Bal Raj Tuli, J. - (1.) The petitioner was born on Sept. 12, 1920, and after getting education in King Georges Royal Indian Military School, Jullundur, and Kitcheners College, Nowgong (Military College), he joined the Army in Feb., 1942. In July, 1964, he got the rank of Acting Colonel in the Army. He served as Principal, Himalayan Mountaineering Institute, from Jan., 1962 to June, 1966. He retired from service with effect from May 17, 1967, and was granted pension of Rs. 675.00 per mensem by an order of the President of India dated Dec. 2, 1967. The petitioner got half of the pension commuted for a lump sum amount with the permission of the President. On Dec. 11, 1968, he received a notice from the Government of India, Ministry of Defence, New Delhi, asking him to show cause why his pension should not be reduced under regulation 5 of the Pension Regulations for the Army, 1961. This show cause notice was signed by the Under Secretary to the Government of India, Ministry of Defence. To this notice, the petitioner sent a reply and a copy of that reply was endorsed to the Himalayan Mountaineering Institute as the matter related to the irregularities in the accounts of that Institute during the principalship of the petitioner. In his reply, the petitioner had stated that he had been out of that Institute for mote than 2 years and in the absence of the books or documents he was giving his reply on the basis of his faint memory. It may be noted here that the notice detailed various audit objections which had been raised on the basis of the special audit conducted by the Auditor General of Bengal. Those matters pertained to the accounts of the Institute over a period of four years and the notice itself extended to five pages. In the last paragraph of the notice, it was stated:- "The committal of the irregularities listed above casts a serious reflection on your conduct and integrity as a senior officer of the Army. It is, therefore, considered that your retiring pension should be reduced under the provisions of regulation 5 of the pension Regulations for the Army, 1961, Part I. However, before action is taken to reduce your pension, you may submit any explanation you may wish to offer in your defence. If no explanation is received within a month from the date of this letter, Government will proceed to take action ex-parte."
(2.) The reply of the petitioner dated Jan. 6, 1969 extended to seven pages. After consideration of the reply, the Government pissed an order which was communicated to the petitioner by a memorandum dated March 28, 1969, reading as under:- "I am directed to refer to your letter B. S. J 11, dated the 6th Jan., 1969, and to say that the Government of India do not consider your explanation to be satisfactory. The President has accordingly been pleased to decide under Regulation 5 of the Pension Regulations for the Army, 1961, part I. to reduce your retiring pension by Rs. 75.00 p.m. with effect from the date of your retirement. Necessary orders in this connection have been issued to the Controller of Defence Accounts (pensions) Allahabad." Before receiving this communication, the petitioner had sent a letter dated March 26, 1969, to the Under Secretary to the Government of India, Ministry of Defence, New Delhi, stating that the replies furnished by him on Jan. 6, 1969, with regard to the summary of certain audit objections communicated to him were only tentative and were bared on whatever he could remember after such a long time. He requested for a copy of the audit inspection report in which the objections under reference were taken and the copies of the original documents on which various audit objections were raised in order to enable him to given proper and specific replies to the various audit objections. This letter was received by the Under Secretary to the Government of India on March 28, 1969, and a reply to it was sent on April 8, 1969, in which it was stated that Governments decision in the matter had already been communicated to the petitioner and no action was being taken on this letter of his. It is quite evident from the order communicated to the petitioner and the reply of respondent 1 in sub-para (a) of para 32 of the return that no speaking order was passed by the Government as the Government was of the view that it was an administrative order and no reasons were required to be staled, No record has been produced in this Court to show that any detailed order was passed. The view of the Government, that the order reducing the pension was an administrative order and no reasons were required to be stated, is clearly erroneous in law in view of the full Bench judgment of this Court in K.R. Erry Vs. State of Punjab, I.L.R. (1967) 1 Punjab and Haryana 278. It was held by majority in that judgment that : "the right to superannuation pension including its amount is a valuable right vesting in a Government servant, and before that right is pre-judicially affect, he is entitled to a notice to show cause against the proposed cut. The fact that a right of appeal has been conferred on an aggrieved Government servant in this respect lends additional support to this view. The right to be heard before a cut is imposed on his pension cannot be denied to a Government servant on the ground that an opportunity had already been afforded to him on an earlier occasion for showing cause against the imposition of penalty for a lapse or misconduct on his part as a Government servant. Even if the rules of natural justice were not attracted for showing cause against the service as a whole no being thoroughly satisfactory, the question of the amount of cut would, in any event, be a matter on which the Government servant concerned may justifiably be held entitled to an opportunity of stating his case. Not only is the question of imposition of cut a quasi judicial function, but the determination of the amount of the cut is also a quasi judicial function of equal imposition. Failure to afford hearing on the question of the amount of cut, and the amount of pension to be left to the pensioner concerned, so that the party affected may explain his side of the problem, can scarcely be considered either fair or reasonable or just." According to this judgement, the proceedings being quasi-judicial, the Government had to pass a speaking order giving reasons why the petitioners explanation had not been found to be satisfactory. The reasons were certainly called for in this case in view of the audit objections and their 'replies given by the petitioner. Even if the Government had passed the order before asking for copies of the documents, it would have been just and proper on the part of the Government to have withheld the communication of that order and allowed him an opportunity of filing another reply after perusal of those documents, copies of which should have been supplied to him. The show cause notice also suffers from the legal infirmity in as much as it did not specify the amount of cut that was proposed to be made. According to the Full Bench judgment, referred to above, in the show cause notice the proposed cut should have been mentioned so that the petitioner could have shown cause against the amount also. The learned counsel for the respondents submits that the mention of the amount of the proposed cut in the show cause notice would have amounted to punishment. That is not so, because in every notice the proposed punishment is mentioned and the delinquent is asked to show cause against the a proposed punishment. The punishment that can be inflicted may be lessor than the punishment proposed, but it cannot be higher than the proposed one. It is thus evident that the show cause notice issued by the Government was defective and proper opportunity was not afforded to the petition to show cause against the allegations made against him. The order passed by the Government is also not a speaking order and, therefore, has to the quashed.
(3.) For the reason this petition is accepted and the show cause notice and the order passed by the Government reducing the pension on the Plotter by Rs. 75.00 per mensem are quashed. It will be open to the respondents to take proceedings in accordance with law if so advised if so advised. In these circumstances, I do not make any order as to costs. Petition accepted.;