JUDGMENT 1. 1. By this writ petition, filed under Article 226 of the Constitution of India, the petitioner has challenged the legality and propriety of the impugned order dated 05.07.1989 (Annexure- 5), whereby the major penalty of forfeiture of past service for the period 12.10.57 to 05.07.1989 was imposed on the petitioner by the Municipal Board, Ramgarh Shekawati (Rajasthan) (Respondent No. 2) and as a result of which the petitioner lost all the benefits, which would otherwise have become due to him on completion of qualifying period of service of about thirty two years such as pension, gratuity, provident fund, salary & other consequential benefits and allowances etc. as admissible under the Rules. 2. The facts giving rise to the filing of this writ petition briefly stated are that the petitioner, who was appointed as a "Chowkidar" (Class IV employee) in the office of the Municipal Board (Respondent No. 2) vide order dated 12.10.1957 (Annexure- 1), rendered his services continuously with the Municipal Board and was fixed in a regular pay-scale. During the course of service the petitioner was served with a show cause notice on account of his alleged absence from duty for the period 13th to 15th June, 1989 vide notice dated 22nd June, 1989 stating inter alia that on account of an action under the provisions of Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules 51) be not taken against him and the necessary proceedings be initiated against him for the alleged absence for the said period vide (Annexure- 2). The petitioner submitted his reply to the show-cause notice, which was received by the respondents on 23rd June, 1989 vide (Annexure-3). In his reply, the petitioner asserted that he had presented himself on all the respective dates on which he was marked absent i.e. 13th June, 1989 to 15th June, 1989, but he was not allowed to mark his attendance in the attendance register, maintained in the office of respondents. He has further stated in the said reply that the question of his wilful absence from duty as alleged by the respondents does not arise. He has further stated in the said reply that the question of his wilful absence from duty as alleged by the respondents does not arise. The petitioner has further contended that he was a member of the weaker section of the Society being a schedule tribe and working in the Municipal Board and the impugned action which was taken against the petitioner was mala fide and motivated in kind of the bias of one Shri Dilip Singh, Revenue Inspector. This fact is apparent to this court from the annexure-3, which is the petitioner's reply to the show-cause (Annexure-4). From the perusal of the reply (Annexure-3), the petitioner has attributed mala fide on the part of the Respondents in as much as he has categorically mentioned that one Revenue Inspector Shri Dilip Singh maintained bias towards the petitioner and was speaking against the petitioner and subjected to continuous harassment and did not allow him to mark his presence in the Attendance Register for the aforesaid period i.e. 13th June, 1989 to 19th June, 1989, whereas the notice referred to three days' absence of the petitioner from duty for the period w.e.f. 13th June, 1989 to 16th June, 1989. The petitioner has also mentioned that as a result of this victimization, he became un-well and as a result of which he could not report for duty for the period 20th June, 1989 to 30th June, 1989 for which he submitted relevant medical certificates with the Respondents. 3. It has further been contended that the petitioner was called for personal hearing by the respondents No. 2 vide letter dated 03.07.1989 (Annexure-4) by which the petitioner was apprised by the said respondent that they are intending to take proposed action against the petitioner on account of his absence from duty for the aforesaid period in accordance with Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 for short "Rules of 1958" read with Rajasthan Service Rules, 1951 for short "Rules of 1951". Thereafter the petitioner again presented himself in the office of respondents No. 2 with a view to clarify his position, but no heed was paid to him nor he was given further hearing in the matter and by one stroke of pen the entire past service of about 32 years, which he had rendered with the respondent was taken away vide the impugned order dated 5th July, 1989 (Annexure-5) passed by respondent No. 2 as referred to above. It has further been contended that w.e.f. 01.9.1989, when the petitioner was restrained from joining the duties by the respondents and was not allowed to join the duties, he immediately submitted his representation to the S.D.M., Tehsildar and the Administrator, Municipal Board on 02.09.1989 itself vide (Annexure-7). That as on 05.07.1989, the petitioner having rendered the qualifying period of service of about 32 years had become eligible for entitlement to the benefits of pension, gratuity and other consequential benefits, which are admissible to the employees of the Municipal Board and had also exercised his option for family pension to be continued in favour of his wife and children. This fact is borne-out from the letter dated 11.12.1995, written by Executive Officer, Municipal Board, Ramgarh to the Deputy Director, Directorate Local Bodies Rajasthan. Learned Counsel for the petitioner has placed reliance upon the said document during the course of hearing of this writ petition and the same is allowed to be taken on the record as Annexure-11. The perusal of the said document reveals that the Municipal Board has specifically stated therein that though the petitioner after having rendered more than qualifying period of service had become entitled to all pensionary benefits including the rights to exercise his option for family pension in favour of his wife and the dependents alongwith G.P.F. and the gratuity but since then the petitioner was left only with four and a half years of remaining service w.e.f. 06.07.1989 to 03.12.1993 i.e. the date of his demise, therefore, the petitioner or his legal heirs could not be held entitled for grant of said benefits. 4. 4. At this stage it will be pertinent to refer to Rule 86 of the R.S.R., which provides as under : "Absence after expiry of leave-(1)-A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained wilfully absent from duty; and such absence shall amount to interruption in service involving forfeiture of past service, unless on satisfactory reasons being furnished, the absence is regularised by grant of leave due or is commuted into extraordinary leave by the authority competent to sanction leave. (2) A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall not be commuted into extraordinary leave unless on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave. (3) Notwithstanding the provisions contained in Sub-Rules (1) and (2) above the disciplinary authority may initiate departmental proceedings under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who wilfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service." 5. With regard to the nature of penalties, which may be imposed on the delinquent, it will be pertinent to refer Rule-14 of the C.C.A. Rules, 1958, which deals with the nature of penalties, which provides as under : Nature of penalties:-The following penalties may, for good and sufficient reasons, which shall be recorded, and as hereinafter provided, be imposed on a Government servant, namely (i) censure; (ii) withholding of increments or promotion; (iii) recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of any law, Rule of Order; (iv) reduction to a lower service, grade or post or to a lower time scale or to a lower stage in the time scale or in the case of pension to an amount lower than that due under the Rules; (v) Compulsory retirement on proportionate pension; (vi) removal from service which shall not be a disqualification for further employment; (vii) dismissal from service which shall ordinarily be a disqualification for further employment. 6. Rule-16 of the C.C.A. Rules 58 deals with the procedure for imposing major penalties, which reads as under : Procedure for imposing major penalties:-(1) without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850 no order imposing on a Government Servant any of the penalties specified in clauses (iv) to (vii) of Rule 14 shall be passed except after an enquiry held as far as may be in the manner hereinafter provided. 7. In the reply of the writ petition, filed on behalf of the Respondent No. 2, it has been contended inter alia that the petitioner has not informed this Court that prior to filing of this writ petition, he had approached the Regional Assistant Labour Commissioner, Sikar against the impugned order dated 05.07.1989 to which the petitioner has clarified the position in his rejoinder by stating inter alia that although the petitioner did approach the Regional Assistant Labour Commissioner, Sikar but since that was not a proper remedy with regard to the grievances, therefore, he had withdrawn the said petition and the same was allowed to be withdrawn by the conciliation officer in terms of his order dated 19.09.89. Moreover since the petitioner has challenged the validity of the provisions of R.S.R., as such he did not think it proper to refer to this question specifically in the writ petition. 8. Moreover since the petitioner has challenged the validity of the provisions of R.S.R., as such he did not think it proper to refer to this question specifically in the writ petition. 8. In the reply the respondents have further contended that the petitioner had concealed the fact regarding the notice dated 9th June, 1989 had earlier been given to him and he had submitted a reply to the same on 12.06.1989. Likewise, charge-sheet dated 03.10.1989 was sent to the petitioner by a registered letter, but the same had been returned with the remarks of the postal authority (refused). This fact has been clarified by the petitioner in para-2 of his rejoinder, wherein he has contended that he was not at all provided for any opportunity of hearing by Executive Officer of Respondent No. 2, who had merely recorded statement of the petitioner, while the statements of three material witnesses against whom mala fidies had been attributed were recorded at the back of the petitioner and hence he could not even get the opportunity of cross-examining the said witness. 9. In my view the aforesaid contentions of the respondents are not relevant to be considered in view of the fact that what has to be examined by this court is the validity of the impugned order dated 05.07.1989 (Annexure-5) which was passed by the Respondents, which had resulted entailing the entire forfeiture of the past service of about 32 years, which the petitioner had rendered to the respondents as on the relevant date of the passing of the impugned order and this court has further to examine this aspect as to whether the imposition of major penalty of forfeiture of past service was warranted under these circumstances keeping in view the fact that the nature of the alleged misconduct regarding absence of the petitioner from duty for the aforesaid period could not warrant the imposition of the said penalty of forfeiture of past service. 10. I have heard learned counsel for the parties at length and also examined the relevant documents as well as the pleadings on record. 11. 10. I have heard learned counsel for the parties at length and also examined the relevant documents as well as the pleadings on record. 11. Prima facie I am of the opinion that with regard to the petitioner's absence from duty for the period 13th June, 1989 to 15th June, 1989 as well as the absence of ten days w.e.f. 20th June, 1989 to 30th Jung, 1989, the petitioner had rendered sufficient explanation on the record by stating that he was not allowed to mark his attendance in the attendance register, maintained in the office of respondent No. 2 at the behest of one Shri Dilip Singh, Revenue Official working in the office of the said Respondent, who was deliberately victimising and harassing the petitioner and it is on account of malafidies of this one official that the petitioner had incurred displeasure of Respondent No. 2 and had to face the trauma and imposition of penalty of removal of past service. With regard to the petitioner's absence from duty for a period of 10 days as aforesaid, he has rendered sufficient explanation on the record by stating inter alia that he had fallen sick on account of the behaviour of the aforesaid official and he had also placed on record of Respondent No. 2 the relevant medical certificates, which were sufficient enough to justify the reason for his absence from duty, which I am of the opinion cannot be considered as wilful absence from duty so as to warrant imposition of major penalty of forfeiture of the past service of about 32 years, which the petitioner had rendered in accordance with Rule-86 of the R.S.R. 1951. I am fortified in my observations from the judgment of the Apex Court in the matter of Jai Shankar Vs. State of Rajasthan reported in AIR 1966 SC Page 492 , wherein their Lordships of the Apex Court while examining the provisions contained in Jodhpur State Regulations, which are identical to Rule-86 of Rules, 1951 held that no action can be taken against the employee involving forfeiture of his past service without holding an enquiry in the matter in accordance with the principles or natural justice. 12. 12. Admittedly in the present case, I find that an enquiry involving an allegation of alleged willful absence from duty was never held nor initiated against the petitioner by the Respondents and since even the procedure with regard to the primary foundation of the departmental enquiry i.e. the Charge-sheet, which should have been served on the delinquent at the first instance had not been followed, the question of taking extreme action of imposing major penalty of forfeiture of past service would not have arisen but the Respondents in flagrant disregard of the Rules have even not bothered to observe even the basis principles of natural justice by not following the procedure, established by law. 13. During the pendency of this writ petition, the petitioner died on 3rd December, 1993. An application for bringing legal heirs of the deceased on the record was moved by the learned counsel for the petitioner and the same was duly served on the respondents and thereafter the same was allowed after hearing to the learned counsel for the parties by this Court vide it's order dated 9th September, 1996. Thereafter the amended cause title was filed by the learned counsel for the petitioner, which was also taken on the record. 14. My observations are fortified from the Judgment of this Court in the matter of Kailash Chand Vs. State of Rajasthan & another, reported in W.L.C. 1993(3) Page 188 , as well as the observations of the learned D.B. of this Court in the matter of Krishna Dutta Sharma Vs. State of Rajasthan, reported in R.L.R. 1987 (1) page 346 . 15. In the matter of Kailash Chand Sethi Vs. State of Rajasthan & others (Supra), the petitioner, who was a "Patwari" serving in the Revenue Department of State of Rajasthan and was posted in District Ajmer was issued with a notice under Rule-86 of R.S.R. 1951 with allegation that the petitioner had voluntarily absented him,self from duty w.e.f. 09.08.1985, He was required to submit his explanation within 15 days, failing which departmental action was to be initiated against him for remaining absent from duty without sanctioned leave. The petitioner submitted his explanation to the Department but the same was not considered by the competent authority and the Collector (Land Records, Ajmer) passed the order dated 19.08.1987 (Ex. The petitioner submitted his explanation to the Department but the same was not considered by the competent authority and the Collector (Land Records, Ajmer) passed the order dated 19.08.1987 (Ex. 3), which resulted in forfeiture of the past service, rendered by the petitioner upto the date of the impugned order. The petitioner thereafter filed an appeal before the appellate authority on 07.06.1991 and which was dismissed by the said authority on the ground of its maintainability and thereafter the petitioner challenged the said order by filing a writ petition before this Court under Article 226 of the Constitution of India. This Court by giving a well-reasoned Judgment held that before the competent authority can impose the major penalty on a Government servant under the Rules, the said authority has to carefully examine the applicability of the rules particularly Rule 86 of the Rules, 1951 according to which it has to be established that the Government servant remained absent from duty without leave or without sanction of the leave and that tie has failed to give any satisfactory expalanation for regularisation of his absence from duty and unless a finding is recorded by the Competent Authority in this regard, the question of invoking the powers in accordance with the aforesaid Rule does not arise. I am in perfect agreement with the observations of this Court in the aforesaid Judgment since in my view the competent authority has completely failed to consider as to how and in what manner the appointing authority could have resorted to the applicability of Rule 86(1) of R.S.R. of the Rules, 1951 without recording a specific finding to the effect as to how the petitioner had remained absent from duty and if so, whether any charge-sheet was served on him for the said absence and whether any Enquiry Officer had been appointed. prima facie the record does not show any steps having been taken by the competent authority of the respondents in this regard which alone could establish the alleged charge of wilful absence from duty with regard to the petitioner which admittedly has not been done in this case. I am thus of the opinion that the respondents have not only committed violation of the aforesaid Rules but the impugned order (Ex. I am thus of the opinion that the respondents have not only committed violation of the aforesaid Rules but the impugned order (Ex. 5) clearly smacks of arbitrariness on the part of the Municipal Board, Ramgarh, (Respondent No. 2) since the petitioner has lost all the benefits, which would otherwise have been admissible to him in accordance with the Rules on account of having rendered about 32 years of service, which he has been deprived of by one stroke of pen as a result of passing of the impugned order. Likewise in the matter of Krishna Dutta Sharma Vs. State of Rajasthan (Supra) the learned Division Bench of this Court observed that the penalty imposed on the appellant was a major penalty and such procedure contemplated under Rule 16 of the C.C.A. Rules, 1958 had not been followed, the order imposing the penalty of forfeiture of past service vide (Annexure-5) was totally without jurisdiction and arbitrary being contrary to Rules and deserves to be quashed and set aside. 16. As a result of the above discussion I am of the opinion that the petitioner deserves to succeed. The writ petition is consequently allowed with the direction to the Respondents to release the salary dues and other allowances as admissible to the legal heirs of the petitioner from due date till the date of his demise i.e. 03.12.1993, in accordance with the Rules, which fact has been admitted by them in the Court in terms of their letter dated 11.12.1995 vide (Annexure-11). 17. The aforesaid service benefits including the revised benefits, if any, which were admissible to the legal heirs of the petitioner as per the prevailing Rules including the benefit of pay revision etc., if any, may also be released in favour of the petitioners. 18. The Respondents are further directed to release the consequential benefits of pension, gratuity and G.P.F. to the petitioners subject to the deductions on account of payments made, if any, to the petitioner while in service by the Respondents. The aforesaid dues and other consequential benefits shall be released by the Respondents in favour of the petitioners within a period of 90 days from the date of submission of certified copy of this order. The said amount shall also carry interest @ 18 per cent from due date till the date of payment. Parties are left to bear their own costs.Petition allowed. *******