Delhi High Court
Lt. Col. U.B.S. Ahluwalia (Retd.) vs Union Of India (Uoi) And Anr. on 13 July, 2006
Author: G.S. Sistani
Bench: Swatanter Kumar, G.S. Sistani
JUDGMENT G.S. Sistani, J.
1. In this petition under Article 226 of the Constitution of India the petitioner prays for issue of writ of certiorari or any other appropriate writ, order or direction quashing the Order issued by respondent No. 1 for the forfeiture of pension of the petitioner vide its order No. B/40978/UBSA/A/PS/4(c)/2406/B/D (pension/services) dated 3.6.1987, as being contrary to the existing provisions of law and administrative regulations and, therefore, illegal and unconstitutional as being violative of the provisions of Article 14 of the Constitution of India, and also prays to issue a Writ of Mandamus or any other appropriate writ, order or direction commanding respondents not to restrict the free movement and the right of the petitioner to practice any profession, or carry on any occupation, trade or business, in violation of the Rights guaranteed under Article 19 of the Constitution of India.
2. The facts of the case as set out by the petitioner are that the petitioner was serving as a commissioned officer in the Indian Army as an engineers officer in the Corp of Engineers until he sought premature retirement. The petitioner was given premature retirement w.e.f. 19.9.1982 after availing leave preparatory to retirement from 23.3.1982 to 18.9.1982. On premature retirement the petitioner was sanctioned pension, as per his entitlement vide pension pay Order No. M(Provisional)2963/82 dated 11.10.1982 and he has been receiving the pension regularly up till June, 1987. After submitting his application for premature retirement, the petitioner made an application dated 28.2.1982 seeking permission from the respondents to travel to USA for medical treatment of his wife. This application was made while he was still in service and permission to travel was sought during the period of his leave. Permission was granted by the respondents vide letter dated 1.4.1982. It has been further set out by the petitioner that despite the permission granted he could not travel abroad for his wife's treatment, as his brother who was settled in the USA and had agreed to financially support the treatment of the petitioner's wife, suffered losses and showed his inability to undertake financial liability for the medical treatment. Thus he could not travel to the USA for the treatment of his wife. It has been stated by the petitioner that after submission of his application for premature retirement and after his brother expressed his inability to support the medical treatment of the petitioner's wife, the petitioner was in search of a suitable and lucrative job within the country or abroad.
3. In July - August, 1982 the petitioner came across an advertisement in the Newspaper for a job of a Deputy General Manager in a private construction company registered and based in Sultanate of Oman. The petitioner applied and was selected for the job. The petitioner made an application dated 30.9.1982 under the provisions of the Administrative Orders to the Chief of the Army Staff, respondent No. 2 in the petition, for permission to accept 'commercial employment'. This application was made by the petitioner under the existing Administrative Orders which according to him were in fact not applicable to him. The petitioner further claims that he gave full and complete details of the private foreign company and that he was in no way connected or had dealings with the said company in his official capacity during his service and had simply applied for the post in response to an advertisement. Another reason for his requesting for permission was that he was unable to get any other suitable job and the job offered would help him in supporting his aged parents and other problems which had forced him to take premature retirement.
4. The respondents in terms of letter dated 8.10.1982 called upon the petitioner to give certain clarifications in order to enable them to process his application for permission to proceed abroad. The petitioner vide letter dated 11.10.1982 replied to the queries raised by the respondents. The petitioner also sent a reminder dated 26.10.1982 wherein it was pointed out that M/s. Uurum Contractors L.L.C., Muscat have given extension of time to join duty by 5.11.1982, and, therefore, permission to accept employment may kindly be expedited. On 7.11.1982 the petitioner again wrote to the respondent stating that since he had received no communication with regard to his application dated 30.9.1982 and since the foreign employer was insisting on his joining duties by 8.11.1982, he would be proceeding abroad. The petitioner also averred in the writ petition that although he gave satisfactory reply to all the queries raised, no immediate reply was received. During this period he also visited the Army Headquarters at New Delhi where he informally learnt that his application for commercial employment had been cleared, recommended and forwarded to respondent No. 1 for approval.
5. The petitioner goes on to state that in June, July, 1983 when the petitioner visited India for a short period he came to know from some of his friends that the permission to accept employment had not been granted. The petitioner vide letter dated 20.7.1983 requested the respondents that the decision not to grant permission may be reconsidered and he be granted ex post facto permission to accept the employment. The respondent in response to the letter dated 20.7.1983 brought to the notice of the petitioner that the Government's decision regarding rejection of his request to seek permission to proceed to the Sultanate of Oman was communicated to him vide letter dated 18.11.1982 and the request for grant of ex post facto approval had been considered and rejected by the Government.
6. The petitioner was served with a show cause notice vide memorandum number B/40978 AG/PS4(c)/1054/B/D/(Pension/Service) dated 31.3.1986. In the memorandum it was decided to give an opportunity to the petitioner to show cause how he can deemed to maintain good conduct after proceeding abroad in such a manner and how he is entitled to pension. Thirty days time was granted to file a reply/response. The petitioner vide letter dated 15.4.1986 filed his reply. The respondents vide letter dated 3.6.1987 informed the petitioner that after considering letter dated 18.11.1982, explanation dated 15.4.1986 and having regard to the circumstances leading to his proceeding abroad and accepting gainful employment without prior permission of the Government in exercise of powers conferred by Regulation 4 of Pension Regulations for the Army (1961 Part-I) read in conjunction with Army Instruction 10/S/63, had been pleased to forfeit his retiring pension. It was further stated that the amount already paid would not be recovered. Aggrieved by this order the present petition was filed.
7. Learned Counsel for the petitioner in the first leg of his arguments referred to certain administrative Orders as well as provisions of the regulation for Army (revised edition, 1962). The provisions were also re-produced in the writ petition. Para 340 of the Regulations are reproduced below:
340. ACCEPTANCE OF EMPLOYMENT BY RETIRED ARMY OFFICERS:
(a) Employment under a foreign government An officer, irrespective of the type of commission held by him, who is granted any pension, gratuity or other benefit under military rules in respect of his army service or who is likely to receive any pension, gratuity or other benefit under these rules, will be required to obtain permission of the Government before accepting an employment under a government outside India at any time after his army service has ceased. For this purpose "Employment under a Government outside India" shall include employment under a local authority or corporation or any other institution or organisation which functions under the supervision or control of a Government outside India.
(b) Private employment - An officer of the rank of colonel or above - whether held in substantive capacity or otherwise, who is granted a pension or gratuity or other benefit under military rules in respect of his army service, will be required to obtain the permission of the Government of India prior to accepting any commercial employment before the expiry of two years from the date his army service ceases. For this purpose "commercial employment" shall mean employment in any capacity including that of an agent under a company, firm or individual engaged in trading, commercial, industrial, financial, or professional business, and shall include also a directorship of such a company and a partnership of such a firm.
(c) No service or disability pension or other recurring benefit shall be payable to an officer who accepts an employment in contravention of the provisions of sub paras (a) and (b) above, in respect of any period for which he is so employed or such longer period as the President may direct. Gratuity where due, but not already paid, will also be liable to be forfeited in part or in full as the President may, at his discretion, decide. An officer permitted by the Government of India, before his army service ceases, to take up a particular "employment under a Government outside India" or "commercial employment", shall not, however, be required to obtain subsequent permission for his continuance in that employment.
(d) Applications from officers concerned seeking Government permission for acceptance of employment mentioned in sub-paras (a) or (b) above will be forwarded to the Military Secretary, Army Headquarters - Director General Armed Forces Medical Services, Ministry of defense, in the case of officers of the Army Medical Corps/Army Dental Corps/Military Nursing Service - giving full particulars in respect of the employment in question.
(b) Para 18 of the Pension Regulations for the Army (1961) Part I provides as follows:
Pensioners who accept employment under a Government outside India or commercial employment after retirement:
18.(a) An officer who is granted any pension, gratuity or other benefit in respect of his/her army service or who is likely to receive any pension, gratuity or other benefit under these Regulations shall obtain the permission of the President before accepting an employment under a Government outside India at any time after his/her army service has ceased. An officer of the rank of Colonel or above, whether held in substantive capacity or otherwise, who is granted a pension, gratuity, or other benefit in respect of his/her army service or who is likely to receive any pension, gratuity or other benefit under these Regulations, shall also obtain such permission prior to acceptance of any commercial employment before the expiry of two years from the date his/her army service ceases.
(b) An officer permitted by the President, before his/her army service ceases to take up a particular employment under a Government outside India, or commercial employment, shall not, however, be required to obtain subsequent permission for his/her continuance in that employment.
(c) No service or disability pension or other recurring benefits shall be payable to an officer who accepts an employment in contravention of the provisions of this regulation, in respect of any period for which he/she is so employed or for such a longer period as the President my direct. Gratuity where due, but not already paid, shall also be liable to be forfeited in part or in full as the President may, at his discretion, decide.
Note - (1) The term "employment under a Government outside India", shall include employment under a local authority or corporation or any other institution or organisation which functions under the supervision or control of a Government outside India.
Note - (2) The term "commercial employment", shall mean employment in any capacity including that of an agent under a company, firm or individual engaged in trading, in commercial, industrial, financial or professional business and shall also include a directorship of such a company and a partnership of such a firm.
8. Learned Counsel for the petitioner contended that these regulations were not applicable to the petitioner, as the regulation pertaining to private employment were applicable to an officer of the rank of Colonel or above and the petitioner was only a Lt. Colonel, thus in fact no permission was required by the petitioner to seek employment and to travel abroad. As the administrative orders and Army regulations were not applicable, the impugned order was thus bad in law and liable to be quashed. He further submitted that the permission to seek foreign employment was rejected without assigning any reason and thus there was no application of mind on the part of the respondents. The letter of rejection did not give grounds and was a non-speaking order.
9. The counsel for the petitioner laid strong emphasis on the fact that the conduct of the petitioner should be viewed favorably in as much that petitioner had approached the respondents on 30.9.1982 for permission, thereafter he requested the respondents vide letter dated 26.10.1982 that the permission may be granted expeditiously as his employer had granted time to join up to 5.11.1982 and also he made enquiries from the Army Headquarters where he had informally learnt that his application for commercial employment had been cleared. He further contended that since the respondents had not replied within a reasonable period, he had no option but to proceed abroad and in case he waited for permission, in every likelihood he would have lost the job. Learned Counsel further contended that petitioner has acted in a bona fide manner as would be borne out from his letters addressed to the respondents including letter dated 20.7.1983 wherein he had submitted that he had no alternate but to join the duty abroad as it was absolutely essential for him to take up the job under extremely adverse personal circumstances.
10. Learned Counsel for the petitioner also argued that the show cause notice dated 31.3.1986 was delayed, afterthought and mala fide. It was also argued by learned Counsel for the petitioner that the Order dated 3.6.1987 was extremely harsh and disproportionate and excess punishment has been imposed. The Order of forfeiture of retiring pension is not justifiable in view of the fact that the petitioner had served the army for 20 years and he had even resigned from his foreign assignment w.e.f. 29.6.1986.
11. Learned Counsel has strongly placed reliance in the case Ranjit Thakur v. Union of India and Ors. , wherein it is held that:
25. Judicial review generally speaking, is not directed against a decision, but is directed against the "decision-making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service Lord Diplock said:
Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community;....
26. In Bhagat Ram v. State of Himachal Pradesh reported at this Court held:
It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
12. Learned Counsel for the respondents on the other hand contended that para 340 of the Army Regulation were not relied upon by the respondents while considering the case of the petitioner. The petitioner was granted premature retirement by communication dated 23.2.1982. The grounds for seeking premature retirement were three fold: (i) to look after his sick and aged parents; (ii) to look after and seek medical treatment abroad for his wife; and (iii) to settle certain property problems. In the communication dated 23.2.1982 while granting premature retirement the petitioner Lieutenant Colonel Ahluwalia was transferred to the regular reserve of officers (clause x) from the date of his retirement and was liable to be recalled to army service up to 31.12.1990. Learned Counsel for the respondents further contended that the petitioner was liable to seek prior permission of the Government before proceeding abroad during the reserve liability period, as per para 32 (d) of the Army Instructions 10/S/96, which reads as under:
33. Army Instruction 10/S/63 regarding Regular Reserve of Officers (other than Medical and Dentral) - Terms and conditions of Service, as amended from time to time, is further amended as under:
(Amendment No. 11) Para 32 Add the following as Clause (d)
(d) Officers carrying reserve liability shall obtain permission of the Government before proceeding abroad and/or acquiring citizenship of a foreign country
13. Learned Counsel for the respondents further submitted that there was an absolute bar as far as the petitioner's travel abroad is concerned, without the express permission of the respondents. The petitioner acted in undue haste and did not wait for the decision of the respondents with regard to permission to travel abroad.
14. The counsel for the respondents further contended that there was complete application of mind on the part of the respondents, while processing the application of the petitioner. The respondents had responded to the application of petitioner dated 30.9.1982 vide its letter dated 8.10.1982 wherein two queries were raised. The letter dated 8.10.1982 is reproduced:
Tele 371658 Sainik Sachiv Shakha (MS7C) Thal Sena Mukhyalaya Military Secretary's Branch (MS7C) Army Headquarters IHQ PO New Delhi - 110011 38176/954/MS7C 08 Oct 82 Lt. Col UBS Ahluwalia (Retd) 19 Tilottama R.C. Church, Colaba Bombay - 400005 PERMISSION TO PROCEED ABROAD
1. Reference your application dated 30 Sep 82.
2. You were permitted by the Government in Feb 82 to retire prematurely on compassionate grounds viz need to look after aged parents, sick wife and property affairs. Subsequently in Apr 82 Government also allowed to proceed to USA for the treatment of your wife. In the circumstances, your present request for permission to proceed to the Sultanate of Oman to take a job is not compatible with your earlier request for premature retirement.
3. However, to enable this HQ to process your case further, please furnish full details covering the following points also in particular : -
(a) Did you proceed to the USA for medical treatment of your wife? If not, indicate the reasons therefore.
(b) Whether the compassionate reasons on which you had sought premature retirement still exist? If so, how these would be attended to in your absence.
(Sultan Mahmood) Lt. Col Sahayak Sainik Sachiv/AMS7 Kritey Sainik Sachiv For Military Secretary
15. This communication dated October 8th 1982 would clearly show that the respondents were actively considering the request of the petitioner. All the relevant facts pertaining to the case of the petitioner were duly considered by the respondent before rejecting the application of the petitioner seeking permission for employment. Vide communication dated 18.11.1982 the permission to proceed to Sultanate of Oman was considered and rejected barely within a month and a half which by no stretch of imagination can be termed as unreasonable delay, especially keeping in mind that the petitioner was in reserved liability period and he was liable to be recalled to Army services till December, 1990.
16. Learned Counsel for the respondents argued that the Order was fair and just and was passed keeping the complete facts in mind that firstly the petitioner took premature retirement on compassionate grounds in September, 1982 and there can be no justifiable reasons that barely within 15 days time the reasons for premature retirement extinguished and the health of his parents and wife all of a sudden became of no relevance and he wanted to proceed to the Sultanate of Oman for a commercial employment. The petitioner did not even wait for the respondents to reply to his request for permission to go abroad and he chose to leave the country against 32 (d) of the Army Instructions 10/5/96. More so, as per own showing of the petitioner he returned to India in 1983 and at that time he was aware that the permission had been declined. After a short stay he proceeded back to the Sultanate of Oman showing utter disregard to the fact that his permission had been rejected.
17. The respondents had rejected the application dated 30.9.1982 for permission to proceed abroad keeping in mind the facts of the case in as much that the petitioner requested for premature retirement on compassionate grounds. In the reply to their communication dated 8.10.1982 it was found that the petitioner did not proceed abroad for medical treatment of his wife and besides this the petitioner had sought premature retirement to look after his sick and aged parents and to settle certain property problems. The premature retirement was w.e.f. 18.9.1982 and by 30.9.1982 the petitioner had requested for permission to accept a commercial appointment abroad. It was argued that the petitioner is an engineer and sought employment in a construction company abroad as he was predetermined to seek foreign employment. It has been stated in the para 8 of the counter affidavit that on receipt of the petitioner's reply dated 11.10.1982 the matter was considered by the competent authority and was rejected. Para 8 of the counter affidavit of the respondents is reproduced below:
8. I say that on receipt of petitioner's reply vide letter dated 11th Oct. 82, a copy of the said letter is annexed as Annexure R-6, the matter was considered by the competent authority and was rejected with the following averments:
'Premature retirement is given on the basis of certain grounds. One cannot secure premature retirement on false pretenses. It appears that this officer had sought premature retirement to secure employment elsewhere and had pleaded false excuses. Permission may be refused.
18. Learned Counsel for the respondents further argued that proceeding abroad without permission of the Government itself is an act of misconduct and unbecoming of a commissioned officer and in violation of the existing well established rule. It was a clear case where the petitioner took premature retirement on false pretenses which were revealed only when he intended to seek employment outside India.
19. Learned Counsel for the respondents submitted that the petitioner did not maintain good conduct, which is evident from the sequence of events, firstly the grounds given for pre-mature retirement were false, secondly within a few months of his pre-mature retirement he was offered, and he accepted a foreign employment and that too in a construction company and lastly, he showed total disregard to the rules and without waiting to hear the outcome, he proceeded abroad. Learned Counsel for the respondents further contended that the petitioner was well aware of the regulations governing his category of officers and the act of the petitioner of proceeding abroad without prior permission was viewed as misconduct and unbecoming of an officer. The counsel for the respondent further relied upon Regulation 4 and 5 of Pension Regulations for the Army (1961 Part-I), which are extracted below:
Grant of Pension is subject to future good conduct
4. Future good conduct shall be an implied condition of every grant of pension or allowances.
5.(a) In special circumstances specified hereunder, the competent authority may withhold, suspend or discontinue in full or in part the pension (including commuted value thereof which has not been paid), children's allowance or gratuity (including Retirement Gratuity) to be granted or granted to an individual. In exceptional cases payment of part or whole of the pension, allowance or gratuity withheld or suspended may by order of the President, be made to the wife or other dependant(s) of the pensioner.
(b) This Regulation may be invoked under the following circumstances-
(i) Offences against the State as listed in Chapter VI of the Indian Penal Code, as amended from time to time.
(ii) Other serious crimes under I.P.C. Official Secrets Act or any other special Law of the Land and grave misconduct:
(iii) To recover the whole or part of any pecuniary loss caused to the Government in cases where in any departmental or judicial proceedings, the pensioner/individual is found guilty of misconduct or negligence committed during the period of service including service rendered on re-employment after retirement/discharge, leading to the said losses:
(iv) Unauthorisedly continuing to occupy the residential accommodation including hired one provided by the Government:
(v) When a report is received after sanctioning the pension, that departmental or judicial proceedings (for the offences committed while in service or during the period of re-employment) are in progress against the individual:
(vi) When an individual obtains re-employment after retirement without obtaining prior permission of the competent authority as prescribed from time to time:
(vii) Any other circumstances considered special by the President]
20. We have heard learned Counsel for the parties and have given our thoughtful consideration. We cannot loose sight of the fact that the petitioner had requested for premature retirement on compassionate grounds. Keeping these grounds in mind Order of premature retirement was passed and the petitioner was given premature retirement from 18.9.1982. The Court cannot help, noticing that the three grounds which were given for a request for premature retirement were that the petitioner wanted to look after his sick and aged parents, sought medical treatment of his wife abroad and to settle certain property disputes, but once premature retirement was granted no reasonable explanation was given as to how all the issues became redundant and how they would be dealt with in the absence of the petitioner.
21. Seeking an employment in Sultanate of Oman in such a short span of time of grant of premature retirement does not repose confidence in the mind of the Court with regard to the conduct of the petitioner and the respondents were justified in rejecting the request of the petitioner to seek foreign employment. The letter dated 8.10.1982 requesting for details from the petitioner by the respondents within few days of the petitioner's request for permission shows complete application of mind on the part of the respondents. We also find that there was no unreasonable delay on the part of the respondents to finally decide not to give permission to travel abroad. The conduct of the petitioner is certainly not expected of a person belonging to the security forces. The court can also not loose track of the fact that the petitioner being in the reserved category could be called back into service up to December, 1990. It is without any doubt that the petitioner was bound by 32 (d) of the Army Instructions 10/S/96 and permission to travel abroad was a condition precedent. We do not agree with the learned Counsel for the petitioner that the order dated 3.6.1987 is liable to be quashed as the same does not record reasons. If the respondents were not satisfied with the reply to the show cause, what reasons could be stated, except that they were not satisfied with the reasons given in the reply to show cause. The Hon'ble Supreme Court in the case of Union of India and Ors. v. E.G. Nambudiri reported at has held that merely because reasons were not given, the order cannot be rendered illegal. It has further been observed that:
If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide, it is always open to the authority concerned to place reasons before the court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is not permissible to the authority to support the order by reasons not contained in the records.
22. In the present case we have perused the original records of the case as well as the respondent in the counter affidavit at page 3 para 8 clearly stated the reasons for rejection of the permission. Para 8 of the counter affidavit of the respondent, quoted above, also clearly gives the reasons for rejection of the permission.
23. There is absolutely no quarrel with the proposition that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution, however the quantum of punishment depends on the facts and circumstances of each case and there can be no straight jacket formula as to what is the fair and just punishment. Unless the punishment so awarded either shocks the conscious of the court or it is excessively harsh and vindictive, it is not open to judicial review.
24. Considering the fact that the petitioner had put in 20 years of service and also that he proceeded for the foreign employment in November, 1982 and thereafter resigned in June 1986 from the foreign assignment, forfeiture of his pension would be too harsh. Ordinarily we would have directed the respondents to reconsider the punishment, but keeping in view that the case pertains to the year 1988 in order to shorten the litigation we direct that it would be a fit case that the pension of the petitioner is withheld till 30.6.2006 only. With this direction the present writ petition is disposed of leaving the parties to bear their own costs.