JUDGMENT : SAURABH SHYAM SHAMSHERY, J. 1. A charge-sheet dated 09.11.2006 was served to petitioner, working as a Consolidation Officer, Agra, contains following two charges: ^^vkjksi la[;k&1 vkius xzke ekS/kk tuin Q:Z[kkckn ds okn la[;k 592 ¼/kkjk 0 v½ esa ikfjr vkns'k fnukad 28-02-2003 }kjk xzke ekS/kk ds xkVk la[;k 1285@0&60@1420@7&00 ls xzke dk uke [kkfjt djds vukj flag iq= ij'kqjke dk uke ntZ fd;kA rnksijkUr fu;r 109 ds vUrxZr okn la[;k 198 rkjh[k QSlyk 18-10-2003 esa ikfjr vkns'kkuqlkj mDr vkns'k dk veynjken djk fn;kA ftlls xzke lHkk lEifRr dks viw.khZ; {kfr o Jh vukj flag iq= ij'kqjke dks vuqfpr ykHk igaqpk] ftlds fy;s vki nks"kh gS rFkk bl d`R; ls vkidh lR;fu"Bk lafnX/k gksrh gSA vkjksi la[;k&2 xzke fcढ-Sy ds okn la[;k 1405 vUrxZr /kkjk 9d rkŒQSŒ 2-4-1998 }kjk xzke lHkk ds xkVk la[;k 374@070] 424@036] 426@0&67 dqy 173 ,dM+ ls uke [kkfjt djds Jh nsosUæ dqekj feJk] pdcUnh vf/kdkjh }kjk Jh Qs:flag iq= tkSgjh uke ntZ djus dk vfu;fer vkns'k ikfjr fd;k FkkA vkius okn la[;k 191 vUrxZr /kkjk 109 esa ikfjr vkns'k fnukad 28-10-1993 }kjk veynjken djk fn;kA ftlls xzke lHkk dks viw.khZ; {kfr gqbZ rFkk O;fDr fo'ks"k dks vuqfpr ykHk igaqpkA ftlds fy;s vki nks"kh gSA rFkk bl d`R; ls vkidh lR;fu"Bk lafnX/k gksrh gSA** 2. The petitioner filed applications dated 04.12.2006 and 13.02.2007 demanding the documents, contending that his signatures on the order referred in the charge sheet were forged and he had not put his signatures. He also seeks permission to examine the documents. However, neither documents were provided nor any oral evidence was recorded during inquiry. The Inquiry Officer conducted inquiry and submitted its report dated 09.08.2007 whereby the above referred both charges were found proved against petitioner. 3. Sri Kshitij Shailendra, learned counsel for petitioner submitted that Inquiry Officer has acted as an appellate authority and conducted inquiry as he was sitting in appeal against the orders passed by petitioner. The original records were not brought on record before Inquiry Officer and he erroneously came to conclusion that petitioner while passing certain orders as Consolidation Officer had committed procedure error which led to loss of revenue to Gaon Sabha concerned. Thereafter a copy of inquiry report was submitted to petitioner and a show-cause notice dated 09.10.2007 was issued. The original records were not brought on record before Inquiry Officer and he erroneously came to conclusion that petitioner while passing certain orders as Consolidation Officer had committed procedure error which led to loss of revenue to Gaon Sabha concerned. Thereafter a copy of inquiry report was submitted to petitioner and a show-cause notice dated 09.10.2007 was issued. Petitioner submitted reply to the show cause notice and again contended that orders were not passed by him and signatures were forged by a gang which was operating at the relevant time. It was also contended that there was no mala-fide intention to pass such orders. The orders were passed on the basis of earlier orders and were in nature of execution. 4. Meanwhile, petitioner retired on 30.04.2008 after attaining age of superannuation. Thereafter a fresh show cause notice was issued on 09.07.2008 with proposed punishment of 50% deduction from pension as well as 50% deduction from gratuity. Petitioner replied the said show cause notice on 29.07.2008 again reiterating earlier stand that the orders passed by petitioner were in the nature of execution of earlier orders and that relevant documents were not shown to petitioner as well as the entire inquiry was vitiated as it was conducted without complying the principle of nature justice. The Commissioner (Consolidation) granted permission under Article 351-A of Civil Service Regulations (hereinafter referred to as “CSR”) to continue inquiry after retirement of petitioner and finally the Chief Secretary under the orders of Governor passed impugned order dated 03.08.2012 whereby petitioner was awarded punishment of 10% permanent deduction in pension and 50% deduction each from pension as well as gratuity. 5. Sri Kshitij Shailendra, learned counsel for petitioner, further submitted that in case any party was aggrieved by the orders passed by petitioner, it would have challenged the same before Appellate Forum, however, none of the party has approached the Appellate Forum, therefore, the concerned parties were satisfied with the orders passed by petitioner. Even, Gaon Sabha concerned (supposed to suffer loss), had also not filed any appeal against orders passed by the petitioner. 6. Even, Gaon Sabha concerned (supposed to suffer loss), had also not filed any appeal against orders passed by the petitioner. 6. Learned counsel for petitioner further argued that mere negligence or omission in performance of duty or error of judgment does not amount of misconduct and for that he placed reliance on a Division Bench judgment of this Court in State of U.P. and Another vs. Rajesh Kumar Singh and Another, 2019 (11) ADJ 249 (DB), relevant Paras 8, 9 and 10, are reproduced as under: “8. What flows from Rule 3 of Conduct Rules is that if a government servant conducts himself in a manner which is inconsistent with due and faithful discharge of his duty in service, the same will amount to misconduct. However, every act of omission would not constitute misconduct for the purposes of drawing disciplinary proceedings as has been held by Hon'ble Supreme Court in the case of J. Ahmad (supra). An act of omission which runs contrary to the expected conduct of an employee would certainly constitute misconduct, however some other act of omission or negligence in performance of duty and a lapse in performance of duty or error of judgment may amount to negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. (Emphasis supplied) 9. These observations have been made in the case of J. Ahmad (supra), relevant extract of which is mentioned herein-below: “A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani vs. Air France, Calcutta, wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.” 10. Thus, for an act of omission to qualify ‘misconduct’ what is of primary importance is as to whether such act of omission or negligence would result in irreparable damage or damage caused by such an act would be so heavy that the degree of culpability would be very high. It is also clear that negligence or mistake may not ipso facto constitute misconduct when its consequences are serious.” 7. Learned counsel also pointed out that Inquiry Officer has acted like Appellate Authority. He has scrutinized the orders passed by petitioner as he was sitting in appeal and pointed out the errors on law as well as deficiency in the procedure followed by petitioner while passing said orders. 8. Learned counsel also submitted that the procedure provided under Article 351-A of CSR whereby the Governor was empowered to institute or continue inquiry after retirement, was not followed in its letter and spirit as the order was passed by Commissioner (Consolidation) and under the order of Governor though punishment order was passed by Chief Secretary under direction of the Governor. The impugned punishment order is a non-speaking order as well as the punishment awarded is shockingly disproportionate to the charges levelled against petitioner. Lastly, learned counsel for petitioner submitted that the original records were never shown to petitioner rather it was mentioned in the inquiry report that original records were not brought before Inquiry Officer. He further relied on the judgments passed in Government of Andhra Pradesh and Others vs. A. Venkata Raidu (2007) 1 SCC 338 , Subhash Chandra Sharma vs. Managing Director and Another, (2000) 1 UPLBEC 541 , Subhash Chandra vs. State of U.P. and Others, 2017 (2) ADJ 630 and Lalta Prasad vs. State of U.P. and Others, 2018 (9) ADJ 365 . 9. 9. Learned counsel for petitioner placed heavy reliance on a judgment passed by Supreme Court in State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Others, (2013) 12 SCC 210 and relied on Paras 12, 13, 14 and 15 of the judgment, which are reproduced as under: “12. There is also a Proviso to Rule 43(b), which provides that: A. Such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment: (i) Shall not be instituted save with the sanction of the State Government. (ii) Shall be in respect of an event which took place not more than four years before the institution of such proceedings. (iii) Shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. B. Judicial proceedings, if not instituted while the Government Servant was on duty either before retirement or during reemployment shall have been instated in accordance with sub-clause (ii) of Clause (a) and C. The Bihar Public Service Commission, shall be consulted before final orders are passed. It is apparent that the proviso speaks about the institution of proceedings. For initiating proceedings, Rule 43(b) puts some conditions, i.e. Department proceeding as indicated in Rule 43(b), if not instituted while the Government Servant was on duty, then it shall not be instituted except: (a) With the sanction of the Government. (b) It shall be in respect of an event which took place not more than four years before the institution of the proceedings. (c) Such proceedings shall be conducted by the enquiry officer in accordance with the proceedings by which dismissal of the services can be made. Thus, in so far as the proviso is concerned that deals with condition for initiation of proceedings and the period of limitation within which such proceedings can be initiated. 13. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. 13. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending. 14. Right to receive pension was recognized as right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad vs. State of Bihar, (1971) 2 SCC 330 , as is apparent from the following discussion: 29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same. 30. According to the Petitioner the right to receive pension is property and the Respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The Respondents, as we have already indicated, do not dispute the right of the Petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned Counsel for the Respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned Counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the Petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution. 31. We are not inclined to accept the contention of the learned Counsel for the Respondents. 31. We are not inclined to accept the contention of the learned Counsel for the Respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the Petitioner to receive pension under the circumstances mentioned therein. 32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh vs. Union of India, AIR 1962 Punjab 503. It was held that such a right constitutes “property” and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India vs. Bhagwant Singh, ILR 1965 Punjab 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is “property” within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as “property” cannot possibly undergo such mutation at the whim of a particular person or authority. 33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry vs. State of Punjab, ILR 1967 P&H 278. The High Court had to consider the nature of the right of an officer to get pension. 33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry vs. State of Punjab, ILR 1967 P&H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant. 34. This Court in State of Madhya Pradesh vs. Ranojirao Shinde and Another, (1968) 3 SCR 489 had to consider the question whether a “cash grant” is “property” within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing “it is obvious that a right to sum of money is property.” 35. Having due regard to the above decisions, we are of the opinion that the right of the Petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the Petitioner right to receive pension affects the fundamental right of the Petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the Petitioner for payment of pension according to law. 13. In State of West Bengal vs. Haresh C. Banerjee and Others, (2006) 7 SCC 651 , this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31(1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.” 10. Sri Rajeshwar Tripathi, learned Standing Counsel appearing for State- Respondents, has opposed the above submissions and submitted that after the petitioner was retired, inquiry was continued after taking requisite permission under Article 351-A of CSR and punishment order was passed under direction of the Governor, therefore, in this regard there is not irregularity in the procedure followed by respondents. Petitioner has committed serious irregularities while passing orders, whereby concerned Gaon Sabha has suffered great loss. The explanation of petitioner that concerned orders were not signed by him and it was an act of a gang, are not only vague but petitioner has not submitted any documents in support of submission and also not brought on record any evidence that his signatures were forged. He further submits that judgments relied on by learned counsel for petitioner are distinguishable that in the present case petitioner has passed orders whereby loss was caused to Gaon Sabha concerned and thus he was not diligent towards his duties and made a vague allegation that his signatures were forged without any proof. 11. I have heard learned counsel for parties and perused the material available on record. 12. In the present case there are two issues. The first issue is “whether departmental inquiry was legally continued after retirement of petitioner?” 13. Article 351-A of CSR empowers the Governor to institute or continue inquiry after retirement. In the present case, said permission was granted by Commissioner (Consolidation) vide order dated 13.01.2010. Learned counsel for petitioner has contended that said permission cannot be termed to be a valid permission as required under the provisions of Article 351-A of CSR. In this regard it is relevant to note that permission was also sought from the Public Service Commission and an order was passed by Chief Secretary under the orders of Government to conclude inquiry continued under Article 351-A and punishment order, as referred above, was also passed. 14. In this regard paragraphs no. In this regard it is relevant to note that permission was also sought from the Public Service Commission and an order was passed by Chief Secretary under the orders of Government to conclude inquiry continued under Article 351-A and punishment order, as referred above, was also passed. 14. In this regard paragraphs no. 40, 41, 42, 43, 44 and 45 of a Full Bench judgment in Shivagopal and Others vs. State of U.P. and Others, 2019 (5) ADJ 441 are relevant and reproduced as under: “40. Article 351-A empowers the Governor to withhold or withdraw pension or a part of it permanently or for specified period and order recovery from pension for pecuniary loss caused to the Government if the pensioner in departmental proceedings or in judicial proceedings, has been found: (i) guilty of grave misconduct or (ii) to have caused pecuniary loss to Government by misconduct or negligence during his service. The proviso to the Article spells out the circumstances/conditions in which the departmental proceedings/ judicial proceedings is required to be instituted for the purposes of withholding/withdrawing pension. Article 351-A reads thus: “351-A21. The Governor 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 the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement: Provided that: (a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment: (i) shall not be instituted save with the sanction of the Governor. (ii) shall be in respect of an event which took place not more than four years before the institution of such proceeding. (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a). (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a). (c) the Public Service Commission, U.P. shall be consulted before final orders are passed. Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings, (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission. Explanation - For the purposes of this article: (a) Departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date. (b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court. (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to Civil Court. Note: As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned.” 41. Explanation to Article 351-A clarifies that departmental proceedings shall be deemed to have been instituted: (i) when charges are framed against the pensioner; or (ii) the officer has been placed under suspension from such date. Further, judicial proceedings is deemed to have been instituted against the pensioner: (i) in the case of criminal proceedings, on date on which complaint is made or charge-sheet is submitted to a criminal court; (ii) in case of civil proceedings on the date on which plaint is presented or as the case may be, an application is made to Civil Court. 42. Now we will refer to the proviso to Article 351-A. The proviso speaks about initiation of disciplinary proceedings or judicial proceedings against the government servant after retirement. For initiating proceedings the conditions specified therein must be satisfied, that is, departmental proceedings as indicated in proviso (a) if not instituted while the officer was on duty then it shall not be instituted except: (i) with the sanction of the Governor. For initiating proceedings the conditions specified therein must be satisfied, that is, departmental proceedings as indicated in proviso (a) if not instituted while the officer was on duty then it shall not be instituted except: (i) with the sanction of the Governor. (ii) it shall be initiated on an event which took place not more than 4 years before the institution of the proceedings. (iii) such proceedings would be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. 43. On perusal of Proviso and its Explanation, referred to above, deals only with the conditions for initiation for disciplinary proceedings/judicial proceedings and the limitation within which such initiation of the proceedings can be done has been made explicit. 44. In State of U.P. vs. Harihar Bhole Nath (Harihar Bhole Nath Case), one of the issues involved therein was whether the sanction of the Governor was required to continue the proceedings after retirement. The Court held in negative as follows: “But the said Rules read with the Proviso and the Explanation appended thereto construed in their entirely clearly postulate that the proceedings initiated before the delinquent officer reached his age of superannuation would be valid.........The question, however, is whether the sanction of the Governor was required even for the purpose of continuance of the proceedings which had already been initiated. Answer thereto must be rendered in the negative.” (Refer: State of U.P. vs. R.C. Misra) 45. The issue before the Court in State of Orissa and Others vs. Kalicharan Mohapatra and Others was as to whether Rule 6 of All India Service (Death-cum-Retirement Benefits) Rules, 1958, could have been invoked during pendency of a criminal case against the government servant, inasmuch as, the charge against the government servant is not one of causing pecuniary loss to the State Government by misconduct or negligence within the meaning of the Rule. Relevant portion of Rule 6 for our purposes is extracted: “6. Relevant portion of Rule 6 for our purposes is extracted: “6. Recovery from pension: 6(1) The Central Government reserves to itself 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 pension of the whole or part of any pecuniary loss caused to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence, during his service, including service rendered or reemployment after retirement. Provided that no such order shall be passed without consulting the Union Public Service Commission: Provided further that: (a) such departmental proceeding, if instituted while the pensioner was in service, whether before his retirement or during his reemployment, shall, after the final retirement of the pensioner, be deemed to be a proceeding under this sub-rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the pensioner had continued in service. (b).............. (c).............. Explanation: For the purpose of this rule: (a) a departmental proceeding shall be deemed to be instituted which the charges framed against the pensioner are issued to his or, if he has been placed under suspension from an earlier date, on such date. (b) a judicial proceeding shall be deemed to be instituted: (i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to the criminal court. (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a civil court. (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a civil court. (2) Where any departmental or judicial proceeding is instituted under sub-rule (1), or where a departmental proceeding is continued under clause (a) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be sanctioned by the Government which instituted such proceedings, during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement, or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon. Provided that where disciplinary proceeding has been instituted against a member of the Service before his retirement service under rule 10 of the All India Service (Discipline and Appeal) Rules, 1969, for imposing any of the penalties specified in clause (i), (ii) and (iv) of sub-rule 1 of rule 6 of the said rules and continuing such proceeding under sub-rule (1) of this rule after his retirement from service, the payment of gratuity or Death-cum- Retirement gratuity shall not be withheld.” (Emphasis supplied) 15. As referred above, the inquiry was initiated before the petitioner retired and it continued thereafter also and for that the sanction of the Governor was not required. However, when punishment was imposed for deduction of pension and gratuity, prior permission was taken from U.P. Public Service Commission as well as from the Governor and punishment order was passed under direction of the Governor, therefore, in the present case there is no irregularity in the process of departmental inquiry. 16. Now, I proceed to consider the second issue that “whether charges were proved against petitioner and punishment thereon is proportionate or not?” 17. It is settled law that gratuity and pension are not bounties, as an employee earn these benefits of his long, continuous, faithful and unblemished service. 16. Now, I proceed to consider the second issue that “whether charges were proved against petitioner and punishment thereon is proportionate or not?” 17. It is settled law that gratuity and pension are not bounties, as an employee earn these benefits of his long, continuous, faithful and unblemished service. The Supreme Court in D.S. Nakara and Others vs. Union of India, (1983) 1 SCC 305 held as under: “31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in of exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.......” 18. Article 351-A of CSR reserves right of the Governor to withheld of withdraw pension or part thereof, whether permanently or for specified period or to order recovery from pension of the whole or part for pecuniary loss caused to the Central or State Government in eventualities that pensioner be guilty of grave misconduct in departmental or judicial proceedings or to have caused pecuniary loss to the government by misconduct or negligence. The word “grave misconduct” is something more than a “misconduct.” The other eventuality is to have caused pecuniary loss to government by misconduct or negligence. 19. Now I proceed to consider, whether charges against petitioner, if considered to be proved, yet they would fall under “grave misconduct” or any pecuniary loss was caused to government by said misconduct or by negligence. 20. The contents of charges are that the petitioner had passed two orders whereby he entered name of private persons on land purportedly belonged to Gram Sabha, thus caused loss to Gram Sabha. Undisputedly, said orders were not challenged either by Gram Sabha or by the State. There was no allegation of illegal gratification or of granting any favour. 21. I have carefully perused the inquiry report. Undisputedly, said orders were not challenged either by Gram Sabha or by the State. There was no allegation of illegal gratification or of granting any favour. 21. I have carefully perused the inquiry report. The inquiry officer has dealt in the inquiry as to how due procedure was not followed by the petitioner and that required precautions were not adhered to. I found merit in the argument of learned counsel for petitioner that Inquiry Officer has scrutinized the orders like an Appellate Authority and not like an Inquiry Officer. The finding of loss are not supported by any evidence or valuation of land. No witness was examined from Gram Sabha. It was also not noticed by Inquiry Officer that one order was passed only in compliance of an earlier order. The record was not verified in absence of original record which remained untraceable. The Inquiry Officer has proceeded with inquiry like an Appellate Authority and failed to decide whether any grave misconduct was committed or any pecuniary loss was caused to Gaon Sabha. 22. It is also relevant to consider the reply of petitioner to the charges. He has denied his signature on the record on a vague ground that a gang was operating at the relevant time which used to got order prepared with forged signatures, however petitioner had not made any complaint or lodged any FIR. It appears that petitioner has made vague and baseless grounds in reply. It was not warranted from a responsible government officer. 23. In first charge the petitioner has passed an order in pursuance of a true copy of an order passed 10-12 years ago, without appreciating that original record was not available as destroyed due to fire and passed a cryptic order without taking other precautions, such as to frame issue or to take other precautions as it was likely to effect right of a Gaon Sabha, therefore, petitioner was careless and he has not put any explanation for it except a vague and baseless explanation that his signatures were forged. Similarly with regard to second charge also, petitioner has passed order in haste and without complying due provisions, as such he was not careful. However, there is no evidence of any pecuniary loss caused due to above referred orders passed by petitioner. Similarly with regard to second charge also, petitioner has passed order in haste and without complying due provisions, as such he was not careful. However, there is no evidence of any pecuniary loss caused due to above referred orders passed by petitioner. There is no evidence that orders were passed to give undue benefit to someone or integrity of petitioner was doubtful. In these circumstances, the act of petitioner would not fall under “grave misconduct.” Pecuniary loss, if any, caused was not quantified, however, the petitioner was careless and had not followed due process while passing orders and his reply was not only vague but without any legal basis. 24. In these circumstances, the Court proceed to consider, whether punishment awarded (10% permanent deduction in pension, 50% deduction from pension as well as from gratuity) is shockingly disproportionate or not vis-a-vis limited scope of judicial review under Article 226 of the Constitution. In this regard reference of a recent judgment of Supreme Court in Union of India and Others vs. Ram Karan, (2022) 1 SCC 373 would be appropriate and Paras 23, 24, 25 and 26 of the judgment are quoted hereunder: “23. The well ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the Courts to assume and usurp the function of the disciplinary authority. 24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the Court to substitute its decision by prescribing the quantum of punishment. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the Court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons. 25. The principles have been culled out by a three-Judge Bench of this Court way back in B.C. Chaturvedi vs. Union of India and Others, 1995 (6) SCC 749 wherein it was observed as under: 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 26. It has been further examined by this Court in Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) and Another vs. Rajendra Singh, (2013) 12 SCC 372 as under: 19. The principles discussed above can be summed up and summarised as follows: 19.1. When charges of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court. 19.4. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in Para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.” (Emphasis supplied) 25. As discussed in earlier paragraphs, the petitioner was careless in passing orders and failed to follow requisite procedure to pass said orders. However, neither the Gaon Sabha concerned, who has apparently suffered pecuniary loss nor the State Government had challenged the said orders and further the pecuniary loss, if caused, is not determined, even no rough calculation was made, therefore, conduct of petitioner would not falls under “grave misconduct.” The punishment awarded to petitioner appears to be very harsh and it would not be wrong to say that punishment is shockingly disproportionate. 26. Taking note of Ram Karan (supra), the findings that charges are proved against the petitioner are upheld to the extent discussed above. However, the order of punishment dated 03.08.2012 is set aside and matter is remanded back to respondents to pass a fresh order of punishment after considering the observations made in this judgment. 27. The writ petition is partly allowed with aforesaid observations and directions.