Rajindar Sachar, J.:— This is a petition under Articles 226 and 227 of the Constitution of India challenging the orders of respondent No. 1, Union of India, Ministry of Railways and Railway Board, respondent No. 2, which by its order dated the 27th of May, 1967 (Annexure 1) directed that the petitioner will stand retired from service on his attaining age of 55 years on the expiry of three months from the date of the receipt of this notice by him and the further orders dated 29-4-69 (Annexure 3) and 4th of August, 1969 (Annexure 5) by which the President directed the withholding of Special Contribution of Provident Fund amounting to Rs. ???/-.

2. The petitioner was appointed in the Civil Engineering Department of the Bengal Nagpur Railway Company on the 4th of June, 1938 and was confirmed as Aslant Engineer in June, 1945 in the State Railway. The management of the Bengal Nagpur Railway Company was taken over by the Government on 1st of October, 1945 and the services of the petitioner were taken over by the Government of India the petitioner served in different capacities at various places in the South Eastern Railway and South Eastern Railway Zones of the Indian Railways. He worked as a Director (??? and Floods) with the Director General, Research, Designs and Standards for the period from 14th of May, 1962 to 13th of March, 1964 and then he was posted as Chief Engineer of the North East Frontier Railway w.e.f 17th of April 1964 which post was held by him till his retirement in terms of three months notice issued to him vide order dated 27th of May, 1967. It is alleged in the petition that while acting as Divisional Superintendent, Dinapore in the Eastern Railway the petitioner had black listed a contractor at Gaya who appeared to have great influence with the political leaders at Delhi. It is alleged that the contractor made some false allegations against the petitioner no the Special Police Establishment, Delhi and certain Inquiries were made against the petitioner in pursuance to those allegations. Later on a departmental enquiry was initiated against the petitioner which was duly conducted by the Commissioner of Departmental Enquiries where evidence was recorded and the petitioner himself was examined Before the Enquiry could, however, be concluded the petitioner was sent the communication dated 27th of May, 1967 informing him that he stood retired from the Railway Service on the expiry of three months notice. This communication was received by the petitioner on the 7th of June, 1967. The petitioner himself also wrote to the Secretary of the Railway Board by his letter dated 9th of June, 1967 purporting to exercise the option conferred by Rule 2046 of the Indian Railway Establishment Code (hereinafter to be called (Code) Volume II giving notice to the President of his desire to retire from the Railway Service on his attaining the age of 55 years on the 4th of August, 1967 and asking for leave preparatory to retirement on the expiry of three months notice the letter has been filed as Annexure R-9 along with the counter-affidavit filed by the respondents. The petitioner also sent a Memorial to the Ministry of Railways dated 22nd of July, 1967 making a grievance of the fact that be had been ordered to be retired by the President on his attaining the age of 55 years though his service career had been very satisfactory. The petitioner was granted leave preparatory to ??? to him from 9th of September 1967 to 18th of December, 1968 as is clear from the memorandum of the Chief Personel Offerer annexed as R 4 to the counter-affidavit. The petitioner was informed by the letter dated the 29th of April, 1969 (Annexure 3) that the President had on a review of his service record come to the conclusion that his services could not be certified as goad, efficient and faithful and accordingly it had been decided that the ??? amount of special contribution to Provident Fund payable to him should be withheld. The petitioner filed a mercy appeal against this order to the President. But the decision of the President was reiterated as communicated to the petitioner by the General Manager by his letter, dated the 4th of August, 1969 (Annexure 5 to the petition). It is thereafter that the present petition was filed in this court in which challenge has been made to both the orders, namely the one about retiring him from service and the other about the order withholding the special contribution to Provident Fund.

3. The rule dealing with the compulsory retirement is to be found in Rule 2046 of the Code Volume II. The provision relevant at the date of the passing of the order of 27th May, 1967 reads as follows:—

“2046. (F.R 56)(a)(1) Except as otherwise provided in the State every railway servant shall retire on the date he attains the age of 58 years.

(h) Notwithstanding anything contained in the said Rule the appointing authority shall, if it, is of the opinion that it is in the public interest to do so, hive the absolute right to retire any railway servant on attaining age of 55 years or the readier by giving him notice of not less than three months.

(i) Any railway servant may by giving notice of not less than three months in writing to the appointing authority retire from service on attainment of the age of 55 years or thereafter.”

4. It was in pursuance of the power vested in the President under Rule 2046(h) of the Code that the impugned order of 27-5-57 was passed directing that the petitioner shall stand retried on his attaining the age of 55 years. The first contention of Mr. Ghosh, the learned counsel for the Petitioner is that Rule 2046 is not applicable to the case of the petitioner. In this connection it is relevant to note that in the writ petition there was no suggest on that the order of 27th May, 1967 which clearly mentioned that the order had been passed in exercise of the powers under Rule 2046(h) was had because of the ground that the Rule 2046 was no applicable to the case of the petitioner. As a matter of fact, even the petitioner himself seemed to have no doubt that Rule 2046 was applicable to him because he had in the notice given by him on 9th June, 1967 Annexure R9, purported to have exercised to option conferred by rule 2046(i) of the code to seek to retire on his attaining age of 55 years. It is only in the rejoinder, dated 14th of June, 1971, that he point was taken that the petitioner being an Ex. Bengal Nagpur Railway Company staff, provision of Chapter 20 of the Code Volume (ii) (wherein Rule 2046 is to be found) was not applicable to his case and that he continued to be ??? by the terms which were available when he was employed in the Bengal Nagpur Railway Company. The said point specifically not having been mentioned in the writ petition, the respondents were obviously denied an opportunity to give any counter to this allegation. Normally, it is not permissible for a petitioner to nuke an allegation requiring the determination of facts for the first time in the rejoinder. But in the interests of justice, I allowed the counsel for the petitioner to argue this point even through it was raised for the first time in the rejoinder. I, however, find that there is no merit in this contention. Reference was made to rule 2001 of the code Volume I which starts with Chapter 20 wherein it was mentioned that this Chapter and the next contain the rules governing the general conditions of service etc. available to railway servants which are not being dealt with by Volume I of this Code. It is also mentioned therein that unless specifically made available these rules do not apply to those railway servants whose services were taken over by the Central Government from the late East Indian and Great Indian Peninsula Railway Companies and who have been permitted to remain under the rules of those companies as amended from time to time. The argument that because the employees of those companies mentioned in Rule 2001 were not governed by the rules mentioned in Chapter 20, therefore, it should be held that the petitioner who was originally working in Bengal Nagpur Company and which was taken over in 1944 was also not governed by the Rules does not stand scrutiny. Obviously there was no question of the employees of Bengal Nagpur Company being covered by rule 2001 (which was made in 1940) as the company had been taken over in 1945 Moreover, there is no specific mention of the employees of Bengal Nagpur Company being given permission to remain under the rules of those companies, and therefore, the argument that by analogy they should be treated in the same manner as the employees of the East Indian and Great Indian Peninsula Railway Companies has no merit. It was also not mentioned in the petition or in the rejoinder as to what was the age of retirement under the company. On my inquiry, the counsel for the petitioner informed me that under the Bengal Nagpur Company rules the compulsory age of retirement was 55. Though, I have no manner of doubt that the petitioner is governed by rule 2046 of the Code Vol. II and that he was not excepted under rule 2001, yet even if it is assured that the company rules were applicable to him, the age of compulsory retirement being 55, he could have no grievance that he was being asked to retire at the age of 55. From whatever angle the position is looked at the petitioner, cannot complain on this ground as to why he has been asked to retire at the age of 55 years.

5. The next attack against the order directing the retirement of the petitioner, was on the basis that the order was passed mala fide. Again, in the original writ petition all that was stated in support of this allegation was that the order was mala fide and was colorable exercise of the powers under the rules to avoid compliance with Article 311(2) of the Constitution of India. It is also stated that the order was mala fide as it had been made under the political influence of the contractor of Gaya who holds great influence on the Railway Minister because of his association with the Congress in Bihar. In counter affidavit filed by Shri C.S Parameswaran, Secretary, Railway Board, Ministry of Railways, it was denied that any political influence was used against the petitioner. It was stated that the petitioner had not given any particulars about the contractor whom he alleged to have black listed Allegation of political influence having been used by a contractor of Gaya on the Railway Minister was denied as vague and baseless. In the rejoinder, however, for the first time the petitioner purported to give certain details about the contractor wherein he mentioned that the contractor who had been black listed at his instance, was one Binod Bihari Singh and that he was connected with Ex-Railway Minister Government of India. The suggestion was that the petitioner while pointed as a Divisional Superintendent, Dinapur had reported against the ill-behavior of the said contractor in dealing with the Divisional Commercial Superintendent, Dinapur and on the report of the petitioner the Chief Commercial Superintendent black listed this contractor in 1959. It was also alleged that even after his promotion from the post of Divisional Superintendent, Dinapur to the post of Chief Engineer the petitioner had been prosecuted at the instance of the sud contractor who is a very close associate of the then Railway Minister and that the departmental proceedings were initiated at the instance of this contractor. It is further alleged that this contractor was seen in front of his house at Bhagalpur in company with the Superintendent of Police, Special Police Establishment, Ministry of Home Affairs, Government of India. It was on the false allegation of the contractor that the Railway Board directed an enquiry by the Special Police Establishment in 1960 Neither the contractor Binod Bihari Singh nor Shri Ram Subhag Singh, the then State Minister for Railways against whom allegations have been made were made parties to the writ petition nor were they sought to be impleaded when the petitioner filed his rejoinder in June, 1971 Mr. Ram Subhag Singh was no ??? in the Government when this rejoinder was filed in 1971 and obviously, therefore, if was not possible for the respondents to seek to file his affidavit without his having been imploded as a party. It is well settled that if allegations are made of malafide against a person, he must be impleaded in a writ petition so as to give him an opportunity to give a reply to the allegations of mala fide. That not having been done, strictly speaking, the petitioner could not be permitted to urge this ground. But even the allegations made in the rejoinder do not make out a case of mala fide. It is relevant to note that the alleged black listing was done by the Chief Commercial Superintendent in 1959. The petitioner was even transferred from Dinapur and was promoted to the post of Chief Engineer end remained in that post till 1967. Had there been any political influence and malice involving the State Minister of all rays against the petitioner, it is impossible to expect that he would have been of Hawed the promotion and continued to remain in that post till he attained the age of 55 years. Ia my view, these bald allegations do not at all make out a case of mala fide. There is no allegation that the Minister concerned passed an order at the instance of the contractor or use political influence in pursuance of which the petitioner was given notice dated the 27th of May, 1967. It is also relevant to note that the allegation seeks to implicate Mr. Ram Subhag Singh, State Minister for Railways who had ceased to be a Minister for Railways since Feb. 1967. Obviously, therefore, when the order retiring the petitioner was passed by the President in May, 1967, Mr. Ram Subhag Singh had no connection with the said order. The allegation, therefore, is not supported by any basis and carries no conviction. There is, therefore no material on the record to support any plea of mala fide. This part of the contention of the petitioner, therefore, fails.

6. The next attack against the order of 27th May, 1967 was that though the order by itself was innocuous one and was purported to have been passed in exercise of the powers under Rule 2046(h) of the Code, Vol. II the same was pissed as a measure of ??? and, therefore, as admittedly the provisions of Article 311(2) of the Constitution of India hive not been complied with this order was a nullity. This contention was solely based on she fact that as a formal departmental enquary was pending against the petitioner, at that time any other order passed during that period was necessarily to be treated as an order of punishment at and could not be treated as an order passed in the normal course in accordance with the rules governing the employees. Now admittedly the investigations were started against the petitioner in 1963 and the Special Police Establishment submitted. Its report to the concerned authorities in July, 1964. It was thereafter that the regular departmental enquiry was started against the petitioner with respect to certain charges relating to the acquisition of certain assets disproportionate to his income by the petitioner. In the counter affidavit it is denied that the order retiring the petitioner was as a result of the departmental enquiry. The order of 27th May, 1967 giving the petitioner three months' notice is expressed to be in terms of Rule 2046(h) of the Code and was received by the petitioner on 7th of June, 1967. The Enquiry Officer holding the enquiry submitted its report only on the 31st of July, 1967. It is obvious, therefore, that action to retire the petitioner was taken earlier to the date or submission of the report by the Commissioner of Enquiry. Mr. Ghosh, however urges that once a departmental enquiry had been Instituted to enquire into the conduct of the petitioner, any subsequent order retiring the petitioner even though purporting to be in exercise of the rules governing the employee must be treated as a measure of punishment. It was contended that a case where an enquiry is held only to determine the suitability of a person to retain him in service is different from the case where a departmental enquiry is instituted to look into the alleged misconduct against a Government official and that once a departmental enqriry has been instituted any action subsequently taken against the official concerned per se must amount to punishment and will necessarily require compliance with Article 311(2) of the Constitution of India. No doubt it is true that even an order which may on the face of it be Innocuous may still be held to be as a measure of punishment, if there are circumstances preceding to it which show that the intention was to punish the official and the purported exercise of powers was a mere camfoulage. In the present case the impugned order (Annexure 1) is stated to have been passed in exercise of the powers under Rule 2046(h). No doubt a departmental enquiry was pending against the petitioner, but the enquiry had been started against him years back. Power under Rule 2046(h) could only be exercised when the petitioner was to attain the age of 55 years and, therefore, it was not possible to take action under it prior to the date when the impugned order of 27th May, 1967 was passed by the President. Further commissioner of enquiry had not yet submitted his report which it is clear from the record as only concluded on the 31st of July, 1967. The President, therefore, when he was passing order dated 27th of May, 1967 could not possibly be held to be acting in pursuance of findings recorded in the departmental enquiry because at that point of time it was not even known what the findings of the departmental enquiry would be. For ought one knows, the departmental enquiry might have exonerated the petitioner. It is, therefore, too far fetched and not logical to contend that the order passed on 27th of May, 1967 should be deemed to be an order passed in pursuance of the findings recorded by the Commissioner of Enquiry in his report dated the 31st of July, 1967. It is thus apparent that on 27th of May, 1967 the President was only exercising his powers in terms of Rule 2046(h). There is no other circumstances shown which would in any manner suggest that this order of the President was as a measure of Punishment and would, therefore, attract the provisions of Article 311(2) of the Constitution. Mr. Ghosh had, in this connection drawn my attention to the proposition laid down in the case of The State of Punjab v. Sukh Raj Bahadur (AIR 1968 Supreme Court 1089) which is as follows:—

“4. An order of termination of service in exceptionable form preceded by an enquiry launched by the superior authorities only to ascertain weather the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.

5. If there be a full-scale departmental enquiry envisaged by Article 311 i.e an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.”

7. This case does not support the petitioner. It will be seen that in this case a departmental enquiry had been instituted and even the official had submitted his reply to the charge sheet though there were no enquiry sittings. But even then their Lordships held chat though a departmental enquire had been instituted and the official concerned has submitted his explanation the order which was a simple order of reversion could not be held to be as a measure of punishment because of this ground. The other case of Appar Apar Singh v. The State of Punjab, (1970) 3 SCC 338 also is clearly distinguishable. In that case Appar Apar Singh who was working as a Principal had been reverted by the order of the Governor of Punjab from the Punjab Education Service, Class I (officiating service) to the class II service. It was contended on his behalf that this amounted to reversion as it was passed a measure of punishment. Certain allegations had been made with regard to the conduct of the Principal and Deputy Director of Education had been appointed to enquire into it. After enquiry, the Deputy Director recorded a finding that some exemplary punishment without being called upon to face a regular departmental enquiry should be imposed on Appar Apar Singh. This finding was accepted by the Government and on the basis of this finding the order of reversion was passed. It was in these circumstances that it was held by their Lordships that no doubt the order by itself and on the face of it is innocuous one, but in view of the findings recorded by the Deputy Director against Appar Apar Singh and the recommendation to impose exemplary punishment upon him was the very foundation for passing the order reverting him from P.E.S Class 1 to P.E.S Class II. The proposition in that case was that even without a departmental enquiry being held if the circumstances are such from which it can be concluded that the order was passed by way of punishment, provisions of Article 311(2) will be attracted even if the order ??? to be an innocuous one. These two cases, therefore, do not support the extreme proportion contended for by the counsel for the petitioner that by the mere fact of a ??? departmental enquiry having been instituted even though it my not have concluded, any subsequent jetton taken against a Government servant is perse by way of punishment. On the other hand in the case of Jagdish Mitter v. Union of India, AIR 1964 Supreme Court 449 it was observed as follows:—

“………in some cases, the authority may choose to exercise its power to dismiss a temporary servant and that would necessitate a formal departmental erquiry in that behalf if such a formal enquiry is held, and an order ??? the services of a temporary servant is pissed as a result of the finding recorded in the said enquiry, prima facie the termination would amount to the dismissal of the temporary servant………That is why in dealing with temporary servants against whom formal ??? enquiries may have been commenced but were not pursued to the end, the principle that the motive operating in the mind of the authority is immaterial, that to be borne in mind”

8. Reference may also be made to A.G Benjamin v. Union of India, 1967 S.L.R 185. In that case, a departmental enquiry was started against the employee, but before it was completed, he was served with a notice under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1949 terminating his services with one month's notice. The order of termination was challenged on the ground to at as the departmental enquiry had been started against the employee the termination of service though in accordance with rules applicable to the employee was per se punishment. This plea was rejected by the Supreme Court and after referring with approval to the earlier case of Jagdish Mitter (Supra) it was observed by their Lordships as follows:—

“Even in a case where a formal departmental enquiry is initiated against a temporary government servant it is, we think, open to the authority to drop further proceedings in the departmental enquiry and to make an order of discharge simplicitor against the temporary government ser ant. We do not accept the contention of counsel for the appellant that once the formal departmental proceedings have been initiated it is not open to the authority concerned to drop them and to take the alternative course of discharging the temporary government servant in terms of the contract of service or the relevant statutory rule.”

9. In the present case also it cannot be said that the action against the petitioner has been taken in pursuance of any finding recorded at the departmental enquiry. The impugned order is of 27th of May, 1967 and the findings by the Commissioner of Enquiries were not recorded uptil 31st of July, 1967. It is quite obvious that by pissing an order in terms of Rule 2046(h) the President in fact decided to drop the formal departmental enquiry. In that view of the matter, it cannot be said that the impugned order was in any manner as a ??? of punishment and that, therefore, compliance with Article 311(2) of the Constitution of India was a necessity I may also refer to the State Of U.P v. Sri Shyam Lal Sharma, 1971 SLR 716 wherein it is laid down that the mere fact that a Government servant is ??? retired before he reached the age of superannuation does not by itself cast a stigma and that where the authorities make an order for compulsory retirement and no reason is mentioned in the order it cannot be predicated that the order of retirement has an inherent stigma in the order. It was observed that “unless it is established from the order of compulsory retirement itself that a charge or imputation against the officer is made the condition of the exercise of that poser or that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal or removal in the nature of penalty or punishment. In the present case the order of compulsory retirement does not suffer from any such vice.”

10. In the present case also the impugned order of 27th of May, 1967 does not contain any stigma and has been passed in accordance with the rules applicable to the petitioner. It, therefore, cannot be held that the impugned order (Annexure 1) is in any manner violative of the guarantee given to the petitioner under Article 311(2) of the Constitution. The plea of the petitioner on this point, therefore, fails.

11. The next attack is against the order of the President dated 29th of April, 1969 and also reiterated in the order dated 4th of August, 1969 (Annexures 3 and 5) by which the President has with held the special contribution to the provident fund amounting to Rs. 33,625/- to the petitioner Rules relating to the pensionary benefits of the railway servants are to be found in the manual of Railway pension Rules Rule 202 of the Manual states that all non pensionable Railway servants who were in service on 15th of November, 1957 and who have not specifically elected to be governed by these rules, will continue to be governed by the State Railway Provident Fund (contributory) Rules. It is admitted that the petitioner has not opted for the pension rules and he is governed by the State Railway Provident Fund. Rules (hereinafter to be filed the Rules) and which are to be found in ??? XIII of Indian Railway Establishment Code. Volume I. Clause (7) of Rule 1302 defines fund to mean the State Railway Provident Fund. Clause (10) defines service for the purpose of the special contribution admissible under Rule 1314 to mean continuous service during which a subscriber holds a lien……………………… Claus (11) defines ‘subscriber’ to mean a person who is required or is permitted to subscribe to the fund under these rules. An account of subscriber is to be opened under Rule 1307 in the name of the subscriber to which shall be credited monies including the special contribution made under Rule 1314. By Rule 1308, every subscriber is to subscribe monthly to the fund when on duty and the amount of subscription payable is found in Rule 1309. The contribution by the Government to the fund is provide by Rules 1312 and 1313. Then comes Rales 1314 providing for special contribution to provident fund and so far as in is relevant for the present case reads as follows:—

“1314. Special contribution to Provident Fund—(1) If a subscriber being a gazetted railway servant quits set vice on—

(a) completion of thirty years' service; or

(b) attainment of the age of fifty years; or

and the Controlling Officer is satisfied that the service of the subscriber has been good, efficient and faithful, the Controlling Officer may order that in addition to the contribution credited under rules 1312 and 1313 the subscriber's provident fund account shall be credited with a special contribution calculated in the manner prescribed below:—

Provided that special contribution shall not be credited to a subscriber's account if be is dismissed from service, and shall not be credited, save with the sanction of the President if he is a gazetted railway servant, and otherwise of the controlling officer, if he has been removed from service by reason of misconduct;

(4) The amount of special contribution calculated in accordance with sub-rule (3) may in any particular case be withheld or reduced by the controlling officer.”

12. The grievance of the petitioner in this regard that he had put in 30 years of service and his services had been always good, efficient and faithful and that there was no justification or material on the basis of which an order withholding the special contribution to the provident fund could be passed by the President an argument has also been made that the order is punitive in nature and eats a slur and stigma on the ??? of the petitioner and could not have been passed without affording an opportunity to the petitioner to show cause. The respondents, however, maintain that the performance of the petitioner had been reported as unsatisfactory and adverse remarks had been communicated to him on more than one occasion. It is stated that the ??? contribution to Provident Fund was not paid to the petitioner as his record of service was reviewed by the competent authority in terms of rule 1314 of the code as unsatisfactory as well as on review of the entire record of the service of the officer including the charges proved against him (underlined by me). All the above facts were taken into consideration while deciding the question as to whether the services of the petitioner could be certified as good, efficient and faithful for the purpose of special contribution to his provident fund account. It was also suggested that on such a review, the President did not find the services of the petitioner good, efficient and faithful in terms of Rule 1314 and, therefore, the order of withholding was passed. It is also denied that the petitioner was entitled to any opportunity to show cause before the passing of the impugned order and it was maintained that there as no provision in the relevant rules making it obligatory for the competent authority to give any notice to the concerned officer before ordering any withholding of the special contribution to the Provident fund payable to him. It is maintained that the special contribution to provident fund of the railway servant is at the discretion of the competent authority who considers the record of service of the officer concerned and it is not payable to the officer as a matter of right to him.

13. Two questions arise in this aspect, one whether the petitioner was entitled to opportunity to show cause before the President passed the impugned order of withholding of the special contribution to the Provident fund and secondly, whether the order that has been passed after taking into account only relevant ma inters as required by the rules.

14. A reading of the rules shows that the contribution under it are in lieu of the pensionary benefits to which some of the railway employees may opt. The rules make it clear that there is first the contribution made by the subscriber himself with an equal contribution made by the Government under Rule 1312. Sub-rule (1) of Rule 1312 also make it clear that the contribution by the Government and the special contribution under Rule 1314 are only to apply to that staff who have not opened for the pension scheme introduced on 16-11-57. This further makes is clear that all the contributions including special contribution are deemed to be in lieu of the pensionary benefits which an employee gets if he opts for the pension rules. Proviso to Rules 1313 which provides that if it appears to the President that the contribution made to the account of the subscriber together with interest thereof and the case of the subscribers joining Railway service on or after 1st of April, 1938 together with special contribution admissible, Rule 1314 is generally in excess of the value of the pension admissible to thugs subscribers and if their services had been pensionable the ??? may direct that the contribution shall be reduced to such proportion of the subscription as he thinks fit also supports she contention. The scheme of the rules is that so fir as the payment of the subscriber's contribution is concerned on retiring it has to be paid to him in full. So fat as the Government's contribution is concerned in case the subscriber quits the services on resignation or dismissal no contribution shall be credits to his account during that half year in which the casualty occurs but the contrib which relates to previous half year shall be credited to his account. Next Rule 1314 which provides if the controlling officer is satisfied that the service of the subscriber his been good, efficient and faithful, he may order that the ??? fund shall be credited with a special contribution in the manner prescribed Clause (4) also provides that the special contribution calculate in accordance with sub-rule (3) may be withheld or be reduced by the controlling officer. It was not suggested by the counsel for the respondent that Rule 1314 does not cast a duty on the Controlling Officer to give a decision whether the services of the subscriber have been good, efficient and faithful, nor was it suggested that even if the controlling officer is satisfied that the services of the subscriber had been good, efficient and faithful, it was still open to him not to credit the special contribution to the subscriber's account. The only question that was canvassed was whether the controlling officer has to form the opinion of being satisfied whether the services of the subscriber have been good, efficient and faithful and whether is under an obligation to give an opportunity to the official concerns before coming to the filial conclusion. The question thus arises is whether the controlling officer in deciding whether the service of a subscriber have been good, efficient and faithful can be passed without first giving an opportunity to the concerned servant to show cause against the said order. It cannot be denied that the order of the President has resulted in depriving the petitioner of large amount of Rs. 32625. It also cannot be disputed that the very condition of refusal to pay special contribution to the provident fund is on the satisfaction of the controlling officer finding that the service of the petitioner has not been good, efficient and faithful. It is quite apparent, therefore, that not only the decision of the controlling officer depriving a subscriber his special contribution to provident fund casts a stigma on him in as much as his service is ??? as not being good, efficient end faithful, but it directly results in depriving the subscriber of a large amount of money to which he would be entitled otherwise the serious ??? of such an order by the controlling officer are obvious. The only plea in justification by the respondent for suggesting that no opportunity to show cause against the action is necessary is be contending that the rule itself does not so provide for any opportunity, and, therefore, it is not incumbent upon the controlling officer to give such on opportunity. It is no doubt rue that the rule in terms does not provide for any opportunity to be given to the concerned official. But that by itself does not conclude the matter, whether the controlling officer when taking a decision under Rule 1314 is required to act judicially or not, A duty to act judicially may arise where the action of an authority will involve civil consequences to the concerned official. In support of his contention that to opportunity to show case is necessary, Mr. Kapur the counsel for the respondent referred to N. Narasimbachar v. The State of Mysore, AIR 1960 Supreme Court 247. In my view that authority has no application to the present case what bad happened in that case was that the authority sanctioned the pension and acting under Rule 302 of the Mysore Services Regulations had imposed a cut. The argument raised before the Supreme Court was that this cut amounted to a reduction to terms of Article 311(2) of the Constitution. This ??? was recalled by their Lordships who observed but reduction in pennon in terms of rule 302 was not governed by Article 311(2) of the Constitution as it did not amount to reduction in rank. On the other hand there is a full Bench decision reported in K.R Erry v. State of Punjab through Chief Secretary to Govt. Punjab Chandigarh (AIR 1967 Punjab 219) where the question was whether the official was entitled to an opportunity to show cause before a cut in pension was imposed terms of Rule 6.4 of the Punjab Civil Service Rules Rule 6.4 of Punjab Civil Service Rules provided that full pension admissible under the rules is not to be gran as a matter of course or unless the services rendered has been approved. Clause (b) of Rule 6.4 further provided that if the service his not been thoroughly satisfactory, the authority sanctioning the payment should make such reduction in the amount a it thinks proper. Acting in pursuance of this rule the Government had imposed a cut of 20 percent in the passion of the Government employee. Admittedly the Government employee had not been given a show cause notice before ??? the cut and it was this action which was challenged in the Punjab High Court. Dua, J. (as he then was) who spoke for the majority distinguished the case in AIR 1960 SC 247 (case of M. Narasimhachar, supra) and held that it was not applicable. It was observed by Dua, J. as follows:—

“I am unable to construe the Supreme Court decision as suggested by the respondent and as at present advised, I am inclined to take the view that the right to ??? including the amount is a valuable right vesting in a Government servant, and before that right is prejuoicially affected, he is entitled to a notice to show cause against the proposed cut such appears to me to be the scheme of the Rules read as a whole

……………………………………………………Not only is the question of imposition of cut a quasi judicial function but the determination of the a ??? of the cut is, in my view, also a quasi-judicial function of equal importance.”

15. Reference may also be made to M. Gopalkrishna Naidu v. The State of Madhya Pradesh (AIR 1968 Supreme Court 240). In that case the Government servant has been departmental proceeded with and had been suspended during the course of the departmental enquary. At the termination of the enquiry the Government held that the charges against him were not proved beyond reasonable doubt and also held that the suspension of the departmental enquiry was not wholly unjustified and directed that in terms of fundamental rule 54(5) the entire period of absence from duty should be treated as period spent on duty under fundamental rule 54(1) for the purpose of pension only but that he should not be flowed any pay beyond what he had received or what was allowed to him by way of substantive allowance. Rule 54(1)(b) provides that when a Government servant who has been dismissed removed or suspended is reinstated the authority making the order of reinstatement shall make a ??? order whether of not the said period shall be treated as a period spent on duty, clause (5) of fundamental rule 54 further provides that in a case filing under sub-clause (3) the absence from duty shall not be treated as a period spent on duty unless it directs that in shall be so treated for any ??? purpose. The grievance of the Government employee was that before passing an order under clause (5) of Rule 54 no opportunity had been given to him to show cause against the action proposed the plea of the Government was that as the order was consequential order in pursuance of a departmental enquiry which had been ??? wherein he Government servant had an opportunity to show clause was not necessary to give any opportunity before passing this order. This plea was rejected by their Lordships who head that the authority dad to ??? a reasonable ??? to the Government servant to show cause before pissing in order under fundamental rule 354(3)(5). Their Lordships observed as follows:—

“Consideration made under this rule depending as it does on foots and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the Government servant must be held to be an objective rather than subjective functions. The very nature of the functions implies the duty to act judicially. In such a case if an opportunity to show close against the action proposed is not afforded, as admittedly is was not dine in the present case, me order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice.”

16. This decision is therefore, an authority for the proposition that if an order is passed against a Government servant which results in pecuniary loss to him on and which adversely affect him then the very nature of the duty casts an obligation on the Government to give an opportunity to the concerned officer before passing the order. In the present case the impugned order has undoubtedly caused pecuniary loss to the petitioner apart from casting a stigma. There is thus no escape from the conclusion that an order by the controlling officer is such that the principle of natural justice, which require that a person must be given an opportunity to show cause before pissing an adverse order against him is applicable. A Division Bench of Mysore High Court in H. Bommaiah Assistant Commissioner v. The State of Mysore, 1969 Services Law Reporter 881 his also held that an opportunity has to be afforded to the official concerned before imposing a cut in the pension on account of the fact that the service of the Government servant has not been thoroughly satisfactory. Rule 1314 of the Manual of Railway Pension Rules 1950 also provides that if the service has not been thoroughly satisfactory, the authority sanctioning the pensionary benefits should make such reduction in the amount of pensionary benefits as it think proper. Now all the authorities which I have mentioned above clearly lay down that before any cut is imposed in pension opportunity has to be given to the concerned official. The nature of cut contemplated under Rule 1314 is theme as cut in pension if, therefore, a cut was imposed in the pension of a railway servant who was governed by pension rules he would have to be given an opportunity before such a cut was imposed, there is no logic in suggesting that a Railway tenant no is governed be the State Railway Provident Find Rules 13 not entitled to this protection when such a cut is made in the special contribution to provident fund payable to him. To me there is no difference between these two cases. In Doth these cases the concerned official is being deprived of monetary benefit and a stigma is being imposed on him. clause (4) of rule 1314 provides for withholding of or reduction by the controlling officer of special contribution. The note given under this rule requires the controlling officer to give remarks when part is withheld namely, good, efficient and faithful to the extent of the percentage of requisite standard and continuous. Thus this clause clearly contemplates that it is not essential that the special contribution has either 10 be paid in whole or to be withheld, as a whole but only a part may be withheld. This is another factor which goes to show that the rule contemplates an objective determination which can only be carried out if an opportunity was given to the concerned official, before passing the order. If an opportunity is given to the concerted official he may be able to show that even if the controlling officer was inclined to withhold special contribution his case was not such that the total special contribution should be withheld but that only a part should be withheld. I have, therefore, no manner of doubt in holding that it is implied in Rule 1314 and that the controlling officer was under an obligation to give an opportunity to the petitioner before passing the impugned order withholding the special contribution. Admittedly no such opportunity having been given before passing the impugned orders (Annexurs 3 end 5) the same is liable to be struck down as one in breach of fundamental principles or rules of natural justice. The next attack was that the orders (Annexures 3 and 5) were bad as they were not passed in compliance with Rule 1314. It will be sen that the discretion of the controlling officer is not unfettered and is ??? by the conditions laid down in the rule. It may be that the formation of opinion is subjective, but the existence of circumstances relevant to the inference that the services have not ben good, efficient and faithful must be demonstrable. As was observed in The Barium Chemicals Ltd. v. The Company Law Board, 1966 Supreme Court Reports Suppl 311 at page 336:—

“Since the ex sense of “circumstances” is a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusion of certain definiens's.”

17. Shelat, J. also observed at page 358 as follows:—

“When a power is exercised for a purpose or with an Intention beyond the scope of or is not justified by the instrument creating it, it would be a case of fraud on power, though no corrupt motive or bargain is imputed. In this sense, if it could be shown that an authority exercising power has taken into account, it may even be bona fide and with the best intentions, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad.”

18. Bearing that in mind, let us see what is the basis of the satisfaction of the President that the President could not certify that the services of the petitioner were good, efficient and faithful. It was alleged in the petition that the petitioner's service had always been satisfactory, and be had also been allowed to cross the efficiency bar and was promoted whenever his turn came and, therefore, it was maintained that his services were good, efficient and faithful throughout. Now, if this was the only ground on the basis of which the challenge was made by the petitioner, it would be difficult for this court to interfere because the rule requites the satisfaction of the ??? officer and it would not be open to this court to substitute its own satisfaction for that of the controlling officer to determine whether the services were good, efficient and faithful. But the satisfaction must be arrived at by taking into account the relevant considerations as are permitted by the rules. In the counter-affidavit it has been stated that the entire record of the set vice of the officer including the charges proved against him had been taken into consideration while deciding, the question as to whether the services of the petitioner could be certified as good, efficient and faithful for the purpose of crediting the special contribution to provident fund account. As the justification has been given in the counter affidavit for passing the order, this court is entitled to consider whether any extraneous considerations have not bee a taken into consideration while passing the impugned order. So for as the review of the record of service of the officer is concerned that is certainly a relevant consideration and if, the President had taken a decision on a consideration of that alone it would not have been open to objection. But the infirmity in the order arises from the fact that the satisfaction of the President is sail to have been passed not only on a consideration of the record of service of the petitioner, but also including the charges proved against the petitioner. It was not very clear from the counter-affidavit as to which charges the reference was being made. There is no suggestion on the record that apart from the formal departmental inquiry (which was not pursued to the end) there had been any other inquiry in which any charges had been leveled and proved against the petitioner. During the course of the hearing, the counsel for the respondents, however, clarified that the reference to the charges proved was made to the findings recorded by the Commissioner of Enquiry in the course of the departmental enquiry. As already stated, the findings by the Commissioner of Enquiry were recorded on 31st of July, 1967 and were never communicated to the petitioner. As a matter of fact the petitioner had been directed to be retired by the order of 27th of May, 1967 and the case of the respondents is that the formal departmental enquiry was not proceeded with. But still curiously the impugned order of the President under Rule 1314 is being sought to be justified by relying on the findings recorded by the Commissioner of Enquiry No doubt a formal departmental enquiry was started and an enquiry was held. But as the report of the enquiry officer was not given to the petitioner, nor was any opportunity given to the petitioner to show cause against the findings of the enquiry officer, nor did the disciplinary authority at any time agree with the findings, it could never be held that the charges had been proved against the petitioner, and thus the order of the respondent based on the non-existent circumstances cannot be upheld. If the respondent wants to rely on the findings of the enquiry officer the least it is required to do is to first bring it to the notice of the petitioner that those findings will be considered as a part of his service record and give him an opportunity to explain it. Without following this procedure the said finding do not amount to the charge having been proved. On the ground, therefore, that extraneous matter was taken into account while passing the impugned order, the same is liable to be quashed.

19. As a result of the above discussion, it has to be held that as no opportunity was given to the petitioner before passing the impugned order Annexures 3 and 5, by which special contribution to Provident Fund parable to the petitioner was withheld, the same are liable to be quashed and I therefore, quash them. The result is that though I should uphold the order of retirement Annexure A1, the other order Annexures 3 and 5 have to be quashed and are hereby quashed on the ground mentioned above. I would further issue a mandamus directing that the controlling officer should consider the question of special contribution to the Provident Fund in terms of Rule 1314 de novo after giving to the petitioner a reasonable opportunity to show cause against the action proposed against him and in the light of the observations made in this judgment. The petition is, therefore, allowed as indicated above but in the circumstances of the case without any order as to costs.

20. Petition allowed.