ORDER : Sanjeev Prakash Sharma, J. 1. The petitioner who was holding the post of Commissioner, Municipal Corporation, Jodhpur passed the orders for development of the city. In this process, shops were also directed to be vacated from unauthorized persons who appear to have put up their pressure to higher authorities and result is that a charge-sheet was issued to him under Rule 16 of the Rajasthan Service Rules on 24.12.1980 levelling several charges. For the purpose of present case, charge No. 1, 2, 5 and 10 are quoted which have been found to be proved and partial proved:- vkjksi laŒ ¼1½ Jh oh-Mh O;kl us uxj ifj"kn vtesj esa vk;qDr in ij dk;Z djrs gq, Jh Vksiu }kjk izdk'k okbZu LVksj dks ijs'kku djus dh fu;r ls nqdku uaŒ 93 dks [kkyh djokus lac/kh vkns'k tku cw>dj iz'kklu dks xyr rF; izLrqr djrs gq, izkIr fd;sA iw.kZ fooj.k nks"kk jksi.k fooj.k i= ds vkjksi laŒ 1 ij vafdr gSA bl vkjksi esa Jh O;kl dh cnuh;rh izdV gksrh gS rFkk os nwjkpj.k ds nks"kh gSA vkjksi laŒ¼2½ uxj ifj"kn vtesj }kjk nqdkuksa ds LFkkukUrj.k djk nsus ij ysus okys O;fDRk ds uke ukekUrj.k djus lac/k vf/kdkj jktLo vf/kdkjh izFke dks iznŸk fd;s gksus ds ckotwn Jh O;kl us Lo;a vius Lrj ij vkns'k ikfjr fd;s tks ifj"kn ds izLrko ds fo:) FkkA vRk% ;s nqjkpj.k ds nks"kh gSA vkjksi laŒ¼5½ Jh O;kl }kjk jktLFkku uxj ifj"kn ¼dEikmfUMx ,DV dEizksekbZftax vkWu vkWQs'k½ fu;e 1966 ds rgr 19 ekeyksa esa xSj dkuwuh :i ls dEikmUM+ djus ds vkns'k izlkfjr fd;s ftlls Jh O;kl dh cnuh;rh tkfgj gksrh gSA vkjksi laŒ ¼10½ Jh ohŒM+hŒ O;kl vk;qDr] uxjifj"kn] vtesj esa fnukad 16-6-76 ls 20-11-76 rd fd vof/k esa dk;Z djrs gq, Jh pkan fcgkjh yky ghjk yky }kjk vukf/kd=r :Ik ls Hkou fuekZ.k djus ij bUgs bl ckjs esa uksfVl ugh fn;kA iz'kkld }kjk fnukad 4-4-78 dks ikVhZ ds 33 1@4 eqvkots ds izLrko dks vLohd`r dj fn;k x;kA rRi'pkr rRdkyhu lfpo egksn; }kjk fujh{k.k ds nkSjku mDr vukf/kd`r dCts dks gVkus ds vkns'k fn;s x;s Fks rFkk uxj ikfydk ds vf/k'kklh vfHk;Urk }kjk Hkh vukf/kd`r d`R;ks ds ckjs esa fVIi.kh dh x;h Fkh fQj Hkh vkius fnukad 29-9-78 dks mDr QeZ dks Hkwfe vkcaVu djus dh flQkfj'k dhA tks fd vki }kjk vuqfpr ykHk izkIr djus ,oa vkidh cnuh;rh dks iznf'kZr djrk gSA 2. As has come on record, reply was filed by the petitioner asserting that he had powers under Rules to pass necessary orders and exercising of power over and above his subordinate could not be said to be a mis-conduct within the meaning of Rules of 1971. The charge-sheet could not have been served upon him. It appears that the charge-sheet remained pending for number of years and he retired on 30.6.1993 as has come on record, the inquiry report was not made available to him and the punishment order has been passed by the Dy. Secretary, Local Self Government stopping of 30% pension permanently of the petitioner holding him guilty for the charges stated as above. 3. Learned counsel has taken this court to the aspects of the departmental inquiry. It is pointed out that the protected departmental proceedings continued for good number of year that is from 1980 to 1997 which itself has caused serious prejudice to the petitioner. Further it has been stated that the witnesses were examined behind his back and he did not get the opportunity to cross examine them. He does not know what was the basis and how inquiry officer proceeded in the enquiry as he has not been able to made available the inquiry report. In support of this contention, the learned senior counsel has taken to this court to annexure/6 and annexure/7, documents issued by the Government, Department wherein it has been mentioned that the enquiry report could not be served upon the petitioner which has already retired from service. It is, therefore, contended that as the petitioner does not know the manner in which the Enquiry Officer has proceeded to hold guilty for charge No. 1, 2 and 5 and also holding him partly guilty for charge No. 10, he has not able to contest such findings before this court. Moreover as the case relates to the period prior to the year 1980 and the petitioner stood retired in 1993, unless the copy of enquiry report is available to him, serious prejudice has been caused and can be inferred by this Court also. 4. Moreover as the case relates to the period prior to the year 1980 and the petitioner stood retired in 1993, unless the copy of enquiry report is available to him, serious prejudice has been caused and can be inferred by this Court also. 4. Learned Senior counsel has also relied upon the circular issued by the State Government itself under Rule 13 of the CCA Rules laying down a time schedule for initiating and concluding departmental enquiry and submits that there is a serious violation to the circular which definitely governs respondent's action. The delay itself, therefore, is sufficient to vitiate the entire departmental proceedings. 5. Learned senior counsel has challenged the order dated 29.12.1997 on the ground of being in violation of Rule 170 of RSR. It has been submitted that the Dy. Secretary does not have the authority in law to pass punishment of stoppage of 30% pension and the right of punishment only vests with the Governor. Neither the departmental proceedings nor the enquiry report were sent to the Governor and the power of punishment of stopping of 30% pension permanently is not available to the Dy. Secretary. 6. Per contra, learned counsel for the State submits that contention of the petitioner that copy of the inquiry report was not made available to him is not correct. Contents of para 8 of the reply have been read out to show that the enquiry report was supplied to the petitioner vide letter No. 562 dated 30.5.1991. It is submitted that since the explanation of the petitioner to the enquiry report was not received news paper publication was made on 04.2.1997. Taking into consideration the seriousness of charges, 30% of pension was stopped. It is further submitted that Rule 170 was followed and it has to be assumed that the Governor sanction was taken before passing of the order. On a pertinent query made to the learned counsel for the respondents, whether the order reflects anywhere of having taken permission from the Governor, she frankly admits that the order does not reflect any such action having been taken before passing of the order dated 29.12.1997. 7. In the reply too, there is no such averments that the departmental proceedings, enquiry report were ever placed before the Governor. 8. 7. In the reply too, there is no such averments that the departmental proceedings, enquiry report were ever placed before the Governor. 8. Learned counsel for the respondents also submits that the schedule which has been laid down by the Government under Rule 13 of the CCA Rules is only to be applied where a man is under suspension and not otherwise, and therefore, the requirement of completing proceedings within the stipulated time of nine months could not have been applied in the present case as the petitioner was not under suspension. 9. After examining the record and having heard the learned counsel it would be relevant to quote Rule 170 of the RSR:- "170. Recoveries of losses from the pension - The Governor further reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government. If in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement:- (a) provided that such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service." 10. From above Rule, it is apparent that the power of withholding, reducing the pension or make recovery from the pension lies exclusively with the Governor. The proviso carved out under Rule 170 (A) is only with respect of conducting the enquiry and concluding the same, however, after conclusion, the power vests only with the Governor to pass necessary orders of recovery, deduction or withdrawal of pension of a retired employee. Moreover, as per Rule 170, it s apparent that even in cases where a charge-sheet or enquiry is to be conducted relating to a misconduct prior to retirement, can only be with respect to an incident 4 years prior to retirement. Moreover, as per Rule 170, it s apparent that even in cases where a charge-sheet or enquiry is to be conducted relating to a misconduct prior to retirement, can only be with respect to an incident 4 years prior to retirement. However, so far as the present case is concerned, as the departmental enquiry was initiated in the year 1980, the said proviso will not apply but this Court finds that the purpose behind such a provision is not to initiate departmental enquiries relating to the acts of mis conduct which are stale and old. 11. Thus, the order passed by Dy. Secretary of stopping 30% of pension permanently was liable to be quashed as it has not been passed by the Governor. 12. Keeping in view this aspect if we examine the mis conduct alleged to have been committed by the petitioner in a period prior to the year 1980, the delay in concluding the enquiry is immense. It is not the case of the learned counsel for the respondents that the petitioner was in any manner responsible for the delay. The contention of the respondents in the order impugned of the enquiry being not concluded on account of administrative lacuna from time to time could not be put on the petitioner. A look at the charges for which the petitioner has been held guilty show that action taken against him appears to be at behest of others. The power of Commissioner to take action of vacating government premises cannot be belittled. even otherwise 17 years of pendency of a departmental enquiry itself causes serious prejudice. 13. View has been taken by the Hon'ble Supreme Court in State of MP v. Bani Singh and Anr. reported in 1990 SC 1308 wherein the court has held that:- "The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal. " 14. In the facts and circumstances of this case the protracted departmental inquiry of 17 years is sufficient to quash the same. 15. That apart, the copy of inquiry report has also not been made available to the petitioner to contest his case. In the case of Union of India v. Mohammed Ramzan reported in 1991 (1) SCC 588 the Hon'ble Supreme Court has taken a view as under:- "5. Wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter." 16. Later on the constitutional Bench in the case of ECIL Hyderabad VS.B. Karunakaran and Ors. has viewed as under:- "29. When judicial discretion has been exercised to establish a new norm, the question emerges whether it would be applied retrospectively to the past transactions or prospectively to the transactions in future only. Later on the constitutional Bench in the case of ECIL Hyderabad VS.B. Karunakaran and Ors. has viewed as under:- "29. When judicial discretion has been exercised to establish a new norm, the question emerges whether it would be applied retrospectively to the past transactions or prospectively to the transactions in future only. This process is limited not only to common law traditions, but exists in all the jurisdictions. Though Lord Denning is the vocal proponent of judicial law making and the House of Lords consistently overruled him, judicial law making found its eloquent acceptance even from the House of Lords and buried the remnants of the Blackstone's doctrine in the language of Prof. Friedmann, "has long been little more than a ghost". In Candler v. Crane Christmas and Co., (1951) 2 K.B. 164, the dissenting opinion of Denning, L.J. as he then was, has now received approval and Candler was overruled by the House of Lords in Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd., 1964 A.C. 465 interpreting whether a banker has a special relationship of duty of care in making careless misrepresentations, Lord Devlin held that the duty of care arises where the responsibility is voluntarily accepted or undertaken either generally, where a general relationship is created, or specifically in relation to a particular transaction, the law hitherto was existing. But, per majority held that the banker, though honest misrepresentation, spoken or written, was negligent, and it may give rise to an action for damages for financial loss caused thereby, any contract or fiduciary relationship apart, since "law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care, and that party knew or ought to have known that reliance was being placed on his skill and judgment". Without holding prospective operation of Hadley ratio, the House of Lords while setting aside the previous precedents laid new liability impliedly applicable to future contracts. Prof. Robert Stevens of Yale University commenting on Yedley Bryne ratio said that common law embodying the policy that 'sticks and stones may break my bones but words will never harm me" has been seriously eroded (vide 27 M.L.R. p. 5 (1964)). 30. Prof. Robert Stevens of Yale University commenting on Yedley Bryne ratio said that common law embodying the policy that 'sticks and stones may break my bones but words will never harm me" has been seriously eroded (vide 27 M.L.R. p. 5 (1964)). 30. Similarly, in Rookes v. Barnard, 1964 A.C. 1129, the House of Lords revived an all but forgotten tort of intimidation, and resurrected the tort of conspiracy for economic disputes which had been all but buried in Crofter Hand Woven Harris Tweed Co. v. Veitch, 1942 A.C. 435 establishing a legal responsibility for damages in the case of a typical union action instigated by a union organiser and two fellow employees designed to coerce the employer into certain behaviour. Similarly in Miliangos v. George Frank (Textiles) Ltd., 1976 A.C. 443, the House of Lords overruled the previous decision of its own. Accordingly the rule that on a claim for a liquidated damages payable in foreign currency, debt has to be given for the appropriate amount of English currency as on the date when the payment was due was overruled prospectively from the date of the judgment without disturbing past transactions." 17. The view taken in Mohammad Ramzan and ECIL has been further adopted in the case of Himachal Pradesh State Electricity Board v. Mahesh Daiya reported in 2016 (8) (supreme) 241 . 18. However, as admittedly enquiry report was not made available to the petitioner before passing of the order dated 29.12.1997 prejudice is obviously caused and he has not been able to contest such findings before this Court and on this count, the enquiry proceedings and the punishment cannot be allowed to be sustained. 19. Learned counsel for the petitioner also pointed out the fact relating to witness having been examined behind his back however, this court would not be able to look into that aspect as the enquiry report has not been placed either by the petitioner as it was not made available to him nor by the learned counsel for the respondents in their reply and in its absence only an inference can be drawn however, this court would leave the matter as it is without having an enquiry report before it. 20. 20. Taking into consideration, that the petitioner has already retired on 30.6.1993 and the matter has come up in the year 2017, no further purpose would be served in directing the respondents to now fill up the lacunas of the departmental inquiry as has been observed by the Hon'ble Supreme Court in the case of 2017 (1) Scale 89 Allahabad Bank & Ors. v. Krishna Narayan Tewari wherein the Hon'ble Apex Court has taken a view which is as under:- "9. The next question is whether the respondent would be entitled to claim arrears of salary as part of service/retiral benefits in full or part. The High Court has been rather ambivalent in that regard. We say so because while the High Court has directed release of service/retiral benefits, it is not clear whether the same would include salary for the period between the date of removal and the date of superannuation. Taking a liberal view of the matter, we assume that the High Court's direction for release of service benefits would include the release of his salaries also for the period mentioned above. We are, however, of the opinion that while proceedings need not be remanded for a fresh start from the beginning, grant of full salary for the period between the date of dismissal and the date of superannuation would not also be justified. We, therefore, allow this appeal but only in part and to the extent that while orders passed by the Disciplinary Authority and the Appellate Authority shall stand quashed, and the respondent entitled to continuity of service till the date of his superannuation with all service benefits on that basis, he shall be entitled to only 50% of the salary for the period between the date of his removal from service till the date of superannuation. Retiral benefits shall also be released in his favour. The order passed by the High Court shall, to the extent indicated above, stand modified. The parties shall bear their own costs." 21. Accordingly, this writ petition is allowed. Enquiry proceedings are quashed and the punishment order passed on 29.12.1997 is quashed and set aside with all consequential benefits and the respondents state is directed to reimburse the entire pension which they had withheld since 1997 till date along with interest @ 9% per annum. The parties shall bear their own costs." 21. Accordingly, this writ petition is allowed. Enquiry proceedings are quashed and the punishment order passed on 29.12.1997 is quashed and set aside with all consequential benefits and the respondents state is directed to reimburse the entire pension which they had withheld since 1997 till date along with interest @ 9% per annum. This Court vide order dated 20.2.1998 had stayed the effect and operation of order dated 29.2.1997. Accordingly, this writ petition is allowed directing that if there is any deduction of pension for the intermittent period the same be reimbursed to the petitioner within the period of three months form the date of passing of this order.