Avadh Behari Rohatgi, J.
(1) The short point in this case is whether the President of India's order dated 20-12-1979 imposing the penalty on the petitioner of withholding for five years fifty per cent of the monthly pension otherwise admissible to him is valid in law or not.
(2) These are the facts. The petitioner was serving as a private assistant in the Research and Development Organisation, Ministry of defense. He retired from service with effect from 31-10-1977. In 1976 the petitioner's wife had purchased a factory. The charge brought against the petitioner was that he had acquired immovable property in the name of his wife without the previous knowledge and sanction of the prescribed authority and had thereby violated Rule 18(2) of the Central Civil Services (Conduct) Rules, 1964 (C.C.S. (Conduct) Rules). An inquiry officer was appointed to conduct an enquiry into this matter. He made his report. He found that the petitioner had committed merely 'a minor offence' and was not guilty of lack of integrity or conduct unbecoming of a government servant. He found as a fact that the petitioner did inform the Government about the acquisition of the factory by his wife, but not in time. The inquiry officer concluded that it was 'a genuine case of misinterpretation of the rules on the subject or ignorance of the rules'. He said : 'the petitioner to my mind had no intention to hide the fact. of .his wife having acquired the factory. In my opinion it is a minor offence'.
(3) Notwithstanding this mild view of the inquiry officer that it was 'a minor offence' the Government imposed the penalty of depriving the petitioner of fifty per cent of his pension for a period of five years. The petitioner has challenged this order in the present petition.
(4) The rule dealing with the power of the President to withhold or withdraw the pension is the following Rule 9 of Central Civil Services (Pension) Rules, 1972. So far as it is material, it is as under :
'THE President 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 the period of his service including service rendered upon reemployment after retirement.'
(5) On a reading of the rule it appears to me that a finding of guilt of grave misconduct in a departmental or judicial proceedings is essential before the President can exercise his power under Rule 9 of the Pension Rules. The inquiry officer in this case refused to find that the petitioner was guilty of grave misconduct. He reached the conclusion that it was a minor offence of which the petitioner can be said to be guilty. In his opinion he had no intention to hide the fact that his wife had acquired the factory because he did inform the government of this acquisition. In view of this finding of the inquiry officer it is difficult to hold that the petitioner was guilty of grave misconduct and his pension was liable to be reduced by fifty per cent. So long as this finding of the inquiry officer stands, the power under Rule 9 of Pension Rules cannot. be invoked by the President. The impugned order cannot thereforee be sustained.
(6) There is nothing to show that the disciplinary authority of the petitioner differed from the view of the inquiry officer or ever asked the petitioner to show cause why he should not be found guilty of grave misconduct contrary to the opinion of the inquiry officer. In fact on an earlier memorandum dated 22-6-1978 of the President it is expressly stated 'that the President agrees with the findings of the inquiry officer'. On that basis by order dated 22 6-1978 he reduced by five per cent the monthly pension of the petitioner for a period of two years. This order was then superseded by the impugned order dated 20 12-1979 which raised the reduction from five per cent to fifty per cent. At one time the petitioner thought that he would put up with this reduction of five per cent rather than fight a litigation in Court. But when it was raised to fifty per cent he decided to challenge the imposition of the entire penalty. Pension is property. The effect of the impugned order is that he will be deprived of half of the pension for five years.
(7) In view of the fact that the President has accepted the report of the inquiry officer, I find there is no case for the imposition of penalty on the petitioner or for withholding or withdrawing the pension in any manner. The petitioner was not found guilty of grave misconduct. That is a precondition of the exercise of power under Rule 9 by the President. As there is no such finding of guilt of grave misconduct, I hold that the impugned order dated 20 12-1979 was illegally made.
(8) Rule 9 is activated when the pensioner is found guilty of (1) a misconduct (2) and of a grave character. This is what 'grave misconduct' means. Here the finding is that the petitioner was guilty of a minor offence because he misinterpreted or was ignorant of the relevant rule. There was no grave misconduct It was a minor offence. The pensioner must be found guilty of grave misconduct before the President can withhold or withdraw pension. To fall within the expression 'grave .misconduct' it must be established that there was a transgression of a serious nature of some established and definite rule of action. Seriousness of misbehavior or dereliction of duty is of the essence. Minor offence is not grave misconduct.
(9) For these reasons the impugned order dated 20-121979 is hereby quashed and set aside. The pension will not be reduced. Neither by five per cent nor by fifty per cent. The petition is allowed. The respondent will pay to the petitioner the amount of pension deducted from his pension within six months from the date of this order. There will, however, be no order as to costs.