1. This is an application filed by the petitioner under Article 226 of the Constitution praying for the issue of an appropriate writ, direction or order quashing the order of respondent-Government bearing No. F L. 5103-5/8 and A, 55-54-2 D/-15-11-1954; as illegal and ultra vires.
2. The facts that have given rise to this petition are briefly as follows :
3. The petitioner was an Agricultural Inspector under the respondent-State Government till 8-1-1947, when he was retired on a pension of Rs. 56-12-0. The question of payment of this pension was under correspondence for some time and, in the meanwhile, the respondent-Government passed an order directing the withholding of this pension and the insurance amount due to the petitioner on the ground that he was responsible for the loss of Rs. 9,508-8-0 said to have been incurred by the Arsikers Cotton Marketing Co-operative Society, Ltd., of which he (petitioner) was the Secretary for some time.
The petitioner contended that he was not responsible for the loss and that the withholding of the pension and the insurance amount was illegal. Subsequently the State Government ordered the payment of the insurance amount but they did not pass like orders with respect to the pension. After repeated protests and representations, the respondent-Government passed the impugned order on 15-11-54 reducing his pension from Rs. 56-12-0 to Rs. 5/- per month from the date of retirement of the alleged ground that his record of service was unsatisfactory.
The petitioner contends that the charge that this record of service was unsatisfactory is not true and that no enquiry was held in this behalf. He further contends that the Government had no power to reduce the pension once sanctioned and that the order is illegal, unjust and ultra vires and liable to be quashed by the issue of an appropriate writ or order. In the counter-affidavit filed by the respondent-Government, they do not dispute the main facts alleged in the petition, but they contend that what was sanctioned to the petitioners an anticipatory pension, that the Government had power to reduce a pension already granted and that the order is legal and valid.
4. The only point that arises for consideration is whether the respondent-Government had power to reduce the pension of the petitioner as is done in this case. At the outset, it has to be pointed out that there is no substance in the contention of the respondent-Government that what was sanctioned to the petitioner was an anticipatory pension. The order granting pension to the petitioner does not say so nor is there any document worth the name to indicate that what was sanctioned to the petitioner was an anticipatory pension. Reliance was placed on the side of the respondent on Articles 216, 216 (a) and 302 of the Mysore Service Regulations. In our opinion none of these provisions support the contention of the respondent-Government.
5. Article 216 provides that future good conduct is an implied condition of every grant of pension. The reduction of pension in this case has been not for any bad conduct of the petitioner subsequent to the date of retirement: on the other hand, the reduction is by way of punishment for alleged past misconduct. Therefore Article 216 does not help the contention of the respondent in any way. Article 216(a) no doubt empowers the Government to withhold or reduce a pension already sanctioned to a servant, but this Article has subsequently been introduced into the Service Regulations and it was not in existence at the time when the pension was granted to the petitioner i.e., in the year 1947. This Article cannot have any retrospective effect and therefore that provision also does not help the respondent's contention.
6. Article 302 M. S. R. reads thus:.
'(a) The full pension admissible under the Rules is not to be given as a matter of course, or unless the service rendered has been really approved.
(b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks -proper.
Note :-- The full pension admissible under the Regulations is not to be given as a matter of course, but rather to be treated as a matter of distinction'.
This power given to the State Government under Article 302(b) is one that has to be exercised at the time of sanctioning the pension. In this case, pension had already been sanctioned to the petitioner on 9-9-47. Therefore the State Government cannot take advantage of the provisions of Article 302(b) in support of their action in reducing the petitioner's pension subsequently.
7. It is admitted that the State Government have held that the amount due to the Society is not Government money and it is stated that on that basis the State Government ordered the payment of the insurance amount to the petitioner. In view of that order, we do not see any justification for the State Government to withhold the pension or to reduce it as has been done in this case. We are of opinion that the petitioner has to succeed.
8. In the result, the petition is allowed with costs, The order of Government impugned in this petition is liable to be quashed as one made with out jurisdiction and without any justification. A writ will accordingly issue as prayed for. Advocate's fee Rs. 100/-.
9. Writ issued.