JUDGMENT
M. Jagannadha Rao, C.J.
(1) In Cw 2813/94, initially an order of reference was made by Anil Dev Singh, J requesting that the matter may be considered by a larger Bench. Later, other cases were tagged on to Cw 2813/94. It will be sufficient to refer to the facts and points raised in Cwp 2813/94.
(2) The facts :
(3) The petitioner was born on 20.5.1938. He later entered Army service and was commissioned in the Army (ASC) on 12.6.60 and was promoted to Selection grade rank of acting Brigadier in December, 1986 and he retired from service on 31.5.90 on attaining the age of superannuation i.e. 52 years in terms of Rule 16A (5)(a) of the Army Rules, 1954. The prescribed minimum period of qualifying service for a person to seek retirement is 20 years and for retiring gratuity is 10 years in respect of commissioned officers in the Army. The petitioner says he earned a right to pension and gratuity by 31.5.90 and also became entitled to leave encashment of 150 days of annual leave. The said details were published in part Ii order No. 19/90 dated 13.7.90 (Annexure P2). His service was neither extended not was he paid salary beyond 31.5.90.
(4) The petitioner was court martially in a Gcm which tried him from 26.5.90 to 26.9.90 and held that the 3rd and 5th charges were proved. Later, pursuant to a revisional order dated 7.11.90, petitioner was found guilty of 2nd, 9th and 10th charges as well. The findings and sentence of the Gcm are dated 8.12.90 and are that (i) petitioner be cashiered (s. 71(d); (ii) petitioner suffer rigorous imprisonment for 6 months (s. 71(c), and (iii) petitioner will forfeit all arrears of pay and allowances and other public money due to him at the time of cashiering (s. 71(k).
(5) The first two of the above sentences were confirmed by the Chief of Army Staff on 12.2.91 but the third one was remitted. Hence the third one “to forfeit all arrears of pay and allowances and other public money due to him at the time of cashiering” stood set aside. These orders were promulgated on 16.3.91.
(6) After retirement on 31.5.90, the petitioner was initially paid provisional pension at Rs. 3150.00 p.m. plus Da Rs. 840.00 p.m. w.e.f. 1.6.90 (the date of retirement) (Annexure P6). However, a show cause notice was issued on 13.11.92 for action under Regulation 16 of Pension Regulation for the Army (Part-1), 1961. After referring to the Gcm proceedings, it was stated that "in view of your cashiering from service, the grant of pensionary benefits to you is at the discretion of the President under the provision of Regulation 16(a)". It was then further stated in para 5 of the show cause notice as follow: "ANDwhereas, having regard to the circumstances leading to your cashiering from service, it is proposed to forfeit the entire pensionary benefits otherwise admissible to you under Regulation 16(a) of Pension Regulation for Army (Part-1), 1961" (7) The petitioner sent a reply dated 31.11.92. No order was passed by the respondents for quite some time. Petitioner sent reminders on 28.3.93, on 24.4.93 and 16.8.93. A final order was passed by the President on 4.1.94 (Ann. P1) stating that after considering the reply and after. "Having regard to the circumstances of the case leading to the cashiering of the officer from service, the President is pleased to decide to forfeit the entire pensionary benefits" (8) Which he would have otherwise been entitled to, had he retired in the normal manner on the date of cashiering. Questioning the same the writ petition was filed on 4.7.94 raising various contentions. Reply was Filed by respondent and rejoinder by petitioner. ' (9) The contentions on both sides (10) The petitioner's counsel Sri B.P. Ojha, who made a brilliant, fair and exhaustive submission unfortunately passed away and is not with us today. We have later heard the other counsel Mr. Harish Uppal, Mr. Sanjeev Ralli, Mr. J.S. Manhas and Capt. Virendra Kumar for the petitioners in the other CWPs in this batch of cases. We have also heard Sri Rakesh Tikku, Mr. A.K. Vali for the respondents. (11) It was submitted for the petitioners as follows:
(12) In view of several rulings of the Supreme Court, pension is no longer a bounty given by the State. It is deferred portion of compensation for services rendered. Pension is a social-welfare measure. The right to receive the same is a fundamental right and is a right to property under Article 300A of the Constitution of India and cannot be taken away except by authority of law i.e. by a statute or a statutory rule or order and not by executive fiat. While the President acting under Rules 8,9 of the Ccs (Pension) Rules 1972 and the Governor under the State Rules, can withhold or withdraw the pension of a pensioner found guilty of a serious crime or found guilty of grave misconduct, the position is different so far as Army personnel are concerned. It is argued that in the Army it is only the Court Martial which, can order forfeiture of service for purposes of increased pay, pension or any other prescribed purpose’ under Section 71(h) or 71(k) of the Army Act. In case the service of an army personnel is terminated on the administrative side (without holding Court Martial), then the statutory authority to decide forfeiture or the grant of these benefits is the competent authority under Rules 14(5) and 15 of the Army Rules. Thus the Army Act and Rules are comprehensive and therefore, it is said, there is no question of applying any old non-statutory pensionary Regulations which were formulated initially in 1940. These Regulations not having been made under Sections 191 nor 192, nor published in the Official Gazette in terms of Section 193 nor laid before Parliament as required by Section 193-A, are non-statutory. Alternatively, para 16(a) of the Regulations is inconsistent with and contrary to the statutory provisions in Section 71(h) and (k) and Rules 14(5) and 15 of the Rules and cannot supplement or supplant the above statutory provisions. In as much as in the present case, the sentence relating to forfeiture of all arrears of pay and allowance and other public money has been remitted by the Chief of Army Staff on 13.2.91, only cashiering and 6 months R.I. remain and thus there cannot be any forfeiture of pensionary benefits under administrative Regulations. If the Court Martial has not thought fit to forfeit the pensionary benefits, then those benefits cannot be forfeited by non-statutory Regulations. There is also undue delay of 3 years in the passing of orders forfeiting pension. Article 21 is also violated because of these orders dated 20.1.94.
(13) Learned counsel for the petitioner placed strong reliance on Jesuratnam vs. Uoi 1990(suppl) Scc 640; Maj. G.S. Sodhi vs. Uoi . Counsel contended that Brig. P.K. Dutta (Retd) vs. UOI) Jt 1995(1) Sc 413 does not lay down any principle of law and is otherwise distinguishable. Similarly they contended that the rulings in Maj (Retd) Hari Chand Pahwa vs. Uoi and Union of India vs. R.K.L.D. Azad 1995(5) Slr 225 are not to be followed on facts.
(14) Learned counsel for the Union of India repudiated the above contentions and contended that the judgments of the Supreme Court in Brig P.K. Dutta’s case Jt 1995(1) Sc 413, Major (Retd) Hari Chand Pahwa’s case and Union of India vs. R.K.L.D. Azad 1995(5) Slr 225 are directly in point. He submitted that the filed covered by the non-statutory Pension Regulations is different from the filed covered by Section 71. This aspect, it is said is clearly explained in Brig. P.K.Dutta’s case, where it was also held that the stage for grant of pension under Regulation 16(a) arises on the administrative side only after the punishment order is passed under Section 71 or after superannuation. It is pointed out that so far as grant of pension under Regulations 3 and 4 is concerned, it is necessary that the service as a whole must be satisfactory.
(15) From the aforesaid contentions, the following points arise for consideration: (1) Whether the non-statutory provisions in Regulation 16(a) as to grant of forfeiture of pensions of Army personnel who have been (a) cashiered or (b) dismissed or (c) removed from service and covers a field different from Rule 14(5) and 15 of the Army Rules, 1954? (2) Whether the said provisions in Regulation 16(a) are inconsistent with the section 71(h) and (k) of the Army Act and whether Regulate 16(a) covers a filed different from Section 71(h) and (k) ? (3) Whether the impugned order passed against the petitioner forfeiting his pensionary benefits is arbitrary and liable to be quashed? Points 1 & 2
(16) Before dealing with this aspect of the matters, it is necessary to refer to the relevant provisions of the Army Act, 1950 and of the Army Rules 1954 and of the no statutory Pension Regulations of 1961.
(17) Provisions of the Army Act, Rules 14(5),15 and Pensions Regulations 3,4,16(a);
(18) We shall first refer to the provisions of the Army Act and of the Rules. Chapter Iii deals with commission, appointment and enrolment. Chapter Iv (Sections 18 to 24) deals with ‘conditions of service’. In this chapter Section 18 refers to tenure being during the pleasure of the President and Section 19 refers to termination of service by way of dismissal, removal by the Central Government of the officers. Section 20 deals with dismissal or removal or reduction in rank by the Chief of Army Staff. Section 22 deals with retirement, release or discharge. Section 23 deals with certificate on termination of service and Section 24 discharge or dismissal when out of India.
(19) Rule 14(5) refers to the power of termination of service of an army personnel by the Central Government for misconduct after a departmental inquiry or conviction by an ordinary criminal court, with or without pension. Rule 15 refers to the power of termination of service by the Central Government on account of the employee’s inefficiency or physical disability, with or without pension.
(20) Chapter Vi deals with offences while Chapter Vii deals with punishment.
(21) Section 71 is in chapter Vii and in sub-clause (a) to sub-clause (i), it sets out various types of punishment, including (a) death, (b) imprisonment for life (c) imprisonment, either rigorous or simple, for any period not exceeding 14 years (d) cashiering, in the case of officers (e) dismissal from service; (f) reduction in rank, (g) forfeiture of seniority and the other punishments. Sub-clauses (h) and (k) which deal with forfeiture of pension etc. read as follows: "S. 71(h): forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose." S. 71(k) forfeiture in the case of a person sentenced to cashiering or dismissal from service of all arrears of pay and allowance and other published money due to him at the time of such cashiering or dismissal" Pension Regulations, 1961: "REG.3 The full rate of pension or gratuity provided for in these Regulations shall not be granted unless the service rendered has been satisfactory. If the service has not been satisfactory, the competent authority may make such reduction in the amount of pension or gratuity as it thinks proper. Reg. 4: Future good conduct shall be an implied condition of every grant of a person or allowance. Reg. 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, 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, and he/she retired on the same date." Special features of the Army service as compared with Civil services We shall make a brief comparison of certain important features in Army service and the civil service: (i) While a person employed in the civil services can be sentenced by an ordinary criminal court, the said criminal court does not have power to dismiss the person from service nor reduce him in rank nor order that his retiral or other benefits be forfeited. But the position of those governed by the Army Act is different. The Court Martial has power under Section 71 of the Army Act - as part of the power to impose punishments - to order dismissal, reduction of rank/forfeiture of pay, pension etc. (ii) Again while a person employed in the civil service and who is later dismissed from service after a departmental inquiry or consequent to conviction by an ordinary criminal court is not entitled to pension, the position in the Army is different. Army personnel, even if dismissed from service either in a departmental inquiry or who are cashiered pursuant to Court Martial, can be granted pension under Regulation 16(a) wholly or in part. To that extent, the Army personnel are better placed than those in civil services. Is Regulation 16(a) of the Pension Regulations inconsistent or ultra-vires of Rules 14(5), 15 or Sections 71(h) and (k)? Having set out the relevant provisions and referred to certain special features relating to pension of army personnel, we shall now deal with the above aspects. The Pension Regulations, 1961 are admittedly non-statutory. They are not statutory regulations issued in exercise of powers under Section 192. We have seen that Regulations 3 and 4 of these non-statutory Pension regulations permit the grant of pension if service has been satisfactory. Otherwise, cuts can be imposed in the pension and gratuity. This is the position at the time of normal superannuation. (A) We shall first deal with the plea of Regulation 16(a) being inconsistent with Rules 14(5), 15 of the Army Rules, 1954. Rules 14(5) and 15 contemplate termination of service by the employer, namely, the Central Government well before the date of superannuation. Such termination might have occurred under Rule 14 by virtue of a termination order issued by the Central government consequent to a departmental inquiry upon charges of misconduct or consequent to conviction by an ordinary criminal court. It might have also occurred on account of termination of service otherwise than by misconduct, i.e. on account of inefficiency or physical disability. Rule 14(5) and 15 which deal with termination by way of dismissal, removal, direction to retire or to resign, contemplate an administrative order of termination with or without pension/gratuity to the extent provided therein. It will be noticed therefore that even though the service of the army personnel is put an end to by an administrative order of the employer, the Central Government by way of dismissal, removal or direction to retire or resign - can still pass an order granting pension/gratuity wholly or in part. This decision of the Central Government to grant pension or gratuity in whole or in part will be based on its view as to whether the service of the officer has been satisfactory. In these cases, it is obvious that by the date of termination (i.e. upon a date before superannuation), the employee must have had the necessary qualifying service to be entitled to pension or gratuity. summarizing the position it is thus clear that Rule 14(5) and 15 cover cases of disciplinary action for misconduct, cases of termination on account of conviction by an ordinary criminal court or termination on account of inefficiency or physical disability. In all these situations, .the termination of service before superannuation can be with or without pension and is by an order of the employer, namely, the Central Government and hence these rules 14(5) and 15 do not cover a situation where the service comes to an end, well before superannuation, by a conviction and sentence awarded by a Court Martial under Section 71 of the Act. It is here that the non-statutory Regulation contained, in Regulation 16(a) steps in as a benevolent provision and permits pension to be granted even in cases of punishment of dismissal, cashiering or removal awarded by a Court Martial for offences committed by the army personnel. If, therefore, Regulation 16(a) covers situations not covered by Rules 14(5) and 15, it surely cannot be treated as being inconsistent with or ultravires of the Act or Rules 14(5) and 15. (B) We shall next take up the question as to whether Regulation 16(a) is inconsistent with Sections 71(h) and (k) of the Army Act. This point arises in the context of the contention that where the Court Martial while dismissing or cashiering or removing the employee, does not impose a punishment of forfeiture of pension etc. as permitted by Sections 71(h) and (k), the President cannot exercise any powers under Regulation 16(a) to reduce or forfeit pension byway an administrative order. The basic question first is to find out if Section 71 is the source of grant of pension to an army personnel. Obviously, Section 71 does not provide that the right to grant pension is with the Court Martial. The Section only provides for forfeiture of pension and that too as a measure of punishment for offences tried by the Court Martial. If therefore, the Court Martial does not, in a given case think fit to forfeit the pension while awarding punishment, then the only inference that can, in our opinion, be drawn is that as a measure of punishment for the offence, it thought that dismissal or cashiering etc. alone was sufficient punishment for the offence and that in its view there was no need to inflict an additional punishment of forfeiture of pension as reparation for the offence. While exercising the said special power, the Court Martial is surely not exercising any discretion to forfeit pension because the service of the army personnel as a whole - i.e. from the time he joined Service, - was satisfactory or not. The forfeiture is a direct' consequence of the sentence imposed under Section 71. Further, forfeiture of pension for unsatisfactory service is to be inflicted by way of an administrative order by the employer namely, the President and not by the Court Martial, as the latter is not the employer. It is, therefore, obvious that Regulation 16(a) which empowers the President to grant pension at his discretion or forfeit pension in whole or in part, in cases of cashiering, dismissal or removal from service by a Court Martial is a power exercised by the President who is otherwise the authority to grant pension. The Court Martial, has neither power to grant pension nor to take it away in the capacity of an employer. It has power only to forfeit pension as a matter of punishment for a criminal offence. That is why, in our view, Regulation 16(a) is not inconsistent with or ultra vires of Sections 71(h) and (k). The field theory: The above discussion reveals that Regulation 16(a) on the one hand and Rules 14(5), 15 and Sections 71(h) and (k) on the other occupy different fields. This principle is clearly brought out in Brig. A.K. Dutta's case Jt 1995(1) Sc 413 Jeevan Reddy J. observed, referring to Regulation 16(a) and Sections 71(h) and (k): "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. Whereas Section 71(h) provides the punishments which can be awarded by the Court Martial. Section 71(h) contemplates punishment awarded at the conclusion of the Court Martial. While Regulation 16(a) contemplates a stage 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 71(h) and Regulation 16(a)." In the above judgment, apart from stating that Regulation 16(a) and Section 71(h) and (k) belong to different fields, it was also pointed out that the grant of pensioner its forfeiture in whole or part by the President, - as the employer, - arises only after the order of dismissal or cashiering or removal (without forfeiture of pension) is passed by the Court Martial. That would mean that only after such order of dismissal or cashiering or removal is passed by the Court Martial, the President, in exercise of his discretion, can go into the question whether the service of the officer could still be considered as satisfactory. This principle was explained from another angle in Harichand Pahwa's case by the Supreme Court. It was stated there that the authority which granted pension has the power to take it away in whole or in part. Kuldip Singh, J. observed: "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 assume 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. This pension has been provided under these Regulations. It is not disputed by the learned counsel that the pension is 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." Pahwa's case was followed in Union of India vs. R.K.L.D. Azad 1995(5) Slr 225. Therefore, the three recent judgments of the Supreme Court lay down that Regulation 16(a) operates in a different filed relating to dismissal, removal or cashiering imposed by a Court Martial and that if Regulations 3,4 provide for the grant of it, Regulation 16(a) can provide equally for taking it away in part or whole and that such a question can arise only after the punishment of dismissal, cashiering etc. (without forfeiture of pension) is awarded by the Court Martial. The rulings relied upon by petitioner cannot help We shall now refer to the relevant rulings cited at the Bar on behalf of the petitioners. In Jusuratanam vs. Union of India 1990 Supp. Scc 640, a two Judge Bench of the Supreme Court observed that gratuity was no longer a bounty but was a matter of right and cannot be at the absolute discretion of the President under the Pension Regulations. It was held that since there was no legal provision empowering the authorities to forfeit the gratuity payable to the employee, the order passed by the Government must be held to be bad and the order of the High Court was set aside. The above judgment which is very brief is not an authority for the point raised before us that once the Court Martial does not think it Fit to award the punishment of forfeiture of pension as addition to other punishment. Regulation 16(a) cannot be invoked or that Regulation 16(a) cannot be invoked or that Regulation 16(a) is ultra vires of Section 71. The sheet anchor of the petitioner's case is the judgment of the Supreme Court in Major G.S. Sodhi vs. Union of India . The case relates to two officers, Major G.S. Sodhi and Lt. Col. S.K. Duggal. Both were tried by Court Martial and removed from service. Writ petitions filed in 1988 questioning the Court Martial proceedings, were dismissed on 30.11.90 by the Supreme Court. ' Thereafter miscellaneous applications were filed in 1990 and 1991 respectively seeking release of provident fund, gratuity and pension. Looking at 'the above facts, it will be noticed that some time prior to 1988 or 1989, these officers were Court martially and removed from service as a measure of punishment. No orders were passed by the President under Regulation 16(a) even by 1990 or 1991, or at any by 19.3.91 when the miscellaneous applications were allowed by the Supreme Court. The submission of the petitioner before the Supreme Court was that Major Sodhi had put in 17 years and 6 months service while' Lt. Col. Duggal had put in 21 years service. On the other hand, the department contended that the President had the discretion to grant pension or not and these benefits were not a matter of right. Army Regulations 2-A and 4 and Regulation 3 laid down that pension or gratuity were to be granted only if the service was satisfactory. Otherwise, the competent authority could impose cuts. The Supreme Court observed clearly: "THEREFORE,their services up to the date famishment have been satisfactory. However, we do not propose to examine the other provisions of the Army Act or Rules or regulations in view of the fact that this Court, on two earlier occasions, granted similar relief to the officers who were Court martially and removed from service." Their Lordships then referred to the case of Lt.Col. (T.S.) Harbans Singh Sandhu vs. Union of India (WP 552/72 dated 22.11.1977) where a bench of three Judges, while dealing with an officer who was cashiered, held he was entitled to entire pension and gratuity. There also the Court took into consideration the fact that the Court Martial did not think it fit to forfeit pensionary or other benefits. A passage from the above judgment in Sandhu's case was extracted. That passage said (i) pension and gratuity were property which could not be taken away except by way of due process and (ii) no order was passed under regulation 16(a). The position in Religion Teacher Ex. N. Sub. R.K. Sharma vs. Chief of the Army Staff dated 29.4.80 was also that the Court Martial did not pass any order of forfeiture of pension and the counsel assured the Court that it would be paid as per law. Following these two precedents, the Supreme Court in Sodhi's case finally observed that "In the instant case also, the Court Martial has not inflicted any other punishment of forfeiture of pension or other service benefits of the petitioners. Therefore they are also entitled to these benefits." The Court directed benefits of entire pension, gratuity and provident fund under the rules to each of the petitioners. In the aforesaid judgment in Major G.S. Sodhi's case the learned Judge clearly stated that they did not propose to examine the Army Act, Rules or Regulations but that they were following 2 earlier rulings only for the reasons that in those cases, on facts, similar relief was granted. Such ruling was granted by the Supreme Court because no order for forfeiture of pension was passed by the Court Martial and further no order was passed under Regulation 16(a), and it was thought that full pensionary benefits need be paid. It is clear, therefore, that their Lordships did not decide any legal issues and therefore on the question of law, Sodhi's case cannot be a precedent. It is here that, in our view, Brig. P.K. Dutta's case and Pahwa's case come and we find that the provisions of the Act and Regulations explained. The ratio of these cases is binding on us. In Brig. P.K. Dutta's case it was directed, on facts, that inasmuch as the counter-affidavit dated 15.4.94 stated that action under regulation 16(a) was initiated by that date, the said proceedings should be concluded in 6 months. There was some controversy during arguments before us that the Union of India had misstated facts to the Supreme Court that the Government had "initiated" action by the time counter was filed on 15.4.94 in the High Court. In para 4 of the judgment of the Supreme Court, there is an extract from the counter affidavit filed in the High Court to the effect that 'action had been initiated'. A doubt was raised by the counsel for petitioners before us that no show cause notice was issued under Regulation 16(a) before counter was filed in the High Court in Brig. Dutta's case but there were only certain nothings in the file proposing some action and that the Union of India, misled the Supreme Court to think that some action was initiated under Regulation 16(a) by way of issue of shoe cause notice even by the date of the counter. We do not propose to go into this controversy. From the principles laid down in the judgment, it is clear that if indeed action has been initiated in a given case i.e. if a show cause notice is issued under Regulation 16(a) then it would not be permissible for the Court to direct full pensionary benefits to be granted and the proper course would be to direct the authorities to complete the proceedings in a reasonable time. In this case before us, a show cause notice under Regulation 16(a) has been issued on 13.11.92, the petitioner has sent a reply on 30.11.92 and final order has been passed on 4.1.94. The writ petition was filed on 4.7.94 questioning the same. Hence it is clear that before the writ petition was filed, proceedings under regulation 16(a) have been commenced and concluded. It is then contended for the petitioners that G.S. Sodhi's case , also dealt with the case of another officer, Lt. Col.J.K. Duggal and that in his case, the President had passed an order regarding forfeiture of pension and still the Supreme Court granted pensionary benefits and that a latter review application Filed by the governor was confined to the question whether he was having the requisite qualifying service. May be so. But we do not find any discussion on the legal issues in the judgment of the Supreme Court. In fact their Lordships have clearly stated they were not deciding the legal issues. . Point 3 Is the order dated 4.1.94 passed under Regulation 16(a) liable to be quashed on the ground that the prior satisfactory service has not been considered? It will be noticed from G.S. Sodhi's case , that two important facts were there relied upon - one was that the Court Martial did not think it fit to award a punishment of total forfeiture of pensionary or other benefits, and the other Was that upto the date of punishment, their services were satisfactory. In para 3, after stating that they had earlier rendered service without 'any blemish', it was stated: "THEREFORE,their services upto the date of punishment have been satisfactory." In para 4, it was observed: "In the instant case also, the Court Martial has not inflicted any other punishment of forfeiture of pension or other benefits of the petitioner." In our view, these are important considerations. Regulation 3 requires pension to be granted if service has been satisfactory. Gratuity is also payable fully as per Regulation 2A and 4 of these very Regulations if service has been satisfactory. In a recent judgment in Union of India vs. Lt. Col. P.S. Bhargave , while upholding the right to pension of an army officer who voluntarily resigned, Regulations 3 and 4 were explained as follows (p. 431) by Kirpal J. "The mere perusal of Regulation 3 shows that the competent authority may make a reduction in the amount of pension or gratuity if the service has not been satisfactory, the reading of this Regulation clearly shows that normally full rate of pension or gratuity is to be granted unless service which is rendered is not satisfactory. It is not the case of the appellant that the respondent's service was not satisfactory. Therefore, no reduction of pension or gratuity under Regulation 3 could have been ordered."
Adverting to the normal right of pension of officers who have been cashiered, dismissed or removed, and referring to Regulation 16(a), Kirpal J. observed (p. 431): “Even in such a circumstance, there is no automatic forfeiture of pension or gratuity. An officer whose service is terminated by reason of being cashiered, dismissed or removed from service would normally be entitled to get his pension though the President has a right to forfeit or reduce the pension. From the aforesaid rulings, the legal position can be summarised as follows: Under Regulations 3 and 4 so far as pension is concerned and Regulations 2A and 4 so far as gratuity is concerned, army personnel have normally a right to pension or gratuity if their service has been satisfactory. Even if they have been cashiered dismissed or removed by order of Court Martial, normally they are entitled to pension, gratuity and other benefits to the extent the Court martial has not, as a measure of punishment for an offence, thought it fit to deprive them of. It is then in the discretion of the President acting under Regulation l(a) to forfeit a part or whole of their pension, this discretion is not absolute. Merely because the punishment of cashiering, dismissal or removal has been imposed by the Court Martial, the pensionary benefits under Regulation 16(a) or other benefits do not stand forfeited. On the other hand, the fact that upto the date of the offences which were the subject matter of Court Martial proceedings, the service was satisfactory and the fact that the Court Martial had not thought it fit to forfeit the whole or part of pensionary or other benefits, ought to be taken into account by the competent authority under Regulation 16(a). Even while considering these later factors, the normal rule is that pensionary and other benefits are to be granted unless the competent authority comes to the conclusion that the service of the officer taken as a whole was not satisfactory from the beginning or unless the offences which are proved and for which he has been sentenced arc so extraordinarily grave that the entire previous satisfactory service is to be excluded from consideration. That would be a rare situation. Indeed if the offence committed was so extraordinarily grave, one would have expected the Court Martial itself to forfeit the pensionary or other benefits. If, therefore, the Court Martial, in a given case, did not think that the offences wiped out the rights accrued from an otherwise satisfactory service, then the competent authority must, in our view, record good reasons as to why the normal rule of granting pensionary and other benefits is not to be followed and as to why the authority thinks that this is an extraordinarily grave case where these benefits should be totally or partially cut. The reference is answered accordingly. Applying the aforesaid principles to the show cause notice and the order of punishment, we are satisfied on a perusal of the record which has been placed before us by the Government that neither the impugned order nor the record produced before us contains any indication that the above principles were borne in mind by the competent authority. If the Court Martial did not think of forfeiting the pension and other benefits (and in fact the third sentence of depriving these benefits was set aside on revision), then good reasons must be recorded or assigned for not following the normal rule-of grant of pension etc., if the service was otherwise satisfactory upto the date of the commission of these offences. No extraordinary grave situation referable to an offence which had the effect of wiping out the otherwise satisfactory service has been relied upon nor recorded. The fact that provisional pension was given from 1.6.90 for a few years was also not taken into account. It is clear to us that an assumption was made, which is not warranted by law, that the very sentence of cashiering and 6 months R.I. was sufficient to require denial of full pensionary benefits (vide flag A, Note 38 and page 5’B’ (Zila Sainik Board’s report). We have therefore no option but to quash the impugned order. We quash the order and issue further directions We quash the impugned order for the aforesaid reasons. The quashing of the order would naturally require the respondents to reconsider the matter in the light of the legal principles laid down above. We order accordingly. A further question has arisen as to whether in respect of these pension matters, we should leave the parties to fight out a fresh litigation in the event the respondents passing an order adverse to the petitioner wholly or partly. Having regard to the long delay in the matter and on a consideration of the facts and submissions, we have thought it fit to issue the following directions: 1.The respondents will issue a supplemental show cause notice, consider the reply of the petitioner and pass fresh orders in the light of what is stated above within 6 months from today. 2. The supplemental show cause notice, reply thereto and the decision taken will be filed in the writ petition. 3. In case the orders go in favour of the petitioner no question arises. In case, however, the petitioner is not satisfied with the order, he can file objections to the same and the correctness of the order can be decided thereafter rather than drive the petitioner to a fresh writ petition and an Lpa etc. The respondents have not objected to this course.
The writ petitioner is allowed, the impugned order is quashed and the petitioner is disposed of in terms of the above directions, the respondent will decide afresh his entitlement to pension, gratuity and other retiral benefits including leave encashment. List the writ petition on 29.9.1997.
