JUDGMENT S.H.A. Raza, J.
1. The petitioner, who has retired from service on 28.2.1993 While holding the post of Additional Secretary, Regional Office, U. P. Board, Allahabad, by means of the present writ petition has prayed that the impugned order dated 31.5.1995 passed by the State Government, which was served upon the petitioner on 27.10.1995 by means of which the Governor of U. P. exercising his powers under Section 351A of Civil Service Regulations, directed the reduction of 5% of pension with permanent effect, he quashed. The petitioner has also prayed for the issuance of a writ in the nature of mandamus commanding the respondents to forthwith disburse the deducted amount to the petitioner along with interest at the rate of 14% per annum from the date of retirement till the date of actual deduction.
2. Before dealing with the question as to whether the order of the State Government, which has been impugned in this writ petition, considering the facts and circumstances of the case, was legal or not. the facts in brief which warranted such an action deserves to be elucidated.
3. On 10.11.1991, by a public notice, which was published in the newspapers, the petitioner invited tenders for the sale of unused answer books of the high school and intermediate, examinations and other materials. Condition of the tenders published was that the tenderers had to deposit 10% of the costs as security money. On 25.11.1991, the tenders were opened before the Tender Committee, which consisted of the petitioner, the Deputy Collector as a nominee of the District Magistrate, the Assistant Director. Government Press. Allahabad as a nominee of the Director. Government Press, Allahabad and two Deputy Secretaries of the U. P. Board of High School and Intermediate Examination and one Shri R. B. Tewari, Assistant Secretary of U. P. Board of High School and Intermediate Examination, Regional Office, Allahabad.
4. M/s. Shiva Associates submitted tenders regarding the first four items, out of total seven items and also submitted a bank draft amounting to Rs. 2.30 lakhs as 10% of the total value of the first four items. As the tender submitted by M/s. Shiva Associates for item No. 4, i.e., the unused answer books, was highest, i.e., Rs. 1.313 per quintal, the tender of M/s. Shiva Associates was approved by the Tender Committee. Although the quantity and value of the answer books was higher and the tenderer M/s. Shiva Associates deposited less amount as 10% security, but the Tender Committee approved the tender of M/s. Shiva Associates and the bank draft submitted by M/s. Shiva Associates was perused and accepted by the Tender Committee.
5. On 27.1.1992 M/s. Shiva Associates requested that the costs of the unused answer books, lifted by it. should be adjusted from the security deposit of Rs. 2.30 lakhs, deposited by it. The request was conceded and M/s. Shiva Associates removed 120.43 quintals of unused answer books, the costs of which, in accordance with the rate of Rs. 1.313 per quintals as approved by the Tender Committee, come to Rs. 1,58,151. On 20.3.1992. M/s. Shiva Associates deposited with the Board of High School and Intermediate Examinations a bank draft of Rs. 1.58.151. On 22.7.1992, Allahabad Bank, Main Branch, Allahabad, sent an information that the bank draft submitted by M/s. Shiva Associates was not a genuine document and no such draft was ever Issued by the State Bank of India, Main Branch. Satna. On 30.7.1992 the petitioner lodged an F.I.R. against Shri R. N. Tiwari, proprietor of M/s. Shiva Associates. As soon as the F.I.R. was lodged, Shri R. N. Tiwari, the proprietor of M/s. Shiva Associates deposited the entire sale amount of Rs. 1,58,151 as well as Rs. 11,865 towards the sate tax.
6. As stated In the foregoing paragraph that the petitioner was to retire on 28.2.1993, which was Sunday, but on 27.2.1993, which was the last day in service of the petitioner, at about 4.40 p.m.. the petitioner was served with a charge-sheet containing certain charges pertaining to the sale of unused answer books of the High School and Intermediate Examinations, which was sold in the year 1991 by the Regional Office of the Board of High School and Intermediate Examinations, Allahabad.
7. The petitioner submitted an explanation' to the said charge-sheet. Thereafter an Enquiry Officer was appointed and a departmental enquiry was held.
8. As far as the first charge regarding the defect In accepting the tender of M/s. Shiva Associates and less deposit of security money is concerned, the Enquiry Officer gave a finding that the tender was accepted by the entire Tender Committee, hence only the Additional Secretary, Shri Atma Ram Srivastava cannot be held guilty, but the Enquiry Officer in his report remarked that in spite of that facts, it was obligatory for Mr. Atma Ram, being a member of the Tender Committee, to have placed the correct facts before the Tender Committee, hence the charge No. 1 is partially proved against him.
9. The second charge pertains to the allegation that after the approval of the tender, in accordance with the direction of the Board, it was incumbent that after the deposit of security money on 21.12.1991, the agreement ought to have been executed. The firm never applied for the extension of the time for executing the agreement. In view of the aforesaid position, due to non-execution of the agreement by 21.12.1991, the security money ought to have been forfeited, but the firm was allowed to execute that agreement on 30.1.1992.
10. The defence of the petitioner against the said charge was that according to him, amount of security deposit should have been Rs. 1,31,500. It was not clear that as to how the Board directed to deposit a sum of Rs.1,30,000 as security deposit. If the Board would have desired that Rs. 1,30,000 ought to have been deposited. It should have amended the letter dated 11.12.1991. According to the direction of the Board, the security money had to be deposited on 21.12.1991 in the Saving Bank Account of the Board, without getting the amount deposited in the said Account, it was not possible to get the agreement executed. As far as the delay in the execution of agreement was concerned. M/s. Shiva Associates sought a direction from the Board. On that letter no officer had put his signature, no meeting in that regard was ever held that the security money should be deduced and the date of agreement be extended. Neither it was possible to send the reply before 21.12.1991 nor it was possible to get the agreement executed by 21.12.1991.
11. The Enquiry Officer concluded that in the light of the explanation given by Shri, Atma Ram Srivastava, Shri Atma Ram Srivastava could be exonerated partially of the said charge, but he further remarked that the charge stood partially proved.
12. According to the third charge, as per agreement dated 3.1.1992, Rs. 13,200 ought to have been deposited in the name of the Additional Secretary, High School and Intermediate Examinations in the Post Office Saving Bank Account.
13. The defence of the petitioner against the said charge was that M/s. Shiva Associates has submitted the tender for four items of the waste papers and accordingly it had to deposit Rs. 2,29,898 as security money. The firm on that four items deposited a sum of Rs. 2,30,000, but as only for item regarding unused answer books, the tender of M/s. Shiva Associates was accepted by the Tender Committee, hence, at the rate of Rs. 1,313 per quintal. It had to deposit Rs. 1,30,000 as security money, but as the tenderer at the time of submitting tender had already deposited Rs. 2,30,000 including Rs. 13,200 hence no loss was caused, particularly when the tenderer had deposited the entire money along with the sales tax. Hence the evaluation of the correctness of the security deposit at the later stage became redundant.
14. However, the Enquiry Officer concluded that as in the agreement it was indicated that the tenderers had to deposit Rs. 13,200 in the office of the Additional Secretary, Board of High School and Intermediate Examinations, it was obligatory on the part of the petitioner to get the said amount deposited in the Post Office Saving Bank Account before the agreement and only thereafter the agreement should have been executed, which shows his carelessness and raises a question mark upon his membership of the Tender Committee. If he would have got deposited Rs. 13,200 in the Saving Bank Account of the Board, then the deposit of Rs. 2,30,000 on the basis of fictitious bank draft would have come to light. The Enquiry Officer also concluded that one of the Secretaries of the agreement put his signature on 6.1.1992, which raises a suspicion about the validity of the agreement. The agreement was filed along with the letter dated 3.2.1992 in the office in the Board without getting the amount of Rs. 13,200 deposited in the Saving Bank Account of the Board. The execution of agreement on 3.1.1992 was not proper and against the condition, hence that charge stood proved.
15. The fourth charge pertains to allowing M/s. Shiva Associates to lift the unused answer books without the deposit of the security money. According to the Enquiry Officer this charge also stood proved.
16. The fifth charge also pertains to lifting of the unused answer books. The tenderer in its letter dated 28.1.1992 had written that it had deposited the entire amount of Rs. 2,30,000 and the valuation of the answer books be adjusted in the account. Although, there was no order for lifting of unused answer books, the petitioner allowed the lifting of unused answer books to the tune of Rs. 1,58,150.85 ps.
17. The Enquiry Officer concluded that the said charge stood proved.
18. The sixth charge pertains to non-deposit of the sales tax by M/s. Shiva Associates and it was alleged that without getting that amount deposited, permission was granted to lift the stock.
19. The Enquiry Officer concluded that as the sales tax was deposited later on, that charge was not proved against the petitioner as the administration did not suffer any loss.
20. The seventh charge pertains to non-verification of the bank draft of Rs. 2,30,000, which was deposited by M/s. Shiva Associates and non-deposit of 10% security money for the unused answer books. It was alleged that if Rs. 1,30,000 would have been deposited as security money, then it would have come to the light that the deposit of Rs. 2,30,000 as security by the said firm for all the items was fictitious.
21. On that charge the Enquiry Officer concluded that the charge was not proved against Shri Atma Ram Srivastava as his bad intention is not proved.
22. The Enquiry Officer further concluded that charges No. 1 and 2 are partially proved, while other charges were fully proved. Although the firm later on had deposited the entire amount including the sales tax, hence the administration did not suffer any loss. The Enquiry Officer recommended that considering the fact that as. the petitioner had already retired, his case should be considered sympathetically.
23. From the perusal of the entire enquiry report, it transpires that on charge No. 1, the Enquiry Officer clearly stated that the entire process of acceptance of tender was completed unanimously by the Tender Committee, hence it would not be proper to hold the petitioner guilty of the charge. As far as charge No. 2 is concerned, the Enquiry Officer concluded that in the light of the explanation of the petitioner, he could be partially exonerated from the said charge, but later on stated that charge was partially proved against the petitioner. As far as sixth charge is concerned, it is the clear cut finding of the Enquiry Officer that as the sales tax amount was deposited, the administration did not suffer any financial loss. The Enquiry Officer also recorded a finding over charge No. 7 that it had to be accepted that Shri Atma Ram Srivastava has proceeded in the matter In accordance with the established practice and no bad Intention can be attributed to him as the firm had deposited the entire amount of the unused answer books including the sales tax, hence his case deserves to be considered sympathetically, particularly when he has been retired from service.
24. After the submission of the report the disciplinary authority issued a show cause notice to the petitioner. The petitioner submitted an explanation against the show cause notice. Thereafter, the impugned order, deducting 5% per month from the pension of the petitioner, was passed by the disciplinary authority, i.e., the State Government.
25. The question as to whether the petitioner was guilty of such an act of mis-conduct or negligence in discharge of his duties while in office, which warranted such a drastic action of deprivation of 5% from pension results into grave consequences as far as pensioner is concerned. It has also to be examined as to whether the deprivation is corelative to or commensurate with the gravity of such an act.
26. More or less a similar question cropped up in the case of D. V. Kapoor v. Union of India and others, AIR 1990 SC 1923. In that case the matter pertained to Rule 8 (5) (2) and Rule 9 of Civil Services Pension Rules. 1972, by means of which a power has been vested with the President to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum.
27. D. V. Kapoor was working as an Assistant Grade IV of the Indian Foreign Service, Branch 'B' in Indian High Commission at London. On November 8. 1978 he was transferred to the Ministry of External Affairs. New Delhi, but he did not join duty as ordered, resulting in initiation of disciplinary proceedings against him on August 23, 1979. Pending the proceedings, on February 26, 1980, D. V. Kapoor sought voluntary retirement from service and by proceedings dated October 24, 1980 he was allowed to retire but was put on notice that the disciplinary proceedings initiated against him would be continued under Rule 9 of Civil Services Pensions Rules, 1972. His main defence in the explanation was that his wife was ailing at London and, therefore, he sought for leave for six days in the first instance and 30 days later, which was granted, but as she did not recover from the ailment, he could not undertake travel. So he sought for more leave, but when it was rejected, he was constrained to opt for voluntary retirement. After conducting the enquiry the Enquiry Officer submitted his report dated May 19, 1981.
28. The charges against D. V. Kapoor were that he absented himself from duty from December 15, 1978 without any authorisation and despite his being asked to join the duly he remained absent from duty which is wilful contravention of Rules 3 (i), (ii) and 3 (i), (iii) of the Civil Services Conduct Rules, 1964. The Enquiry Officer found that it is, however, difficult to say whether his absenting himself from duty was entirely wilful. In the concluding portion he concluded that both the articles of charges have been established, the circumstances in which D. V. Kapoor violated the rules require a sympathetic consideration while deciding the case under Rule 9 of the Rules. The President, on consideration of the report, agreed with the findings of the Enquiry Officer and in consultation with the Union Public Service Commission decided that the entire gratuity and pension otherwise admissible to D. V. Kapoor was with held on permanent basis as a measure of punishment through the proceedings dated November 24, 1981. Being aggrieved against the said order D. V. Kapoor filed a writ petition before the High Court, which was dismissed. Thereafter, he invoked the jurisdiction of Hon'ble Supreme Court.
29. In the light of the aforesaid facts and circumstance, Hon'ble Mr. Justice K. Ramaswamy (as he then was) speaking on behalf of the Bench referred to the decision of the Government as compiled by Swamy's Pension Compilation, 1987 Edition, where it was indicated :
"Pensions are not in the nature of reward but there is a binding obligation on Government which can be claimed as a right. Their forfeiture is only on resignation, removal or dismissal from service. After a pension is sanctioned, its continuance depends on future good conduct, but it cannot be stopped or reduced for other reasons."
Thereafter, the Bench observed :
"Rule 9 of the rules empowers the President only to withhold or withdraw pension permanently or for a specified period tn whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension Is a statutory right. The measure of deprivation therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41 of the Constitution.....The exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs. 60."
The Bench, therefore, concluded :
"In the Instant case there was no finding that the appellant did commit grave misconduct as charged for, therefore, the exercise of power by the President."
The provision of Rule 9 of Civil Services Pensions Rules, 1972 is port materia with Civil Services Regulation No. 351A.
30. We have discussed in details the report of the Enquiry Officer, from which it transpires that the petitioner had not committed such an act of misconduct or negligence in discharge of his duty while in office which would warrant such a drastic action. The punishment awarded does not commensurate with the gravity of the charge of misconduct or is not correlative with the gravity of the misconduct or irregularity. At the most it can be said that the petitioner has committed mistake or an error In not getting the security money deposited at a particular time and getting the agreement executed after some time, but the administration did not suffer any loss. The Enquiry Officer himself did not attribute dishonest intention or motive on the part of the petitioner and in the concluding part of his report the Enquiry Officer recommended for sympathetic consideration of the case by the State Government. It seems that the concluding part of the report of the Enquiry Officer was not considered by the State Government in its right perspective.
31. We are of the view that the petitioner has, not committed such an act of grave misconduct or Irregularity which warranted such a drastic action at the evening of his career. Only certain lapses, mistake or error which are technical in nature can be attributed to the petitioner. There was no bad intention on the part of the petitioner to cause wrongful loss to the State Government and wrongful gain to himself or any other person. The action does not commensurate with the gravity of the alleged charges of misconduct or irregularity.
32. The impugned order suffers from arbitrariness inasmuch as no prudent man would have arrived at the conclusion, which has been arrived at by the State Government. Article 14 of the Constitution of India is the sworn enemy of arbitrariness, hence the impugned order is hit by Article 14 of the Constitution of India.
33. In view of what has been indicated hereinabove, the writ petition succeeds and is allowed. The impugned order dated 31.5.1995 is hereby quashed. A writ in the nature of mandamus is Issued commanding the respondents to return the amount of the pension which has been deducted from the pension of the petitioner within three months from the date of receipt of a certified copy of this order. A writ in the nature of mandamus is also issued commanding the respondents to pay the petitioner his gratuity, if the same has not yet been paid within the aforesaid period with Interest at the rate of 12% per annum from the date of retirement till the payment of gratuity.
34. However, there shall be no order as to costs.