P.B. Mukharji, J.
1. This is an application under Article 226 of the Constitution by the petitioner, Hemanta Kumar Bhattacharjee, who was a civil servant in the Postal Department, Superior Subordinate Services, under the Central Government of India and also the sub-postmaster of the Mission Row Post Office for some time. It is unnecessary to N go into the details of this long and chequered misfortune of this petitioner and only a broad reference to the major events may be detailed below for an appreciation of the points involved in this application.
2. The petitioner's case is that he entered service on 1 August 1921, and retired on 5 December 1959. He applied for pension and death-cum-retirement gratuity under the rules but for these four years has not been given the same. He has received so far only a kind of anticipatory pension of Rs. 50 per month under the rules. The petitioner reached the age of sixty years on 5 December 1959. His case is that he was granted five extensions of service. He had a long period of suspension from 3 September 1950 to 6 January 1958. The suspension was held by Court to be illegal and invalid and they were quashed and it is said that the reports of his case appeared in 56 C.W.N. 676 and 58 C.W.N. 1. As the suspension had been declared to be invalid, the petitioner was entitled to all the dues during the period of such suspension. It appears from annexure B dated 7 December 1959 to the affidavit of Deo Kumar Singh of the office of the Superintendent of Post Offices, Central Calcutta Division, that there was a pre-audit bill for Rs. 7,057.07 drawn in favour of the petitioner which was not passed by the office for various objections one of which was that the period of his suspension was not regularized. This annexure, however, notes the fact that the pre-audit bill for Rs. 7,098.47 was provisionally passed by the office of the Superintendent of Post Offices and was paid to the petitioner on 18 September 1959.
3. In the meantime what happened was that a criminal case was instituted on 5 September 1960 under inter alia Sections 120B, 262 and 263 of the Indian Penal Code and Criminal Procedure Code and Section 5 (2)(b) of the Prevention of Corruption Act. This Criminal Case against the petitioner has a long and ineffective record and is said to be still pending without much progress. At one stage the jurisdiction of the Court whether it was the Chief Presidency Magistrate's Court or the Special Court was agitated and had finally to be decided by the Supreme Court which held that it was the Special Court which had the jurisdiction. But then again when the matter came up before the Special Court objections were taken by the petitioner that the Central Establishment, Police, had no jurisdiction although his objections were overruled by the Special Court. The matter is now pending in this Court under revision. So from 1950 to 1963 nothing tangible has flowed from the alleged criminal case against the petitioner. The other event is in 1951 when the petitioner brought a suit being No. 3772 of 1951 in this Court against the Additional Director of Postal Services for recovery of damages amounting to Ra. 10,000. The suit was dismissed with costs by G. K. Mitter, J., on 23 June 1959 who observed:
it is to be regretted that such an unworthy cause as the plaintiff's in this case should be pursued with so much vigour and that so much perjured evidence be adduced in support of a false claim.
An appeal is now pending against that judgment being Appeal No, 62 of 1960.
4. The main grievance now of the petitioner is that the Government and the Superintendent of Post Offices, Director of Postal Services and Senior Deputy Accountant-General, Posts and Telegraphs, Calcutta, who are respondents in this application, are wrongfully and illegally withholding the pension and gratuity reliefs due and payable to the petitioner under the Civil Service Regulations. By a letter dated 5 December 1959 the Superintendent of Post Offices, Central Calcutta, wrote to the petitioner-as follows:
As ordered in this office memorandum No. B3-329' dated 4 June 1959 you are permitted to retire from service with effect from 6 December 1959 but at the same time you are hereby informed that it is proposed to take action against you under Article 351(1) of the Civil Service Regulations.
5. Again the same Superintendent wrote to the petitioner on 10 December 1959 as follows:
In partial modification of this office letter of even number dated 5 December 1969 addressed to you, you are hereby informed that it is proposed to take action against you under Article 351A of the Civil Service Regulations. Article 351A of the Civil Service Regulations as appearing in this office letter referred to above may, therefore, please be read as 351A of the Civil Service Regulations.
6. Finally, the concluding Para. 2 of the annexure B to the affidavit of Deo Kumar Singh in D.O. No. SFB/V-6/2 dated 7 December 1959 discloses as follows:
Hemanta Kumar Bhattacharjee attained the age of 60 years on 6 December 1959 and, therefore, it is absolutely necessary that any amounts which the department has to pay to him are brought to the notice of the head of the department so that timely action may be taken to move the Court for attachment of such dues. I would, therefore, request you to kindly intimate full particulars of any amounts by way of pay, allowances, gratuity, pension, etc., that may be due to the official from time to time before the amounts are actually disbursed.
7. This demi-official was addressed to Sri Siddiqui, Deputy Accountant-General by Sri Bhat, the Deputy Postal Superintendent, Calcutta City, from the office of the Postmaster-General.
8. Now the main grievance of the petitioner is against those what are called memoranda and orders No. SP (O-7-56-57 dated 5 and 10 December 1959 and No. SFB/V-5/2 dated 7 December 1959. The petitioner asked for a writ of mandamus to cancel these memoranda and' orders but his real relief is for a writ and direction commanding the respondents to forthwith comply with and give effect to the order of 15 March 1960 and forthwith to make payment of pension and gratuity. The order of 15 March 1960 contained in a memorandum No. SP (C)-7/56-57 from Sir D. K. Singh, Superintendent, copy of which was sent to the petitioner, reads as follows:
Reference this office memorandum No. SP (O-7/56-57 dated 3 January 1958, in which Hemanta Kumar Bhattacharjee, formerly sub-postmaster, Mission Row Post Office and since retired in the scale of Rs. 60-170, was ordered to be released from suspension with effect from 29 April 1952.
The period from 29 April 1952 to 28 July 1952 of his suspension should be treated as on duty with full pay and allowances to which he would have been entitled had he not been suspended.
9. The petitioner who appears in person before this Court submits that the impugned memoranda and orders threatening action under Article 351A of the Civil Service Regulations are unauthorized, illegal and without jurisdiction, particularly having regard to the fact that they are written by persons who are not the persons authorized under Article 351A of the Civil Service Regulations and also on the ground that he does not come within the terms of any of the said article. Now the memorandum and order of 5 December and 10 December 1959 are not really an action under Article 351A of the Civil Service Regulations. In fact, they are not orders. I have quoted the language of those two memoranda and the language makes it clear that it is only an information sent to the petitioner of a proposed action that may be taken in future under Article 351A of the Civil Service Regulations. That is not action itself under Article 351A of the Civil Service Regulations. Therefore, it cannot be said that these letters could not be written by the Superintendent. The terms of those letters which are not called memoranda also make it clear that they are not orders either. They are at best intimation of a proposal to take action under Article 351A of the Civil Service Regulations.
10. But the mere serious objection which the petitioner has placed before this Court Is that Article 351A of the Civil Service Regulations does not apply to the facts of this case. In order to appreciate that point of objection it is necessary to set out relevant portions of Article 351A of the Civil Service Regulations which were substituted--vide G.I.M.P. Notification No. F. 7 (73)-EV/58 dated 21 August 1958. It reads as follows:
351A. The President further reserves to himself 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 or 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 negligence, during his service Including service rendered on re-employment after retirement:
(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment--
(i) shall not be instituted save with the sanction of the President,
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and
(iii) shall be conducted by such authority and in such place or places as the President may direct and In accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
(b) such judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with the Sub-clause (ii) of 01. (a) and
(c) the Union Public Service Commission shall be consulted before final orders are passed.
11. The petitioner's case is that under the above article his pension cannot be withheld because he has not been found guilty Id any departmental or judicial proceedings of any grave misconduct or negligence as contemplated in the above article. In answer Sri Mukherjee, the learned advocate for the Postal Department, submits that the above article is really of two independent parts. The first part gives the President the power to reserve to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period. He submits that this is an independent and unqualified part and this cannot be questioned. There are two answers to this argument. Assuming first that Sri Mukherjee's submission is right that the first portion is an independent portion of Article 351A of the Civil Service Regulations, then even in that case the President has not himself done that and therefore, on the strength of the memoranda dated 5 and 10 December 1959 the pension or part thereof cannot be withheld. Secondly, I do not think that Sri Mukherjee is right in his contention that the President has an unqualified and unlimited power and right to withhold or withdraw a pension without any reason and without any limitation. I read Article 351A of the Civil Service Regulations as one whole article. The first part giving the President the right to withhold or withdraw a pension is Joined with the word 'and' with the succeeding portion relating to the order of recovery of the pension and therefore, I am of the opinion that the words ' pecuniary loss ' and the words
if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or negligence, during his service including service rendered on reemployment after retirement.
are words which qualify the opening, words of Article 351A of the Civil Service Regulations giving the President the right to withhold or withdraw a pension. Reading Article 351A of the Civil Service Regulations as a whole, the interpretation in my view is that the President's right to withhold or withdraw a pension and his right to order the recovery can be exercised only when the pensioner Is found guilty and not otherwise. This. Court is of the opinion that this is the only interpretation possible because otherwise If Sri Mukherjee's submission that the first part of Article 351A of the Civil Service Regulations giving the President unqualified right to withhold or withdraw a pension was entirely Independent, then that would have been enough and all these provisions about departmental or judicial proceedings finding the pensioner guilty would lie redundant. It will be redundant, because If the President has unqualified right to withhold or withdraw a pension from a pensioner for any cause or no cause whatever, then the case of the pensioner being found guilty by departmental or judicial proceedings should obviously be included in that large part. It would then not have been necessary to include the provision that the pensioner is to be found guilty in the departmental or judicial proceeding's.
12. An outstanding fact in this case is that no departmental or judicial proceedings have found the petitioner-pensioner guilty of any grave misconduct or negligence. The further fact is that no departmental proceeding can now be started because it can only be In respect of an event which took place not more than four years before the institution of such proceedings with the result that it would be barred by proviso A (11) of Article 351A of the Civil Service Regulations. Nor can judicial proceedings be adopted now after retirement by reason of proviso B of Article 351A of the Civil Service Regulations.
13. In that view of the matter I am bound to hold that the respondents cannot withhold the pension from the petitioner. I, therefore, direct and order the respondents and the Government of India In its Postal Department to make payments of all pensions and gratuity due under the rules and regulations to the petitioner within a period of two months from the date of this judgment and order and continue to pay such pensions as and when they may arise every month.
14. I make the rule absolute in terms of prayer 3 of the petition. This order is without prejudice to the rights and contentions, if any, of either the petitioner or the respondents in any pending cases or litigations and without prejudice to the rights and contentions, if any, under the Civil Service Rules and Regulations.
15. It is not necessary to cancel or quash the memoranda dated 5, 7 and 10 December 1959, because they are no orders of the Government but mere information of a proposed action that may be taken under Article 351A of the Civil Service Regulations which I have already hold to be inapplicable to the petitioner's case. The petitioner will get costs which I assess at one gold mohur.