Punjab-Haryana High Court
Jagjit Singh Ex. Major vs Union Of India (Uoi) And Ors. on 13 March, 1995
Equivalent citations: (1995)110PLR421
Author: S.C. Malte
Bench: S.C. Malte
JUDGMENT Jawahar Lal Gupta, J.
1. Is the petitioner who was dismissed from the Army service in February, 1986, entitled to the grant of pension in spite of the fact that the President of India has passed an order dated October 13, 1993 under Regulation l(a) of the Pension Regulations forfeiting "the entire pensionary benefits which would have been payable "to him? This is the short question. The facts may be briefly noticed.
2. On January 7, 1985, the petitioner was served with a charge-sheet. The following were two of the four charges levelled against him:-
"Third charge/Army Act/Section 63.
____________________________________ AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE in that he, at Field between 07 and 11 June 84, when Officiating Officer Commanding, 19 Maratha Light Infantry with his troops deployed in and around Mehta Chowk and Quadian area in connection with 'Operation Blue Star' for Internal Security Duty, Secretly met certain unknown persons, collected the following arms/ammunition and concealed part of them in a house at village Bindarori on the night of 7/8 Jun 84 and another part at his in-laws' house at CONFIDENTIALM
(ii) Ammunition.
Sr. No. Type of Ammunition. 1. 9mm 124 2. Cartridges. 303 Bore 250 3. Magazine 303 1 Fourth Charge/Army/Act/Section 39(a) ____________________________________ ABSENTING HIMSELF WITHOUT LEAVE
in that he, at Field, when officiating officer Commanding, 19 Maratha Light Infantry with his troops deployed in and around Mehta Chowk and Quadian Area for Internal Security Duty in connection with 'Operation Blue 'Star', absented himself from the said area without leave from about 2345 hours on 10 June 84 to about 0900 hours, on 11 June 84."
2. He was tried by a General Court Martial on March 12, 1985. The court found that petitioner guilty of the above two charges and sentenced him to dismissal from service. The sentence awarded by the General Court Martial was confirmed by the competent authority. As a result, the petition was dismissed from service in February, 1986. On April 30, 1992, the petitioner was served with a notice calling upon him to explain as to why in view of his dismissal from service, the entire pensionary benefits may not be forfeited under Regulation 16 of the pension Regulations. The petitioner submitted his reply vide his letter dated May 30, 1992. On October 13, 1993, the petitioner was informed that the reply had not been found to be satisfactory and that "the President in exercise of the powers conferred by Regulation 16(a) of Pension Regulations for the Army (Part-I) 1961, has been pleased to forfeit the entire Pensionary benefits which would have been payable to Maj. Jagjit Singh (IC-21557) had he retired from service in the normal manner on the same date." Aggrieved by this order, the petitioner has approached this Court through the present writ petition. The order has been challenged on various grounds which shall be presently noticed.
3. A written statement has been filed on behalf of the respondents in which the claim made by the petitioner has been controverted. The petitioner has filed a replication.
4. We have heard learned counsel for the parties. Mr. H.S. Mattewal, learned counsel for the petitioner, has vehemently contended that the petitioner having been dismissed from service in February, 1986 and no order regarding forfeiture of pension having been passed by the Court Martial or by the president the action of the respondents is wholly illegal and is vitiated. Learned Counsel has pleased strong reliance on the judgment of their Lordships of the Supreme Court in Major G.S. Sodhi v. Union of India, 1992(5) S.L.R. 108. The learned counsel has further contended that in any event, the petitioner is entitled to the payment of gratuity. The claim made on behalf of the petitioner has been controverted by Mr. Ashok Jindal appearing for the respondents. Learned counsel has referred to the judgments of their Lordships of the Supreme Court in Major Hari Chand Pahwa v. Union of India, (Civil Appeal No. 831 of 1993, decided on July 26, 1994) and Union of India and ors. v. Brig. P.K. Dutta, (Civil Appeal No. 8948 of 1994, decided on December 7,1994).
5. The admitted position is that petitioner was dismissed from service in February, 1986. A dismissed employee is normally not entitled to pension. However, in case of officers of the Indian Army, a provision has been made in Regulation 16 which enables the competent authority to either forfeit or grant pension at a rate not exceeding that which the officer would have otherwise earned in case he had retired on the date of his dismissal. The provision in this behalf is contained in Regulation 16(a) of the pension Regulations. It reads as under:-
"16(1) when an officer who has to his credit the minimum period of qualifying service required to earn a pension, is cashiered or dismissed or removed from the service, his/her pension, may, at the discretion of the President, be either forfeited or be granted at a rate not exceeding that for which he/she would have otherwise qualified, had he/she retired on the same date."
6. The power has been conferred on the highest functionary and has to be exercised in accordance with the facts of each case. In a case where the offence is merely technical, the pension may not be forfeited or only a minor cut may be imposed while in a case where the offence is of a serious nature, the authority can forfeit all the pensionary benefits.
7. What is the position in the present case ? A perusal of Charges 3 and 4, as reproduced above, shows that fairly serious allegations had been levelled against the petitioner. The charges having been established, he was dismissed from Service. There after, a show cause notice was issued to the petitioner and after considering his reply, the impugned order was passed. In the circumstances of the case, we are satisfied that the exercise of discretion was neither arbitrary nor unfair. Consequently, the impugned order calls for no interference in the exercise of jurisdiction under Article 226 of the Constitution.
8. Mr. Mattewal placed a strong reliance on the decision of their Lordships of the Supreme Court in the case of Major G.S. Sodhi (Supra). This was a case where no order had been passed under Regulation 16(a) or otherwise forfeiting the pensionary benefits. In that situation, it was held that the officer was entitled to the grant of pension. Such is not the situation in the present case. Herein a positive order forfeiting the pensionary benefits has been passed. Furthermore, in the case of Major Hari Chand Pahwa (Supra), wherein the court Martial proceedings were commenced after the officer had formally retired from service and the officer was dismissed from service and his pensionary benefits were forfeited under Regulation 16(a) their lordships of the Supreme Court upheld the action in the following terms:-
"We do not agree even with the second contention advanced by the learned counsel. The provisions of Regulation 16(a) are clear. Even if it is assumed that the Pension Regulations have no statutory force, we fall to understand how the provisions of the said Regulations are contrary to the statutory provisions under the Act or the Rules. The pension has been provided under these regulations. It is not disputed by the learned counsel that the pension was granted to the appellant under the said regulations. The regulations which provide for taking it away on justifiable grounds. A show cause notice was issued to the appellant. His reply was considered and thereafter the President passed the order forfeiting the pension and death-cum-retirement gratuity. We see no infirmity in the order."
9. It was then contended by Mr. Mattewal that the Court Martial having not imposed the penalty of forfeiture of service for the purpose of pension, the respondents could not have passed the impugned order under Regulation 16(a). This contention is also misconceived. There is a basic distinction between the provisions contained in Section 71 and that under Regulation 16(a). This distinction has been pointed out by their Lordships of the Supreme Court in Brig. Dutta's case (Supra) in the following words:-
A reading of both the provisions clearly brings our the distinct fields occupied by them. Regulation 16(a) contemplates a situation where an officer is cashiered, dismissed or removed from service and provides how his pension is to be dealt with. Whereas Section 71(h) provides the punishments which can be awarded by the Court Martial. Section 71(h) contemplates a punishment awarded at the conclusion of the Court Martial while Regulation 16(a) contemplates a Stage subsequent to the awarding of punishment of Court Marlial and its confirmation. The nature and content of both the impositions is altogether different and distinct. So is the field occupied by clause (h) of Section 71 wholly distinct from Regulation 16(a). We are, therefore, unable to see any inconsistency between Section 71(H) and Regulation 16(a)."
10. In view of the above observations, the contention raised by the learned counsel cannot be sustained.
11. Lastly, it was contended that the petitioner is entitled to the payment of gratuity. No prayer in that behalf having been made in the petition, learned counsel submitted that under the provisions of Regulations 'pension' includes gratuity. If that to be so, the petitioner's right to pensionary benefits having been forfeited, he cannot claim even the payment of gratuity.
12. No other point was urged.
13. In view of the above we answer the question posed at the outset in the negative and hold that it is open to the president of India to order the forfeiture of either the whole or a part of the pensionary benefits in case of an officer, as in this case who has been dismissed from the Army. Service and such an order having been passed, he is not entitled to the grant of pension. The petition is, accordingly, dismissed in limine. However, in the circumstances of the case, we make no order as to costs.