Delhi High Court
P.K.Dutta vs Union Of Lndia And Ors. on 24 May, 1994
Equivalent citations: 1994IIIAD(DELHI)422, 1994(30)DRJ87
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT C.M. Nayar, J.
(1) The present writ petition has been filed by the petitioner for issuance of a writ in the nature of mandamus or any other writ or order for directing the respondents to pay:
"I)the entire pension and gratuity as entitled and sanctioned vide pension payment order No. M/004216/91 for his previous satisfactory service of 31 years 6 months 19days rendered by him in the Army prior to his retirement on attaining superannuation age on 31.12.91; and II)the encashment of 202 days of annual leave as entitled and published vide Hq 33 Corps (Ord) letter No.410512/OS-8A dated 29.1.92 read with part Ii Order No.02/92 dated 1.1.1992; and III)interest at the current market rate of 19% on the arrears of the above dues with effect from 1.1.92 till the actual payments."
(2) The brief facts of the case are that the petitioner joined Army as a Commissioned Officer on June 12,1960. He was promoted to the rank of Brigadier in due courseoftimeonDecemberl6, 1986. The petitioner retired from the Army service on December 31, 1991 on attaining the age of superannuation after rendering service for31 years six months and 19 days and, as such, became entitled to receive pension and gratuity for his previous satisfactory service and he also became entitled for encashment of leave, as referred to above. The prescribed minimum period for qualifying service required for supernatural benefits is 20 years with regard to pension and 10 years in respect of gratuity. The petitioner contends that he having completed the statutory period is entitled to these benefits which he earned on successful completion of his service as an officer in the Army.
(3) The retiral benefits of the petitioner were withheld vide communication issued / on January 7, 1992 on the ground of some disciplinary proceedings to be initiated against him after his superannuation. The petitioner submitted his representation on April 4, 1992 protesting against withholding of the benefits and challenged the withholding of pension and retirement gratuity as illegal. Thereafter, certain more correspondence was exchanged between the parties and the petitioner further submitted representations for release of his retiral benefits, but the same were withheld in view of the pendency of the disciplinary proceedings against him. The General Court Martial proceeded against the petitioner by invoking the provisions 'of Section 123 of the Army Act, 1950 (hereinafter referred to as the 'Act') and placed him in close arrest in military custody with effect from December 31,1991. There after, he was tried by the General Court Martial from June 6, 1992 to April 2, 1993. The said Court Martial, on consideration of the charges which are filed as Appendix 'A' to annexure P.8 to the writ petition, awarded him the sentence to be 'cashiered and to suffer Rigorous Imprisonment for three years '. The findings of the Court Martial were confirmed by the Chief of Army Staff, who remitted the unexpired portion of rigorous imprisonment on September 30, 1993.
(4) The main contention of learned counsel for the petitioner is that the matter is squarely covered by the judgment of the Supreme Court in MajorG.5.Sodhiv Union of India, and several judgments of this Court, which clearly held that when the Court Martial has not inflicted any other punishment, such as forfeiture of pension and other service benefits of the petitioner, he will be entitled to such benefits, these cannot be withheld by the respondents. Reference in this context may be made to the following judgments of this Court which have followed the judgment of Hon'ble the Supreme Court in Major G.S.Sodhi's case:
1.Shwmbhu Prasad v.. Union of India and another Civil Writ Petition No.2365/ 92 decided on January 10, 1994; Letter Patent Appeal against this judgment was dismissed by the Division Bench on March 25, 1994 (LPA No.10 of 1994).
2.RamChnder v. Union of india and others Civil Writ No. 4012/91 decided on March 7,1994.
3.Ex.Naik babies singh v. Union of India and others Civil Writ No. 210/93 decided on 29.4.1994.
(5) The respondents have filed their counter affidavit wherein it is contended that the petitioner was cashiered from service and findings of the Court Martial were confirmed on September 30, 1993. He was granted provisional pension under Regulation 3(b) of the Pension Regulations for the Army Part 1 1961, which authorises the provisional pension and the same ceases its operation by another Regulation i.e. 16(a) which empowers the President to forfeit the pension of the petitioner. The said Regulation is reproduced as below: "OFFICERS cashiered, dismissed removed or called upon to retire. 16(a) 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 service, his pension may at the discretion of President, be either forfeited or be granted at a rate not exceeding that (or which he would have been otherwise qualified had he retired on the same date."
The case of the petitioner for grant of pensionary benefits has to be considered by the Competent Authority with due process of law and the encashment of leave is not permissible under Rules in view of the involvement of the petitioner in disciplinary proceedings. This contention is of no consequence as it is an admitted case of the parties that the petitioner was cashiered and sentenced to suffer Rigorous Imprisonment for three years and he was not awarded any punishment of forfeiture of pension and other such benefits. The Supreme Court in G.S.Sodhi's case has clearly held that where the Court Martial has not inflicted any cither punishment of forfeiture of pension or other service benefits on the petitioner, such retiral benefits cannot be withheld. The provisions of Regulation 16(a) are of no relevance on the facts of the present case as the President has not taken the decision to forfeit or reduce the pension of the petitioner. Where the Court Martial has not inflicted any other punishment, such as forfeiture of pension and other service benefits, the petitioner cannot be deprived of the same.
(6) The judgment of the High Court of Punjab and Haryana at Chandigarh, cited by learned counsel for the respondents in Col. Prithisit Singh Vohra (Retd) v. The Government of India and another Civil Writ Petition No. 5608/91 decided on May 4, 1992, will have no application to the present case, as in that case the President of India had specifically passed an independent Order dated 0ctober24, 1989 whereby the entire pensionary benefits payable to the-petitioner therein had been forfeited. There is no such order which has been brought to our notice by the respondents in the present case.
(7) The petitioner is, accordingly, held entitled to retiral benefits, such as pension, gratuity etc. The respondents are directed to disburse the same to the petitioner as permissible under the Rules within one month from today.The claim for payment in respect of encashment of 202 days annual leave shall be dealt with by the respondents in accordance with the rules and in case, the petitioner is held entitled to the same, the amount shall be paid to him within the same period. The learned counsel for (he petitioner has also pressed for interest in view of the dey in payment of supernatural benefits to which the petitioner is entitled. In the facts and circumstances of the present case, we are not inclined to grant any interest on the benefits, which may accrue to the petitioner as a result of this order.
(8) The writ petition is allowed in the above terms. Rule is made absolute. No order as to costs.