A.N. Grover, J.
1.This is a petition under Articles 226 and 227 of the Constitution in which the ('acts may first be stated The petitioner is the widow of A.S. Sidhu who joined the Punjab Government service in the Agricultural Department in 1927 and who died on 21st October 1957 while he was a member of Class 1 of that service. In 1958 the Punjab Government discovered that certain losses had been incurred in the matter of purchase of some items for the Department of Agriculture. A.S. Sidhu was charge-sheeted and an enquiry was ordered to fix the responsibility of the losses. He was also suspended on 20th May 1954. Shri K.S. Narang I. A. S. was appointed the Enquiry Officer. After A.S. Sidhu gave his explanation or reply to the charge sheet the Enquiry Officer held an enquiry and submitted a report. By a letter dated 10th October 1957 addressed by the Secretary to Punjab Government to A.S. Sidhu, he was informed of the result of the report. A copy of the report was also sent to him.
It was stated in that letter that as a result of the enquiry it was proposed that he be dismissed from service. He was, however, inform ed that before that was done, he could show cause, if any, against the action proposed to be taken. This was done as required by Rule 7 (6) of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. Paragraph 2 of that letter was as follows :-
'You should also explain why the following pecuniary losses caused to Government by your gross negligence and breach of orders should not be recoverd from you :--
(i) Rs. 54,9,993-14-6 in connection with the delivery of valuable Government properly to Messrs S.S. Engineers and Co., Calcutta
(ii) Rs. 3,500-9-0 in connection with the excess payment made to Shri Kirpal Singh. Well Supervisor '
It is alleged that on receipt of this letter A.S. Sidhu virtually died of shock on 21st October 1957. The petitioner then applied for payment of the pension and gratuities which were due and payable to A.S. Sidhu as also the family pension by means of a memorandum dated 11th December 1959, the petitioner was informed, that the Governor of Punjab was pleased to make the following order :--
(i) To reinstate Shri Sidhu with effect from the date of his death viz., the 21st October. 1957 and retire him with effect from the same date. (ii) To treat the period of his absence from duly during his suspension, as leave of the kind due and admissible to him, but no further payment should be made to the heirs of Shri Sidhu apart from the subsistence allowance already drawn by him or still due to him.
(iii) To adjust the entire amount of death-cum-retirement gratuity and family pension which may be due to his family against the recovery of the loss sustained by the Government because of the irregularities committed by Shri Sidhu.'
The petitioner filed a representation to the Governor (copy annexure ' E ') in March 1960. II was prominently mentioned in that representation that the death-cum-retirement gratuity and family pension were meant for the maintenance of the survivors and she had no other source of income except that there was a properly comprising 20 bighas of land which was insufficient for her maintenance. Various other matters were raised which it is not necessary to mention. By means of memorandum dated 29th December 1962, the Under Secretary to Government, Punjab, informed the Director of Agriculture of the following order made by the Governor of Punjab in respect of the grant of pension to A.S. Sidhu :--
'The Governor of Punjab is pleased to sanction the grant of a superannuation pension at the rate of Rs. 256.00 (Rupees two hundred fifty six) per month for 21st October, 1957 only, and a death-cum-retirement gratuity of Rs. 8,961 (Rupees eight thousand nine hundred and sixty-four only) in lump sum and residual gratuity of Rs. 987-75 (Rupees Nine Hundred eighty seven and N. P. Seventy five only) in lump sum to late Shri Amir Singh Sidhu, Agricultural Engineer, under Rule 5.27 and 6.13 of the Punjab Civil Services Rules, Volume II, read with the New Pension Rules. 1951, (Para 9 (i) (c) thereof).
Sanction is also accorded to the grant of family pension of Rs. 124.20 (Rupees one hundred and twenty four and twenty Naye Paise only) per month to Shrimati Shanti Sidhu widow of late Shri Amir Singh Sidhu from the 22nd October, 1957 to the 20th October. 1962, or till death or remarriage of the widow, whichever event occurs earlier.
2. The pension, death cum-retirement gratuity, residual gratuity and family pension are voted and are debitable to (Provincial Revenues Punjab Pension of Officers retiring from East Punjab after the 14th August, 1947) and will he payable at Kaithal Sub-Treasury. District Karnal.
3. The record of service of Shri Amir Singh Sidhu has been examined and found to be unsatisfactory He was held responsible for heavy financial losses caused to Government due to the irregularities committed by him in the execution of the Tube well Scheme as a result of the departmental enquiry conducted against him. It has, therefore, been decided that no amount of pension, gratuity residual gratuity or family pension as sanctioned above should be paid to his widow but these should be adjusted against the financial losses sustained by Government as already decided in Punjab Government Memo No. 7629-Agr. I (1)-59/7068 dated 11th December, 1959.'
Ultimately the present petition was filed in May 1963.
(2) In reply to the main points taken in the petition. the prominent ones out of which will be presently noticed, it was maintained by the Government that withholding of gratuity or pension could be ordered for the recovery of any pecuniary losses to Government on account of the misconduct or negligence during his service by a Government employee as provided in Rule 2.2 (b) of the Punjab Civil Services Rules. Volume II It was stated that A.S. Sidhu was reinstated and retired with effect from 20th October 1957 under Rule 5.3 (a) of the Punjab Financial Rules. Volume I.
It was asserted that he had been given an opportunity to refute the charges framed against him in the enquiry held against him by Shri Narang and that the opportunity of making a representation against the proposed punishment need not have been given necessarily as provided under the second proviso to Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules. 1952. The opportunity was however, given to him but he could not avail of it owing to his death In answer to the point raised in the petition that the petitioner was herself entitled to an opportunity as she was affected by the withholding of the pension, it was denied that she was entitled to any such opportunity
(3) There are certain facts which are not disputed. The first is that the losses which the Government incurred on account of a contract having been entered into with a Calcutta firm by A.S. Sidhu came to about Rs 55,000 The Government had issued certain instructions al the time the contract was entered into that the aforesaid officer was not authorised to make that contract and it was the Director who was empowered to do so but it was admitted that these instructions had not been sent to A.S. Sidhu at the time when he entered into the transaction The Government filed a suit also against the Calcutta firm and a decree has been obtained against that firm for about Rs 55,000 Execution of that decree is still pending but no realisation has been made
Another enquiry was held under the orders of the Government by Dr K.S. Bedi Joint Director of Agriculture, regarding the irregularities alleged to have been committed in the Tube well scheme in respect of which the contract had been made with the Calcutta firm In his report dated 29th May 1962 Dr K.S. Bedi referred to the indifference shown by the Head of the Department of Agriculture in the mailer of realising any amount in execution of the decree against that firm or prosecuting the criminal proceedings which had been instituted against it at Calcutta. The following passage from his report may be reproduced :--
'I am pained to record here that the officials and the officers in the Directorate of Agriculture displayed a very callous and indifferent attitude towards the very important Case of the recovery of a huge sum of money from a dishonest firm. Even on humanitarian grounds, they did not even sympathise with the lot of the Agricultural Engineer. Shri A.S. Sidhu, and his office Accountant, Shri Kashmiri Lal, that they were also involved in the case and that their fate very much depended on the successful execution of the decree.'
The allegations with regard to the mala fides on the part of the Enquiry Officer, Shri K.S. Narang, were made but those were emphatically denied and there is no specific material that has been placed on the record on that aspect of the case. It may, however, be mentioned that he was the Secretary, Department of Agriculture, when the impugned orders were passed whereas he himself had conducted the enquiry as an Enquiry Officer. This in no way appears to affect the real controversy between the petitioner and the Government which hinges more on the scope and applicability of the rules which will now be discussed.
4. The petitioner's husband, A.S. Sidhu, was governed by the New Pension Rules which are found in Appendix 2 in the Punjab Civil Services Rules. Volume II In section II, Rule 3 (2) provides that if an officer, who had completed 5 years' qualifying service, dies while in service, a gratuity, not exceeding the amount specified in sub-paragraph (3) may be paid to the person or persons on whom the right to receive the gratuity is conferred under paragraph 4, or if there is no such person, to the legal heirs of the officer Section III provides for grant of family pension to the family of an officer who dies, whether while still in service or after retirement, and in terms of the proviso to Rule 5 (i) the period of payment of family pension will in no case extend beyond a period of 5 years from the date on which the deceased officer retired or on which he would have retired on superannuation pension in the normal course, according as the death takes place after retirement or while the officer is in service
It is not disputed that the wife falls within the categories of the relatives or the family who would be entitled to death cum-retirement gratuity in section VII Rule 10 proves that Government will have the right to effect recoveries from a gratuity or pension sanctioned under sections II and III. in the same circumstances as recoveries can be effected from an ordinary pension under Rule 2.2 (b) Rule 2.2 (b) says that the Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it. whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to Govern men I by misconduct or negligence during his service including service rendered on re-employment after retirement.
The Note appended al the conclusion of Rule 22 is in the following terms
'As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the Accountant-General. The amount of the pension withheld under Sub-clause (b) should not ordinarily exceed one-third of the pension originally sanctioned, including any amount which may have been commuted. In fixing the amount of pension to be so withheld, regard should be had to the consideration, whether the amount of the pension left to the pensioner in any case should be adequate for his maintenance. '
5. The contentions of Mr. Sibal which according to him flow from these rules are two-fold. The first is that the pensioner must be found to have been guilty of gross misconduct in departmental or judicial proceedings or to have caused pecuniary loss to Government by misconduct or negligence during his service including service rendered on re-employment after retirement. For this one has to turn to the Punjab Civil Services (Punishment and Appeal) Rules, 1952 Rule 4 contains the penalties which may, for good and sufficient reason, be imposed Penalty (iv) is --
'Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence of breach of orders: ' 5-A. According to Rule 8 no order under the aforesaid clause apart from clauses (i) and (ii) shall be passed imposing a penalty unless a Government servant has been given an adequate opportunity of making any representation that he may desire to make and such representation has been taken into consideration. The second proviso is that the requirements of the rule may for sufficient reasons to be recorded in writing, be waived where it is not practicable to observe them and where they can be waived without injustice to the officer concerned
The submission of Mr. Sibal is that the departmental enquiry had proceeded to the stage where late A.S. Sidhu had been informed of the report of the Enquiry Officer and the action which was proposed to be taken against him and he had been asked to show cause against the proposed punishment Before he could show cause or make any representation against the action proposed to be taken he was removed by the hand of death and in these circumstances the requirements of the rule could not be deemed to have been satisfied. He says that it was open to the Government before making the impugned order to waive any further compliance with the rule under the second proviso mentioned above but in that case a definite decision had to be arrived at that the rule could be waived without injustice to the officer concerned. As no such order was made or has been produced or even alleged to have been made by the Government waiving the requirements of the rule in accordance with the second proviso it must be held, according to Mr. Sibal, that the late A.S. Sidhu did not have an adequate opportunity of making any representation and that naturally his representation could not have been taken into consideration
The second contention of Mr. Sibal is that Rule 2.2 which itself empowers the Government to withhold or withdraw a pension or any part of it in the event of a Government servant having been found guilty of misconduct or negligence which led to pecuniary loss to the Government does contemplate and the intention is clear that the entire pension is not to be withheld. On this point he has emphasised the language of the Note which has been reproduced before According to the Note, the amount of the pension withheld should not ordinarily exceed one-third of the pension originally sanctioned and it has further to be considered by the authorities concerned whether the amount of the pension left to the pensioner in any case is adequate for his maintenance If that is the test, then necessarily the entire pension could not have been withheld and. at any rate. the whole of the family pension which was granted could not have been withheld for the purpose of making up the pecuniary loss caused to the Government
Mr. Sibal has laid a good deal of stress on the fact that family pension is granted to maintain the wife and children or other dependants of the deceased officer and if the entire pension is to be taken away or withheld, then the whole object of making some, provision for the family pension disappears and is rendered wholly nugatory He says, therefore, that when the impugned orders were made there was a total disregard of these provisions and considerations which are mandatory since the Note forms a part of the rule itself under which it is appended. Reliance has been placed by Mr. Sibal on the well known principles on the interpretation of rules which are of exceptional and penal nature according to which a very strict construction has to be placed on them; vide Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 and Kanaiyalal Chandulal Monim v. Indumati T. Potdar. AIR 1958 SC 444
6. Mr. Mela Ram Sharma, who appears for the State, has urged that the departmental proceedings had concluded and the Enquiry Officer had made a report against late A.S. Sidhu on which the Government came to the conclusion that he had been guilty of causing pecuniary loss to the Government on account of his negligence The submission of Mr. Sharma is that even if Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules is applicable, the requirement of that rule had been duly satisfied He has endeavoured to show that Rule 8 would not be applicable but I have not been able to completely appreciate his line of reasoning He further says that the second proviso should in effect and substance be deemed to have been complied with because in the circumstances of the present case owing to the death of A.S. Sidhu it was not possible for the Government to wait for any reply to the show cause notice which had been sent to him after the Enquiry Officer had submitted the report.
It is difficult to agree with Mr. Sharma that the requirement of the second proviso to Rule 8 would be satisfied without there being a specific order as contemplated by that provision. It has not been alleged in his return that any such order was ever made nor indeed has any such order been produced before me by Mr. Sharma. I am, therefore, constrained to hold that the requirements of Rule 8 were not fulfilled so far as the departmental enquiry was concerned and it cannot be said that A.S. Sidhu had been found guilty of gross misconduct or of having caused pecuniary loss to the Government by misconduct or negligence during his service in departmental proceedings. I am also satisfied that when the impugned orders were made the provisions contained in Rule 2.2 and in particular the note appended thereto were not kept in mind, with the result that the orders have been passed in disregard of the legal provisions under which the pension etc., could be withheld by way of recoveries on account of Pecuniary loss caused to the Government by negligence of A.S. Sidhu.
7. Mi. Sibal has also laid a good deal of stress on another grievance of the petitioner that she was afforded no opportunity of making any representation against the withholding of the pension, particularly the family pension which was to form her sole means of living and subsistence and thus there had been a violation of the rule of natural justice Mr. Sibal has not been able to satisfy me how any such rule would be applicable in the matter of granting or withholding a pension which was payable under the rules when the rules did not contemplate or provide for any such opportunity being given to the members of the family of the deceased officer
8. For the reason already stated, this petition is allowed and the impugned orders are hereby quashed The respondents arc further directed not to withhold any pension, gratuities etc., to which the petitioner may be found entitled except in accordance with the rules and the law. In the circumstances the parties are left to bear their own costs