due to extraneous considerations or with dishonest intention and looking to the fact that the deceased petitioner decided the cases in compliance of the directions of the Division Bench of this Court in the case of Saukhan (supra), the act of the deceased petitioner delivering judgments on 8.1.1991 and 9.1.1991 after his transfer can at the most be regarded as minor misconduct and from that act, it cannot reasonably be inferred that the deceased petitioner had committed gross or grave misconduct and when he had not committed grave or gross misconduct, the State Government was not entitled to withhold 50% pension of the deceased petitioner forever and therefore, the impugned order Annex.1 dated 21.4.1998 withholding 50% pension of the deceased petitioner forever and the order Annex.3 dated 30.6.1999 rejecting review petition of the deceased petitioner against order Annex.1, cannot be sustained and are liable to be quashed and set aside and this petition deserves to be allowed and the present petitioner Akla Devi W/o deceased petitioner is entitled to receive full pension as per rules.

39. Before concluding the order, it may be stated here that no doubt in the disciplinary matters/proceedings, the scope of interference by this Court under Article 226 of the Constitution of India is very limited one and the High Court under Article 226 does not sit or act as an appellate authority over the actions of the subordinate authorities or tribunal, but since in the present case the impugned order Annex.1 imposing punishment of withholding of 50% pension forever against the deceased petitioner suffers from manifest basic illegality and infirmity, therefore, interference with it, is being made by this Court under Article 226 of the Constitution of India.

Accordingly, this writ petition filed by the petitioner is allowed and the impugned orders Annex.1 dated 21.4.1998 passed by the respondent No. 1 withholding 50% pension of the deceased petitioner forever and Annex.3 dated 30.6.1999 passed by the respondent No. 2 rejecting the review petition of the deceased petitioner against the order Annex.1 dated 21.4.1998 are quashed and set aside and the respondents are directed to pay full pension, as admissible under the rules, to the present petitioner Akla Devi W/o deceased petitioner alongwith arrears from the date when it was stopped. No order as to costs.