Shri D.K. Kamthan vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
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THE IN HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
nd
ON THE 22 OF JUNE, 2026
WRIT PETITION No. 14329 of 2018
SHRI D.K. KAMTHAN
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sunil Kumar Jain & Ms. Naincy Goyal – Advocates for petitioner.
Ms. Monica Mishra – Government Advocate for respondent/State.
ORDER
This petition, under Article 226 of Constitution of India, has been filed
seeking following relief (s):-
“(a) That the impugned order dated 29-05-2016 (Annexure P/1) may
kindly be ordered to be quashed and the amount which has been
withdrawn from the pension of the petitioner in pursuance to
impugned order dated 29-05-2018 may kindly be directed to be
refunded to the petitioner, in the interest of justice.
(b) That, the charges framed against the petitioner vide order dated 30-
03-2013 (Annexure P-6) may kindly be quashed, in the interest of
justice.
Signature Not Verified
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DHARKAR
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(c) That, the respondents may kindly be further directed to pay all the
retiral dues to the petitioner including full pension, gratuity, etc, in the
interest of justice.
(c) That, any other writ or order or direction which the Hon'ble Court
deems fit in favor of the petitioner may kindly be issued in the interest
of justice.
(d) That, Costs of the petition may kindly be awarded.”
2. It is submitted by learned counsel for petitioner that petitioner stood retired
from service after attaining the age of superannuation on 31/03/2013 from the
post of Joint Collector, Dist. Morena. It is submitted that during the period 2001-
02, petitioner was posted at Dabra, Dist. Gwalior on the post of Tahsildar and
during this period some orders were issued by petitioner while officiating on the
post of Tahsildar, Dabra, District Gwalior regarding issuance of Government
lease (settlement) to Shri Satendra Kumar and Shri Abhay Kumar under 4.3 and
clause 24 of Revenue Book Circular. The land was in small part and had been
settled to nearby land owner for farming and not on the basis of adverse
possession and therefore passing orders for lease, rules and regulations have been
followed by the petitioner. However, prior to initiation of departmental enquiry
against petitioner order of lease has been cancelled by respondent No.3 vide
order dated 23-08-2011 and inquiry was suggested against petitioner. It is
submitted that petitioner received notice dated 18-06-2012 regarding
departmental enquiry from office of respondent No.1. Thereafter, petitioner
submitted reply dated 11-07-2012 and thereafter without considering the reply,
the charge-sheet was issued on 30-03-2013 i.e. one day prior to superannuation.
Thereafter, petitioner filed reply dated 12-04-2013 and submitted that there was
no loss to the Government as land being cultivated by the persons and, therefore,
prayed for quashment of all the charges framed against him. Thereafter, Enquiry
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Officer and Presenting Officer were appointed and during enquiry petitioner
submitted applications dated 08-02-2016 and 29-02-2016 and demanded certain
documents and details but respondents did not supply the documents mentioned
in the representation/applications. Thereafter, Enquiry Officer submitted his
enquiry report dated 30.08.2016 and petitioner submitted his reply to the enquiry
report before the disciplinary authority and vide order dated 29.05.2018 the
major penalty of withdrawal of 10% amount of pension for two years has been
imposed upon petitioner. It is submitted that respondents have not supplied
relevant documents to petitioner; no loss has been caused by petitioner to
department; and the reply filed by petitioner has not been considered. It is further
submitted that allegations made in the impugned order do not come under the
definition of misconduct and also at the relevant point of time, petitioner was
working as Tahsildar and he is entitled to the benefit of Judges (Protection) Act,
1985.
3. Per contra , it is submitted by learned counsel for respondent/State that
charge-sheet was issued to petitioner alleging certain charges and after initiating
the departmental enquiry against petitioner and after conducting enquiry
proceedings, after examining witnesses, enquiry officer submitted his report. It is
submitted that Enquiry Report reveals that charges levelled against petitioner
were found proved, therefore, as petitioner was already retired on attaining the
age of superannuation w.e.f. 31.03.2013, therefore, matter was referred to the
State Government in view of Rule-9 of M.P. Civil Services (Pension) Rules, 1976
(for brevity “Rules, 1976) and ultimately State Government passed the order
dated 29.05.2018 by stopping 10% amount of pension for two years in view of
Rule-9 of Rules, 1976. It is submitted that petitioner was given full opportunity
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of hearing in the departmental enquiry proceedings but he failed to establish that
he had not committed misconduct, therefore, punishment order has rightly been
passed. It is submitted that the scope of judicial review in a petition filed under
Article 226 of the Constitution of India is very limited. On these premised
submissions, learned counsel for respondent/State opposes the arguments
advanced by learned counsel for petitioner by supporting the order impugned and
prays for dismissal of instant petition.
4. Heard learned counsel for the parties and perused the record.
5. Before analyzing contentions of rival parties, it would be apt to reproduce
relevant provision of Rule 9 of Rules, 1976 which goes as under:
“ 9. Right of Governor to withhold or withdraw pension. -
(1) The Governor reserves to himself the right of withholding or
withdrawing a pension or part thereof, whether permanently or for a
specified period, and of ordering recovery from pension of the whole
or part of any pecuniary loss caused to the Government if, in any
departmental or judicial proceeding, the pensioner is found guilty of
grave misconduct or negligence during the period of his service,
including service rendered upon re-employment after retirement:
Provided that the State Public Service Commission shall be consulted
before any final orders are passed :
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) (a) The departmental proceedings [xxx], if instituted while the
Government servant was in service whether before his retirement or
during his re-employment, shall, after the final retirement of the
Government servant, be deemed to be proceedings under this rule and
shall be continued and concluded by the authority by which they were
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commenced, in the same manner as if the Government servant had
continued in service :
Provided that where the departmental proceedings are instituted by an
authority subordinate to the Governor, that authority shall submit a
report regarding its findings to the Governor.
(b) The departmental proceedings, if not instituted while the
Government servant was in service whether before his retirement or
during his re-employment :-
(i) shall not be instituted save with the sanction of the Governor; (ii)
shall not be in respect of any event which took place more than four
years before such institution; and
(iii) shall be conducted by such authority and in such place as the
Government may direct and in accordance with the procedure
applicable to departmental proceedings :
(a) in which an order of dismissal from service could be made in
relation to the Government servant during his service in case it is
proposed to withhold or withdraw a pension or part thereof whether
permanently or for a specified period; or
(b) in which an order of recovery from his pay of the whole or part of
any pecuniary loss caused by him to the Government by negligence or
breach of orders could be made in relation to the Government servant
during his service if it is proposed to order recovery from his pension
of the whole or part of any pecuniary loss caused to the Government].
(3) No judicial proceeding, if not instituted while the Government
servant was in service, whether before his retirement or during his re-
employment, shall be instituted in respect of a cause of action which
arose or in respect of an event which took place, more than four years
before such institution.
(4) In the case of a Government servant who has retired on attaining
the age of superannuation or otherwise and against whom any
departmental or judicial proceedings are instituted or where
departmental proceedings are continued under sub-rule (2), a
provisional pension and death-cum-retirement gratuity as provided in
[Rule 64], as the case may be, shall be sanctioned :
[Provided that where pension has already been finally sanctioned to a
Government servant prior to institution of departmental proceedings,
the Governor may, by order in writing, withhold, with effect from the
date of institution of such departmental proceedings fifty per cent of
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the pension so sanctioned subject however that the pension payable
after such withholding is not reduced to less than [the minimum
pension as determined by the Government from time to time] :
Provided further that where departmental proceedings have been
instituted prior to the 25th October, 1978, the first proviso shall have
effect as it for the words "with effect from the date of institution of
such proceedings" the words "with effect from a date not later than
thirty days from the date aforementioned," had been substituted :
Provided also that-
(a) If the departmental proceedings are not completed within a period
of one year from the date of institution thereof, fifty per cent of the
pension withheld shall stand restored on the expiration of the aforesaid
period of one year;
(b) If the departmental proceedings are not completed within a period
of two years from the date of institution the entire amount of pension
so withheld shall stand restored on the expiration of the aforesaid
period of two years; and
(c) If in the departmental proceedings final order is passed to
withhold or withdraw the pension or any recovery is ordered, the order
shall be deemed to take effect from the date of the institution of
departmental proceedings and the amount, of pension since withheld
shall be adjusted in terms of the final order subject to the limit
specified in sub-rule (5) of Rule 43].
(5) Where the Government decides not to withhold or withdraw
pension but orders recovery of pecuniary loss from pension, the
recovery shall not be made at a rate exceeding one-third of the pension
admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule-
(a) departmental proceedings shall be deemed to be instituted on the
date on which the statement of charges is issued to the Government
servant or pensioner, or if the Government servant has been placed
under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which the
complaint or report of a police officer, of which the Magistrate takes
cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented
in the Court.”
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DHARKAR
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6. From perusal of record, it is gathered that petitioner stood retired from
service after attaining the age of superannuation on 31/03/2013 from the post of
Joint Collector, Dist. Morena. During the period 2001-02, petitioner was posted
at Dabra, Dist. Gwalior on the post of Tahsildar and during this period some
orders were issued by petitioner while officiating on the post of Tahsildar, Dabra,
District Gwalior regarding issuance of Government lease (settlement) to Shri
Satendra Kumar and Shri Abhay Kumar under 4.3 and clause 24 of Revenue
Book Circular. The land was in small part and has been settled to nearby land
owner for farming and not on the basis of adverse possession and therefore
passing orders for lease, rules and regulations have been followed by the
petitioner. However, prior to initiation of departmental enquiry against petitioner
order of lease has been cancelled by respondent No.3 vide order dated 23-08-
2011 and inquiry was suggested against petitioner. Petitioner received notice
dated 18-06-2012 regarding departmental enquiry from office of respondent
No.1. Thereafter, petitioner submitted reply dated 11-07-2012 and thereafter
without considering the reply, the charge-sheet was issued on 30-03-2013 i.e.
one day prior to superannuation. Thereafter, petitioner filed reply dated 12-04-
2013 and submitted that there was no loss to the Government as land being
cultivated by the persons and, therefore, prayed for quashment of all the charges
framed against him. Thereafter, Enquiry Officer and Presenting Officer were
appointed and during enquiry petitioner submitted applications dated 08-02-2016
and 29-02-2016 and demanded certain documents and details but respondents did
not supply the documents mentioned in the representation/applications.
Thereafter, Enquiry Officer submitted his enquiry report dated 30.08.2016 and
petitioner submitted his reply to the enquiry report before the disciplinary
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authority and vide order dated 29.05.2018 the major penalty of withdrawal of
10% amount of pension for two years has been imposed upon petitioner.
Respondents have not supplied relevant documents to petitioner; no loss has been
caused by petitioner to department; and the reply filed by petitioner has not been
considered. True it is that allegations made in the impugned order do not come
under the definition of misconduct and also at the relevant point of time,
petitioner was working as Tahsildar and he is entitled to the benefit of Judges
(Protection) Act, 1985.
7. The advice of the Public Service Commission, relied upon by the State
while passing the impugned order, was not supplied to petitioner, contrary to
settled legal principles. No financial loss to the State has been proved, and there
is no finding that the alleged misconduct was of such grave in nature as would
warrant dismissal from service. In such circumstances, withholding of the
petitioner’s pension under Rules, 1976 appears to lacking in sufficient legal
basis. Accordingly, these aspects require careful judicial scrutiny.
8. The judgment passed by the Apex Court in the case of S.N. Narula Vs.
Union of India and others, reported in (2011) 4 SCC 591 has been followed by
the Apex Court in the case of Union of India and others Vs. R.P. Singh,
reported in (2014) 7 SCC 340 . In the case of R.P. Singh (supra) , in para- 12, 21
and 23, it is held as under :
“12. We will be failing in our duty if we do not take note of the
submission of Mr. W.A. Qadri that the decision in S.N. Narula case is
not an authority because the Tribunal has set aside the order of the
disciplinary authority on the ground that it was a non-speaking order.
Be that as it may, when the issue was raised before this Court and
there has been an advertence to the same, we are unable to accept the
submission of Mr. Qadri. The said decision in S.N. Narula case is an
authority for the preposition that the advice of UPSC, if sought and
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accepted, the same, regard being had to the principles of natural
justice, is to be communicated before imposition of the punishment.
21. At this juncture, we would like to give our reasons for our
respectful concurrence with S.K. Kapoor. There is no cavil over the
proposition that the language engrafted in Article 320(3)(c) does not
make the said Article mandatory. As we find, in T.V.Patel's case, the
Court has based its finding on the language employed in Rule 32 of
the Rules. It is not in dispute that the said Rule from the very
inception is a part of the 1965 Rules. With the efflux of time, there
has been a change of perception as regards the applicability of the
principles of natural justice. An Inquiry Report in a disciplinary
proceeding is required to be furnished to the delinquent employee so
that he can make an adequate representation explaining his own
stand/stance. That is precisely what has been laid down in the
B.Karunakar case. …...............................”
23. We have referred to the aforesaid decision in B. Karunakar case
in extenso as we find that in the said case it has been opined by the
Constitution Bench that non-supply of the enquiry report is a breach
of the principle of natural justice. Advice from the UPSC, needless to
say, when utilized as a material against the delinquent officer, it
should be supplied in advance. As it seems to us, Rule 32 provides
for supply of copy of advice to the government servant at the time of
making an order. The said stage was in prevalence before the
decision of the Constitution Bench. After the said decision, in our
considered opinion, the authority should have clarified the Rule
regarding development in the service jurisprudence.”
9. As per Rule 30 of M.P. Civil Services (Classification, Control and Appeal)
Rules, 1966 (for brevity “Rules, 1966”), every order, notice and other process
made or issued under these rules shall be served in person on the Government
Servant concerned or communicated to him by registered post. Despite the
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aforesaid Rules, copies of relevant documents have not been supplied to
petitioner. The relevant provision of the Rules, 1966 reads as under:
“30. Service of orders, notice etc. Every order, notice and other
process made or issued under these rules shall be served in person on
the Government servant concerned or communicated to him by
registered post.”
10. Thus, as per this judgment, non-supply of the enquiry report is a
breach of natural justice and advice from PSC should be supplied in
advance and if the same is not done, the enquiry is vitiated on the count of
violation of natural justice and in the present case, advice from MPPSC has
not been supplied in advance, and as per Rule 30 of Rules, 1966 relevant
documents were also not supplied, hence, the enquiry is vitiated on account
of violation of natural justice .
11. Now, another aspect of the matter:
“ Whether petitioner who was Tahsildar is entitled to Judges Protection
Act, 1985 while performing quasi judicial function ?
12. Section – 2 of the Judges (Protection) Act, 1985 defines about the word
“ Judge ” which reads as under -
"2. Definition.-- In this Act "Judge" means not only every person
who is officially designated as a Judge, but also every person-- (a)
who is empowered by law to give any legal proceeding a definitive
judgment, or a judgment which, if not appealed against, would be
definitive,or judgment which, if confirmed by some other authority,
would be definitive; or (b) who is one of a body of persons which
body of persons is empowered by law to give such a judgment as is
referred to in clause (a)."
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13. As per the said definition, any person who is empowered by law to give
any legal proceeding a definitive judgment and any person who is one of a body
of persons which body of persons is empowered by law to give such a judgment
as is referred to in Clause (a) is a Judge.
14. In the present case, petitioner is empowered to give judgment, therefore, he
is a judge as per definition given under the Judges (Protection) Act, 1985.
15. Section 3 of the Judges (Protection) Act, 1985 gives additional protection
to Judges. The said Section reads as under :-
" 3. Additional Protection to Judges.
(1) Notwithstanding anything contained in any other law for the
time being in force and subject to the provisions of sub-section (2),
no Court shall entertain or continue any civil or criminal proceedings
against any person who is or was a Judge for any act, thing or word
committed, done or spoken by him, or in the course of acting or
purporting to act in the discharge of his official or judicial duty or
function.
(2) Nothing in sub-section (1) shall debar or affect in any manner,
the power of the Central Government or the State Government or the
Supreme Court of India or any High Court or any other authority
under any law for the time being in force to take such action
(whether by way of civil,criminal or departmental proceedings or
otherwise) against any person who is or was a Judge."
16. As per this Section, some protection has been given to the Judge while
discharging his duty as Judge. The definition of judgment which is given under
Section 2 of the Judges (Protection) Act, 1985 is much wider and it includes an
order which determines the rights of the parties, for the reasons given in it.
17. Petitioner, exercising his power under the M.P. Land Revenue Code, is a
Judge and, therefore, he is entitled to protection under Section 3 (1) of the Judges
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(Protection) Act, 1985 and no Court could entertain any civil or criminal
proceedings against him for any act, thing or word committed, done or spoken by
him, or in the course of acting or purporting to act in the discharge of his official
or judicial duty or function.
18. The Division Bench of this Court in the case of State of M.P Vs.
Shriniwas Sharma & Anr. reported in 2005(2) M.P.L.J. 155 has held as
under :-
“As per the settled legal position the officers who are discharging
the duties as a quasi judicial authorities are protected under the
umbrella of acts done in good faith. When law protects a judicial or
quasi judicial authority in relating to his bonafide act then the
concerned officer who discharges the duties cannot be brought in the
net of the departmental enquiry unless something additional has
been brought into existence. A mere mistake committed while
passing a quasi-judicial order does not partake the character or
nature of misconduct. The Tribunal has analyzed the said aspect in a
great detail we perceive no reason to differ with the same.”
19. As per the said judgment, the officers, who are discharging the duties as a
quasi judicial authorities, are protected under the umbrella of acts done in good
faith.
20. Similar view has been taken by this Court in the case of Balram & Anr.
Vs. Aswani Kumar Yadav & Anr. reported in 2001 (2) M.P.H.T. 330 as well as
the judgment passed by this Court in the case of State of M.P. Vs. Rajeev Jain
reported in 2001 (4) M.P.H.T. 58 .
Thus, in the light of the aforesaid judgments and enunciation of facts
and circumstances of the case, petitioner being Tahsildar at the relevant
point of time was entitled to receive additional protection to Judges given
under the Judges (Protection) Act, 1985.
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21. Now, coming to the last Issue i.e. whether charges framed against
petitioner come under the definition of misconduct?
22. As per charges mentioned in the impugned order, they do not come within
the definition of misconduct. As per the Division Bench judgment passed in the
case of S.D. Bind v. Union of India and Others, 2015 (1) M.P.L.J. 74 , at best,
the act of petitioner may fall under the category of carelessness or negligence.
The relevant extract of order passed in the case of S.D. Bind (supra) is
reproduced below for ready reference and convenience:-
15. That apart, another aspect of the matter warrants consideration.
The irregularities which is found against the petitioner is only non-
following of certain procedure in the matter of awarding contract.
The question is as to whether such an irregularity in the matter of
following the procedure can be termed as a misconduct. The Supreme
Court has considered the aforesaid aspect in the case of Union of
India v. J. Ahmed, (1979) 2 SCC 286 : AIR 1979 SC 1022 which has
been followed again by the Supreme Court in the case of Inspector
Prem Chand v. Govt, of National Capital Territory of Delhi, (2007) 4
SCC 566, wherein it has been held by the Supreme Court that merely
lack of efficiency, failure to attain the highest standard of
administrative ability or negligent or careless want of dealing with a
matter on one isolated may not constituted a misconduct for which
punishment can be imposed.
16. In the present case apart from the fact that the Division Bench
has made the observations as reproduced hereinabove and interfered
with the imposition of cost, it found that there was certain
discrepancy in the guidelines laid down and, therefore, in paragraph 9
fresh guidelines for future action was issued. Once this is the factual
scenario then merely because the petitioner failed to follow the
guidelines for once, it cannot be said that the petitioner has
committed misconduct in the matter. At best action of the petitioner
may fall in the category of careless or negligence in the matter of
dealing with the case once an isolated occasion and if the principles
laid down by the Supreme Court as indicated in the case of J. Ahmed
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(supra) is applied, we are of the considered view that allegations
levelled even do not amount to misconduct for which action can be
taken.
23. There is nothing on record which shows that petitioner had ill-motive
while exercising his quasi judicial function regarding issuance of
government lease (settlment) . Thus, the act of petitioner cannot be termed as
misconduct as per the judgment rendered by Hon’ble Apex Court in the case of
Inspector Prem Chand Vs. Govt. of NCT of Delhi and others reported in
(2007) 4 SCC 566 , para 12 of which is quoted below for ready reference and
convenience:
12. It is not in dispute that a disciplinary proceeding was initiated
against the appellant in terms of the provisions of the Delhi Police
(Punishment and Appeal) Rules, 1980. It was, therefore, necessary
for the disciplinary authority to arrive at a finding of fact that the
appellant was guilty of an unlawful behaviour in relation to
discharge of his duties in service, which was wilful in character. No
such finding was arrived at. An error of judgment, as noticed
hereinbefore, per se is not a misconduct. A negligence simpliciter
also would not be a misconduct. In Union of India v. J. Ahmed
[(1979) 2 SCC 286 : 1979 SCC (L&S) 157] whereupon Mr Sharan
himself has placed reliance, this Court held so stating: (SCC pp. 292-
93, para 11)
“ 11 . Code of conduct as set out in the Conduct Rules clearly
indicates the conduct expected of a member of the service. It
would follow that conduct which is blameworthy for the
government servant in the context of Conduct Rules would be
misconduct. If a servant conducts himself in a way inconsistent
with due and faithful discharge of his duty in service, it is
misconduct (see Pearce v. Foster [(1886) 17 QBD 536, 542 :
(1886-90) All ER Rep Ext 1752] ). A disregard of an essential
condition of the contract of service may constitute misconduct
[see Laws v. London Chronicle (Indicator Newspapers [(1959)
1 WLR 698] )]. This view was adopted in Shardaprasad
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Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur
Division, Nagpur [(1959) 61 Bom LR 1596] and Satubha K.
Vaghela v. Moosa Raza [10 Guj LR 23] . The High Court has
noted the definition of misconduct in Stroud's Judicial
Dictionary which runs as under:
‘ Misconduct means, misconduct arising from ill motive; acts
of negligence, errors of judgment, or innocent mistake, do
not constitute such misconduct’ .”
Emphasis supplied
24. Having given anxious consideration to the totality of the facts and
circumstances of the case and in light of the pronouncements referred to
hereinabove, this Court is of the considered opinion that though mandatory
consultation with the State Public Service Commission was undertaken, however,
the copy of the said advice was not supplied to petitioner and petitioner was not
given opportunity of hearing in respect of the said advice. The petitioner,
discharging quasi-judicial functions, is entitled to the protection available under
the Judges (Protection) Act, 1985. There is nothing on record to indicate any
misconduct or mala fide conduct on the part of petitioner. Furthermore, pension
is a proprietary right as has been held by the Court in catena of judgments. Such
a proprietary right is not required to be taken away without following proper
procedure of law. If such a drastic penalty of withholding of pension is required
to be imposed on any such government servant, definite finding is required to be
recorded with respect to the gravity of the misconduct and the ultimate result of
the said misconduct. As nothing is found in this respect, no such consideration is
done by respondents while imposing penalty upon petitioner, hence, order dated
29-05-2018 (Annexure P-1) cannot be sustained.
25. Consequently, present petition stands allowed and disposed of in the
following terms:
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NEUTRAL CITATION NO. 2026:MPHC-GWL:18517
16 WP. No. 14329 of 2018
(i) Impugned order Annexure P-1 dated 29-05-2018 is hereby
quashed;
(ii) Respondents are directed to refund the withheld 10% pension of
petitioner of two years with interest at the rate of 6% per annum from
the date of retirement till actual payment is made within a period of
three months from the date of receipt of certified copy of this order,
failing which this amount would carry interest at the rate of 12% per
annum from the date of retirement till actual payment is made.
(Anand Singh Bahrawat)
Judge
pd
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 7/14/2026
6:21:45 PM