PETITIONER: UNION OF INDIA & ORS Vs. RESPONDENT: BRG. P.K. DUTTA (RETD.) DATE OF JUDGMENT07/12/1994 BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) MANOHAR SUJATA V. (J) CITATION: 1995 SCC Supl. (2) 29 JT 1995 (1) 413 1994 SCALE (5)178 ACT: HEADNOTE: JUDGMENT:
1. Leave granted.
2. Heard learned Additional Solicitor General for the
appellant-Union of India and the learned counsel for the re-
spondent. The appeal is preferred against the judgment of
the Delhi High Court allowing the writ petition filed by the
respondent and directing the Union of India to disburse the
retrial benefit such as pension, gratuity etc as permissible
under the Rules to him within one month from the date of the
judgment. It was further directed that respondent’s claim
for payment in respect of encashment of 202 days annual
leave shall be dealt with and decided in accordance with the
Rules and the amount found payable shall be paid to him
within the same period. The claim for interest on the said
amount was however rejected.
3. The respondent joined the Army as a Commissioned
Officer on June 12,1960. He earned promotions in due course
and retired in the rank of Brigadier on December 31,1991 on
attaining the age of superannuation. Since the retrial
benefits due to him were not paid, he laid a claim therefor.
While so, in January 1992, disciplinary proceedings were
initiated against him. He was tried by a General Court
Martial and awarded three years rigorous imprisonment and
was also cashiered. The findings of the Court Martial were
confirmed by the chief of Army staff and have become final.
Since the retrial benefits were not paid to him, he
approached the Delhi High Court by way of Writ Petition No.
5414 of 1993. The High Court held, following the decision
of this court in Major G.S.Sodhi v. Union of India (1991 (2)
SCC 371), that cashiering does not by itself result in
forfeiture of the retrial benefits and accordingly allowed
the Writ Petition and gave the direction aforementioned.
4. The learned Additional Solicitor General, Shri
V.R.Reddy, submits that the Delhi High Court was in error in
giving the directions aforementioned in view of the pendency
of the proceedings for forfeiture of retrial benefits as
contemplated by regulation 16(a) of the Pension Regulations.
This fact is, however, not referred to or mentioned in the
judgment of the High Court. In the ordinary course we would
not have allowed the appellant to raise this plea but we
find that in the counter-affidavit filed by the Union of
India in the Delhi High Court, this fact was clearly stated
at two places. The following statements in the counter-
affidavit bear it out;
“It is further submitted that encashment
415
of leave is not permissible under rule because
of his involvement in disciplinary
proceedings. Copy of Government of India
letter dated 20 August, 1990 attached as
Annexures R-1 in the face of filling this
W.P., the provisional pension being paid to
officer has not been stopped though it should
have been stopped and action should have been
initiated for exercising the discretion of the
competent Authority i.e., the President. The
action has been initiated.”
(emphasis added)
Again;
“It is further submitted that since the dis-
ciplinary proceedings are completed/concluded,
the operation of Reg 38 causes its operation
and pension case of the petitioner has to be
regulated under the provision of Reg 16 (a) of
PRA Pt-1, 1961 for issue of discretionary
power of the President for grant or otherwise
of pensionary benefits. The case has been ini-
tiated for the same. ”
(emphasis added)
5. It appears that this aspect was not specifically
brought to the notice of the High Court. Had it been so
brought to its notice, we are sure the High Court would not
have made the directions in the manner complained of But
having regard to the crucial relevance of the said averment
and in the facts and circumstances of the case, we are
inclined to take note of the said statements in the counter-
affidavit. Once this is so, it should follow that the
directions as given by the High Court become unsustainable
in law. At the same time the proceedings initiated under
Regulation 16 (a) have to be directed to be disposed of
expeditiously. But before we make the final directions. 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). Sections 71 (h) and (k) read as follows:
” 71.Punishment awardable by courts
martial.- Punishment may be inflicted in
respect of offenses 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
416
(h) of Section 71 contemplates forfeiture of service for
the purpose of increased pay, pension or any other
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 otherwise qualified had he retired on the
same date.”
7. A reading of both the provisions clearly brings out the
distinct fields occupied by them. Regulation 16 (a) contem-
plates 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) contemplated a punishment awarded at the
conclusion of the Court Martial While Regulation 16 (a)
contemplates a stage subsequent to the awarding of pun-
ishment 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).
8. 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
pensioner 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 posi-
tion clear;
“We do not agree even with the second
contention advanced by the learned counsel.
The provisions of Regulation 16 (a) are clear.
Even if it is assumed that the Pension
Regulations have no statutory force, we 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 t
o
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.”
9. We may also mention that Army Rule 14 has absolutely no
relevance on this aspect.
10. In view of the above, the appeal is allowed with the
following directions;
(1) The proceedings initiated under Regulation 16(a) shall
be concluded within six months from today. This time limit
is fixed in view if the fact that the proceedings are said
to have been initiated even by the time the counter-
affidavit was filed in the High Court (The counter affidavit
was sworn to on 15th April. 1994.)
(2) If no orders are passed under Regulation 16(a) of the
Pension Regulations within the aforesaid period, the di-
419
