- (1.)Petitioner entered into Bihar and Orissa Government Service with effect from 9-7-1930 as an overseer and superannuated from service under the State Government -of Orissa with effect from 19-6-1968 while, functioning as a Superintending Engineer. Upon superannuation, he became entitled to pension as admissible under the Rules. On the 17th of June, 1969, Government in the Works Department communicated to the Accountant General, Orissa, that petitioner's services were satisfactory yet as a criminal case was pending against him, he may be paid provisional pension not exceeding two-thirds of admissible pension and payment of Gratuity may be kept in abeyance until the results of the criminal case are finally 'known. Petitioner moved this Court in O. J. C. No. 360 of 1972 to quash the said/ order. By judgment - dated 20th of December; 1973,' petitioner's application was allowed and the order granting provisional pernsion and withholding of Gratuity was quashed. This Court held:
"............On an analysis of the provisions of these two articles (Articles 351 and 470 of the Civil Service Regulations ) we agree with the contention of Mr. Rath for the petitioner that Article 351 of the Regulations relates to general conduct of the pensioner after retirement, while the other Article refers to the conduct of the officer in course of employment. The appropriate authority has already certified the past service of the petitioner to be 1 satisfactory.. On the concession that Articles 351-A and 351-B of the Regulations as adapted in the State of Orissa are not applicable to the petitioner, the impugned order must be quashed.

It is not disputed that there has been a conviction of the petitioner subsequent to his retirement. Mr. Rath contends that the petitioner cannot be subjected to an order under Article 351 of the Regulations because the conviction is connected with his past service. It is not known as to whether Government would ever make an order in exercise of their power under Article 351 in future. Our examination of Mr. Rath's contention regarding inapplicability of Article 351 to the petitioner on the basis of the conviction is wholly academic because we cannot proceed on the assumption that an order in terms of Article 351 of the Regulations may be made. If and when made certainly it would be open to the petitioner to challenge the same."

In the meantime petitioner's conviction got affirmed upon appeal in this Court. Petitioner was served with a notice dated 11th of July, 1974 (Annexure-4) to show cause as to why ten per cent, of the full pension may not be withdrawn by Government as per provisions under Article 35i of the Regulations. Petitioner took the stand that Article 351 of the Civil Service Regulations would not apply to his case because the conviction came subsequent to petitioner's superannuation and was, therefore, not related to his future conduct as envisaged in the Article. When the past service had already been certified to be satisfactory, there was no occasion to penalise the petitioner for a conviction which came . subsequent to superannuation, though it related to conduct prior to retirement. On 13th of August, 1974, Government in the. appropriate Department wrote to the Accountant General thus:

I am directed to invite a reference to this Department letter No. 13879 dated 11-7-1974 on the subject indicated above and to request that full pension and gratuity sanctioned therein may please be released in favour of Sri Nilakantha Mishra, S. E. (Retired) immediately under intimation to this Department."

On 2-9-1974, under Annexure-9, Government again wrote to the Accountant General to the following effect:

"In inviting a reference to the correspondence resting with this Department letter No. 16321 dated 13-8-1974 on the subject indicated above T am directed to say that after careful consideration of the future conduct of Sri Nilakantha Mishra, S. E. (Retired) with reference to the judgment of the Special Judge, Puri, in the G. R. Case Nos. 7 and 8 of 1968, the pension sanctioning authority has been pleased to order that 10% (Ten per cent.) of the full pension of Sri Nilakantha Misra, S. E. (Retired) should be withdrawn permanently with effect from 11-1-1971, the date of his conviction by the aforesaid Court in accordance with Article 351 of the C S. R."

A copy of this order was duly communicated to the petitioner. On receipt of this letter, from the office of the Accountant General, a reference was made to the appropriate Department of Government. The aforesaid order is impugned in this writ application and petitioner's contention is that Article 351 of the Regulations has no application to the facts of the case and, therefore, the direction to withdraw ten per cent of the full pension already granted to the petitioner with effect from the date of conviction is without jurisdiction and, therefore, should be quashed.

(2.)In the counter-affidavit of the State, the stand taken is that the criminal case wherein petitioner has been convicted was in respect of certain acts committed by the petitioner prior to his retirement and, therefore, Article 351 of the Regulations had application. It is claimed that the conviction of the petitioner after retirement is a definite stigma on his conduct and the provision of Article 351 is only applicable to his case.
(3.)The three Articles which appear to be relevant for adjudication of the point in issue are Articles 351, 351-A and 470 of the Regulations and it is appropriate, therefore, that they are extracted here. It may be noted that while there is no adaptation in so far as the first Article is concerned, Article 351-A has been substituted in the State of Orissa.
"351. Future good conduct is an implied condition of every grant of a pension. The Local Government, the Government of India, and the Secretary of State-in-Council reserve to themselves the right to withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or be guilty of grave misconduct. The decision of the Secretary of State in Council on any question of withholding or withdrawing the whole or any part of pension under this regulation shall be final and conclusive."

351-A. The Government of Orissa 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 or part of any pecuniary loss caused to Government, if in departmental or judicial proceeding the pensioner is found guilty of grave misconduct, or negligence during the period of his service including service rendered upon reemployment after retirement.

Provided that

XX XX XX XX

Provided further that nothing in this Article shall apply to any member of a Provincial or Subordinate Service serving immediately before the 1st day of April, 1936, in or in connection with the affairs of the Province of Bihar and Orissa, who was required to serve and who is serving in or in connection with the affairs of Orissa.

470. (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 amount as it thinks proper.

Provided that in cases where the authority sanctioning pension is other than the appointing authority, no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority."

When these Articles are read together, it is clear that Article 351-A relates to service rendered up to superannuation while under Article 351, power is vested to withhold or withdraw the whole or a part of the pension if the pensioner is convicted of serious crime or is guilty of grave misconduct. Article 470 makes provision as to award of full pension and its reduction. The opening words of Article 351 are "future good conduct". Obviously, therefore, Article 351 is with reference to future conduct while Article 351-A is with reference to conduct up to superannuation. Article 351-A has no application to the petitioner in view of the terms of the Proviso thereto.

Before a pension is sanctioned, the sanctioning authority can reduce the amount due under Article 470 of the Regulations by taking note of matters covered by Article 351-A, thereof. After pension is sanctioned, its continuance depends upon future good conduct under Article 351. Pensions are not in the nature of a reward and the Supreme Court has already held that it is a property; there is a binding obligation on Government and pension, therefore, can be claimed as a right. Pension, therefore, cannot be reduced or stopped for reasons not provided by the Regulations.