Delhi High Court
Madan Lal vs Union Of India & Anr. on 25 September, 1998
Equivalent citations: 1998VIIAD(DELHI)65, 4(1998)CLT368, 75(1998)DLT750
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
1. The fact that the respondents held Court Martial against the petitioner and that the punishment of dismissal was passed is not in dispute. The petitioner claimed pension for the service rendered by him. The learned Counsel for the petitioner relied upon the judgment of this Court reported in Shambhu Prasad Vs. Union of India and Another, wherein this Court had held that "when there is no order by the Court Martial directing the stoppage of pension of Non Commissioned Officers would be pension to commissioned under Regulation 113 (a)". Mr. Sanjeev Sachdeva submitted that in view of the judgment of the Supreme Court reported in Union of India Vs. K.K.L.D. Azad, (1995) 4 Scale 711 : (1995) 5 S.L.R. 225. The decision of this Court referred to above is not longer good law and therefore, the petitioner would not entitled to any pension unless there is an order by the President granting pension.
2. There are two Regulations which are relevant in the Regulations framed by the Army. The first is, Regulation 16(a) which deals with the payment of pension to commissioned officer and that Regulation 16(a) reads as under :
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.
3. The other one applicable to the non-commissioned officers is, Regulation 113(a). Regulation 113(a) reads as under :
113(a) An individual who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of all previous service.
In exceptional cases, however, he may at the discretion of the President be granted service pension or gratuity at the rate not exceeding that for which he would have otherwise qualified had he been discharged on the same date.
4. Mr. Aruneshwar Gupta, the learned Senior Counsel for the petitioner submitted that having regard to the language of Sections 71, 72 and 73 of the Army Act, 1950, the Regulation which is non-statutory in nature cannot prevail over the statutory provisions. The learned Counsel further submitted that the scope of Regulation 16(a) and Regulation 113(a) is not very much different and the had been framed to meet the situation coming within the purview of Sections 71, 72 and 73 of the Army Act, 1950. Section 71 of the Army Act, 1950 deals with the punishment awardable by Court-Martial. The provision reads as under:
Section 71. Punishment awardable by Courts Martial -
Punishment may be inflicted in respect of offences committed by person subject to this Act and convicted by Court-martial, according to the scale following, that is to say :
(a) death;
(b) (imprisonment for life);
(c) Imprisonment, either rigorous or simple, for any period not exceeding fourteen years;
(d) cashiering, in the case of officers;
(e) reduction to the ranks or to a lower rank or grade or place or grade, in the case of non-commissioned officers; provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;
(f) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officer; and forfeiture of all or any part of their service for the purpose of promotion in the case of any of them whose promotion depends upon length of service;
(g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
(h) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers;
(i) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;
(j) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal;
(k) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.
5. The provision speaks of imposing punishment and dismissal in Clause (e) and forfeiture of service in pay portion Clause (h).
6. Section 72 speaks about alternative punishment awardable by Court-Martial. The provision reads as under:
Section 72. Alternative punishments awardable by Court-Martial :
Subject to the provisions of this Act, a Court-Martial may, on convicting person subject to this Act of the offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or in lieu thereof, any of the punishments lower in the scale set out in Section 71, regard being had to the nature and degree of the offence.
7. This empowers the Court Martial to impose punishment depending upon the nature and degree of offence.
8. Section 73 speaks of combination of punishments. The provision reads as under:
73 Combination of punishments:
A sentence of a Court-Martial may award in addition to, or without any other punishment, the punishment specified in Clause (d) or Clause (e) or of Section 71 and any one or more of the punishments specified in Clauses (f) to (i) of that section.
9. The argument of Mr. Aruneshwar Gupta, the learned Senior Counsel for the petitioner was that while the Court-Martial could have thought fit in addition to the order or dismissal as mentioned in Clause (e) of Section 71 also imposed the forfeiture of pension as contemplated in Section 73. The Court-Martial having regard to the facts and circumstances imposed the punishment of dismissal only. Therefore, according to the learned Senior Counsel for the petitioner when the Court Marital did not think it proper to deprive the petitioner of his pension for the service rendered by him that cannot be taken away by calling in aid Regulation 113(a). According to the learned Counsel the Regulation runs counter to the statutory provision and therefore, regulation itself is bad in law.
10. Mr. Sanjeev Sachdeva, the learned Counsel for the respondents submitted that in the light of the judgment of the Supreme Court, it not longer open to the petitioner to advance such a contention. In Major G.S. Sodhi Vs. Union of India and Ors., , the Supreme Court had to consider this question in the light of Regulation 16(a). Therein the Court-Martial had not said anything about the forfeiture of pension. Their lordships observed :
"The two petitioners herein have put in number of years of service. Major G.S. Sodhi has put in about 17 1/2 years of service and was also awarded some medals for his meritorious service. Likewise Lt. Col. S.K. Duggal the other petitioner has rendered about 21 years of service without any blemish. Therefore their services up to the date of punishment have been satisfactory. However, we do not propose to examine the other provision of the Army Act or Rules or Regulations in view of the fact that this Court on two earlier occasions granted similar relief to Col. (T.S.) Harbans Singh Sandhu Vs. Union of India, a bench of three Judges of this Court passed an order in favour of the army officer who was cashiered, holding that he was entitled to be paid the entire pension and gratuity under the rules. In passing such an order, this Court took into consideration the fact that no other penalty forfeiting the pensioner benefits was passed. Therefore he cannot be deprived of his pensioner benefits by applying any of the Regulations. It was held as under:
"So he filed the present writ petition to compel the Government to pay him what is due by way of gratuity and pension. This was his property and could not be taken away except by due process of law. The only provision of law pointed out to us by Counsel on either side is Section 16(a) of the Pension Regulations, 1961 (for the Army). It is found from the records that there is no order passed under the said regulation nor is it the case of the Union of India in their return that any such order depriving the petitioner wholly or partly of his pension; or gratuity has been made by the President. The inevitable consequence is that he is entitled to be paid the entire pension and gratuity under the Rules. We direct the respondent to pay the said sum within three months from today."
A similar order was also passed in Religious Teacher Ex. N. Sub R.K. Sharma Vs. Chief of Army Staff, by a Bench of two Judges of this Court. While dismissing the writ petition, the Bench observed that "the Court-Martial has not inflicted a punishment on his of forfeiture of pension or other service benefits and Counsel for the other side has assured the Court that whatever the pension and other service benefits are permissible to the petitioner under the law will be given to him".
11. Having observed the above, their Lordships had direct the payment of pension, gratuity and provident fund to the petitioner. In the case of Shambhu Prasad Vs. Union of India, this Court had dealt the case of non-commissioned officer. The learned Single Judge had noticed that the Court Martial did not think fit for punishment of forfeiture of pension, gratuity and other service benefits. The petitioner before this Court in that case relied upon the judgment of the Supreme Court in G.S. Sodhi's case. The learned Judge had referred to Regulation 132 which provided for the minimum qualifying colour service for earning a service pension to be 15 years and gratuity. Regulation 139 provided that minimum qualifying colour service to be 5 years. The learned Judge had also referred to the judgment of a Division Bench of this Court in Religious Teacher Ex. N. Sub. R.K. Sharma Vs. The Chief of the Army Staff and Ors., (Cr.) M.P. No. 349/80 in W.P. (Crl.). No. 244/80 dated 29.4.1980 by a Bench of two Judges of this Court, wherein the Bench had observed :
"the Court Martial has not inflicted a punishment on his of forfeiture of Pension or other service benefits and Counsel for the other side has assured the Court that whatever the pension and to her service benefits are permissible to the petitioner under the law will be given to him."
12. The learned Judge had noticed the arguments on behalf of the Respondents:
He has sought to distinguish Regulation 16(a) which related to the officers on the ground that the Regulation 113(a) is mandatory and the pension and gratuity has to be withheld where an individual is dismissed under the provisions of the Army Act. On the other hand, the President is vested with some discretion to forfeit or not to forfeit the pension. Regulation 16 (a) is reproduced as follows:
"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 the service, his/her pension, many, at the discretion of the President be either forfeited or be granted at a rate not exceeding that for which he/she would have other-wise qualified, had he/she retired on the same date."
13. The learned Judge expressed the view:
Both these contentions are misconceived. The Supreme Court has clearly settled the law in Major G.S. Sodhi's case and it has been categorically held that when the Court-Martial has not inflicted any other punishment, such as forfeiture of pension and other service benefits of the petitioners, the petitioners are entitled to such benefits. The argument that G.S. Sodhi's case would only apply in the case of Commissioned Officers and it has no application in the present case, where the petitioners were not Commissioned Officers, is of no consequences. The Supreme Court referred to the judgment in Religious Teacher Ex. N. Sub R. K. Sharma Vs. The Chief of the Army Staff and Others, Cr. M.P. No. 349/80 in W.P. (Crl.) No. 244/80 dated 29.4.80, which dealt with the case obviously of a non-Commissioned Officer. The contention is, accordingly rejected and the law laid down in G.S. Sodhi's case is held applicable to the facts and circumstances of the present cases. The second contention is also devoid of any force. The law did not intend to make distinction to the effect that no order was necessary to be passed under Section 113(a) and the pension and other service benefits could still be with held where as it was incumbent to pass an order under Section 16(a) of the Pension Regulations for the Army, 1961 Part to without the pension or gratuity of the officers. This obviously would violate Article 14 of the Constitution as arbitrary and discriminatory.
The learned Judge held:
Further more, it may be mentioned that Section 71 clearly details the punishments, which are awardable by Court Martial. Such punishments include dismissal from the service, imprisonment, either rigorous or simple for any period not exceeding 14 years, forfeiture of service for the purpose of increase pay, pension or any other prescribed purpose etc. There is, therefore, force in the contention that when the Court Martial has chosen not to award punishment of forfeiture of pension and gratuity or other service benefits, the petitioners are automatically entitled to the same.
14. In Union of India & Ors. Vs. Brg. P.K. Dutta (Retd.) JT 1995 (1) SC 413, the Supreme Court had an occasion to consider the scope of Regulation 16(a). The respondents before the Supreme Court Brig. P.K. Dutta had joined the Army in 1960. In 1992 he was tried by a General Court Martial. He was awarded three years' rigorous imprisonment and also cashiered. He claimed for the retrial benefits and he had approached this Court by way of a writ petition. This Court following the decision of the Supreme Court in Major G.S. Sodhi allowed the writ petition and issued direction for payment of pension. That was challenged by the Union of India before the Supreme Court. The argument before the Supreme Court on behalf of the Union of India was that this Court was in error in giving direction when the proceedings for forfeiture of retrial benefits under Regulation 16(a) was pending. Their Lordships had noted that this fact had not been referred to in the judgment of this Court. But the Supreme Court had noticed that the point had been mentioned in the counter affidavit filed by the Union of India before the Supreme Court. It was submitted that Regulation 16(a) had no statutory force. The Supreme Court held:
"....It is necessary to deal with the contentions raised by the learned Counsel for the respondent. He urged the following contentions; Regulation 16(a) of the Pension Regulations has no statutory force. The said regulations are administrative in nature. They cannot run counter to or be inconsistent with the Army Act or the rules made thereunder. Section 71(h) of the Army Act indicates that forfeiture of retrial benefits is one of the punishment that can be awarded by the Court Martial itself. In view of the said statutory provision the Regulation cannot empower another authority to impose the said punishment. Rule 14 of the Army Rules too supports the above proposition, says the Counsel. We are of the opinion that none of the said contentions merits acceptance. Section 71 specifies the punishments that can be awarded by the Court Martial. They include the punishment of death, imprisonment for life, cashiering, dismissal from service, reduction in rank, forfeiture of seniority or rank, forfeiture of pay and allowances and so on. One of the punishments which can be awarded is mentioned under Clause (h) Section 71(h) and (k) read as follows:
....71 Punishment awardable by Courts-Martial Punishment may be inflicted in respect of offences committed by person subject to this Act and convicted by Court-Martial, according to the scale following, that is to say:
(h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
(k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowance and other public money due to him at the time of such cashiering or dismissal....."
6. We are of the opinion that Clause (h) of Section 71 contemplates forfeiture of service for the purpose of increased pay, pension or any to her prescribed purpose and is wholly different from Regulation 16(a) which reads thus:
....16(a) When an officer who has to his credit the minimum period of qualifying service required to earn pension is cashiered or dismissed or removed from service, his pension, may at the discretion of the President, be forfeited or be granted at a rate not exceeding that for which he would have other wise qualified had he retired on the same date."
A reading of both the provisions clearly brings out 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. Where as Section 71(h) provides the punishment which can be awarded by the Court Martial. Section 71(h) contemplated a punishment awarded at the conclusion of the Court-Martial. While Regulation 16(a) contemplates a state subsequent to the awarding of punishment of Court Martial and its confirmation. The nature and content of both the impositions is altogether different and distinct. So is the field occupied by Clause (k) 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).
It is true that the pension Regulations are non-statutory in character. But as held by this Court in Civil Appeal No. 831 of 1993 disposed of on July 26, 1994 the pensionary benefits are provided for and are payable only under those Regulations and can, therefore, be withheld or forfeited under and as provided by those very Regulations. The following holding from the said judgment makes the position clear :
"We do not agree even with the second contention advanced by the learned Counsel. The provision of Regulation 16(a) are clear. Even if it is assumed that the Pension Regulations have no statutory force, we fail to understand how the provisions of the said Regulations are contrary to the statutory provisions under the Act or the Rules. The pensions 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 provided for the grant of pension can also 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".
15. In Union of India & Ors Vs. R.K.L.D. Azad, 1995 (5) SLR 225, the Supreme Court had dealt with the scope of Regulation 113. The Supreme Court posed the question and answered in the following terms:
The two short questions that are required to be answered in these appeals are:
(i) Whether a person who is subject to the Army Act, 1950 ('Act' for short ) can be dismissed from service for committing an offence under the Act even after he had retired on attaining the age of superannuation ? and
(ii) Whether as Junior Commissioned Officer of the Indian Army who has to his credit the minimum period of qualifying service required to earn a pension or gratuity is eligible for the same in case he is dismissed from service under the provisions of the Act ? The questions arise in the wake of the following undisputed facts.
16. Dealing with the claim for pension of the second question posed, the Supreme Court held :
"We find that the grant of pension and gratuity to Junior Commissioned Officers, other Ranks and Non-Combatants (Enrolled) is regulated Chapter III of the Pension Regulations for the Army, 1961 (Part-I) Regulation 113 which comes under Section I of the above Chapter reads, after its amendment in 1967, as follows:
113(a) An individual who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of all previous service.
In exceptional cases, however, he may, at the discretion of the President be granted service pension or gratuity at a rate not exceeding that for which he would have otherwise qualified had he been discharged on the same date.
(b) An individual who is discharged under the provisions of Army Act and the rules made thereunder remains eligible for pension or gratuity under these Regulations:
11. In view of the plain language of the above regulation the respondent cannot lay any legal or legitimate claim for pension and gratuity on the basis of his previous service as, admittedly he stands dismissed in accordance with Section 73 read with Section 71 of the Act. The second question must, therefore, be answered in the negative.
12. On the conclusions as above these appeals are allowed. The impugned judgments of the High Court so far as they held that the dismissal of the respondent was legally unsustainable are here by set aside and the writ petition filed by the respondent is dismissed. There will be no order as to costs.
13. Before we part with this record we make it clear that this judgment of ours will not stand in the way of the respondent to make representation seeking exercise of the discretionary powers of the President under Regulation 113 to grant pension or gratuity.
17. On 15.9.1998 the Supreme Court had delivered the judgment in Union of India & Ors. Vs. Subedar Ram Narain, , the Supreme Court had again considered the scope of Regulation 113(a). The Supreme Court noticed the submissions on behalf of the respondent before the Supreme Court in the following terms:
Shri Prem Malhotra, learned Counsel for the respondent submitted that with holding the pension when the respondent had been courtmarshaled and dismissed would amount to double jeopardy. It was submitted that under Section 71(j) of the Army Act one of the punishments which could be inflicted after a Court Martial was that of "forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service". Elaborating this contention, it was submitted that like dismissal from service as provided by Clause (e) of Section 71 of the Army Act, forfeiture of pay and allowances was one of the punishments which could be imposed under Clause (j). If such a punishment of forfeiture had been awarded, the respondent would have continued to remain in service but by ordering the dismissal from service under Section 71(e) he is also being deprived, under Regulation 113(a), of the pension which he had earned.
18. The Supreme Court following the earlier decision in Union of India Vs. R.K.L.D. Azad, held :
We find no merit in this contention. Section 71 of the Army Act provides or different types of punishments which could be inflicted in respect of an offence committed by a person subject to the Army Act and convicted by Court Martial. The punishments are of varying degrees, from death as provided by Section 71(a) to stoppage of pay and allowance as provided by Section 71(h). The punishment of forfeiture of pay and allowances as provided by Section 71(i) is of a lesser nature than that of dismissal from service as provided by Section 71(e). When punishment under Section 71(j) is imposed no recourse can be had to Regulation 113(a), because the said regulation applies only if an order of dismissal is passed against the person concerned. In other words Section 71(j) and Regulation 113(a) cannot apply at the same time. On the other hand when the punishment of dismissal is inflicted under Section 71(e) the provisions of Regulation 113(a) become attracted. The result of punishment is that the benefit of pension or gratuity which is given under the regulation is taken away. The order of dismissal under the provisions of the Army Act in the case of an employee like the respondent would make him ineligible for pension or gratuity. For person to be eligible to the grant of pension or gratuity it is imperative that he should not have been dismissed from service. The dismissal under the provisions of the Army Act is, therefore, disqualification for getting pension or gratuity.
19. Regarding the validity of the Regulation, the Supreme Court held:
It was also submitted by Shri Malhotra that Regulation 113(a) was discriminatory and, further, pension which is earned becomes the property of the person concerned and the same cannot be taken away. But no such contention was raised before the High Court. In any case we see no merit in the said contention. Firstly, junior commissioned officers and commissioned officer belong to different classes. They are not similarly situated. Moreover, pension is granted by the rules and regulations which can and do provide for the circumstances which would make a person ineligible to receive the same. Dismissal makes a junior commissioned officer disentitled to received pension or gratuity. Regulation 113(a) is not in any way invalid.
20. In the light of the law laid down by the Supreme Court with reference to the scope of the regulation, it is not open to the petitioner to say that the regulation is absolutely void and the petitioner would be entitled to pension when the Court-Martial had not passed any order relating to the withholding of pension. The language of Regulation 113 (a) is very clear and unambiguous. The main part of the regulation declares that individual who is dismissed from service under the provisions of the Army Act, it ineligible for pension or gratuity in respect of all previous service.
21. The second part of the regulation which is in the nature of proviso gives right to the individual concerned to apply to the President for grant of pension or gratuity. It is not necessary to expatiate on this aspect any more and the petitioner cannot rest his claim on the judgment of this Court. However, it shall be open to the petitioner to apply under Regulation 113(a) to the concerned Authority through proper channel of the grant of pension and gratuity setting out the facts of his service and the same shall be considered by the concerned Authority within six months from today.
22. The writ petition is disposed of in the above terms. There shall be no order as to costs.