[2025:RJ-JP:7040] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 7990/2015 Murari Lal Gupta son of Shri Ram Ji Lal Gupta, aged 69 years, Resident of 222, Shanti Nagar, Gopalpura, Jaipur ----Petitioner Versus 1. State of Rajasthan through the Secretary, Department of Personnel, Government Secretariat, Rajasthan Jaipur 2. Dy. Secretary, Department of Personnel (ka 3), Government Secretariat, Rajasthan, Jaipur 3. Director, Prosecution, Rajasthan, Jaipur ----Respondents For Petitioner(s) : Mr. Anand Sharma For Respondent(s) : Mr. Vigyan Shah, AAG HON'BLE MR. JUSTICE SUDESH BANSAL Order 22/01/2025 1. Heard counsel for both parties and perused the record. 2. Petitioner retired from the post of Assistant Director, Prosecution, in Prosecution Department on 31.05.2006, on attaining the age of superannuation and thereafter, he has been punished vide order dated 11.02.2015 (Ann.9) passed by the Deputy Secretary, Department of Personnel (KA-3), Government Secretariat, Rajasthan, withholding his 60% pension forever, in exercise of jurisdiction under Rule 7 of the Rajasthan Pension Rules, 1996 (for short “Pension Rules, 1996”). In addition, the salary allowance and increments for the period of suspension, except the subsistence allowance, paid to the petitioner during his suspension, have also been stopped. Hence, feeling aggrieved by [2025:RJ-JP:7040] (2 of 25) [CW-7990/2015] the punishment order dated 11.02.2015, petitioner has preferred instant civil writ petition under Article 226 of the Constitution of India. 3. The relevant facts, in nutshell, as culled out from the record are that:- (i) During posting of petitioner as Assistant Director, Prosecution in Jaipur Rural in the year 2000-01, his legal opinion was called by the Investigating Officer in a criminal case arising out of FIR No.320/2000 lodged at Police Station Phagi, Jaipur Rural for offence under Sections 376 & 342 IPC. The allegations in the FIR No.320/2000 were levelled against the PTI, a government teacher, to have committed rape with her student, a minor girl, studying in Class VI. (ii) The Investigating Officer had found the criminal case for offences under Section 376-B/ 342 IPC. Petitioner opined that the medical report, available on record, is not corroborating the allegation of rape, nevertheless, if after constitution of a medical board, factum of rape is verified, charge-sheet may be submitted for offences under Sections 342/ 354/ 376-B IPC. (iii) It appears that after filing of charge-sheet, since it was a case of rape of a minor girl of Class VI, by the PTI of her school, a Government Servant, hence the allegation of rape in such factual backdrop, attracts offence of Section 376(2)(b) IPC and not Section 376-B IPC. Then, an application was moved by the Investigating Officer before the Sessions Court, to rectify provision of offence in charge-sheet under Section 376(2)(b) IPC instead of Section 376-B IPC. [2025:RJ-JP:7040] (3 of 25) [CW-7990/2015] (iv) This is an undisputed fact that thereafter, correction was made in the charge-sheet and charge against the accused was framed for offence under Section 376(2)(b) IPC and after trial, accused was convicted and sentenced for a period of 10 years, after holding him guilty for committing offence u/s. 376(2)(b) IPC. (v) It is noteworthy that provision of Section 376-B IPC deals with offence of sexual intercourse by husband with her wife during separation and entails imprisonment for a term which shall not be less than 2 years, but which may extend upto 7 years, whereas offence u/s. 376(2)(b) IPC deals with offence of rape by a public servant on a woman, who is either in the custody of public servant or subordinate to such public servant, for which minimum punishment prescribed is rigorous imprisonment for a term, not less than ten years, but which may extend upto imprisonment for life. (vi) Thereafter, petitioner was served with a memorandum of charge dated 08.08.2002 under Rule 16 of Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (for short “CCA Rules, 1958”) as also he was placed under suspension for allegation that petitioner gave an incorrect legal opinion to the prosecution, maliciously and negligently, which tantamount to his misconduct and due to giving incorrect legal opinion, accused gained benefit as also the image of Police Department maligned. The charge-sheet was also served upon the Investigating Officer namely Sh. Ramesh Tiwari. (vii) It appears that thereafter, a joint enquiry under Rule 18 of the CCA rules, 1958 was conducted against the petitioner and Sh. Ramesh Tiwari. Additional Commissioner-I was appointed as an [2025:RJ-JP:7040] (4 of 25) [CW-7990/2015] Enquiry Officer by the Department of Personnel, who conducted the enquiry. From the side of Department of Prosecution, as many as ten documents, Exhibit P1 to P10 and five witnesses, PW1 to PW5, were produced. Petitioner submitted his reply/ explanation, denying the alleged charges stating inter alia that there was neither mal-intention nor negligence on the part of petitioner and the legal opinion was correct, based on the medical report, nevertheless, mentioning of provision of law of Section 376-B IPC, instead of Section 376(2)(b) IPC, was merely an inadvertent error, occurred unmindful and due to which no benefit was extended to the accused, since error was later on rectified and the court too framed charge of offence u/s. 376(2)(b) IPC against the accused and sentenced him for such offence. Further, it was explained that charge-sheet for offence under Section 376-B IPC, submitted by the Investigating Officer of Police, was not in furtherance to his legal opinion, but before submission of charge-sheet in the present criminal matter pertaining to rape, the nature of offence was approved and verified by the Superintendent of Police, therefore, it is wrong to allege that the image of Police Department, maligned on account of any overt act of petitioner. (viii) It appears from record that the Enquiry Officer viz. Additional Commissioner-I, recorded evidence and after analysis of the evidence, collected during the enquiry, submitted his enquiry report dated 02.11.2004 (Ann.4) before the Disciplinary Authority with a fact finding that the charge of misconduct and negligence levelled against the petitioner is not proved. (ix) It is the case of petitioner, that the copy of enquiry report dated 02.11.2004 was not served upon him and thereafter [2025:RJ-JP:7040] (5 of 25) [CW-7990/2015] petitioner stood retired from service w.e.f. 31.05.2006 on attaining the age of superannuation, however, later on he came to know that thereafter, the Disciplinary Authority appointed another Enquiry Officer viz. Additional Commissioner-II, to hold a de novo enquiry, but compliance of Rule 16 (12) of the CCA Rules, 1958 was not made by the Disciplinary Authority. The case of petitioner is that neither the Disciplinary Authority disclosed the reasons of disagreement from the findings of the enquiry report dated 02.11.2004 to the petitioner, nor petitioner was invited to submit his representation on such disagreement opinion, if any, was formed by the Disciplinary Authority, hence, in such eventuality, the appointment of second Enquiry Officer for de-novo enquiry, in- spite of completion of enquiry by the first Enquiry Officer in accordance with procedure envisaged under the CCA Rules, 1958, is an arbitrary exercise of powers by the Disciplinary Authority, and that too in violation to Rule 16(12) of the CCA Rules, 1958, as such the second enquiry report should be ignored from consideration and penalty order passed on the basis of second enquiry report is liable to be quashed. (x) It appears that the second Enquiry Officer did not record any additional finding nor called upon either of the parties to produce any additional evidence, but on the basis of evidence which already was collected and came on record during course of first enquiry, gave his opinion that although, the misconduct of petitioner in giving his legal opinion in the matter is not proved, nevertheless, mentioning of incorrect provision of law in the legal opinion, falls in the category of negligence and thus, charge [2025:RJ-JP:7040] (6 of 25) [CW-7990/2015] against the petitioner is proved. The second enquiry report dated 22.07.2009 (Ann.7) is also available on record. (xi) It appears that second enquiry report was served upon petitioner and petitioner submitted his representation against the second enquiry report dated 22.07.2009 and pointed out inconsistency therein, however, it appears that the Disciplinary Authority saddled the petitioner with major penalty of stoppage of his 60% pension permanently, assuming his conduct to be a grave misconduct or negligent. Such punishment was inflicted upon petitioner, after obtaining approval by his excellency i.e. Governor of Rajasthan as also by the RPSC, in exercise of powers vested by provision of Rule 7 of the Pension Rules, 1996. (xii) The penalty imposed upon the petitioner vide order dated 11.02.2015 by respondent No.2, has been put to challenge by the petitioner by means of filing instant writ petition. 4.1 Learned counsel for the petitioner raised a contention that firstly the second enquiry report dated 22.07.2009 could not be relied upon by the Disciplinary Authority, since the appointment of second Enquiry Officer was made without adherence to the provision of Rule 16(12) of the CCA Rules, 1958, more so, when the first Enquiry Officer, appointed by the Department of Personnel, has conducted and concluded the enquiry in accordance with law and recorded fact findings, holding the charge as not proved against petitioner, then by brushing aside that enquiry report and imposing penalty upon the petitioner through the punishment order dated 11.02.2015, impugned herein, relying upon the second enquiry report itself is arbitrary and manifestly illegal, as such the penalty order has no legs to stand; [2025:RJ-JP:7040] (7 of 25) [CW-7990/2015] 4.2 Secondly, a perusal of second enquiry report dated 22.07.2009 itself nowhere proves the case of grave misconduct or grave negligence of petitioner, on account of mentioning the provision of law in his legal opinion, under Section 376-B instead of 376(2)(b) IPC; 4.3 In addition, learned counsel contended that such an error was unmindful and occurred due to slip of pen or inadvertently, which too was later on rectified and ultimately due to such error, no adverse results against prosecution indeed happened because the accused was ultimately charged of an offence under Section 376(2)(b) IPC as much as was convicted and sentenced for such offence; 4.4 His alternative submission is that even for the sake of argument, if the second enquiry report dated 22.07.2009 is read as-it-is and taken to be correct, it only speaks about the action of petitioner to be negligent in mentioning an incorrect provision of law in his legal opinion that on speculations, thus in such eventuality also, penalty of withholding of 60% pension of petitioner forever, is shockingly disproportionate penalty and is highly improper, unjust, unreasonable and unduly harsh. 4.5 Learned counsel for the petitioner has invited attention of this Court to the statements of Department witness, particularly PW-2 Sh. Mahaveer Prasad Sharma and the fact findings recorded by the first Enquiry Officer in the enquiry report dated 02.11.2004 and fact findings recorded by the second Enquiry Officer in his enquiry report dated 22.07.2009, are based on the same piece of evidence and second enquiry report is itself inconsistent and its fact finding is based on no new evidence. [2025:RJ-JP:7040] (8 of 25) [CW-7990/2015] 4.6 The contention of counsel for petitioner is that the impugned punishment order is not sustainable in law, hence, liable to be quashed. 5.1 Per contra, learned Additional Advocate General appeared for and on behalf of State, defended the punishment order and argued that the punishment order has been passed by the Competent Authority after following the procedure envisaged under Rule 16 of the CCA Rules, 1958. 5.2 It has been argued that petitioner never challenged the appointment of second Enquiry Officer, rather has submitted his representation against the enquiry report, submitted by the second Enquiry Officer dated 22.07.2009, hence, he is estopped by his conduct and principle of acquiescence, to question the action of Disciplinary Authority, appointing a second Enquiry Officer for de novo enquiry that too because the Disciplinary Authority was dissatisfied with the enquiry report dated 02.11.2004 submitted by the first Enquiry Officer. 5.3 His further submission is that as per the fact findings of the second enquiry report dated 22.07.2009, the misconduct or negligence of the petitioner is well evident and mentioning a wrong provision of law in the legal opinion by the petitioner, who is an Officer of the rank of Assistant Director, Prosecution, such a negligence should not be let go scot-free. 5.4 The submission of Additional Advocate General is that the punishment of withholding 60% pension of the petitioner permanently is just and proper, however, if this court finds that the same is disproportionate to the proven charge against the petitioner or unduly harsh or irrational, the matter, at the most, [2025:RJ-JP:7040] (9 of 25) [CW-7990/2015] may be remitted to the Disciplinary Authority for consideration of quantum of penalty afresh. Writ Court may not sit like an Appellate Authority over the punishment imposed by the Disciplinary Authority. 5.5 A strong reliance has been placed by the learned Additional Advocate General to the judgment of the Hon’ble Supreme Court in case of Lucknow Kshetriya Gramin Bank & Anr. v. Rajendra Singh [(2013) 12 SCC 372]. 6. Having pondered over the rival contentions of counsel for both parties and after going through the nature of charge, evidence adduced by the Department to prove such charge and two enquiry reports, which are based on the similar piece of evidence, before delving into the two fundamental contentions of the counsel for petitioner, this Court deems it just and proper to sail through the provision of Rule 7 of the Pension Rules, 1996 whereunder the petitioner has been penalized with a major penalty of withholding of his 60% pension forever, under the punishment order dated 11.02.2015, apparently, passed after retirement of petitioner from Government service w.e.f. 31.05.2006. For ready reference, Rule 7 of the Pension Rules, 1996 is being reproduced hereunder:- "7. Right of Governor to withhold or withdraw p ension. (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 a pension of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during [2025:RJ-JP:7040] (10 of 25) [CW-7990/2015] the period of his service including service rendered upon re-employment after retirement: Provided that the Rajasthan 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 amount of [Rupees Eight thousand eight fifty per mensem] (2)(a) The departmental proceedings referred to in sub rule (1), if instituted while the Government servant was in service whether before his retirement or during his reemployment, 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 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 recording 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 Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) No judicial proceedings, 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 as provided in Rule 90 shall be sanctioned. (5) Where the Governor decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be [2025:RJ-JP:7040] (11 of 25) [CW-7990/2015] 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 charges together with a statement of allegations on which they are based, or the proposal of Government to take disciplinary action together with the allegations on which it is proposed to be taken, are 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 proceeding, 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." 7. It has been a settled proposition of law that receiving pension by a retired Government Servant, as per the policy of the Government, is his legal right which cannot be scuttled in ordinary course, however, Rule 7, referred hereinabove carves out an exception to such proposition of law. The Rule envisages powers of the Governor reserved with him to withhold or withdraw the pension or its part of a retired Government Servant, if in any departmental or judicial proceedings, the pensionary is found guilty of grave misconduct or negligence during the period of his service. It is noteworthy that the language employed in Rule 7(1) requires the misconduct or negligence to be of grave nature or greater magnitude, than the misconduct or negligence of ordinary nature, particularly, in respect of imposing the punishment of withholding or withdrawing of pension of a Government Servant, who has retired from service. In this regard, counsel for petitioner [2025:RJ-JP:7040] (12 of 25) [CW-7990/2015] has referred and relied upon the judgment of the Coordinate Bench of this Court delivered in case of Mukand Singh Vs. State [2010 (3) WLC (Raj.) 642], wherein the Coordinate Bench of this High Court, relying upon the previous dictum of the High Court in case of R.C. Lal Agarwal Vs. State of Rajasthan [2005 (5) WLC(Raj.) 13], held and observed that the use of word “Grave” in the language employed to Rule 7(1) qualifies for both terms i.e. for "misconduct" as well as for "negligence". The Hon’ble Court, with such observations, set aside the penalty order of withholding 40% pension of the petitioner for a period of 10 years, which was passed by the Disciplinary Authority against a Home Guard, merely on account of discharging his duties as Head Guard in the Jail, negligently. It was observed that it is not a case of grave misconduct or grave negligence. 8. Coming back to the facts of the case at hand, as far as objection of the counsel for petitioner in respect of transferring the enquiry to another Enquiry Officer, even after conclusion of the enquiry by the previously appointed Enquiry Officer is concerned, guidance of a celebrated judgment of the Hon'ble Supreme Court in case of K.R. Deb Vs. Collector of Central Excise, Shilong [(1971) 2 SCC 102] may be taken, where the Apex Court while examining the issue in the context of Rule 15(1) of Central Civil Services (CCA) Rules, 1957, observed that Rule did not contemplate successive inquiries and at any rate, even if it contemplates, successive inquiries there was no provision for setting aside earlier inquiries without giving any reason whatsoever. [2025:RJ-JP:7040] (13 of 25) [CW-7990/2015] 9. In case of Vijay Shankar Pandey Vs. Union of India [(2014) 10 SCC 589] in respect of further or new enquiry, the Apex Court observed in Para 23 as under:- "23. It can be seen from the above that the normal rule is that there can be only one Enquiry. This Court has also recognized the possibility of a further Enquiry in certain circumstances enumerated therein. The decision however makes it clear that the fact that the Report submitted by the Enquiring Authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second Enquiry." Thus, second enquiry by the Disciplinary Authority is not prohibited but Authority is empowered for de novo, further or second enquiry, by rendering reasons of disagreement/ dissatisfaction with the erstwhile enquiry, yet the erstwhile enquiry cannot be brushed aside or set aside for no good reason. 10. In the facts and circumstances of present case, this Court finds that it is an admitted case of petitioner that the second enquiry report dated 22.07.2009 was served upon the petitioner calling upon to submit his representation and in pursuance thereof, petitioner submitted his representation. Thereby petitioner had come to know about the appointment of second Enquiry Officer and his enquiry report, but petitioner submitted his representation questioning the inconsistency in the enquiry report. It is not the case of petitioner that he questioned the appointment of second Enquiry Officer or raised malafides or the issue that the second enquiry report being not admissible or violative to Rule 16 (12) of the CCA Rules, 1958. This Court finds that the right is reserved with the Disciplinary Authority for holding a de novo enquiry, further enquiry or to transfer the investigation to another [2025:RJ-JP:7040] (14 of 25) [CW-7990/2015] Enquiry Officer, in case, the Disciplinary Authority is dissatisfied or has disagreement with the enquiry report submitted before him. Thus, in the opinion of this Court, the action of Disciplinary Authority calling for second enquiry through another Enquiry Officer may not be assumed to be tainted with any malafides or without jurisdiction and the presumption goes in favour of respondents that the Disciplinary Authority acted within its discretionary powers and jurisdiction appointing second Enquiry Officer in the matter. Once petitioner has submitted himself to the enquiry report dated 22.07.2009, and questioned its fact findings on merits, it does not lie in the mouth of petitioner to raise a voice that the Disciplinary Authority could not have relied upon the second enquiry report while considering the nature of penalty to be imposed. In that view, first contention raised by the counsel for petitioner is not acceptable and hereby rejected. 11. Coming to another contention raised by the counsel for petitioner, this Court finds that this is an admitted and undisputed fact that the evidence was collected/ recorded before the first Enquiry Officer and on the basis of similar piece of evidence, the second Enquiry Officer has given his report dated 22.07.2009. The evidence adduced by the department, to prove the charge of misconduct and negligence of petitioner for giving an incorrect legal opinion malafidely by mentioning incorrect provision of law i.e. instead of 376(2)(b), provision of 376B IPC was mentioned in the legal opinion, is one and same in both the enquiry reports and same piece of evidence has been analyzed by the two Enquiry Officers, while concluding their opinion/ fact findings in their two [2025:RJ-JP:7040] (15 of 25) [CW-7990/2015] respective enquiry reports dated 02.11.2004 and 22.07.2009 (Ann-4 & 7) respectively. 12. The charge against the petitioner is fundamentally based on mentioning of a wrong provision of law in his legal opinion i.e. mentioning Section 376-B instead of Section 376(2)(b) of IPC with a mal-intention, due to which accused gained benefit and image of Police maligned. This Court finds that it is not the case of Department that the Investigating Officer submitted charge-sheet for offence under Section 376-B IPC, merely placing reliance on the legal opinion of petitioner, rather it has come on record in the evidence that charge-sheet nowhere refers about the legal opinion nor the legal opinion of petitioner forms part of charge-sheet. 13. During course of enquiry, from the side of Department of Prosecution, witness PW2 Sh. Mahaveer Prasad Sharma was produced to prove the charge against the petitioner. As per his evidence, it is clear that the Police Superintendent is the final authority, particularly, in the rape matters, to decide under which offence, charge-sheet is to be submitted by the Police in the Court and he is not bound by the legal opinion of the Prosecution Department. It has also come on record that after the legal opinion of petitioner, and before filing the charge-sheet in the present matter, same was approved by the Circle In-charge and then by the Superintendent of Police. It is apparent from the allegations levelled in the FIR that it was not a case of sexual intercourse by a husband upon his wife against her wish during their separation but it was a case of committing rape by public servant, a PTI Teacher in a Government School of her student, studying in Class-VI, who was a minor girl. Thus, bare perusal of [2025:RJ-JP:7040] (16 of 25) [CW-7990/2015] the allegations makes the provision of law clear and it was for the Investigating Officer or for the Circle In-charge or the Superintendent of Police, who indeed is the final authority, to decide the provision of offence under which charge-sheet is to be filed and to ensure for mentioning of the correct provision of Section 376(2)(b) instead of 376-B in the charge-sheet. The focus of legal opinion given by the petitioner, seems to be on the perusal of medical report, which was opined to be not corroborative to the sexual intercourse, however, it was opined by the petitioner in his legal opinion that if the Medical Board is constituted and it is opined that the sexual intercourse was held, then the charge- sheet may be filed for offence of rape under Section 376-B instead of attempt to rape under Section 376/511 IPC. The mentioning of provision of law under Section 376B instead of 376(2)(b) of IPC by the petitioner, in his legal opinion, seems to be an error occurred either inadvertently or due to slip of pen, but it is difficult to discern that same was an intentional wrong or done because of mal-intention. Since the base of factual allegation for both the offences is altogether different, the commission of offence under Section 376B IPC, does not attract on the allegation levelled in the present matter. The Department has not adduced any iota of evidence to show any mal-intention of petitioner in mentioning incorrect provision of law. Moreover, during course of enquiry, it has come on record that it was the Officer of Police Department, who was the final authority to check and decide the provision of law of offence under which the charge-sheet is to be filed in the rape matters and in the present matter, it was not proved that the [2025:RJ-JP:7040] (17 of 25) [CW-7990/2015] charge-sheet was filed placing reliance on the legal opinion of petitioner. 14. In addition to above, having gone through the fact findings record by the second Enquiry Officer in his enquiry report dated 22.07.2009, in the concluding paragraphs, in first part, the Enquiry Officer has opined that the charge of misconduct against the petitioner is not established, however, in the latter part, he opined that the mentioning of wrong provision of law in the legal opinion could have benefited the accused and same falls at least in the category of negligence of petitioner, hence, the charge is proved. Indeed the conclusion of Enquiry Officer to held that petitioner negligence is based on merely ipse dixit as also surmises and conjectures, rather being based on any evidence. For ready reference, the relevant portion of the opinion of enquiry report dated 22.07.2009 is being reproduced hereunder:- “vr% i=koyh ij miyC/k nLrkostksa ds voyksdu ,oa xokgksa ds c;ku ,oa leLr fjdkMZ dk v|ksikUr voyksdu ,oa euu djus ls ;g fLFkfr lkeus vk;h gS fd vkjksfir vf/kdkjh Jh eqjkjh yky xqIrk] lgk;d funs'kd vfHk;kstu ds fo:) vkjksi fooj.k i= ds vuqlkj tks rF; vafdr fd;s gSa fd muds }kjk lgh vfHk;kstu jk; vafdr u dj vuqla/kku vf/kdkjh ds lkFk feydj vfHk;qDr dks vuqfpr ykHk igqapkus dk nqjkpj.k fd;k gS] mijksDr foospu ds vk/kkj ij iwjh rjg lkfcr ugha gSA gkykafd vfHk;kstu jk; vfHk;qDr }kjk fd;s x;s vijk/kksa dh Js.kh ds vuqlkj viujk/k /kkjkvksa dk vadu djus ds fy, egRoiw.kZ ekuh tkrh gS vkSj izLrqr izdj.k esa vkjksfir vf/kdkjh }kjk viuh vfHk;kstu jk; esfMdy cksMZ dh fjiksVZ ¼izn'kZ ih&1½ ,oa ,Dljs fjiksVZ ¼izn'kZ ih&6½ ds e/;utj dqN dfe;ksa dks ns[krs gq, vafdr dh gS tks vfUre ugha ekuh tk ldrhA D;ksafd vkjksfir vf/kdkjh }kjk iznRr vfUre jk; ls iwoZ muds }kjk vuqla/kku vf/kdkjh ds dqN vU; lk{;ksa@fjiksVksZa ,oa tkudkfj;ksa dh vko';drk tkfgj fd;k gS ftudh vuqiyC/krk esa muds }kjk iw.kZ:i ls vfUre jk; fn;k tkuk laHko ugha Fkk] muds }kjk nh x;h jk; ds laca/k esa vuxZy rF; lkfcr gksrk gS D;ksafd ihfM+rk dh esfMdy fjiksVZ ,oa ,Dljs fjiksVZ rFkk vfHk;qDr }kjk fd;s x;s vijk/k ds laca/k esa vfHk;kstu vf/kdkjh Lo;a vius Kku ls fdlh jktlsod }kjk viuh vfHkj{kk esa jgh Ldwy Nk=k ds lkFk vuSfrd cykRdkj tSlk vuSfrd d`R; djrk gS rks rRlaca/k lgh vijk/k laca/k jk; nsuh pkfg, [2025:RJ-JP:7040] (18 of 25) [CW-7990/2015] FkkA fof'k"V yksd vfHk;kstd us viuh tkap fnukad 27-02-2001 esa izn'kZ ih&5 ¼i`"B 21½ ds vuqlkj viuh jk; vafddr dh gS fd vfHk;qDr j?kqohj flag ihVhvkbZ ds fo:) /kkjk 376¼2½ch] 342 ,oa 354 Hkk-na-la- ds vkjksi izFken`"V;k izekf.kr gksuk ik;k tkrk gS] ls ;g Hkh izdV gksrk gS fd vkjksfir vf/kdkjh Jh eqjkjh yky xqIrk }kjk vijk/k laca/kh lqLi"V /kkjk esa pkyku is'k djus ls lqLi"V jk; tks fd muds }kjk nh tkuh pkfg, Fkh ugha nh tkdj vuqla/kku vf/kdkjh }kjk izLrqr i=koyh ij ^^vkjksi i= vijk/k /kkjk 342@354@376ch Hkk-na-la- esa izLrqr dj fu.kZ; ysuk mfpr jgsxk** vafdr fd;k Fkk tks lgh rkSj ij dkuwuh jk; ugha ekuh tk ldrhA gkykafd iqfyl v/kh{kd] ftyk t;iqj xzkeh.k] t;iqj }kjk izn'kZ ih&8 ds i`"B 64 ds vuqlkj fnukad 3-2-2001 dks o`Rrkf/kdkjh o`r nwnw ls vijkj/k la[;k 320@2000 Fkkuk Qkxh ds laca/k /kkjk 376¼2½ch esa pkyku is'k u djus laca/kh Li"Vhdj.k pkgk x;k rFkk blh izn'kZ ds i`"B 65 ds vuqlkj fnukad 5-2-2001 dks o`Rrkf/kdkjh dks i=kad 2363 }kjk mDr vijk/k esa pkyku /kkjk 376¼2½ch vkbZihlh esa is'k djus dk funsZ'k fn;k x;kA Fkkukf/kdkjh Qkxh }kjk fnukad 12-2-2001 dks blh izn'kZ ds i`"B 62&63 ds vuqlkj ekuuh; ftyk ,oa ls'ku U;k;k/kh'k] ftyk t;iqj dks ,d izkFkZuk i= rkjh[k is'kh fnukad 12-2-2001 ds le; izLrqr dj iqfyl v/kh{kd] t;iqj ftyk xzkeh.k] t;iqj ds funsZ'kkuqlkj pktZ'khV esa mDr /kkjk dk lekos'k djk;k x;k ,oa mlh ds vuq:i ekuuh; U;k;ky; }kjk izdj.k esa vfHk;qDr dks nf.Mr fd;k x;kA fQj Hkh tSlk fd vkjksi fooj.k i= esa vafdr fd;k x;k gS fd vkjksfir vf/kdkjh }kjk lgh vfHk;kstu jk; ugha nh tkdj ykijokgh ,oa nqjkpj.k fd;k gS] dk rF; lgh izrhr gksrk gS D;ksafd lgk;d funs'kd vfHk;kstu ,d dkuwuh lykgkdkj jgk gS rFkk muls vfHk;qDr ds laca/k esa fd;s x;s xaHkhj vijk/k ds laca/k esa mfpr /kkjkvksa ds vUrxZr ekeyk U;k;ky; esa is'k djus gsrq mPpkf/kdkfj;ksa ds funsZ'k ls ;g i=koyh vuqla/kku vf/kdkjh ds lkFk izLrqr dh xbZ ijUrq vkjksfir vf/kdkjh }kjk leqfpr /kkjkvksa dk mYys[k u dj ftu /kkjkvksa dh vfHk'kalk dh Fkh muls vfHk;qDr dks iqfyl Fkkuk Lrj ls gh tekur fey ldrh Fkh rFkk U;k;ky; }kjk Hkh de ltk gksrhA vkjksfir vf/kdkjh }kjk vius inh; drZO; ds rgr ;g ykijokgh dh Js.kh esa ekuk tkosxkA vr% mijksDr foospu ds vk/kkj ij vkjksfir vf/kdkjh ds fo:) yxk;k x;k ;g vkjksi Li"V :i ls izekf.kr gksrk gSA” 15. The Hon'ble Supreme Court in case of State of Karnataka Vs. Umesh [(2022) 6 SCC 563], wherein after placing reliance on State of Haryana Vs. Rattan Singh [(1977) 2 SCC 491], has held in para no. 22 as under: “22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The Court does not reappreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the [2025:RJ-JP:7040] (19 of 25) [CW-7990/2015] exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffers from perversity; and (v) the penalty is disproportionate to the proven misconduct.” 16. This Court is conscious about the well settled proposition of law that the Constitutional Court while exercising its powers of judicial review would not assume the role of Appellate Authority over the decision of the Disciplinary Authority and it is not expected to re-examine the entire evidence to draw its findings, however, the Constitutional Court may exercise its jurisdiction within the circumscribed limits of correcting the errors of law, procedural errors leading to manifest injustice, violation of principle of natural justice or where the decision was passed by the Disciplinary Authority, is found perverse or suffers from patent error on the face of record or based on no evidence at all. This Court is of the opinion that power of judicial review is meant to ensure that the individual receives fair treatment at the hands of Disciplinary Authority or Appellate Authority. The conclusion of the Disciplinary Authority must be based on appreciation of some evidence and in adherence to the well known doctrine of proportionality and on the face of it, does not suffer from illegality, irrationality, procedural impropriety, if not, then such decision too is subject to correction and not immune from the scope and powers of judicial review. To circumscribe such proposition of law, [2025:RJ-JP:7040] (20 of 25) [CW-7990/2015] reference of the judgment of the Apex Court in case of Union of India Vs. HC Goel [AIR 1964 SC 364], BC Chaturvedi Vs. Union of India [1995 6 SCC 749], Roop Singh Negi Vs. Punjab National Bank [2009 (2) SCC 570], Chairman cum Managing Director, Coal India Limited & Anr. Vs. Mukul Kumar Choudhuri [(2009 15 SCC 620] and Pravin Kumar Vs. Union of India [2020 9 SCC 471], would be suffice. 17. On the touchstone of the afore-referred settled proposition of law, and on the issue of perversity of the finding of the Disciplinary Authority in appreciating the enquiry report dated 22.07.2009 which otherwise is based on no evidence but the conclusion is based on surmises and conjectures, that too is inconsistent, as also on the Doctrine of rationality of the imposition of major penalty of withholding 60% pension of the petitioner forever, this Court finds that no evidence was adduced by the Department to prove allegation of any dishonesty or mal- intention of petitioner or to prove that he acted deliberately in mentioning the incorrect provision of Section 376-B IPC instead of correct Section 376(2)(b) of IPC, which indeed attracts the allegation levelled in the FIR. 18. The misconduct of petitioner was not found proved. In the first enquiry report dated 02.11.2004, the Enquiry Officer has concluded that there is no misconduct or negligence on the part of petitioner in mentioning the incorrect provision of law and in the second Enquiry report dated 22.07.2009, which too is based on the similar piece of evidence, the Enquiry Officer concluded that the allegation of misconduct is proved, however, the Enquiry Officer drawing speculations and assumptions by his own, opined [2025:RJ-JP:7040] (21 of 25) [CW-7990/2015] that wrong provision of law could have extended benefit to the accused or could have entailed lesser punishment to the accused by the Court, but such opinion/ conclusion of Enquiry Officer is absolutely based on surmises and conjectures only, rather being based on appreciation of any evidence. Indeed, no evidence was adduced by the Department to prove misconduct or negligence of petitioner. Indeed the incorrect provision of Section 376-B in the charge-sheet was rectified by mentioning correct provision of Section 376(2)(b) IPC before framing charge by the Court and it is an admitted fact that Court framed charge for offence u/s 376(2) (b) IPC and convicted as well as sentenced the accused for such offence. Thus, it is explicit that on the basis of assumptions and presumptions, the second Enquiry Officer in his enquiry report dated 22.07.2009 opined that at the most, the action of mentioning incorrect provision of law in the legal opinion, falls within the category of negligence of petitioner. It is noteworthy that there is no opinion even in the second enquiry report that petitioner was guilty of grave misconduct or grave negligence. 19. It is also well settled that exercise of powers by the Disciplinary Authority is always subject to principles of proportionality and fair-play. This principle was re-affirmed, following the judicial precedent in case of Chairman cum Managing Director, Coal India Limited (supra) and has been recognized by the Supreme Court, recently in case of The General Manager Personnel Syndicate Bank & Ors. v. BSN Prasad. Civil Appeal No. 6327/2024 decided on 21.01.2025. The Disciplinary Authority is required to apply its mind before imposing any penalty on the basis of fact finding report submitted [2025:RJ-JP:7040] (22 of 25) [CW-7990/2015] by the Enquiry Officer. The Disciplinary Authority is not expected to act mechanically or with close eyes, but is required to examine the conclusion/ fact findings of the Enquiry Officer as to whether same are based on appreciation of the evidence or not or the fact findings suffer from perversity or recorded, violating the principles of natural justice or statutory Rule. 20. In the present case, the conclusion of Enquiry Officer in the enquiry report dated 22.07.2009, holding petitioner negligent, for mentioning of incorrect provision of law in his legal opinion was prima facie based on mere presumption and speculation of Enquiry Officer culminated into adversarial result against prosecution, nor the accused was given any benefit. Indeed the presumption drawn by the Enquiry Officer never happened. 21. It appears from the evidence on record that rather the fault was on the part of Police in submitting the charge-sheet indicating a wrong provision of law and that error was rectified by the Investigating Officer himself by submitting an application on 1f2.02.2001 before the Court, seeking rectification of the provision of law in the charge-sheet. 22. It is worthy to note that the Court was never misguided by filing charge-sheet indicating wrong provision of law. There is nothing on record to establish that charge-sheet was filed by Investigating Officer solely placing reliance on the legal opinion of petitioner, rather it is an admitted fact on record that same was approved upto the level of Superintendent of Police, who is the final authority to check and decide the correct provision of law under which charge-sheet is to be filed in rape matters. [2025:RJ-JP:7040] (23 of 25) [CW-7990/2015] 23. Thus, virtually it is a case of no evidence against the petitioner to prove charge of misconduct or negligence what to say to establish a charge of grave misconduct or grave negligence, yet the Disciplinary Authority failed to ponder over such aspect and could not look into the inconsistency of the opinion of Enquiry Officer and perversity in its fact findings of negligence which was indeed based on no evidence but was based on mere assumptions. 24. The Disciplinary Authority further was under obligation to see the service record of the petitioner, before inflicting penalty. The Disciplinary Authority nowhere taken into consideration the fact that petitioner was appointed in the Prosecution Department as Assistant Public Prosecutor way back on 18.10.1976 and got promoted to the post of Assistant Director Prosecution and during his entire service tenure, his service record is clean and unblemished, except facing the charge through the charge-sheet in question. The factor that the petitioner had already faced trauma of suspension till his retirement was also relevant to be considered. 25. Thus, it is a case where the Disciplinary Authority passed the punishment Order arbitrarily and without taking into consideration the entire attending facts and situation and even did not examine the service record of petitioner. The Disciplinary Authority miserably failed, in adhering to and follow the fair judicious and rational decision process while imposing the major penalty of withholding 60% pension of petitioner forever. 26. For the aforesaid reasons, this Court finds that the imposition of penalty of withholding 60% pension of petitioner forever, by the Disciplinary Authority suffers from manifest perversity as well as [2025:RJ-JP:7040] (24 of 25) [CW-7990/2015] patent error on the face of record and his decision is based on no evidence at all, hence, applying the principles of proportionality, rationality and fair-play the impugned punishment order at least to this extent cannot be held sustainable in the eyes of law, rather the decision making process followed by the Disciplinary Authority suffers from illegality, procedural impropriety, patent error and perversity, leading to manifest injustice to the petitioner, warranting interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. 27. This Court does not find any reason to remand the matter to the Disciplinary Authority for re-considering on the quantum of punishment afresh, because this Court has already noticed and observed that there is no evidence at all against the petitioner to prove the charge of misconduct or negligence. In the first enquiry report, petitioner was not guilty of misconduct or negligence. In the second enquiry report, based on the same piece of evidence, the charge of misconduct against the petitioner was not found proved, nevertheless, negligence was held by drawing assumptions and presumptions. Therefore, it is not a case of disproportionate imposition of penalty against the proven charge. 28. As a final result, instant writ petition succeeds and is hereby allowed. The punishment order dated 11.02.2015 (Ann.9) to the extent of imposing penalty of withholding 60% pension of petitioner forever, is hereby quashed and set aside. Petitioner is held entitled for the consequential monetary benefits i.e. arrears of pension and full pension, as a result of quashing the punishment order to the extent of withholding his 60% pension under the impugned order. [2025:RJ-JP:7040] (25 of 25) [CW-7990/2015] 29. It is made clear that if consequential monetary benefits are not paid to petitioner within a period of three months from receipt of certified copy of this Order, same shall carry interest @6% per annum until actual payment. 30. Pending application(s), if any, stand(s) disposed of. (SUDESH BANSAL),J Nitin/Sachin/302