JUDGMENT : J.B. Pardiwala, J. 1. Since the issues raised in both the captioned writ-applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order. 2. The writ-petitioners of SCA No. 3206 of 2001 are the heirs and legal representatives of late Ranchhodbhai Mangalbhai Solanki. Late Ranchhodbhai Mangalbhai Solanki. was working as a lineman with the erstwhile respondent Board. On 8.5.1990, the concerned office of the Board received a complaint regarding a fault in the power supply in the Taskend Society, Nizampura, Baroda. Accordingly, late Ranchhodbhai Mangalbhai Solanki along with one Kanubhai Solanki (helper), petitioner of SCA No. 3213/01 and one Dharmesh Parikh (apprentice) reached the place concerned to attend the complaint. Late Ranchhodbhai Mangalbhai Solanki and Kanubhai could find out the fault and they inturn asked Dharmesh Parikh to wait near the electric pole till they return after disconnecting the power supply. Immediately thereafter, one person came running and informed late Ranchhodbhai Mangalbhai Solanki and Kanubhai Solanki that Dharmesh Parikh had climbed on the pole and had sustained severe burn injuries on account of electrocution. Dharmesh Parikh (apprentice) died on being electrocuted. 3. On 14.2.1991, late Ranchhodbhai Mangalbhai Solanki was suspended from service. So far as the petitioner of the connected petition is concerned, no action was taken against him by the Board. 4. On 14.5.1991, a Departmental charge-sheet was issued to late Ranchhodbhai Mangalbhai Solanki and he was subjected to a Departmental inquiry. The Departmental inquiry resulted in an order of punishment of reversion dated 16.10.1998 to the post of Assistant lineman. It appears that a criminal prosecution was also instituted against both the petitioners. However, the criminal prosecution against both the petitioners for the offence punishable under Section 304-A of the IPC resulted in acquittal of both the petitioners. In the meantime, the parents of the deceased Dharmesh Parikh instituted a Special Civil Suit No. 4/91 in the Court of Second Joint Civil Judge (SD), Baroda for damages from the Board. Late Ranchhodbhai Mangalbhai Solanki and Kanubhai Solanki both were joined as defendants in the said Suit along with the Board. The Suit claim was valued at Rs. 4,31,600/-. The suit was partly decreed and the Board as well as the two petitioners were held jointly and severally liable to pay Rs. 2,46,000/- to the plaintiffs by way of damages. Late Ranchhodbhai Mangalbhai Solanki and Kanubhai Solanki both were joined as defendants in the said Suit along with the Board. The Suit claim was valued at Rs. 4,31,600/-. The suit was partly decreed and the Board as well as the two petitioners were held jointly and severally liable to pay Rs. 2,46,000/- to the plaintiffs by way of damages. The respondent Board preferred a First Appeal No. 5228/98 before this Court challenging the judgment and decree passed by the Civil Court. The Board also preferred Civil Application No. 8571/98 for stay of the operation, implementation and execution of the decree. This Court granted the stay on the condition that the Board shall deposit Rs. 3,29,746/- in the trial Court at Baroda. 5. On 11.10.2000, Ranchhodbhai Mangalbhai Solanki passed away and his heirs and legal representatives i.e. the petitioners herein, claimed for the terminal dues payable to them. On 23.1.2001, the Board issued a notice to the widow of late Ranchhodbhai Mangalbhai Solanki that a sum of Rs. 1,60,000/- would be recovered from the terminal dues payable to her to satisfy the decree passed by the trial Court. On 23.2.2001, a Civil Application was filed in the First Appeal No. 5228/98, pending before this Court, praying for stay of the operation of the notice dated 23.1.2001, and directing the respondent Board to pay the legal terminal dues to the petitioners since late Ranchhodbhai Mangalbhai Solanki was already subjected to a Departmental inquiry and was reverted to a lower post by way of punishment. In the same manner, on 12.2.2001, the Board issued a notice to the petitioner of the connected petition calling upon him to make good the amount of Rs. 1,60,000/-. The Board informed him that the said amount would be deducted from his salary. Accordingly, a sum of Rs. 1,000/- per month is being recovered from his salary. Hence, these two petitions. 6. Mr. Nilesh Pandya, the learned counsel appearing for the petitioners vehemently submitted that the action on the part of the Board to recover the decretal amount from the retiral benefits of late Ranchhodbhai Mangalbhai Solanki and salary of the petitioner of the connected petition, is illegal and contrary to the settled principles of law. The principal argument of Mr. 6. Mr. Nilesh Pandya, the learned counsel appearing for the petitioners vehemently submitted that the action on the part of the Board to recover the decretal amount from the retiral benefits of late Ranchhodbhai Mangalbhai Solanki and salary of the petitioner of the connected petition, is illegal and contrary to the settled principles of law. The principal argument of Mr. Pandya is that so far as late Ranchhodbhai Mangalbhai Solanki is concerned, he was subjected to a Departmental inquiry and such inquiry resulted in an order of reversion to the post of Assistant Lineman. According to him, once a particular punishment is imposed in a Departmental inquiry, thereafter there was no question of deducting an amount of Rs. 1,60,000 from the retiral dues of late Ranchhodbhai Mangalbhai Solanki on the premise that on account of the negligence of late Ranchhodbhai Mangalbhai Solanki the Board had to sustain pecuniary loss. According to Mr. Pandya, it would amount to double jeopardy, which is not permissible under the law as well as the service regulations with which the late Ranchhodbhai Mangalbhai Solanki was governed. Mr. Pandya further submitted that in the criminal prosecution also the prosecution was not able to prove the case of culpable negligence on the part of the late Ranchhodbhai Mangalbhai Solanki and Kanubhai Solanki. Mr. Pandya vehemently submitted that if it is the case of the Board that a pecuniary loss was caused to the Board on account of the negligence of late Ranchhodbhai Mangalbhai Solanki, then appropriate order of recovery of such amount could have been ordered in the Departmental inquiry itself and having not done so, at a later stage, the amount of Rs. 1,60,000/- could not have been deducted from the retiral dues. In such circumstances referred to above, Mr. Pandya prays that there being merit in both the writ-petitions, they may be allowed and the reliefs prayed for may be granted. 7. On the other hand, both the writ-petitions have been vehemently opposed by Mr. Deepak Dave, the learned counsel appearing for the Board. Mr. Dave submitted that the argument canvassed on behalf of the petitioners of SCA No. 3206 of 2001 that since late Ranchhodbhai Mangalbhai Solanki was visited with an order of punishment of reversion to a lower post, later on the Board could not have recovered the amount of Rs. Deepak Dave, the learned counsel appearing for the Board. Mr. Dave submitted that the argument canvassed on behalf of the petitioners of SCA No. 3206 of 2001 that since late Ranchhodbhai Mangalbhai Solanki was visited with an order of punishment of reversion to a lower post, later on the Board could not have recovered the amount of Rs. 1,60,000 from the retiral benefits of late Ranchhodbhai Mangalbhai Solanki, on the principle of double jeopardy, is absolutely meritless. Mr. Dave, the learned counsel appearing for the Board submitted that in the Civil Suit, late Ranchhodbhai Mangalbhai Solanki as well as Kanubhai Solanki have been held jointly and severally liable. Neither late Ranchhodbhai Mangalbhai Solanki or his legal heirs, nor Kanubhai Solanki thought fit to file any First Appeal challenging the decree so far as their liability is concerned. Mr. Dave has placed reliance on the following averments made in the affidavit-in-reply filed on behalf of the respondents Nos. 1, 2 and 3, which reads as under:- "3. It is submitted that the present petition is not maintainable before this Court as the deductions has been effected by the Board pursuant to the order passed by the Civil Judge (SD), Baroda in Special Civil Suit No. 4/91 wherein the decree has been passed by the Court in which the petitioner has been jointly and severally held liable to pay the amount as has been fixed by the trial Court. It is submitted that the decree passed by the trial Court has not been challenged by the petitioner by filing a substantial appeal and therefore, the Board has to protect its interest and therefore, the amount which is to be borne by the petitioner has to be deducted from the petitioners' dues. 4. It is submitted that the complaint has been filed by the father of the deceased Dharmesh Parikh against Ranchhodbhai Solanki who was line man in the GE Board and the Deputy Chief Electrical Inspector has also held in his report that the deceased was negligent in discharging his duties and therefore, w.e.f. 1.4.2000 Shri Ranchhodbhai Solanki was placed under suspension and served with a charge-sheet on 14.5.1991. The charge-sheet has been filed against the deceased Ranchhod Solanki by the Police Department also. 5. The charge-sheet has been filed against the deceased Ranchhod Solanki by the Police Department also. 5. It is submitted that the departmental proceedings has been initiated against the deceased Ranchhodbhai Solanki wherein the inquiry officer held Ranchhodbhai Solanki responsible for his negligence and all the charges levelled against Ranchhodbhai Solanki in his charge-sheet has been proved. It is pertinent to note that on account of the recommendations made by the inquiry committee, the competent authority after perusing the record and considering the gravity of the matter, issued show cause notice to the deceased as to why his service should not be terminated. 6. It is submitted that pursuant to the show cause notice issued by the Board, the deceased Ranchhodbhai Solanki has been reverted from the post of Lineman to the post of Assistant Lineman and the period of suspension has been treated as absent. The said decision of the Board has been challenged by deceased Ranchhod Solanki. It is submitted that thereafter the suit which has been filed by the legal heirs of the deceased, Mr. Dharmesh Parikh, being Special Civil Suit No. 4/1991 challenging the legality and validity of the aforesaid order. The GE Board has filed First Appeal No. 5228/1998 and also Civil Application No. 8570/1998 which was admitted by the High Court and the Board has been directed to deposit Rs. 3,46,000 in the trial Court and accordingly the Board has deposited Rs. 3,29,746/- on 6.5.2001, out of which 50% amount has been withdrawn by the claimant and the remaining amount has been deposited in the nationalised Bank as directed by the High Court. 7. It is submitted that the deceased Ranchhodbhai Solanki has not challenged the legality and validity of the judgment and decree passed by the trial Court and therefore, the deceased is under the obligation to pay Rs. 1,60,000 to the trial Court to satisfy the decree which has not been deposited and therefore, the Board being the statutory authority has deposited the amount and hence the amount of Rs. 1,60,000 is recoverable from the retirement benefit of Ranchhod Solanki. It is submitted that during the life time of the deceased Ranchhodbhai Solanki, no appeal has been filed and no action has been taken by him by filing the appeal challenging the decree passed by the trial Court. 1,60,000 is recoverable from the retirement benefit of Ranchhod Solanki. It is submitted that during the life time of the deceased Ranchhodbhai Solanki, no appeal has been filed and no action has been taken by him by filing the appeal challenging the decree passed by the trial Court. It is submitted that when the deceased was about to retire from the service, the Board has taken appropriate action, so as to safeguard the interest of the Board and therefore, the notice has been issued by the Board for recovery of the amount. 8. It is submitted that Mr. Solanki died on 11.10.2000, but the liability upon him which has been held by the trial Court has to be satisfied from the retirement benefit and therefore a notice has been issued to the legal heirs of deceased Ranchhod Solanki for recovery of Rs. 1,60,000. The reply has been received from Kamlaben Solanki wife of deceased, but there is nothing in the rules and regulations of the Board that the amount can be waived and therefore, the Board has to withhold the amount from the retirement benefit payable to the legal heirs of the deceased and therefore, after withholding the amount of Rs. 1,60,000 the balance amount of Rs. 80,565 has been paid to the present petitioner vide cheque No. 898661 dated 22.5.2001. Not only that the Board has withheld the amount of Rs. 2,25,000 and the gratuity amount of Rs. 30,496 because the Board has to recover Rs. 1,60,000 from the retirement benefit of the deceased and the amount has been kept aside by the Board as the Board has to recover the amount from the deceased Ranchhodbhai Solanki. 9. I say and submit that when the trial court has given the detailed and specific reasons in the judgment that the deceased Ranchhod Solanki was negligent as also careless in discharging his duties, which has caused loss of life to the persons and as per the specific finding of the Court below, the Board was under obligation to recover the amount keeping in mind that the order of the trial Court was not challenged by the deceased in the High Court. The Board has challenged the said judgment in capacity of Board as the Board has also been held responsible to the extent of 33%, while Mr. The Board has challenged the said judgment in capacity of Board as the Board has also been held responsible to the extent of 33%, while Mr. Kanubhai Manilal Solanki and Ranchhodbhai Solanki has not filed any appeal and therefore the Board has taken the decision rightly as per the service conditions of the Board which cannot be challenged before his Hon'ble Court in view of the settled position of law." 8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Board is justified in seeking recovery of the requisite amount from the retiral dues of late Ranchhodbhai Mangalbhai Solanki and salary of Kanubhai Solanki. 9. It appears that there was no Departmental inquiry against the petitioner of SCA No. 3213 of 2001. The amount of Rs. 1,60,000/- which is sought to be recovered from the petitioner of the SCA No. 3213/01 by deducting Rs. 1,000 per month from his salary is on the basis that on account of his negligence the Civil Court fixed the tortuous liability of the Board. The Board had to deposit an amount of Rs. 3,29,746/- before this Court for stay of the operation, implementation and execution of the decree. Thus, the stance of the Board is that as pecuniary loss could be said to have been caused to the Board by the petitioner of SCA No. 3213 of 2001, the same can be recovered from the petitioner. In my view, no illegality could be said to have been committed by the Board in this regard. 10. So far as late Ranchhodbhai Mangalbhai Solanki is concerned, he was subjected to a Departmental inquiry and as ultimately, he was found negligent in discharge of his duties, he was visited with a penalty of reversion to a lower post. The pecuniary loss suffered by the Board is sought to be recovered from his retiral dues. In this regard, let me look into the decision of the Supreme Court in the case of Punjab State Civil Supplies Corporation v. Sikander Singh, AIR 2006 SC 1438 . In this case the respondents therein were working as Inspector and Field Officer/Supervisor and they were posted at Moga. A physical verification of stocks was carried out pursuant whereto shortages of 4513 bags of wheat were said to have been found. In this case the respondents therein were working as Inspector and Field Officer/Supervisor and they were posted at Moga. A physical verification of stocks was carried out pursuant whereto shortages of 4513 bags of wheat were said to have been found. The respondent No. 1 deposited in two instalments 2400 bags and 210 bags of wheat. In an audit report, shortages of stock of articles were said to have been highlighted. It was alleged that, thus, shortages of wheat took place due to lack of proper supervision on the part of the respondents. The departmental proceedings were initiated against the respondents. They were dismissed from service. In the Departmental proceedings against the respondent No. 1, indisputably the Appellate Authority directed his reinstatement, subject to his depositing remaining 400 bags of wheat found to be short. He complied with the said direction of the Appellate Authority. As despite the same, he was not reinstated, a writ-petition was filed by him before the High Court, wherein the High Court directed his reinstatement. The matter came up before the Supreme Court and by a judgment and order dated 23.8.1989, while upholding the direction of the High Court as regards the reinstatement, the relief of back-wages was denied. So far as the order of dismissal passed in the Departmental inquiry against the respondent No. 2 was concerned, he filed a Suit before the High Court. The appellant i.e. the Corporation filed a Civil Suit before the Civil Judge, Moga against the respondents for recovery of the price of the quantity of wheat which had been found to be short. The said Civil Suit was dismissed against the respondent No. 2, whereas the same was allowed as against the respondent No. 1. A Regular First Appeal was filed in the High Court by the Corporation there against. The respondent No. 1 also filed an appeal there against. The contention of the Corporation before the Supreme Court was that although the respondents Nos. 1 and 2 were its employees, yet a Civil Suit was maintainable against them for recovery of money as shortage of wheat took place due to their negligence. So far as the respondent No. 2 was concerned, it was submitted that although he had no direct role to play, but in view of his acts of non-feasance he would be liable therefor as he had a duty to supervise the godown. So far as the respondent No. 2 was concerned, it was submitted that although he had no direct role to play, but in view of his acts of non-feasance he would be liable therefor as he had a duty to supervise the godown. The Supreme Court observed as under:- "33. In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 , this Court again was considering a case under tortious law held that 'tort' dictionarily means "breach of duty leading to damage". Negligence has further been defined to mean 'failure to do statutory duty or otherwise giving rise to damage'. 34. Negligence in the performance of a duty under a contract of employment may give rise to a disciplinary proceeding but as at present advised, in a case of this nature, we are of the opinion that the same would not give rise to a cause of action for recovery of money for the goods lost as in the disciplinary proceeding itself recovery of money from the delinquent can be directed by way of punishment. 35. In Jay Laxmi Salt Works (supra), this Court observed: "...In Dunlop v. Woollahra Municipal Council it was held that without malice the claim for misfeasance could not be accepted. Non-feasance on the other hand is omission to discharge duty. But the omission to give rise to action in torts must be impressed with some characteristic, namely, malice or bad faith. The expressions 'malfeasance', 'misfeasance' and 'non- feasance' would, therefore, apply in those limited cases where the State or its officers are liable not only for breach of care and duty but it must be activated (sic actuated) with malice or bad faith. The defective planning in construction of a bundh, therefore, may be negligence, mistake, omission but to say that it can only be either malfeasance, misfeasance and non-feasance is not correct...." 36. In Poonam Verma v. Ashwin Patel and others, (1996) 4 SCC 332 , this Court was concerned with negligence of medical practitioners giving rise to a cause of action under the provisions of Consumer Protection Act. 37. We are, therefore, of the opinion that in view of the findings arrived at by the High Court, the suit filed by the appellant herein being not maintainable have rightly been dismissed. 38. 37. We are, therefore, of the opinion that in view of the findings arrived at by the High Court, the suit filed by the appellant herein being not maintainable have rightly been dismissed. 38. So far as the second appeal preferred by the defendant No. 2 being RSA No. 2232 of 1998 is concerned, it appears, that no substantial question of law had been framed by the High Court as was mandatorily required to be done in terms of Section 100 of the Code of Civil Procedure. We have noticed hereinbefore that the defendant No. 2 filed a suit questioning the order imposing punishment of removal or dismissal from his service. The said suit was dismissed. The appeal preferred by the defendant No. 2 was also dismissed. In the second appeal, indisputably, the High Court was obligated to formulate a substantial question of law. The High Court proceeded to allow the appeal preferred by the defendant No. 2 only on the premise that the dereliction of duty vis-à-vis supervisory control is not attributable to him. The effect of the judgment in the civil suits filed by the Corporation would require consideration in the light of the findings arrived at in the disciplinary proceedings. 39. The High Court failed to consider that the question of negligence in a departmental proceedings and a suit for recovery of money must be viewed differently. In a disciplinary proceeding, the provisions of the Evidence Act are not applicable unlike in a civil suit. In the suit filed by the defendant No. 2, the only question which arose for consideration was different from the issues which arose in the civil suit of the Corporation. The scope and ambit of the suit filed by the respondent No. 2 herein questioning the order of dismissal from services was limited." 11. In the suit filed by the defendant No. 2, the only question which arose for consideration was different from the issues which arose in the civil suit of the Corporation. The scope and ambit of the suit filed by the respondent No. 2 herein questioning the order of dismissal from services was limited." 11. It could be argued relying on the decision referred to above that as the negligence alleged against the petitioners in the performance of their duty under a contract of employment gave rise to the disciplinary proceedings so far as late Ranchhodbhai Solanki is concerned, the same would not give rise to a cause of action for recovery of money for the pecuniary loss caused to the Board on account of the decree, which came to be passed by the Civil Court, as in the disciplinary proceedings itself the recovery of money from the delinquent could have been directed by way of punishment. In fact, this is the argument of the learned counsel appearing for the petitioners. 12. So far as Punjab State Civil Supplies Corporation (supra) is concerned, there in the Departmental inquiry as negligence was established, appropriate penalty was imposed but at the same time, the Corporation thought fit to file a Civil Suit for recovery of the loss caused to the Corporation on account of such negligence and the Supreme Court took the view that such Suit was not maintainable as the recovery could have been a part and parcel of the penalty in the Departmental proceedings. 13. So far as the case in hand is concerned, the Board did not file any Civil Suit, but the parents of the deceased preferred a Civil Suit for damages, invoking the principle of tortuous liability and in the said Civil Suit, the Board, as the master was held liable for the act of its servants i.e. the petitioners herein. Since the Board had to deposit the amount as decreed by the Civil Court, it thought fit to recover the said amount from the petitioners and in doing so, in my view, no illegality could be said to have been committed. The principle of double jeopardy has no application in the facts of this case. 14. Mr. Since the Board had to deposit the amount as decreed by the Civil Court, it thought fit to recover the said amount from the petitioners and in doing so, in my view, no illegality could be said to have been committed. The principle of double jeopardy has no application in the facts of this case. 14. Mr. Pandya, the learned counsel submitted that in any view of the matter, the amount of gratuity so far as late Ranchhodbhai Mangalbhai Solanki could not have been with-held as the gratuity was earned by late Ranchhodbhai Mangalbhai Solanki for "long and meritorious service" and consequently, it must be given to him even though at the end of such service he may have been found guilty of misconduct and also liable for causing pecuniary loss to the Board. 15. In U.P. State Sugar Corporation Limited v. Kamal Swaroop Tondon, 2008 2 SCC 241, the Supreme Court considered the issue, which I have noted above and held in paragraphs 11 to 21 as under:- "11. Now it is well settled that retiral benefits are earned by an employee for long and meritorious services rendered by him/her. They are not paid to the employee gratuitously or merely as a matter of boon. It is paid to him/her for his/her dedicated and devoted work. 12. In Garment Cleaning Works, Bombay v. Wokmen, AIR 1962 SC 673 , the relevant clause of the Gratuity Scheme provided that if a workman was dismissed or discharged for misconduct causing financial loss to the employer, gratuity to the extent of loss should not be paid to the workman concerned. It was contended on behalf of the employer that the retrenchment benefit and gratuity were payable to the employee for his long and meritorious services and if he was dismissed by misconduct, he would not be entitled to claim retrenchment benefits or gratuity and the benefits could be denied to him. 13. Dealing with the argument and the basis of payment of gratuity, this Court, speaking through P.B. Gajendragadkar, J. (as His Lordship then was), said: "5. 13. Dealing with the argument and the basis of payment of gratuity, this Court, speaking through P.B. Gajendragadkar, J. (as His Lordship then was), said: "5. On principle if gratuity is earned by an employee for long and meritorious service it is difficult to understand why the benefit thus earned by long and meritorious service should not be available to the employee even though at the end of such service he may have been found guilty of misconduct which entails his dismissal. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer, and when it is once earned it is difficult to understand why it should necessarily be denied to him whatever may be the nature of misconduct for his dismissal. Then, as to the definition of retrenchment in the Industrial Disputes Act, we are not satisfied that gratuity and retrenchment compensation stand exactly on the same footing in regard to the effect of misconduct on the rights of workmen. The rule of the provident fund scheme shows not that the whole provident fund is denied to the employee even if he is dismissed but it merely authorises certain deductions to be made and then too the deductions thus made do not revert to the employer either. Therefore we do not think that it would be possible to accede to the general argument that in all cases where the service of an employee is terminated for misconduct gratuity should not be paid to him. It appears that in award which framed gratuity schemes sometimes simple misconduct is distinguished from gross misconduct and a penalty of forfeiture of gratuity benefit is denied in the latter case but not in the former, but latterly industrial tribunals appear generally to have adopted the rule which is contained in clause (ii)(b) of the present scheme. If the misconduct for which the service of an employee is terminated has caused financial loss to the works, then before gratuity could be paid to the employee he is called upon to compensate the employer for the whole of the financial loss caused by his misconduct, and after this compensation is paid to the employer if any balance from the gratuity climbable by the employee remains that is paid to him." (emphasis supplied) 14. In Calcutta Insurance Co. In Calcutta Insurance Co. Ltd. v. Workmen, (1967) 2 SCR 596 , this Court considered the concept of gratuity. It referred to Garment Cleaning Works and other cases. It noted that the opinion expressed in those cases was that gratuity was earned by an employee for "long and meritorious service" and consequently it must be given to him even though at the end of such service, he may have been found guilty of misconduct entailing his dismissal. 15. The Court then said; "In principle, it is difficult to concur in the above opinion. Gratuity cannot be put on the same level as wages. We are inclined to think that it is paid to a workman to ensure good conduct through out the period he serves the employer. "Long and meritorious service" must mean long and unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity. If a workman commits such misconduct as causes financial loss to his employer, the employer would under the general law have a right of action against the employee for the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does not seem to aid to the harmonious employment of labourers of workmen. Further, the misconduct may be such as to undermine the discipline in the workers - a case in which it would be extremely difficult to assess the financial loss to the employer." (emphasis supplied) 16. In M. Narasimhachar v. State of Mysore, AIR 1960 SC 247 , an amount of Rs. 5,215/- was deducted from pension of the Government servant. The action was challenged by the employee. Considering the relevant provisions of the Rules, this Court held that the Government had reserved to itself the right to order the recovery from pension and compassionate allowances of the Government servant of any amount on account of losses found to have been caused to Government by negligence or fraud of such officer during his service. 17 Again, in Jarnail Singh v. Secretary, Ministry of Home Affairs & Ors., (1993) 1 SCC 47 : JT 1992 Supp SC 489, this Court considered the provisions of Central Civil Services (Pension) Rules, 1972. The definition of "pension" included gratuity under Rule 3. 17 Again, in Jarnail Singh v. Secretary, Ministry of Home Affairs & Ors., (1993) 1 SCC 47 : JT 1992 Supp SC 489, this Court considered the provisions of Central Civil Services (Pension) Rules, 1972. The definition of "pension" included gratuity under Rule 3. Rule 9 conferred on the President power to withhold or withdraw pension in certain circumstances. An order was passed against an employee withholding pension and the entire amount of death-cum-retirement gratuity otherwise admissible to him. The direction was given on account of serious irregularities found to have been committed by the workman. The workman challenged that order unsuccessfully and thereafter approached this Court. His contention was that an amount of gratuity could not have been withheld. 18. Negativing the contention, this Court held that the power to withhold gratuity was conferred on the President and such action could not be said to be illegal. It was ruled that the Government could adjust its dues against the amount of death-cum-retirement gratuity otherwise payable to Government servant. 19. In State of Uttar Pradesh v. Brahm Datt Sharma & Anr., (1987) 2 SCC 179 : JT 1987 (1) SC 571, this Court held that it was open to Government to reduce, forfeit, withhold or recover pension, after affording hearing to the affected person, on ground of unsatisfactory service based on proved findings of serious misconduct or causing pecuniary loss to the Government. Such proceedings can be initiated even after retirement for misconduct, negligence or financial irregularity. Where Government servant was found guilty of misconduct or negligence resulting in financial loss to the Government, it was competent to the Government to direct reduction in pension. 20. Interpreting Article 470 of U.P. Civil Service Regulations, this Court observed that the said provision stated that full pension would not be awarded as a matter of course to a Government servant on his retirement. It was awarded to him if service rendered by him was satisfactory. In case of absence of "thoroughly satisfactory" service, the authority was competent to reduce the amount of pension. It was awarded to him if service rendered by him was satisfactory. In case of absence of "thoroughly satisfactory" service, the authority was competent to reduce the amount of pension. Referring to Deokinandan Prasad v. State of Bihar, 1971 Supp SCR 634, State of Punjab v. K.R. Erry, (1973) 2 SCR 405 and D.S. Nakara v. Union of India, (1983) 2 SCR 165 , the Court held that pension was not a "bounty" and an employee was entitled to pensionary benefits, but proceeded to state that a Government employee would earn pension by rendering long and efficient service. Considering Narasimhachar, the Court held that the employer had right to reduce pension of an employee if services rendered by him were found to be unsatisfactory. Only thing is that in such cases before taking any action, principles of natural justice must be observed. 21. In State of Maharashtra v. M.H. Mazumdar, (1988) 2 SCC 52 : JT 1988 (1) SC 432, the Court held that departmental inquiry can be instituted against a Government servant after superannuation and pension can be reduced on proved charges of misconduct, negligence or financial irregularity committed during the period of service. Following Narasimhachar and Brahm Datt Sharma, and distinguishing B.J. Shelat v. State of Gujarat, (1978) 2 SCC 202 , the Court held that when financial loss was caused to the Government by any act or omission on the part of its employee, the purpose of inquiry was not to inflict any punishment, but to determine the pension of an employee. Such an action, in our view, can be taken so that the Government may not have to suffer financially." 16. A learned Single Judge of the High Court of Kerala, K.S. Radhakrishnan (as His Lordship then was) considered the question whether the Kerala State Road Transport Corporation had the power to withhold death-cum-retirement gratuity amount so far as meeting the liability of the employees or pensioners pertaining to the awards passed by the Motor Accident Claims Tribunal. The learned Judge took notice of the fact that the Motor Accident Claims Tribunal were awarding large amounts by way of compensation against the Corporation and their drivers in respect of the accidents occurred due to rash and negligent driving of drivers of the Corporation. Several awards were being passed making the Corporation as well as its drivers jointly and severally liable to compensate the victims. Several awards were being passed making the Corporation as well as its drivers jointly and severally liable to compensate the victims. In some awards drivers were made directly liable to pay the compensation and the Corporation vicariously. In many of the awards there were clear findings to the effect that the drivers were rash and negligent, which led to the claim being allowed, and even then the Corporation was constrained to satisfy those awards causing considerable financial strain. The learned Judge observed as under:- "In fact, the loss caused to the Corporation due to rash and negligent driving of their drivers came up for serious comments by a Division Bench of this Court in Jacob Eapen v. K.S.R.T.C., 1987 (1) KLT 219 . Relevant portion is extracted below: "there is one disturbing aspect revealed in the case and we are constrained to comment on it in view of its serious implications. Rash and negligent driving has been the cause of grave suffering and misery to the appellant and loss to the K.S.R.T.C. Cases have come to our judicial notice where death, misery and deprivation have been caused due to the callous negligence exhibited by drivers of buses. We are not certain whether any action is taken against such negligent drivers: but we are certain that any commercial or utilitarian venture cannot promote or countenance a state of affairs where the negligence of its servants puts the undertaking to huge losses and passengers and pedestrians and users of other vehicles in peril. It behaves not a public sector undertaking to be public hazard, of distressing dimensions. To contain this, the K.S.R.T.C. should instill the right perspective and attitudes in their employees, so that they realise their public accountability and pay due heed to safety. If provisions in this regard do not exist, time has come to bring such into existence. A Unit to oversee the functioning of drivers, periodical assessment of performance and the use of mechanical devices can be thought of. We expect that the K.S.R.T.C. will take necessary action in this regard, without losing time. In another decision in Vavachan v. K.S.R.T.C., 1991 (1) KLT 828 , a learned Single Judge of this Court observed as follows. "before parting with the case, I must notice a disturbing aspect revealed in this case, as also in several other cases. We expect that the K.S.R.T.C. will take necessary action in this regard, without losing time. In another decision in Vavachan v. K.S.R.T.C., 1991 (1) KLT 828 , a learned Single Judge of this Court observed as follows. "before parting with the case, I must notice a disturbing aspect revealed in this case, as also in several other cases. Some of the Motor Accidents Claims Tribunals seem 10 think that only the K.S.R.T.C. is liable to make the payments and not the particular employee who is responsible for the accident. It is well to remember that the liability of the employee is vicarious, while that of the driver is direct. If awards are passed against the Corporation alone, exonerating the drivers when they are liable, it will lead to unsatisfactory results. The funds of the Corporation will be dissipated, while the erring drivers are left free without constraints or consequences. That might encourage rash drivers and lead to the depletion of funds of a public undertaking. If the liability of the drivers is fixed, where it ought to be, the Corporation can realise the amount of compensation from them and thus reduce its own losses. The attitude of the Corporation and the attitude of the Motor Accidents Claims Tribunals require updating on realistic concerns. It is expected that all the Motor Accidents Claims Tribunals in the State and the K.S.R.T.C. will act in consonance with the observations made hereinbefore. The Motor Accident Claims Tribunals in most of the award have found the drivers primarily liable. When the drivers are still in service, the Corporation could recover a portion of the amount from their salary. But in many cases, by the time the awards are passed, the employees are about to retire or retired from service." "6......... Question that has come up for consideration, as already stated, in all these cases, is as to whether the Corporation has power to withhold DCRG amount and to adjust the same towards the loss caused to the corporation consequent on the various awards passed by the Motor Accident claims Tribunal, wherein Corporation is made only vicariously liable for the rash and negligent driving of its drivers. Employees right to get pension and gratuity is a statutory right. Employees right to get pension and gratuity is a statutory right. The measure of deprivation is co-relative or commensurate with the gravity of misconduct or irregularity as it offends right to assistance in the evening of his life, as assured under Art.41 of the Constitution. However, R. 3 of Part III KSR reserves a right to the Government to withhold pension either permanently or for a specific period and to recover whole or part of any pecuniary loss caused to the Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. If the departmental proceeding is initiated before his retirement the same could be continued. However, the same shall not be in respect of any event which took place more than four years before such institution. A judicial proceeding shall be deemed to be instituted in the case of a criminal proceeding on the date on which the complaint or report of Police officer on which the Magistrate takes cognizance is made, and in the case of a civil proceeding, on the date of presentation of the plaint in the court. However, Note 2 is added to R. 3. It says the word "pension" used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain. Note 3 to R. 3 says the liability of an employee should be quantified either before or after retirement and intimated to him before retirement, if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner, should be quantified and intimated to him. 7. In all these cases, no departmental or judicial proceeding as such was initiated by the Corporation. Proceedings were initiated by the victims or their legal representatives in connection with various accidents. In all the awardees petitioners were primarily found liable and the Corporation vicariously liable. In O.P. Nos. 9366, 8764 and 12442 of 1997, awards were passed while the petitioners were in service. In O.P No. 6354 of 1997, petitioner retired from service on 31.12.1992 and the award was passed on 12.4.1993. In all the awardees petitioners were primarily found liable and the Corporation vicariously liable. In O.P. Nos. 9366, 8764 and 12442 of 1997, awards were passed while the petitioners were in service. In O.P No. 6354 of 1997, petitioner retired from service on 31.12.1992 and the award was passed on 12.4.1993. In O.P No. 10422 of 1997 petitioner retired from service on 31.5.1994 and the award was passed on 13.8.1994. In all these case, awards were passed with the petitioners in the array of parties. Therefore, as far as petitioners are concerned, liability has already been fixed by a properly constituted Tribunal with the petitioners and Corporation in the array of parties. Therefore, there is no question of fixing any liability by the Corporation with notice to the petitioners. The procedure to be followed for recovery of liabilities fixed from DCRG is stated in Note 2 to R. 3 of Part III, K.S.R, which is extracted below: "the word "pension" used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain. Note 3: The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner the liabilities of a pensioner should be quantified and intimated to him. (emphasis supplied) In the instant case, as already stated, liability has already been fixed by the Motor Accident Claims Tribunal with petitioners and the Corporation in the array of parties. Therefore, there is no question of fixing any liability by the Corporation with notice to persons like petitioners or giving a reasonable opportunity to explain. Note 2 to R.3 of Part III, K.S.R is provision of general application. In cases where the liabilities have been fixed by the Corporation against an employee or pensioner without the departmental/judicial proceedings the same could be recovered from the D.C.R.G. but the employee or pensioner be given a reasonable opportunity to explain. In other words, liability already fixed by the Corporation against an employee or pensioner could not be recovered without giving the employee or pensioner a reasonable opportunity to explain. In other words, liability already fixed by the Corporation against an employee or pensioner could not be recovered without giving the employee or pensioner a reasonable opportunity to explain. In other words, even without the departmental/judicial proceedings, power is given to the Corporation to fix the liability. However, in cases where the liability has already been fixed by a properly constituted judicial or quasi-judicial Tribunal, with notice to the employee or pensioner and the Corporation in the party array, there is no question of giving another opportunity to explain as to why liability be not fixed. In other words, an opportunity has already been given to employee or pensioner by a properly constituted Tribunal. Due to above mentioned reasons, I am of the view that the Corporation has got the legal right to recover the liability fixed against an employee or a pensioner from the DCRG in accordance with R. 3 Part III of the KSR. In all these cases liability has already been fixed by properly constituted Tribunals within the statutory time prescribed by R 3 of part III, KSR." 17. Thus, I am of the view that the decision of the Board to recover the amount from the petitioners on account of the pecuniary loss caused could not be said to be unlawful in any manner. 18. For the foregoing reasons, both these writ-applications fail and are hereby rejected. Rule is discharged.