ORDER : 1. Proceedings of this matter have been taken-up through video conferencing. 2. The petitioner retired from the office of respondent No.3 from the post of Section Officer on 31.7.2007, but at that time, disciplinary proceeding was pending against him as he was served with charge-sheet on 25.4.2007 and ultimately, by order dated 4.1.2010 (Annexure P-1) respondent No.3/disciplinary authority after found him guilty of misconduct directed for withholding of his 10% pension under Rule 9(1) of the Chhattisgarh Civil Services (Pension) Rules, 1976 (hereinafter called as 'Rules of 1976') as punishment for his alleged misconduct. 3. The petitioner has filed this writ petition stating inter-alia that withholding of his pension by respondent No.3 is contrary to law and it is violative of Articles 14, 16 and 21 of the Constitution of India as no notice has been served to the petitioner for withholding of his pension and therefore, it is liable to be set-aside and amount of Rs.42,249/- along with 18% per annum be directed to be paid by respondent No.3. 4. Return has been filed by respondent No.3 stating inter-alia that the order passed by respondent No.3 is in accordance with law. It has been pleaded that the petitioner was found guilty of misconduct charged against him and if the petitioner is aggrieved against the finding of disciplinary authority, the remedy of the petitioner is to challenge the order of the disciplinary authority before the appellate authority under the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter called as 'Rules of 1966') or under Rule 8(5) of the Rules of 1976, as such, the writ petition is not maintainable as the petitioner has alternative remedy of filing appeal against the order of the disciplinary authority. It has also been pleaded that the Rules of 1966 has been amended by M.P.E.B. Notification dated 26.3.70 and appropriate officer of the Board has been substituted in the Rules of 1966. Additional return has also been filed on 22.7.2021 stating inter-alia that pension has been withheld under Rule 8(1)(b) of the Rules of 1976 and against which, appeal would lie under Rule 8(5) of the Rules of 1976 and the Superintendent Engineer is competent authority to pass an order withholding 10% pension as per Rule 8 of the Rules of 1976 being pension sanctioning authority. 5. Mr. 5. Mr. Rakesh Pandey, learned counsel for the petitioner, would submit that under Rule 8(1)(b) of the Rules of 1976 if the petitioner has been found guilty of grave misconduct, then the procedure contemplated under Rule 8(3) of the Rules of 1976 has to be followed and only following Rule 8(3)b) of the Rules of 1976, the order withholding penalty can be passed under Rule 8(1)(b) of the Rules of 1976, as such, the impugned order is liable to be set-aside. 6. On the other hand, Mr. Amiyakant Tiwari, learned counsel for respondent No.3, would submit that under Rule 8(1)(b) of the Rules of 1976 the petitioner has been found guilty of grave misconduct and therefore, respondent No.3 being the pension sanctioning authority the impugned order has been passed, which is in accordance with law. He would submit that in compliance of Rule 8(3) of the Rules of 1976, notice dated 25.4.2007 (Annexure P-4) has been served to the petitioner and reply has been given by the petitioner on 24.12.2008 (Annexure P-8) and the petitioner has a remedy to file appeal under Rule 8(5) of the Rules of 1976, as such, the writ petition as framed and filed is not maintainable. 7. I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. At the outset, Mr. Tiwari, learned counsel for the petitioner, submits that the petitioner has a remedy of filing an appeal against the order passed under Rule 8(1)(b) of the Rules of 1976, therefore, this writ petition is not maintainable. 9. Submission raised by Mr. Tiwari deserves to be noted for rejection as this writ petition was filed on 19.3.2010 and after a period of more than 11 years, it would be inappropriate to relegate the petitioner to the remedy of appeal particularly when the writ petition has already been entertained for hearing and is pending consideration for final hearing for a fairly long time, as such, the argument of availability of alternative remedy is hereby overruled. 10. The petitioner has been inflicted penalty to withhold pension to the extent of 10% under Rule 8(1)(b) of the Rules of 1976. 11. In order to decide the question raised at the Bar, it would be appropriate to notice Rule 8 of the Rules of 1976 which states as under :- “8. 10. The petitioner has been inflicted penalty to withhold pension to the extent of 10% under Rule 8(1)(b) of the Rules of 1976. 11. In order to decide the question raised at the Bar, it would be appropriate to notice Rule 8 of the Rules of 1976 which states as under :- “8. Pension subject to future good conduct.-(1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules. (b) The pension sanctioning authority may, by order in writing withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct: Provided that no such order shall be passed by an authority subordinate to the authority competent at the time of retirement of the pensioner, to make an appointment to the post held by him immediately before his retirement from service: Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the minimum pension as determined by the Government from time to time. (2) Where a pensioner is convicted of a serious crime by a Court of law, action under clause (b) of sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction. (3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1)- (a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal; and (b) take into consideration the representation, if any, submitted by the pensioner under clause (a). (4) & (5) xxx xxx xxx” 12. (4) & (5) xxx xxx xxx” 12. A careful perusal of Rule 8(1) (b) of the Rules of 1976 would show that the aforesaid rule empowers the competent authority to withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct while he/she was in service. Sub-rule (2) of Rule 8 of the Rules of 1976 states that where a pensioner is convicted of a serious crime by a Court of law, action under clause (b) of sub-rule (1) shall be taken in the light of the judgment of the Court relating to to such conviction. However, sub-rule (3) of Rule 8 provides the procedure that if the authority referred to in sub-rule (1), considers that the pensioner is prima facie guilty of grave misconduct, then he will follow the procedure laid down in clause (a) & (b) of sub-rule (3) serving the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal and take into consideration the representation, if any, submitted by the pensioner under clause (a), as such, this rule clearly provides that if any order withholding or withdrawing the part of pension is made by the competent authority, the pensioner must be given opportunity of defence in accordance with procedure laid down in clause (a) & (b) of sub-rule (3) of Rule 8 of the Rules of 1976. 13. 13. The Supreme Court in the matter of Bindeshwari Chaudhary v. State of Bihar and others, (2017) 13 SCC 277 while dealing with Rule 139 of Bihar Pension Rules held that finding of grave misconduct on the part of delinquent servant is sine-qua-non for withholding pension to the extent of 50% and held as under :- “14....In the circumstances, we do not find that there was sufficient reason for the respondent authorities to exercise the powers under Rule 43(b) read with Rule 139 of the Bihar Pension Rules as neither there was pecuniary loss to the State, nor is the present case of a grave misconduct on the part of the appellant.” 14. In the matters of M. Narasimhachar v. The State of Mysore, AIR 1960 SC 247 and State of Uttar Pradesh v. Shri Brahm Datt Sharma and another, AIR 1987 SC 943 their Lordships of the Supreme Court have considered the rules authorizing the Government to withhold or reduce the pension granted to the Government servant and held that merely because a Government servant retired from service on attaining age of superannuation, he could not escape liability for misconduct or negligence or financial irregularity which may have committed during the period of his service and the Government was entitled to withhold or reduce the pension granted to the Government servant. 15. The pension sanctioning authority under Rule 8(1) (b) of the Rules of 1976 has a power to withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. 16. 15. The pension sanctioning authority under Rule 8(1) (b) of the Rules of 1976 has a power to withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. 16. Reverting to the facts of the present case, in the instant case, the petitioner has not been convicted in serious crime, rather it is the case of respondent No.3 that he has been found guilty of misconduct by order dated 4.1.2010 (Annexure P-1) which states as under:- NRrhlxढ+ jkT; fo|qr forj.k dEiuh e;kZfnr ¼NRrhlxढ 'kklu dk ,d miØe½ ¼N0jk0fo0ea0 dh mRrjorhZ daiuh½ Ø0 10&30@LFkk0@6504@nqxZ] fnukad 04@01@2010 vkns'k Jh ukjk;.k flag Bkdqj vkRet Jh prqj flag vuqHkkx vf/kdkjh ¼lsok fuo`Rr½ ds fo:) fuEukafdr vkjksi ds ifjis{; esa foHkkxh; tkap dh dk;Zokgh bl dk;kZy; ds i= Øa0 10&30@LFkk0@21 fn0 25-04-2007 ds rgr izLFkkfir dh xbZ FkhA ¼lapk@la/kk½ laHkkx N0jk0fo0fo0da0e;kZ0 ckyksn ds varxZr iykjh fo0ds0 esa fnukad 17-08-94 ls 28-02-05 ds e/; fo|qr daiuh ds jktLo jkf'k :0 4]89]777@& v{kjh pkj yk[k uoklh gtkj lkr lkS lrgRrj ek= dk xcu gqvk gSA bl xcu jkf'k esa ls :0 3]78]036@& ¼v{kjh rhu yk[k vBgRrj gtkj Nrrhl :i;s ek=½ Jh ukjk;.k flag Bkdqj vuqHkkx vf/kdkjh ds dk;Zdky vof/k fnukad 03-12-99 ls 04-02-06 rd ds e/; esa xcu gksuk ik;k x;k gSA bl vof/k esa og dk;kZy; esa jktLo ys[kkiky@vuqHkkx vf/kdkjh ds in ij inLFk FksA daiuh ds jktLo olwyh] tek ls ysdj dk;kZy;hu nLrkostksa ij lgh fglkc fdrkc ds usr`Roiw.kZ dk;Zokgh ds fy, ftEesnkj ik;s x;s gSA ,oa tcfd mDr vkjksi dh tkap gsrq bl dk;kZy; ds vkns'k Ø0 10&30@LFkk@1201&02 fn0 22-05-07 ds rgr tkap vf/kdkjh fu;qDr dj tkap fu"d"kZ izLrqr djus dk vkns'k fn;k x;k FkkA ,oa tcfd tkap vf/kdkjh ds }kjk tkap fu"d"kZ fnukad 29-11-08 izkIr gqvk gSA tkap fu"d"kZ ds vuqlkj Jh ukjk;.k flag Bkdqj mijksDr xcu gsrq vkaf'kd :i ls ftEesnkj gSA ,oa tcfd bl dk;kZy; ds i= Ø0 10&30@LFkk@466 fn0 10-12-08 ds rgr Jh ukjk;.k flag Bkdqj dks tkap fu"d"kZ dh izfrfyfi izsf"kr dj vius tokc esa vH;kosnu izLrqr djus dh lykg nh xbZ FkhA Jh Bkdqj us muds vH;kosnu fn0 24-12-08 esa viuk cpko tokc izLrqr fd;k gSA ,oa tcfd Jh ukjk;.k flag Bkdqj }kjk izLrqr vH;kosnu dk voyksdu fd;k x;k rFkk izdj.k ds leLr fcUnqvksa dk voyksdu djus ds i'pkr~ ;g fu.kZ; fy;k x;k gS fd D;ksa u Jh ukjk;.k flag Bkdqj vuq0 vf/kdkjh ¼lsok fuo`Rr frfFk 31-07-07½ dks mUgsa ns; izkjafHkd isa'ku dh jkf'k dk 10 izfr'kr ¼nl izfr'kr½ nks o"kksaZ dh vof/k ds fy, jksdk tk;s tksfd U;k; dh fl)kar ds vuqdwy gksxhA ,oa blfy, isa'ku fu;e 1976 ds mifu;e 9 ¼1½ ds izko/kkukuqlkj Jh ukjk;.k flag Bkdqj vuqHkkx vf/kdkjh ¼lsok fuo`Rr½ dks ns; isa'ku jkf'k esa 10 izfr'kr ¼nl izfr'kr½ ek= fnukad 01-08-07 ls vkxkeh nks o"kZ dh vof/k ds fy, jksdk tkrk gSA lgh@& v/kh{k.k ;a=h ¼nqxZ o`Rr½ N0jk0fo0fo0da0e;kZ0 nqxZ 17. A careful perusal of the order dated 4.1.2010 (Annexure P-1) would show that charge of embezzlement of Rs.4,89,777/- has not been fully found proved against him and it has been held that the petitioner is partly liable for embezzlement and he was served with the enquiry report and against which, he has representation on 24.12.2008 and thereafter his pension to the extent of 10% for two years has been directed to be withheld by respondent No.3. The abovestated order would show that the petitioner has not been found guilty of grave misconduct which the rules requires for withholding pension under Rule 8(1)(b) of the Rules of 1976, as such, there is serious flaw in the impugned order. 18. The impugned order has also been passed in violation of sub-rule (3) of Rule 8 of the Rules of 1976. A careful perusal of the writ petition and documents would show that the petitioner has been served with the charge-sheet, list of witnesses and list of documents vide Annexure P-3 dated 25.4.2007, which the petitioner has replied on 21.5.2007 (Annexure P-6) and copy of enquiry report has been served to the petitioner on 20.2.2008 and thereafter the impugned order dated 4.1.2010 (Annexure P-1) has been passed by respondent No.3 withholding his pension to the extent of 10% w.e.f.1.8.2007 for two years under Rule 9(1) (wrongly mentioned Rule 9(1)) of the Rules of 1976, as such, no notice was served to the petitioner under Rule 8(3) specifying the action proposed to be taken against him i.e. specifying the action of withholding 10% of his pension and the ground on which it is proposed to be taken and calling upon him to submit within fifteen days of receipt of the notice, representation against the proposal. Therefore, no question for consideration of representation arises under Rule 8(3)(b) of the Rules of 1976, as such, Rule 8(3) (a) & (b) of the Rules 1976 has not been complied and pension has been directed to be withheld under Rule 8(1)(b) of the Rules 1976, as such, order withholding pension to the extent of 10% is in teeth of Rule 8(3)(a) & (b) of the Rules of 1976. 19. 19. Apart from this, there is no specific finding recorded by the disciplinary authority that the petitioner has been found guilty of grave misconduct in terms of Rule 8(1)(b) of the Rules of 1976 which is sine-qua-non for withholding pension and thereafter the procedure prescribed in Rule 8(3)(a) and (b) of the Rules of 1976 could have been followed, as such, the impugned to the extent of withholding pension to the extent of 10% w.e.f.1.8.2007 for two years being contrary to Rule 8(1)(b) read with Rule 8(3)(a) & (b) of the Rules of 1976 is hereby set-aside. If any amount has been recovered, the petitioner would be entitled for such amount along with 9% interest from the date of entitlement till the date of its receipt. 20. The writ petition is allowed to the extent indicated hereinabove. No order as to cost(s).