JUDGMENT Sanjeev Prakash Sharma, J. - At the outset, it may be noted that the petitioner-Lal Chand Somvanshi expired during pendency of this writ petition and this writ petition is being pursued by the legal representatives of the deceased-Lal Chand Somvanshi and therefore, the petitioner would be addressed as the deceased-petitioner. 2. The deceased-petitioner by way of this writ petition essentially assailed two orders, one is the order dated 09/05/2001 whereby his application for seeking voluntary retirement was accepted w.e.f. 19/07/2000 and the period of service rendered from 23/09/1996 to 2001 was treated as extra-ordinary leave without pay. 2.1 Secondly, the deceased-petitioner has assailed the order dated 15/01/2001 whereby a penalty of reduction of 5% pension was imposed upon him. 3. Learned counsel for the petitioner has assailed the order dated 19/05/2001 submitting that the respondents could not have passed the order retiring the petitioner retrospectively w.e.f. 19/07/2000 and the deceased-petitioner would to have treated as in service upto passing of the order dated 09/05/2009. 4. Having heard learned counsel for both the parties on the said aspect, this Court notices that the Rajasthan State Electricity Board Employees Service Regulations, 1964 and the Rajasthan State Electricity Board Pension Regulations, 1988 lay down the procedure with regard to the retirement. Regulation 18(3) of the Pension Regulations, 1964 provides as under:- "18. Age of Retirement: .......... 18(3) Retirement on completion of 15 years qualifying service: (a) At any time after a Nigam employee has completed 15 years qualifying service he may, by giving notice of not less than 3 months in writing to the Appointing Authority, retire from service. (b) The notice of voluntary retirement given under Clause (a) above shall require acceptance by the appointing authority. Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall automatically become effective from the date of expiry of the said period." 5. (b) The notice of voluntary retirement given under Clause (a) above shall require acceptance by the appointing authority. Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall automatically become effective from the date of expiry of the said period." 5. In view of the fact that the deceased-petitioner had applied for voluntary retirement vide his applicaiton dated 19/07/2000 with immediate effect and admittedly he did not perform any duty thereafter and admittedly there was no rejection communicated to him of his application for voluntary retirement, the retirement automatically become effective from the date the deceasedpetitioner sought volunrary retirement and thus, there can be no examination to the part of the order dated 09/05/2001 whereby the deceased-petitioner was allowed to retire w.e.f. 19/07/2000 and no interference is warranted. The writ petition with regard to the prayer, as above, stands rejected. 6. The second limb of arguments of learned counsel for the petitioner in relation to the impugned order dated 09/05/2001 is that the respondents could not have treated the period from 23/09/1996 to 2001 as extra-ordinary leave without pay. Learned counsel submits that the deceased-petitioner was seriously unwell and was, therefore, on medical leave. He had communicated from time to time regarding his prolonged illness. Learned counsel has taken this Court to the documents which have also been placed on record and not denied by the respondents to show that while the petitioner was working as Accounts Officer (O&M), Jhunjhunu, he had suffered cervical disease which resulted in crippling effect on his limbs. On detection, it was found that he was suffering from tumor/lesion in his cervical cord and diagnosed as "cervical intramedullary apendymoma C-3-C7". He underwent cervical operation on 30/09/1996 at speciality hospital at Madras for which he proceeded on leave from 23/09/1996. After operation, he was again admitted at SMS Hospital, Jaipur. A report of the Medical Board has been placed on record which mentions of the patient to remain on bed rest upto 06/05/1998. From the document, it is also noticed that the petitioner, after recovery joined duties on 07/05/1998 and has also marked his attendance for May, 1998, June, 1998 and upto September, 1998. The amount relating to orderly allowance from March, 1997 to April, 1998 has also been released. 7. From the document, it is also noticed that the petitioner, after recovery joined duties on 07/05/1998 and has also marked his attendance for May, 1998, June, 1998 and upto September, 1998. The amount relating to orderly allowance from March, 1997 to April, 1998 has also been released. 7. Thus, counsel for the petitioner has stated that at best, the period from 23/09/1996 to 06/05/1998 was to be treated as leave on medical grounds and thereafter the petitioner was required to be placed on full salary. It is stated that after September, 1998, the petitioner was disallowed to mark his attendance and a charge sheet was also issued to him in his absence on 03/10/1994 while the petitioner was under treatment. It is, thus, prayed that after the petitioner had joined back on 07/05/1998, the period of service was required to be counted continuously upto the date when the petitioner sought voluntary retirement. Counsel submits that under the directions of the RSEB, the petitioner had again presented himself before the Medical Board on 25/02/1999 and the Board communicated its report on 22/03/1999 declaring the petitioner fit to discharge his duties but the petitioner was neither assigned any work nor paid his due salary, increments, medical reimbursement claims. Representations in this were sent from time to time and have been enclosed. The petitioner also preferred SB Civil Writ Petition No.2948/2000 claiming his dues and for directing the respondents to allow him to perform his duties. Learned counsel has pointed out that thereafter two orders were passed, one dated 09/05/2001 giving voluntary retirement from 19/07/2000 and the other on 15/05/2001 which are impugned as above. 8. It is submitted that out of sheer excess in depression, the petitioner sought voluntary retirement but while accepting the voluntary retirement, the entire period has been treated as extraordinary leave without pay which could not have been done. 9. The respondents in reply have submitted that so far as the delay in acceptance of voluntary retirement application is concerned, the same was on account of No Dues Certificate apart from pendency of enquiry. It is stated that the petitioner's extraordinary leave and medical leave had already come to an end and thus, he was not entitled to get salary or part of the salary during the said period. 10. It is stated that the petitioner's extraordinary leave and medical leave had already come to an end and thus, he was not entitled to get salary or part of the salary during the said period. 10. A rejoinder has also been preferred submitting that after submitting documents of attendance, it has been denied that the petitioner had considered the representations. On the other hand, it is submitted that even while lying on stretcher the petitioner had attended the enquiry proceedings. The petitioner has been paid bonus and ex-gratia payment from 1996-97 to 11/06/2002. Orderly allowance, medical reimbursement upto September, 1996 have been paid while other reimbursement have not been paid. It is also denied that the leave was exhausted. It is also stated that the facts have not been correctly stated by the respondents. 11. Learned Senior counsel appearing for the respondentRRVPNL has supported the orders and submits that the respondent-RRVPNL had accepted the voluntary retirement and has made payment of pension amounting to Rs.2,62,550/- on 18/03/2004. The gratuity amount of Rs.62465/- was paid to him on 18/03/2004 and 25% amount was detained due to nonreceiving of no dues certificate. Up receiving the same, the amount of Rs.21,484/- was released after deduction of Rs.53/- as GPF interest on 03/09/2007. It is further submitted that the petitioner expired on 18/01/2015 but the information was received in August, 2015 and pension was paid to him upto August, 2015. The family pension was thereafter released to his wife from October, 2016 paid in November, 2016. The family pension for the period from 19/01/2015 to 30/09/2016 after deduction of the excess payment made earlier was released after wife of the deceased-petitioner filed an application before the Human Rights Commission. The amount has been released in 2019 and the Human Rights Commission thereafter has dismissed the application on 17/01/2019. Learned senior counsel has also handed over photo-state copy of the relevant note-sheets of the file relating to the case as to whether the sanction was given by the Chairman for reduction of pension by 5%. 12. After considering the submissions made, this Court finds that the privilege leave applications have been filed from 1993 upto 1994 but the same were not sanctioned on the ground that enquiry is pending. An application is also on record showing that the petitioner had applied for leaving headquarters as he was proceeding for his operation. 12. After considering the submissions made, this Court finds that the privilege leave applications have been filed from 1993 upto 1994 but the same were not sanctioned on the ground that enquiry is pending. An application is also on record showing that the petitioner had applied for leaving headquarters as he was proceeding for his operation. Copies of the attendance register which are duly certified as true copy, are also placed on record showing that the petitioner has been working since 07/05/1998. The requests for being posted have also been placed on record from time time but the petitioner was not given posting. The petitioner has also submitted schedule to the writ petition giving details of the pecuniary entitlements in two parts, one prior to 23/09/1996 as Part-A and the other after 23/09/1996 as Part-B. 13. It is a case where the Officers of the respondent-RRVPNL have not shown any compassion to their own employee who, while performing his duties, suffered with a severe illness. The enquiry officer has reached to the conclusion that the charges are not made out as levelled against him except to the extent of having proceeded on leave without prior sanction. The enquiry officer has also noticed that the petitioner has proceeded on medical leave and has submitted applications from time to time for granting medical leave on account of his prolonged illness. However, the Secretary (Admn.) of the respondent-RRVPNL in his noting at Para No.151 has noted as under:- "151. Since charges against Shri Somvanshi 'AO' have been proved in Enquiry, he may be punished by awarding penalty of reducing the pension by 5%, as the case for voluntary retirement w.e.f. 19/07/2000 has been dealt on separate file, placed below. Submitted for orders Sd/- 21/4 14. On the other hand, while awarding punishment, the Secretary (Admn.) of the respondent-RRVPNL, later on, in his notice at Para No.156 has proposed as under:- "156. Since the request of Shri Somvanshi AO has been accepted for voluntary retirement from 19.7.2000 (on the file placed below), the pending enquiry u/R 7 (Major) against him may also be concluded by awarding him penalty of reduction in pension by 5%. Submitted for orders Sd/- 5/5/01" 15. The CMD of the respondent-RRVPNL in its notice at para No.158 has approved the same as under:- "I am agree with the proposed action Sd/- 5/5/" 16. Submitted for orders Sd/- 5/5/01" 15. The CMD of the respondent-RRVPNL in its notice at para No.158 has approved the same as under:- "I am agree with the proposed action Sd/- 5/5/" 16. The AS (A) in its notice at Para No.159 has ordered as under:- "159. Pl. Issue orders on Both files Sd/- 7/5 17. This Court notices that as the enquiry officer has not held the deceased-petitioner to be guilty of all the charges and only held him guilty of leaving headquarter without permission, it cannot be said that the deceased-petitioner has been held guilty of having been negligent towards his duties. The punishment order dated 15/05/2001 does not discuss the enquiry report nor the allegations levelled against the petitioner and appears to have taken a view stating to be a lenient view by ordering to impose penalty of reduction of pension by 5%. The reduction of pension by 5% is a major penalty and a person who has suffered on account of his illness which prevented him from performing his duties, cannot be said to have committed any misconduct. 18. This Court notices that the law relating to departmental enquiries has already been settled by the Supreme Court from time to time. In Punjab National Bank & Arn. Vs. Kunj Behari Mishra, (1998) AIR SC 2713 decided on 19th August, 1998, the Supreme Court has held that if the enquiry report is not accepted and the disciplinary authority differs and holds a delinquent to have been committed the delinquency, the disagreement notice must be given to the concerned delinquent. The relevant para 7 of the judgment of reproduced here as under:- "7. The only contention urged by Sh. V. R. Reddy, learned senior counsel for the appellant, was that Punjab National Bank Officer Employees (Discipline and Appeal) Regulations 1977 [for short 'the Regulations'] did not require an opportunity of being heard being given to the delinquent officer when the disciplinary authority disagreed with the findings of the inquiring authority once the inquiring authority had given a hearing to them. It was further submitted by the learned counsel that the requirement of giving such a hearing could not be read into the said regulations and no prejudice could be said to have been caused to the respondents inasmuch as the inquiring authority had given full opportunity to them." 19. It was further submitted by the learned counsel that the requirement of giving such a hearing could not be read into the said regulations and no prejudice could be said to have been caused to the respondents inasmuch as the inquiring authority had given full opportunity to them." 19. The Apex Court in the case of Krushnakant B. Parmar vs. Union of India (UOI) and Ors., (2012) 3 SCC 178 has held as under:- "16. In the case of Appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behavior was unbecoming of a Government servant. The question whether 'unauthorized absence from duty' amounts to failure of devotion to duty or behavior unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful.Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant. 18. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct." 20. In view of above, the order impugned dated 15/05/2001, in the opinion of this Court, has been passed without application of mind and without following the law, as referred herein above. The order impugned dated 15/05/2001, therefore, deserves to be set aside and the same is accordingly set aside. 21. As regards the grievance relating to the period of service which has been treated as extra-ordinary leave and in this context, this Court finds that the deceased-petitioner was undergoing medical treatment for which information was already given by him from time to time. 21. As regards the grievance relating to the period of service which has been treated as extra-ordinary leave and in this context, this Court finds that the deceased-petitioner was undergoing medical treatment for which information was already given by him from time to time. In the circumstances, the entire period during which the deceased-petitioner has remained on medical leave has to be treated as leave on medical ground and the petitioner would be entitled to receive the claim relating to the medical treatment conducted during the said period. The petitioner had obviously joined duties on 07/05/1998, therefore, he would be entitled to actual pay and allowances from that till he took voluntary retirement i.e. from 19/07/2000. The orders impugned dated 09/05/2001 to the extent it treats the period from 23/09/1996 to 19/07/2000 as extra ordinary leave is accordingly quashed & set aside. 22. Accordingly, the respondents are directed as under:- (i) to release the pay and allowances for the months of February, 1994; July, 1994 to 04/03/1995 and August, 1995 i.e. for the period during which the deceased-petitioner remained unwell and grant annual grade increments for the period from September, 1994 onward till the date of retirement as well as travelling allowance claim lying from 08/12/1994 to06/04/1995; (ii) to pay medical reimbursement claim amount of Rs.31,345/- and benefit of fixation as well as fitment benefit under the Revised pay Scale Rules w.e.f. 01/09/1996; (iii) to pay ex-gratia /bonus payment as paid to other employees as well as actual pay and salary from 07/05/1998 till 09/05/2001; (v) to pay pension, gratuity, GPF and other retiral benefits by calculating accordingly after fitment and release the same to wife of the deceased-petitioner; (vi) Family pension shall also be accordingly paid and arrears of the same shall also be paid; (vii) Interest @9% per annum on the aforesaid due amount shall be paid. 23. The aforesaid exercise be completed by the respondents within a period of four months from the date of receipt of certified copy of this order in their office. 24. The writ petition is accordingly allowed. All pending applications stand disposed of.