JUDGMENT 1. THE petitioner was a Sub-Inspector of Police attached to Brigade Ancillary, Calcutta Armed Police. On 22nd June 1979 the Commissioner of Police, Calcutta initiated against him Proceeding No. 42 dated 22nd June, 1979 in respect of six charges. The Commissioner of Police, Calcutta required the petitioner to put his written statement of defence before Sri H. Pramanick, Deputy Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal who had been appointed as the Enquiring Officer to hold enquiry into the charges framed against him. On 30th June, 1979 the petitioner had attained age of 58 years and retired from service with effect from the said date. On 19th December, 1979 the petitioner obtained the Present Rule challenging the maintainability of the said departmental proceeding after his retirement from service. 2. THE petitioner's claim to pension is regulated by the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. While it is now settled law that the right of a retired Government servant to receive pension is no longer a matter of grace and pension is not a bounty payable on the sweet-will and pleasure of the Government. The right to receive pension is a valuable right vesting in a Government servant. A right to receive pension flows from the rules (vide deokinandan Prasad vs. The State of bihar and others A.I.R. 1971 S.C. 1409). In the instant case, the obligation of the government to pay pension and the petitioner's right to receive the same are regulated by the West Bengal Services; (Death-cum-Retirement Benefit) Rules, 1971. Rules 8 to 10 of the said Rules provide for withholding of pension in different cases. Such withholding of pension affects the pensioner's right to receive pension which has been described as property. And the Rules have embodied provision for giving opportunity of hearing to the pensioner. The Governor under the sub-rule (1) of Rule 10 of the said Rule has reserved to himself the right of withholding or withdrawing a pension or any part thereof whether permanently or for a specified period. The Governor under the said Rule 10 (1)has also the right of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government by the pensioner. The Governor under the said Rule 10 (1)has also the right of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government by the pensioner. But the said rights of the Governor under Rule 10 (1)to withhold pension or to order recovery from pension can be exercised only in case the pensioner is found in a departmental or judicial proceeding to have been guilty of grave mis-conduct or negligence during the period of his service including service rendered on reemployment after retirement. In other words, the right to withhold pension under Rule 10 (1) is a qualified one. Only in case the pensioner is found in a departmental or judicial proceeding to be guilty of grave misconduct or negligence during the period of his service, the governor may withhold or withdraw his pension or any part or order recovery from pension of the whole or any part of the pecuniary loss caused to the Government. Rule 10 (1) contemplates two kinds of departmental proceedings:- 1) "a departmental proceeding which was instituted while the officer was in service (vide clause (a)to the proviso to Rule 10 (1) of the rules) and 2) a departmental proceeding instituted after retirement with the sanction of the Governor in respect of any event which took place not more than three years before such institution (vide clause (b) of the proviso to Rule 10 (1) of the Rules). According to the Explanation (a) a departmental proceeding under Rule 10 (1)of the Rules shall be deemed to have been instituted on the date on which the statement of charges is issued or if the delinquent had been placed under suspension from an earlier date or such date. " In the instant case, undisputedly the Commissioner of Police had issued the charges on 22nd June, 1979 and therefore the departmental proceeding in question was instituted while the petitioner was still in service. In view of clause (a) of the proviso to Rule 10 (1) the said departmental proceeding would be deemed to be a proceeding under the said Rule 10 (1) and could be lawfully continued and concluded by the authority by which it was commenced in the same manner as if the petitioner had continued in service. In view of clause (a) of the proviso to Rule 10 (1) the said departmental proceeding would be deemed to be a proceeding under the said Rule 10 (1) and could be lawfully continued and concluded by the authority by which it was commenced in the same manner as if the petitioner had continued in service. The expressions "deemed to be" and "as if" in the said clause (a) of the proviso to Rule 10 (1)have been used clearly for the purpose of creating a statutory fiction. The said proviso (a) provides for keeping alive and continuance of departmental proceeding against a Government servant who attains age of superannuation during the pendency of the said proceeding. For the purpose of the said proceeding the Government servant shall be treated to be still in service and the departmental proceeding started during the period of his service shall be continued and concluded. 3. IT is significant to note that a departmental proceeding instituted while the officer was in service shall continue by operation of the proviso (a) to Rule 10 (1) and no sanction of the Governor would be necessary to keep alive the said departmental proceeding. But in case a departmental proceeding is instituted against a pensioner in respect of the charge of grave misconduct or negligence committed during the period of his service including service rendered on re-employment, following condition precedents must be satisfied :- "(i) prior sanction of the Governor (ii) the said proceeding shall be only in respect of event which took place within three years before the said institution (iii) the enquiry shall be conducted by such authority and in such place as the Governor may direct. " 4. WHILE I accept the contention that proviso (a) to Rule 10 (1) provides for continuance of some and not all departmental proceedings pending at the date of the retirement of the Government servant, I am unable to subscribe to the view that the said proviso (a) to rule 10 (1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 refers only to departmental proceeding against the Government servant for withholding or withdrawing his pension for any pecuniary loss caused by him to Government during the period of his service including service rendered on re-employment. In my view, rule 10 (1) refers to departmental or judicial proceedings in which allegations have been made of grave misconduct or negligence committed during the period of his service. A departmental proceeding which is not in respect of charges of grave misconduct or negligence cannot be lawfully continued after the officer retires from service. I am unable to apply to the present case the ratio of the Full Bench decision of the Kerala High Court in R. P. Nair and another v. Kerala State Electricity Board and others A. I. R. 1979 Kerala 135. The Full Bench of the Kerala high Court had, inter-alia, examined the scope of Rule 3, Part-II, Chapter-I of the Kerala Service Rules which contained provisions nearly similar to those contained in Rule 10 (1) of the West bengal Services (Death-cum-Retirement benefit) Rules, 1971. With respect, I may point out that the Supreme Court decisions noted by the said Full Bench off the Kerala High Court do not support the view taken by the Full Bench regarding the scope and effect of the provisions for withholding pension for misconduct or negligence committed by the government servant during his employment including the period of his re-employment. 5. MR. Sarkar, appearing on behalf of the respondent, has in this connection drawn my attention to the decision of desai and Chinnappa Reddy, JJ., in union of India and others v. J. Ajmed a. I. R. 1979 S. C. 1022. With reference to rule 16 (2) of the All India Services (Death-cum-Retirement Benefit) Rules, 1958, the learned Judges had observed that the said Rule 16 provides for retention in service till completion of the enquiry against a delinquent officer who is under suspension on a charge of misconduct. The inhibitions in the Conduct rules clearly provide that an act or omission contrary thereto so as to run counter to the expected code of, conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. Lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would not themselves constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation. Some other act or omission may as well constitute misconduct. Lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would not themselves constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation. The same may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. 6. THE Full Bench of the Kerala High court in R. P. Nair and another v. Kerala State Electricity Board and others (supra), themselves recognised that rule 3 Part-Ill Chapter-I allowed a limited type of enquiry to be proceeded with even after retirement of an employee who would deemed to be in service. The Rule introduced a legal fiction by which the enquiry is deemed to be a proceeding under the said Rule. Rule 10 (1) proviso (a) (which corresponds to rule 3 proviso (a) of the Kerala Service rules) refers to departmental proceedings instituted while the officer was still in service. Neither the Police Regulation, 1968 nor the West Bengal services (Classification, Control and appeal) Rules, 1971 prescribe withholding or withdrawing of pension as a penalty for a Government servant who is in service and who is found guilty of gross misconduct or negligence. Therefore, the clause (c) of the proviso to rule 10 (1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules 1971 obviously does not refer to any enquiry originally instituted against an officer while he was in service for withholding or withdrawing pension or for ordering recovery from pension. The expression "said proceeding" in clause (a) of the said proviso means a departmental proceeding instituted while the employee was in service and in which charges of grave misconduct or negligence had been made. In case, a departmental proceeding was for imposition of any of the minor penalties and the allegations of grave misconduct or negligence were not made, such a proceeding would not be saved and could not continue under clause (a) of proviso to Rule 10 (1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. In case, a departmental proceeding was for imposition of any of the minor penalties and the allegations of grave misconduct or negligence were not made, such a proceeding would not be saved and could not continue under clause (a) of proviso to Rule 10 (1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. I have already observed that the state's obligation to pay pension and the right of the Government servant to receive pension are both regulated by statutory rules which form part of the terms and conditions of his employment. After his employment comes to an end by reason of the retirement of the employee, a Government servant's right to pension could be regulated by Rules or any special contract of his employment as the case may be. The West Bengal services (Death cum Retirement Benefit) Rules, 1971 which confers a right upon a Government servant to receive pension also empowers the Government to withhold ordinary pension in the case mentioned in Chapter-III of the said Rules. I have already observed that in case a Government servant who had retired from service during the pendency of a departmental proceeding is found to be guilty of grave misconduct or negligence during the period of his service, the Governor under Rule 10 (1) of the west Bengal Services (Death cum Retirement Benefit) Rules, 1971 may withhold or withdraw pension, any part thereof either permanently or for a specified period or order recovery from a pension of the whole or any part of the pecuniary loss caused to the Government in case of a departmental proceeding for grave misconduct or negligence which was instituted against the Government servant while he was in service the penalties prescribed in the relevant service Rules would obviously become inappropriate after the delinquent officer retires from service. By operation of clause (a) of the proviso to Rule 10 (1)a departmental proceeding for grave misconduct or negligence instituted before his retirement would continue against the Government servant. In case, he is found guilty of grave misconduct or negligence, the Governor under Rule 10 (1) of the Rules may impose upon the retired officer penalties by way of withholding or withdrawing of pension or may pass an order for recovery from the pension the pecuniary loss caused to the government. In case, he is found guilty of grave misconduct or negligence, the Governor under Rule 10 (1) of the Rules may impose upon the retired officer penalties by way of withholding or withdrawing of pension or may pass an order for recovery from the pension the pecuniary loss caused to the government. The decision of Amiya Kumar mookerji, J. in Hirendra Kumar Nag v. Collector of Calcutta and others 1979 (2) Calcutta High Court Notes 291, is also distinguishable on facts. According to the recitals of facts given in paragraph (2) of the learned Judge's judgment, the petitioner had retired from service on 1. 2. 74. In the reports there appears to be some inconsistencies about the date of commencement of the departmental proceeding against the petitioner of the said reported case. In case, the said departmental proceeding was instituted after retirement, the case considered by amiya Kumar Mookerji, J. would be governed by clause (b) of the proviso to Rule 10 (1) of the West Bengal Services (Death cum Retirement Benefit) Rules, 1971. The present case before me is covered by clause (a) of the proviso under Rule 10 (1) of the said Rules. Amiya Kumar Mookerji, J. in his unreported decision dated 4th December, 1979 in the case of Arabinda Kumar Dutta v. State of West Bengal, C. R. No. 6044 (W)of 1979 had followed his earlier decision in Hirendra Kumar Nag vs. State of west Bengal (supra) and the learned judge did not give further reasons. 7. WITH respect I may also point out while rendering the aforesaid decisions, Amiya Kumar Mookerji, J., did not consider my unreported decision in c. R. Nos. 20443 (W) of 1975 and 18827 (W) of 1975, in the matter of Sri Surendra Kumar Roy Chowdhury vs. The Collector of Calcutta, disposed of on 31st january, 1977. In my aforesaid decision i had, inter-alia, construed the scope and effect of Rule 10 of the West Bengal Services (Death cum Retirement Benefit)Rules, 1971. Having heard the learned advocates in the present case, I find no reason to revise my views about the scope of the aforesaid Rules. 8. IN the instant case, Charge No. 3 framed against the petitioner, alleged prima facie lack of integrity, i. e., conduct improper and unbecoming of a Government servant and as such violative of Rules 3 and 4 of the West Bengal government Servants' Conduct Rules, 1959. 8. IN the instant case, Charge No. 3 framed against the petitioner, alleged prima facie lack of integrity, i. e., conduct improper and unbecoming of a Government servant and as such violative of Rules 3 and 4 of the West Bengal government Servants' Conduct Rules, 1959. The Charge No. 2 was in respect of an alleged act in contravention of Rule 10 of the Conduct Rules of 1959. The Charge Nos. 4 and 5 were also in respect of alleged contravention of Rule 15 of the Conduct Rules, 1959. The Charge No. 6 purported to allege that the amount in question was disproportionate to the petitioner's known source of income and his conduct showed lack of integrity and was improper and unbecoming of government servant and as such was violative of Rules 3 and 4 of the Conduct rules of 1959. For deciding the Rule it is not necessary for me to enter into the merits of the aforesaid charges framed against the petitioner. The said charges alleged grave misconduct and negligence on the part of the petitioner during his employment. Therefore, such a proceeding under proviso (a) to Rule 10 (1) of the west Bengal Services (Death cum Retirement Benefit) Rules, 1971 shall continue and the petitioner shall be deemed to be in employment. 9. MR. Banerjee, learned advocate for the petitioner, has submitted that although the petitioner had retired in June, 1979, the respondents have not paid him any provisional pension under rules 10 (1) of the West Bengal Services (Death cum Retirement Benefit) Rules, 1971. Mr. Sarkar, learned advocate for the respondents, has submitted that the respondents are prepared to expeditiously pay such provisional pension to the petitioner in accordance with Rule 10 (2) of the West Bengal Services (Death Cum retirement Benefit) Rules 1971. Therefore, I propose to direct that pending conclusion of the departmental proceeding and without prejudice to the rights and contentions of both parties, the respondents would pay such provisional pension to the petitioner. 10. I accordingly discharge this Rule. I direct that within a period of six months the departmental proceeding against the petitioner be disposed of in accordance with law pending such enquiry and without prejudice to the rights and contentions of the parties within a period of three months, the respondents will determine the amount of provisional pension admissible under the Rules. I accordingly discharge this Rule. I direct that within a period of six months the departmental proceeding against the petitioner be disposed of in accordance with law pending such enquiry and without prejudice to the rights and contentions of the parties within a period of three months, the respondents will determine the amount of provisional pension admissible under the Rules. The arrear amount of provisional pension shall be paid to the petitioner within three months and thereafter the respondents will regularly continue to pay him the current sums of provisional pension. There will be no order as to costs. Let the operation of this order be stayed for two weeks from date. Rule discharged