Khosla, J.
1. These are two petitions made by R. L. Sondhi, retired Superintending Engineer of the Pubiic Works Department, Punjab, under Article 226 of the Constitution. The petitioner prays for a writ of prohibition against the respondents who are the Secretary to Government Punjab in the Public Works Department, Chief Engineer to Government Punjab and the Punjab State. The nature of the writ claimed and the reasons therefor will be apparent from the following facts.
2. The petitioner was appointed to the Indian. Service of Engineers on the 10th of February 1921. He was originally appointed as Assistant Executive Engineer in Burma and thereafter he served in various capacities in the Public Works Department in Burma and in India. He retired from service on the 17th of October, 1950. Two months before his retirement he made an application that his pension papers be prepared so that the pension due to him may be paid as soon as it fell due. On 8-1-1951. the Secretary of the Anti-Corruption Committee wrote to the Chief Engineer asking him to withhold the pension papers of the petitioner as an enquiry into certain allegations against the integrity and proper conduct of the petitioner was being held. A month later, on7-2-1951. the Secretary of the Anti-Corruption Committee again wrote to the Chief Engineer asking him to proceed with the preparation of the pension papers but to withhold his sanction until the final report was sent. On 18-7-1951, the Accountant General, Punjab, reported on the figures of the actual pension which was admissible for payment to the petitioner. On8-8-1951, the Special Inquiry Agency sent its report to Government. The substance of this report appears to have been that some of theallegations against the petitioner were not without foundation and it was suggested that all concerned should be supplied with a gist of the report.
On 7-11-1951, a letter was sent to the petitioner enclosing the allegations made against him under six heads and he was asked to give his explanation. This letter could not be delivered to the petitioner for some time as he had gone abroad. Another letter containing the same material was sent to him and was delivered on 12-1-1952. The petitioner sent a reply to this enquiring why he had been asked to give his explanation, and the Punjab Government stated that the object of the enquiry was to determine whether full pension should be paid to the petitioner or some reduction should be made on account of his service not having been satisfactory. The petitioner had in the meantime, namely on 28-12-1951, filed a petition (W. A. Civil No. 317 of 1951) praying for a writ 'of mandamus directing the respondents to pay him his pension amounting to Rs. 9,916/-. This figure represented the pension due from the date of the petitioner's retirement 17-10-1950 to 1G-12-1951. On the petitioner being informed that the question whether his pension should be reduced was under consideration he filed a second petition (W. A. Civil No. 27 of 1952) in which he prayed for a writ of prohibition restraining the respondents from
'holding or proceeding with any departmental or any other enquiry or taking any action against the petitioner or any action depriving the petitioner of his pension or any part thereof on account of any act or conduct of the petitioner prior to the 17th of October 1950.'
The substance of the petitioner's complaint is that the Punjab Government or its officers are not entitled to hold any enquiry as the result of which his pension may be cut down in any way.
3. Mr. Sikri at the outset raised two preliminary objections and contended that the petitioner's petitions were premature as the petitioner had not suffered any injury or damage up til] now inasmuch as final orders reducing his pension had not been passed and it was quite conceivable that after hearing the petitioner's explanation the authority concerned might decide to pay him his full maximum pension. In the second place, he contended that no action for the recovery of salary or pension due to a Government servant was maintainable and that therefore a prayer for writ was also incompetent. Although I consider that there is a good deal of force in both these contentions I prefer to deal with the petitions on their merits particularly in view of the fact that Mr. Gauba who appeared on behalf of the petitioner addressed us at great length on the real issue involved, namely whether the respondents were competent to hold the kind of enquiry alleged by the petitioner.
4. The allegations made against the petitioner relate to his conduct when supervising the building of the Mental Hospital at Amritsar in 1948-49 in his capacity as Superintending Engineer. A complaint regarding this matter was made in October 1949 and the Inquiry Agency was asked to deal with this complaint on 24-5-1950. i.e., before the petitioner retired. The inquiry Agency completed its enquiry andsent its report on 27-9-1951. Article 470 of the Civil Service Regulations provides:
'470. (a) The full pension admissible underthe rules is not to be given as a matter ofcourse, or unless the service rendered hasbeen really approved.
(b) If the service has not been thoroughlysatisfactory, the authority sanctioning thepension should make such reduction in theamount as it thinks proper.'
The petitioner is governed by the Civil Service Regulations which have the force of a statute, and it is clear from this Article that in some cases the pension payable to a Government servant on retirement may be reduced if his service has not been thoroughly satisfactory. The only interpretation of this rule is that where upon enquiry held either before or after the retirement of a Government servant it is found that his service was not satisfactory some reduction in the pension may be made. The decision to reduce pension presupposes an enquiry into the satisfactory nature of the Government servant's service. Section 247 Clause (6) of the Government of India Act of 1935 as it originally stood also contemplates reduction of pension in certain circumstances. This Section was omitted when the Act was adapted by the India Provisional Constitution Order of 1947 but I have referred to it in order to show that even under the Government of India Act as it originally stood the pension due to a Government servant could, in certain circumstances, be reduced.
5. The main contention of the petitioner, however, is that his service as shown by his personal record was found to be satisfactory until the date of his retirement and that the respondents are therefore not entitled to hold any enquiry into the matter before sanctioning his pension. In other words, the contention of the petitioner is. (1) that no enquiry can be held after the date of retirement and (2) that the only material upon which the decision under Article 470 of the Civil Service Regulations can be based is the personal confidential record of a Government servant.
6. Mr. Gauba has not been able to point to any authority, statutory or otherwise, in support of his contention. It cannot be denied that the decision contemplated in Article 470 presupposes an enquiry of some nature. The enquiry will in some cases be made before retirement, but there is no prohibition against it being held after the date of retirement. Supposing a Government servant is guilty of misconduct towards the end of his service, say within a week of his retirement. This conduct comes to the knowledge of the authority sanctioning pension just before the date of retirement or even after the date of retirement. It is clear that if this misconduct is proved, the service of the Government servant has not been thoroughly satisfactory and the condition required for reducing pension is fulfilled. It would be absurd to contend that since the misconduct took place only towards the end of service there is no sanction for reducing pension on that ground.
7. Again with regard to the material on which the decision should be based it cannot be contended that the sanctioning authority must confine itself to the personal record which may or may not be complete. It would certainly not be complete in the example given above by me for the superior officer will havehad no opportunity or time to enter the corn-mission of misconduct in the Government servant's personal book before the date of retirement. There is nothing whatever in any of the rules to limit the scope of an enquiry of this nature. Mr. Gauba argued in passing that a Government servant cannot be punished after his retirement and therefore no enquiry with a view to punishing him can be held. Reduction of pension, however, does not fall within the definition of punishment as laid down in Civil Service Rules, Chapter XIV.
8. It was argued with great vehemence that the respondents had no legal authority to hold an enquiry with a view to reducing the petitioner's pension, but an enquiry of this nature is implicit in the wording of Article 470 of the Civil Service Regulations, for there can be no proper decision without an enquiry. Mr. Gauba was unable to point to any rule, regulation or statutory provision prohibiting an enquiry of this nature and the argument that there is no positive rule 'prescribing an enquiry of this type and therefore the enquiry cannot be held is wholly without force. There must be a statutory or a legal provision before a writ of prohibition can be issued.
9. With regard to writ No. 317 of 1951 in which a writ of mandamus directing the respondents to pay the pension due to the petitioner is prayed for all that need be said is that there has been no refusal on the part of the respondents to pay the pension due to the petitioner. It was also contended that no anticipatory pension had been paid to him, but the respondents contend that there had been no application for such anticipatory pension. Before a writ of mandamus can be issued, there must have been a definite demand and a definite refusal. In the present case, there has been no refusal by the respondents and I find no justification for issuing a writ.
10. It appears to me that no injustice has been done to the petitioner. He has been asked to give an explanation of the allegations made against him and he has thus been furnished with an opportunity to show cause why his pension should not be reduced. As soon as the petitioner chooses to give his explanation the matter will be decided but if he chooses to remain silent the decision will have to be arrived at ex parte. Both the present petitions must fail and I would dismiss them with costs.
Harnam Singh, J.
11. I agree.