JUDGMENT 1. - The petitioner has challenged validity of order dated 21.12.1954 (Ann. 2) of the Collector, Tonk, on the ground that despite order dated 23.5.1955 (Ann. 3) of Commissioner, Jaipur Division, whereby the appellate authority on appeal preferred by him recorded a finding that penalty of compulsory retirement before the age of superannuation has been inflicted upon him vide order dated 21.12.1954 (Ann.2) without serving a show cause notice as contemplated U/Art. 311(2) of the Constitution of India, no pensionary benefits were extended to him inspite of several persistent representations made by him. 2. The petitioner's case is that he joined service in erstwhile Tonk State on the post of Ahlmad (Clerk) on 1.1.1938 and continued till merger of Tonk State in the State of Rajasthan. In August, 1954, he vas transferred to the office of SDO Tonk where he worked up to 21.12 1954. After his transfer from Tehsil Tonk to the office of SDO Tonk, disciplinary enquiry under the Rajasthan Civil Services (Classification, Control & Appeals) Rules, 1950, (Old CCA Rules) was initiat ad against him on the allegation that at the time he was relieved from Tehsildar's office, he did not hand over complete charge of the files to the clerk, who took over it from him on his transfer. After disciplinary enquiry, the authority found him guilty of grave misconduct. and punished with penalty of compulsory retirement before superannuation age vide order dated 2 12.1954 (Ann. 2), while he had rendered 15 years of service. Against order of penalty (Ann.2), the petitioner preferred appeal U/r. 18 of Old CCA Rules, that too was dismissed vide order dated 23.5.1955 (Ann. 3) by the appellate authority. However, further appeal was provided against an order of appellate authority to the Government U/r. 19 of Old CCA Rules in case of major penalty inflicted upon delinquent. Therefore, the petitioner preferred further appeal before the State Government, which was under an obligation to consult the RPSC before passing orders thereon, and on consultation, the RPSC opined that before inflicting penalty upon the petitioner, he was not served with the show cause notice, which was a precondition U/Art. 311(2) of the Constitution of India, and as such directed vide order dated 2.2.1956 (Ann.41 to now serve with a show cause notice and after taking his reply, the Commissioner, who is competent. may pass necessary orders thereafter. 3. may pass necessary orders thereafter. 3. From the material on record, there is no further orders passed on the reply to show cause notice served upon the petitioner on the advice of the RPSC during consultation on further appeal before the State Government, therefore, he considered himself to be on duty in view of order dated 2.2.1956 (Ann. 4), and made representations to the authority for release of his pension and other terminal benefits after treating him in service. From the correspondence made by him, it is clear that his case was recommended for release of pension and other terminal benefits for the period of service rendered by him in the Government. But when he failed to get final outcome from the decision taken by the respondents vide order dated 2.2.1956 (Ann. 4), he was constrained to file present writ petition. 4. This Court by interim order dated 7.1.1992 in Civil Misc. Stay Petition No. 5713/91, directed the respondents to pay provisional pension, gratuity, etc., to the petitioner in accordance with rules, taking his qualifying service as LDC of 17 years and payment thereof should be made to him w.e.f. 2.5.1956; with further directions to release payment towards arrears of pension & retirel benefits within six months and to release the pension continuously. 5. Counsel for the petitioner submitted that U/Art. 311 of the Constitution, as it stood then, the disciplinary authority was under . an obligation to give a second show cause notice before inflicting punishment upon the delinquent, which was substituted by 42nd amendment from 3.1.1977, and as per pre-amended Art. 311(2), an opportunity was provided to the delinquent to make representation at the second stage of enquiry against the penalty to be imposed upon him, and no opportunity was afforded before inflicting punishment upon him vide order dated 21.12.1954 (Ann. 2), which was considered by the State Government while exercising powers as appellate authority U/r. 19 of Old CCA Rules, therefore, he was deprived of retiral benefits for 17 years' service rendered by him in the Government. 6. The State Government has filed reply to the writ petition and submitted that since compulsory retirement before superannuation age was major punishment as provided U/r. 14 of Old CCA Rules and those who are punished with major penalty, are not entitled to get retiral benefits in terms of R. 172 of RSR. Rr. 6. The State Government has filed reply to the writ petition and submitted that since compulsory retirement before superannuation age was major punishment as provided U/r. 14 of Old CCA Rules and those who are punished with major penalty, are not entitled to get retiral benefits in terms of R. 172 of RSR. Rr. 15, 18 & 19 of Old CCA Rules are reproduced below. "R. 15. The following penalties may for good and sufficient reasons and as hereinafter provided be imposed upon the members of the services specified in any of the Classes Ito IV in rule 7: (i) Censure: (ii) Withholding of increments or promotion, including the stoppage at an efficiency bar; (iii) Reduction to a lower post or time scale or to a lower stage in the time scale; or in the case of pension to an amount lower then that due under the rules; (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of law, rules or orders; (v) Suspension; (vi) Removal from the civil service which does not disqualify for future employment including compulsory retirement before the age of superannuation; and (vii) Dismissal from the civil service which ordinarily disqualified from future employment.... '' "R. 18. An appeal shall lie to the next higher authority imposing any of the punishments specified in rule 15. Where an appeal lies to the Government under this rule, the decision shall be taken after consultation with the Public Service Commission. R. 19. Except in respect of the Services in Class IV, a final appeal shall lies to Government against the order of the appellate authority imposing the penalty specified in clauses (vi) and to (vii) of rule 15 and the Government shall consult the Public Service Commission before passing orders thereon." (Emphasis added) 7. Counsel for the respondents submitted that since the compulsory retirement before age of superannuation was considered to be removal from service in terms of R. 15(6) of Old CCA Rules, therefore, in view of order of penalty imposed upon the petitioner, he was not entitled to retiral benefits including pension, gratuity, etc., and so far as the order dated 2.2.1956 (Ann. 4) passed by the authority, the respondents have shown their ignorance about the same. 8. I have heard learned counsel for the parties and perused the material on record. 4) passed by the authority, the respondents have shown their ignorance about the same. 8. I have heard learned counsel for the parties and perused the material on record. As per pre-amended Art, 311 of the Constitution of India, second show cause notice was required to be issued before inflicting penalty upon delinquent. Un-disputably, from the material on record. it depicts that no second Opportunity in the form of show cause notice was afforded before inflicting penalty vide order dated 21.12.1954 (Ann. 2) and this was completely ignored by appellate authority while examining the appeal preferred Lift. 18 of Old CCA Rules, while passing order dated 23.5.1955 (Ann. 3), but in further appeal which he preferred to the State Government U/r. 19 of Old CCA Rules, it was observed that as per requirement of Art. 311 of the Constitution, before penalty was inflicted upon the delinquent, issuance of show cause notice was the pre-condition, which in case of present petitioner was not complied with and in such circumstances, very penalty inflicted upon him as per scheme of Old CCA Rules so also provisions of the Constitution of India, was not legally sustainable. 9. So far as ignorance, which has been pleaded by the respondents with regard to order dated 2.2.1956 (Ann. 4) suffice it to say that after passing of this order when the petitioner made his representation for release of terminal benefits including pension & gratuity etc., there are sufficient documents on record to show that the Tehsildar's office has referred his case for release of benefits with regard to the services, which he rendered for 17 years from 1938 to 1954. Even from the material on record, when the petitioner was deprived of an opportunity, which was pre-condition U/Art. 311(2) of Constitution of India before inflicting major penalty upon him, the penalty order dated 21.12.1954 (Ann. 2) in the light of requirement U/Art. 311(2) of Constitution of India was not sustainable. 10. Even from the material on record, when the petitioner was deprived of an opportunity, which was pre-condition U/Art. 311(2) of Constitution of India before inflicting major penalty upon him, the penalty order dated 21.12.1954 (Ann. 2) in the light of requirement U/Art. 311(2) of Constitution of India was not sustainable. 10. Since the petitioner had not worked after order of penalty dated 21.12.1954 (Ann 2) till he attained age of superannuation, and he never approached the court of law immediately at the relevant point of time, and no material has been placed on record by him to show that during intervening period from August 54 to January, 1973, he had not worked elsewhere when he remained out of employment and in such circumstances, I am not inclined to grant any benefit for such intervening period from August, 54 to January, 1S73 as a result of holding the penalty order not sustainable. 11. Consequently, the writ petition is partly allowed. The terminal benefits including provisional pension and gratuity, which has been paid to him in compliance of the interim order dated 7.1.1992 is made absolute and the respondents are directed to make payment of pension and gratuity to the petitioner. to which he is entitled under RSR and Pension Rules. on the basis of 17 years of services rendered by the petitioner in the Government. No order as to costs.Writ petition partly allowed as above. *******