Dates of Decision: 27-11-95 04-12-95 12-12-95 14-12-95 15-12-95 corr. Special Civil Application No.3006 of 1982 For Approval and Signature: HONOURABLE MR. JUSTICE M.R. CALLA 1. Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether Their Lordships wish to see the fair copy of the judgment? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any other order made thereunder? Yes 5. Whether it is to be circulated to the Civil Judge? Yes Mr.H.B.Shah,learned counsel for Mrs.Bhadrabala widow of deceased petitioner Bhupendra J.Shelat. Mr.L.R.Pujari,learned A.G.P. for the respondent No.1. Mr.J.M.Thakore, learned Advocate General for respondent No.2. Coram: (M.R. Calla, J.) Date: 27-11-95,4-12-95 12-12-95,14-12-95, 15-12-95 ORAL JUDGMENT: 1. This Special Civil Application is directed against the order dated 14-9-81 passed by the Legal Department of the Government of Gujarat in the matter of grant of pension to Shri B.J.Shelat, ex Metropolitan Magistrate, Ahmedabad whereby one 1/3rd of the pension and 1/3rd of the gratuity was sanctioned and 2/3rd amount of pension and the gratuity were deducted under Rule 188 of Bombay Civil Services Rules,1959 (herein-after referred to as 'the Rules') with effect from 4-12-73. 2. The petitioner was a Judicial Officer and ceased to be in the service on 3-12-73 on the basis of the voluntary retirement. The present petition was filed on 6-5-82 and during the pendency of this petition,the petitioner expired on 23-8-95. Thereupon, an application was moved to bring his widow on record as his heir and legal representative and such application moved by his widow, namely, Bhadrabala on 11-9-95 was allowed on 12-9-95 and she was arrayed as the legal heir of the deceased petitioner. 3. The deceased petitioner had joined the services as a Resident Magistrate on 5-1-50 in the erstwhile State of Bombay. On 1-5-60 he was allocated to the State of Gujarat as Civil Judge (J.D.) & J.M.F.C. He was selected as a Magistrate for the city of Ahmedabad and was appointed as City Magistrate at Ahmedabad on 4-11-61.He was also called by the G.P.S.C. for selection as a City Magistrate against a permanent vacant post and on 6-12-63 after interview he was selected for the post and was given the first rank in the list of candidates selected for the purpose and had also been confirmed on the said post. 4. While he was working as a Metropolitan Magistrate at Ahmedabad, on 9-11-70 he submitted an application seeking voluntary retiremnent on the basis that he had completed 50 years of age on 4-12-68 and he intended to retire from 10-5-71 with reference to Rule 161 of the Rules. He was informed by the Registrar of the High Court in reply to the aforesaid notice seeking voluntary retirement on 11-1-72 that he may send a fresh application on the lines of his earlier application dated 9-11-70. However, the requirement of the Rule was completion of 55 years of age for the purpose of seeking voluntary retirement and, therefore, at that point of time, the petitioner could not voluntarily retire. He had delivered several judgments under the provisions of Food Adulteration Act during the period from 24-1-72 to 17-8-72. Against these judgments, Appeals were taken to the High Court during the period of 19-6-73 to 10-8-73. When these Apeals were pending before the High Court, on 17-7-73 he gave notice under Rule 161 of the Rules intimating his desire to retire from service on attaining the age of 55 years i.e. on 3-12-73. The retirement became effective on and from 3-12-73 and, thereafter, on 11-12-73 High Court issued an order of suspension pending the finalisation of the departmental proceedings against him which were under contemplation. He had then preferred a Writ Petition challenging the jurisdiction of taking disciplinary action against him after retirement. This petition was dismissed and the Letters Patent Appeal filed by him had also been dismissed on 24-12-73. He preferred a S.L.P. in the Supreme Court against the order of dismissal of the Writ Petition by the High Court and the Supreme Court on 25-4-75 allowed him to withdraw his petition reserving his right to agitate the question as to whether disciplinary action could be taken against him after retirement when final orders were passed inthe disciplinary inquiry against him. In the meantime, the charge-sheet was issued to the petitioner by the High Court on 16-1-74 and Inquiry Officer submitted his report on 25-7-74 holding that the charges were not proved. 5. High Court, however, did not agree with the findings of the Inquiry Oficer and the petitioner was called upon to show cause as to why a view different from the one taken by the Inquiry Officer should not be taken against the petitioner and why the punishment of dismissal from service should not be imposed upon the petitioner. The petitioner filed a reply to the above show cause notice explaining all the facts and circumstances appearing against him. However,the order was passed on 21-1-76 dismissing the petitioner from the services. Dt:4-12-95 6. Against this order dated 21-1-76 the petitioner preferred Special Civil Application but the same was dismissed.The Special Leave Petition was filed before the Supreme Court against the order of the High Court and the Civil Appeal No.923 of 1977 was decided by the Supreme Court on 28-3-78. The Supreme Court held that the petitioner had already retired from the service and whereas he had effectively retired from the service, no disciplinary proceedings could be instituted against him after the effective date of retirmenet. The aforesaid decision of the Supreme Court is also reported in AIR 1978 SC 1109. In the result, the Supreme Court allowed the Appeal and set aside the order passed by the High Court without expressing any opinion on the correctness of the decision taken by the apointing authority. Thereafter, an order was passed on 13-3-79 allowing the petitioner to retire with effect from 3-12-73. On 27-11-79 the Registrar of the High Court sent a notice to the petitioner calling upon him to show cause as to why the High Court should not recommend the reduction in the pension and gratuity. The petitioner submitted the reply dated 10-12-79 to the aforesaid notice. On 9-4-80 the Government passed an order for grant of payment of 50% of pension to the petitioner as admissible under the Rules by way of an anticipatory pension with effect from 4-12-73 until final orders are issued by the Government and no gratuity/death-cum-retirement gratuity was to be paid to him at this stage. 7. Thereafter, a notice dated 8-8-80 was issued superseding the earlier notice and the petitioner again filed the reply dated 11/15-9-80 and on 14-9-81 the order was passed reducing the petitioner's pension to the extent of 1/3rd by holding that the petitioner was not entitled to 2/3rd of the pension.It was held that the petitioner's services were not satisfactory and,therefore,only1/3rd of the pension and 1/3rd of the gratuity was sanctioned in accordance with the provsions contained in Rule 188 of the B.C.S.R. with effect from 4-12-73 with the further mention in the concerned order that the family of the petitioner should be given full family pension as and when due asper Rules.Against this order dated 14-9-81 the present Special Civil Application was filed. 8. An affidavit-in-reply with certain documents was filed on 25-4-94 under the signatures of the Deputy Registrar of the High Court of Gujarat seeking to traverse petitioner's claim.The matter had been partly heard in July,1995,but on 25-7-95 the learned A.G.P.sought time to place certain documents on record alongwith the affidavit and Mr.Shah appearing for the petitioner also sought time to move an application for amendment and to explain the documents,which were sought to be filed by the learned A.G.P.. The matter was, therefore, adjourned to 1-8-95. Before the matter could be taken up again for completion of arguments, the petitioner died on 23-8-95 and his widow Bhadrabala moved an application to be taken on record as the legal representative and this Civil Application No.2146 of 1995 was allowed to array the widow of the deceased petitioner as petitioner in place of the original petitioner on 12-9-95. The learned A.G.P. also filed a further affidavit-in-reply dated 23-11-95. The pleadings were thus completed and thereupon the arguments were concluded by both the sides. 9. Rules 188 and 189 of the B.C.S.R. are reproduced as under: "188. Government may make such reduction as it may think fit in the amount of the pension of a Government servant whose service has not been thoroughly satisfactory. 189. Good conduct is an implied condition of every grant pension. Government may withhold or withdraw a pension or any part of it is the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service provided that before any order to this effect is issued the procedure refered to in Note 1 to Rule 33 of the Bombay Civil Services Conduct,Discipline and appeal rules shall be followed." 10. Mr.Shah,learned counsel for the petitioner, raised following contentions : Date: 12-12-95 (1) That the impugned order is not in terms of Rule 188 because the requirement of Rule 188 is that the reduction in the amount of pension may be made in case of Government servant, whose service has not been thoroughly satisfactory. But the order dated 14-9-81 does not state that the petitioner's services were not thoroughly satisfactory and it only says that his services were not satisfactory. In other words, the word "thoroughly" is conspicuously missing in the body of the order dated 14-9-81 and, therefore,the impugned order can not be said to have been passed in terms of Rule 188. In support of this contention, Mr.Shah has placed reliance on AIR 1968 Mysore 206,K.S.Rajasekhariah v. State. (2) That the impugned order is not at all a speaking order and it is not supported by reasons. In suport of this contention, Mr.Shah has placed reliance on AIR 1976 SC 1785, Siemens Engg. and Mfg.Co.V. Union of India and on AIR 1990 SC 1984, S.N.Mukherjee v. Union of India. It has also been submitted that in this context, the order lacks fairness. (3) That the order has been passed without considering and dealing with the several points, which had been raised by the petitioner in his reply to the show cause notice and the decision taken in this regard and the recommendation, which was made by the High Court to the Government for the purpose of passing the order of punishment against petitioner, suffer from vice of non-adjudication as the points raised by him in the reply to the show cause notice have not received the real and due consideration and,therefore, the punishment order passed against the petitioner suffers from the lack of the due consideration of the petitioner's case. 11. As against these contentions on behalf of Mr.Shah for the petitioner, Mr.Thakore,learned Advocate General appearing for the High Court,has argued that once it is mentioned in the impugned order that the services of the petitioner were not satisfactory, the question of the same being not thoroughly satisfactory simply does not arise and merely because in the body of the order the word "thoroughly" has not been used, it can not be said that the order has not been passed in terms of Rule 188, nor the order can be set aside on that ground. 12. In the case of K.S.Rajasekhariah v. State (Supra), the Division Bench of the Mysore High Court did consider that the words used in the relevant Rule was "thoroughly satisfactory", but no finding was recorded by the Government in the impugned order to this effect and instead, what was stated in the order was that the services of the petitioner has to be treated as unsatisfactory and that the Government did not form the opinion that the services of the petitioner was thoroughly satisfactory. Therefore, in the absence of the findings to that effect, the reduction of the pension of the petitioner was beyond the competence of the Government and,therefore, the impugned order was quashed. If the ratio of this case is applied to the facts of the present case,it may be in support of the petitioner. But I do not find myself to be in agreement with the reasoning given in the aforesaid decision of the Mysore High Court and while I respectfully disagre with the view taken by the Mysore High Court, it may be made clear that we have to go to the matter of substance and not the form in such cases. While as per the object of the Rule, satisfactory service is the implied condition for grant of the pension, the Rule says that the pension can be reduced if the services are not found to be thoroughly satisfactory and the order says that the services were not satisfactory; meaning is, therefore, very clear that the services can not be thoroughly satisfactory. When it is expressed that the services were not satisfactory, the question of same being thoroughly satisfactgory simply does not arise. Similarly, when the Rule says that the pension can be reduced on the basis of the finding that the services of the Government servant was not thoroughly satisfactorty and the order states that the services of the petitioner were not satisfactory, it amounts to the finding that the services were not thoroughly satisfactory. There is no charm in the use of the words and we have to go to the matter of substance and for that reason, I differ with the view taken by the Mysore High Court in the aforesaid Division Bench decision and the first contention raised on behalf of the petitioner fails. 13. So far as the question of the impugned order not being a speaking order or an order not supported by reasons is concerned, I find that the Government order dated 14-9-81, which is impugned, by itself may not be a self contained order inasmuch as it does not detail out the reasons, but it was submitted by the learned Advocate General that in this order a reference is made to the letter dated 9-4-81 as was sent by the Registrar of the High Court of Gujarat and it is not disputed by Mr.Shah on behalf of the petitioner that the copy of this letter dated 9-4-81, which ofcourse has not been enclosed and sent to the petitioner alongwith the impugned order dated 14-9-81, had been made available to him on his request later on. This order dated 14-9-81 read with the Registrar's letter dated 9-4-81, which also contained a detailed decision of the High Court, show that the reasons have been given therein. Impugned order dated 14-9-81 has to be read alongwith the decision of the High Court as was contained in the Registrar's letter dated 9-4-81 and the same had been admittedly made available to the petitioner on his request. Copy of the letter dated 9-2-82, which was sent by Registered Post to the petitioner, under the signatures of the concerned Deputy Secretary, has been placed on record stating therein that a copy of the recommendations of the High Court is being sent and the factum of the receipt of the recommendations of the High Court is admitted before this Court. In this view of the matter, if the impugned order dated 14-9-81 is read alongwith the High Court's recommendations dated 9-4-81, it cannot be said that the order is not a speaking order as the reasons are contained in the recommendations made by the High Court. Nor it can be said that having received the copy of the recommendations made by the High Court, the petitioner could not have effectively assailed the impugned order. Reasons in support of the order became very well known to the petitioner even before the filing of the present petition, which was filed on 6-5-82 whereas the recommendations of the High Court had been received by the petitioner in February,1982. Therefore, the impugned order can not be set aside on the ground that it is not a speaking order and it is not supported by reasons and,therefore, I need not deal with the cases cited on behalf of the petitioner on the question of the speaking order and that the order is not supported by reasons. Hence second contention also fails. 14. Now comes the last contention raised on behalf of the petitioner that the grounds raised by the petitioner have either not been considered or the same have not been considered in the correct perspective and that the old and stale cases, which were of no consequence, have been taken into consideration against him for the purpose of passing the order under Rule 188. The petitioner was initially given a show cause notice dated 27-11-79 from the Registrar calling upon him to show cause as to why the High Court should not recommend to the Government the reduction in the pension and the gratuity as admissible to him under the Rules. This show cause notice dated 27-11-79 was replied by the petitioner on 10-12-79. In the show cause notice dated 27-11-79 reference was made to three criminal cases in which the petitioner had passed orders and no other matter was included and it appears that after the receipt of the reply dated 10-12-79 filed by the petitioner, some more matters were sought to be included in the show cause notice for the purpose of reducing pension and besides the criminal cases, which had been mentioned in the earlier show cause notice, certain matters pertaining to the years 1959,1963 and 1969 and adverse confidential report for the period from 1-1-71 to 31-12-71 had also been included and now in all there were 11 items against the petitioner in the show cause notice dated 8-8-80, which was issued against the petitioner in supersession of the earlier show cause notice dated 27-11-79. This show cause notice dated 8-8-80 was replied by the petitioner vide his reply dated 11-15/9/80 wherein the petitioner had contested each and every ground raised against him in the show cause notice and he had filed a reply in detail alongwith certain documents and thereupon recommendations dated 9-4-81 were made by the High Court and on that basis the impugned order dated 14-9-81 was passed as aforesaid. 15. The grievance, which has been raised on behalf of the petitioner is that old and stale matters have been taken into consideration against the petitioner for which he had neither been charge-sheeted nor any punishment had been given and while dealing with the reply, the petitioner's defence and explanation has not received an objective consideration in the correct perspective and certain aspects of his reply have been totally ignored and thus consideration of his reply lacks fairness and it cannot be said to be any consideration in the eye of law and the order of reducing pension could not be passed against the petitioner on the basis of stale matters with regard to which there was no proof against the petitioner. The learned Advocate General for the High Court and the learned A.G.P. has argued that this court cannot go into the question of the consideration of the reply as had been filed by the petitioner and whereas the recommendations had been made by the Full Court after considering the reply to the show cause notice filed by the petitioner,this Court may not enter into the appreciation of the case, which was pleaded by the petitioner in his reply to the show cause notice. Having heard the learned counsel and having gone through the show cause notices, the reply thereof and the recommendations dated 9-4-81, I am of the opinion that when it is the case of subjective satisfaction of the concerned authority, the Court may not take up the question of appreciation of fact so as to substitute its own view provided the subjective satisfaction is based on proper consideration of objective facts. Here is a case in which a retired person was sought to be subjected to reduction of the pension and it was certainly a question entailing penal consequences while discharging quasi judicial function and once it is found that objective facts pleaded by the party are ignored or are not considered for the purpose of forming an opinion and it is found that certain matters, which were not germane, have also been taken into consideration, this Court can not abdicate its function of making a judicial review on such matters, lest it will be a case of failure to discharge judicial function and the jurisdiction vested in the Court for the purpose of adjudicatory process dealing with important and valuable rights of the subjects, who seek to invoke the jurisdiction of this court. In other words, the arm of this court under Article 226 of the Constitution of India is long enough to reach injustice wherever and in whatever form it seeks to subject, precipitate or continue any suffering to any citizen. With this approach and orientation, I find it necessary to examine whether the objective facts pleaded in petitioner's reply dated 11/15-9-80 have received a due, fair and active consideration at the hands of the concerned functionaries. 16. The first item against the petitioner in the show cause notice referes to the year 1959 and it is alleged that he had used some defamatory words against the accused. The petitioner in para 7 of his reply stated that the accused Pranlal Shah had appeared before him when the Judgment was being pronounced in the open court and he tried to create a scene so that the Judgment could not be pronounced and he wanted to create a ground for transfer of his case at the eleventh hour and he told him that he should not adopt such tactics. The actul word used was " " (tactics). While dealing with this reply, a mention has been made to the letter dated 2-9-60, which was sent to the petitioner by the High Court conveying that it was not proper for him to have created a situation in which he had to explain as to with what intention he used the aforesaid words and that it was not in consonance with his position to have used such words. Dt: 14-12-95 However, the fact remains that no action whatsoever was taken against the petitioner at that point of time and the expression of the opinion contained in this letter dated 2-9-60 was advisory in nature and such advice can always be given by the higher authorities to its subordinates. 17. The next item relates to the year 1963 in relation to the purchase of a residential house bearing Plot No.11/B, Maharashtra Brahmin Co-operative Housing Society Ltd. and it was alleged against the petitioner that he did not submit the change in the landed property return in the prescribed form held by him as required by rule 15 of the Bombay Civil Services Conduct, Discipline and Appeal Rules (herein-after referred to as 'the Appeal Rules') and thereby he had committed breach of Rule 13 of the said Appeal Rules and the reliance was wrongly placed by the petitioner on the letter written to him by the Bombay High Court, as regards the application of Rule 13 of the Appeal Rules with regard to the proposed transaction of purchase of a plot of land at Borivalli and that this proposed transaction was disapproved by the High Court and that he had been informed by the Bombay High Court that he had committed breach of Rule 13 of the said Appeal Rules and his conduct was strongly disapproved and that he was called upon to file the return as per Rule 15 of the said Appeal Rules in the prescribed form and to comply with Rule 13. The petitioner replied to the show cause notice that he had sent the intimation regarding this purchase to the Secretary of the Legal