{"id":225895,"date":"2001-10-16T00:00:00","date_gmt":"2001-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-and-anr-vs-p-o-yadav-on-16-october-2001"},"modified":"2018-09-21T07:21:51","modified_gmt":"2018-09-21T01:51:51","slug":"union-of-india-and-anr-vs-p-o-yadav-on-16-october-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-and-anr-vs-p-o-yadav-on-16-october-2001","title":{"rendered":"Union Of India And Anr vs P.O. Yadav on 16 October, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India And Anr vs P.O. Yadav on 16 October, 2001<\/div>\n
Bench: B.N. Kirpal, Shivaraj V. Patl, P. Venkatarama Reddi<\/div>\n
           CASE NO.:\nAppeal (civil)  7805 of 1997\n\nPETITIONER:\nUNION OF INDIA AND ANR.\n\nRESPONDENT:\nP.O. YADAV\n\nDATE OF JUDGMENT: 16\/10\/2001\n\nBENCH:\nB.N. KIRPAL & SHIVARAJ V. PATL & P. VENKATARAMA REDDI\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2001 Supp(4) SCR 209<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
SHIVARAJ V. PAIL, J. In short the facts leading to filing of these appeals,
\nare as stated below.\n<\/p>\n
Civil Appeal No. 7805\/1997<\/p>\n
The respondent here in joined Navy as a Sailor in April, 1965 and was
\ncommissioned in October, 1980. On account of certain alleged misconduct and
\nirregularities, he was tried by General Court Martial on five charges. He
\nwas found guilty of the charges 2,3,4 and 5 and consequently a penalty of
\ndismissal from service was imposed on him on 26.2.1990. He was given a
\nshow-cause notice on 21.6.1991 under Regulation 15(2) of the Navy (Pension)
\nRegula-tions, 1964 as to why his pensionary benefits should not be
\nforfeited. He sent a reply on 24.7.1991. The appellants informed him on
\n7.5.1992 that the action will be taken soon pursuant to the show-cause
\nnotice issued. However, without waiting any further, he filed a writ
\npetition on 20.1.1993 in the High Court. After the filing of the said writ
\npetition, an order was passed on 28.3.1994 forfeiting 50% of the pensionary
\nbenefits. The High Court partly allowed his writ petition and remanded the
\ncase giving certain directions to the appellants by the order dated
\n4.3.1997. Feeling aggrieved by the same, the appellants are before this
\nCourt in this appeal.\n<\/p>\n
Civil Appeal No. 7806\/1997<\/p>\n
The respondent was commissioned in the Indian Army on 30.6.1963 and was due
\nto retire on 31.3.1989. On 17.2.1988, he was tried by General Court Martial
\non certain charges and was dismissed from service on 13.6.1988 under
\nSection 71 of the Army Act. He submitted papers for payment of pension
\nstating that he had qualifying service. Since pension was not given to him,
\nhe filed Civil Writ Petition No. 1249\/90 in the High Court on 3.3.1990. On
\n16.4.1991, a show-cause notice was issued under Section 16(a) of the
\nPension Regulations of the Army (Part I) proposing forfeiture of pension on
\nthe ground that he was dismissed from service. He submitted reply to the
\nsaid show-cause notice. However, the President of India by order dated
\n22.7.1992 under said Regulation 16(a) forfeited 50% of the pensionary
\nbenefits. He filed Writ Petition No. 2866\/90 for amendment of the writ
\npetition challenging the said order. The High Court by the impugned order
\nquashed the order dated 22.7.1992 and directed the appellants to reconsider
\nhis case in the light of the directions given in the judgment. Hence this
\nappeal.\n<\/p>\n
Civil Appeal No. 7807 of 1997<\/p>\n
The respondent was commissioned in the Army as Engineer Graduate Officer on
\n11.1.1968. He was tried by General Court Martial on the allegation of
\nsplitting purchase orders for shelters, to bring them within the financial
\nlimits and for making purchases at rates higher than scheduled and
\nsanctioned rates. After trial by General Court Martial he was cashiered on
\n11.3.1994 and was directed to undergo rigorous imprisonment for two months.
\nHe forwarded papers on 29.6.1994 to the authorities for grant of pension.
\nOn 22.2.1995, a show-cause notice was issued to him under Regulation 16(a)
\nof Army Pension Regulations for forfeiture of pension. He claimed to have
\nsent a reply to the show cause notice but the order was passed forfeiting
\nhis pensionary benefits stating that he had not sent any reply to the show-
\ncause notice. The High Court quashed the impugned order forfeiting his
\npension and directed the appellants for re-consideration and passing fresh
\norder. Aggrieved by the said order of the High Court dated 4th March, 1997,
\nthis appeal is filed.\n<\/p>\n
Civil Appeal No. 7808 of 1997<\/p>\n
The respondent herein entered Army service and was commissioned on
\n12.6.1960. He was promoted to Selection Grade rank of Acting Brigadier in
\nDecember, 1986. He retired from service on 31.5.1990 on attaining the age
\nof superannuation. He was tried by General Court Martial between 26.5.1990
\nto 26.9.1990 on certain charges of misconduct. Charges 2, 3,5,9 & 10 were
\nheld proved. Consequently he was ordered to be (i) cashiered (ii) to suffer
\nrigorous imprisonment for six months and (iii) to forfeit all arrears of
\npay and allow-ances and other public money due to him at the time of
\ncashiering. The first two of the sentences were confirmed by the Chief of
\nArmy Staff on 12.2.1991 but the third one was remitted. Consequently, it
\nstood set aside. After retire-ment on 31.5.1990, he was initially paid
\nprovisional pension w.e.f. 1.6.1990. However, a show-cause notice was
\nissued to him on 13.11.1992 under Regu-lation 16(a) of Army Regulations. He
\nsent a reply to the said notice. Since no order was passed for quite some
\ntime, he sent reminders to the authorities. A final order was passed by the
\nPresident on 4.1.1994 forfeiting the entire pensionary benefits.
\nQuestioning this order, he filed Civil Writ Petition No. 2813\/1994 in the
\nHigh Court. The High Court quashed the order impugned in the writ petition
\nand directed the appellants to reconsider and pass fresh orders in the
\nlight of certain directions given. Hence this appeal is filed by the
\nappellants aggrieved by the impugned judgment.\n<\/p>\n
Mr. Mukul Rohtagi, learned Additional Solicitor General, urged that –\n<\/p>\n
1. Section 71 and Regulation 16(a) are distinct and operate in dif-ferent
\nfields. While Section 71(h) contemplates a punishment at the conclusion of
\nthe Court Martial, Regulation 16(a) contem-plates a stage subsequent to the
\nawarding of punishment by Court Martial and its confirmation; Regulation
\n16(a) deals with the pension of an officer, who is cashiered, dismissed or
\nremoved from service.\n<\/p>\n
2.          Though the Army Pension Regulations are non-statutory in char-
\nacter the pensionary benefits are provided for and payable under them;
\nthese very Regulations provide for forfeiting pension in given situations;
\nin other words, the Regulations which provide for grant of pension also
\nprovide for taking it away on justifiable ground; further these Regulations
\nmay not have statutory force but they are not contrary to any statutory
\nprovisions under the Act or the Rules.\n<\/p>\n
3.          The High Court committed an error in stating that the
\nauthorities did not consider in forfeiting pension, partly or fully, that
\nthe services of the respondents up to the date of commission of offences
\nwere satisfactory and that the Court Martial did not inflict the punishment
\nof forfeiture of services.\n<\/p>\n
4.          The orders passed by the President of India forfeiting pension
\nwere neither arbitrary nor unreasonable; in fact they were passed after
\ntaking into consideration the nature of offences, the punishments awarded
\nand all relevant factors.\n<\/p>\n
5.          (a)   The High Court has also failed to see that the right to
\ngrant pension is not with the Court Martial under Section 71; the grant of
\npension is within the powers of the President under Regulations, who can
\ngrant\/forfeit pension to the officers who are cashiered, dismissed, removed
\nor called upon to retire. (b) In passing the orders forfeiting pension of
\nthe respondents, partly or fully, well established procedure was followed
\nin that a show cause notice was issued; on receipt of reply to the show
\ncause notice from the respondents and after consid-eration orders were
\npassed.\n<\/p>\n
6.          The High Court was also not right in saying that the services
\nof the respondents cannot be termed as unsatisfactory because of their
\ninvolvement in the cases of misconduct; the High Court was not right in
\ngiving directions to the appellants to reconsider the matter after issuing
\na supplementary show cause notice.\n<\/p>\n
He added that Army Pension Regulation 16(a) and Navy Pension Regulation
\n15(2) are similar in content except that the authority to pass order under
\nRegulation 16(a) vests with the President and whereas under Regulation
\n15(2) it vests in the Central Government; the Army Pension Regulations are
\nnon-statutory and Navy Pension Regulations are statutory; hence the same
\nsubmissions cover the cases dealt with Army Pension Regulations and Navy
\nPension Regulations.\n<\/p>\n
In short and substance the arguments advanced by the learned counsel on
\nbehalf of the respondents are :\n<\/p>\n
1.         Pension is not a bounty or a charity given by the State; it is a
\ndeferred portion of compensation for services rendered; right to receive
\npension is a Fundamental Right and is right to property under Article 300A
\nof the Constitution of India which cannot be taken away except by authority
\nof law.\n<\/p>\n
2.         Under the Army Act it is only the Court Martial, which can order
\nfor forfeiture of service for purposes of increased pay, pension or any
\nother prescribed purpose under Section 71(h) or 71(k) of the Army Act; in
\ncase service of army personnel is terminated on the administrative side
\n(without holding court martial) then the statu-tory authority to decide
\nforfeiture or the grant of these benefits is the competent authority under
\nRule 14(5) and 15 of the Army Rules. Therefore, there is no question of
\napplying non-statutory pensionary    regulations to the respondents;
\nalternatively Regulation 16(a) is inconsistent with and contrary to Section
\n71(h) and 71(k) of the Army Act and Rules 14(5) and 15 of the Army Rules.\n<\/p>\n
3.         If the Court Martial has not thought fit to forfeit the
\npensionary benefits then those benefits cannot be forfeited by the non-
\nstatu-tory regulations and there has been undue delay in passing the order
\nforfeiting the pension in some cases.\n<\/p>\n
4.          The orders passed forfeiting the pensionary benefits, fully or
\npartially, as the case may be, are unreasonable and without proper
\napplication of mind to the facts and circumstances of the case.\n<\/p>\n
5.          Since no punishment was imposed forfeiting pensionary benefits
\nunder Section 71(h) or (k) by the General Court Martial, it was not open to
\npass orders forfeiting pension, partially or fully, exercising power under
\nRegulation 16(a); it may amount to im-posing punishment twice in respect of
\nthe same charges of mis-conduct.\n<\/p>\n
It may be necessary to narrate in brief as to the nature of charges framed
\nagainst the respondents and the punishment imposed on them to appreciate
\nthe contentions urged on behalf of the respondents as to the validity,
\nreasonableness and justification in passing the orders forfeiting pension.\n<\/p>\n
Five charges were framed against P.D. Yadav (respondent in CA 7805\/ 97). He
\nwas found guilty in respect of charges 2 to 5. The said charges 2 to 5 are
\n:-\n<\/p>\n
2.          Did on the Twenty ninth day of September one thousand nine
\nhundred eighty nine at about 1401 hours willfully disobey the lawful
\ncommand of Lieutenant Commander (Special Duties Com-munication) Man Singh
\nRawat (81917 Z), his Superior officer in the office of the Officer-in-
\nCharge? Communication Centre, Delhi when ordered to go out of the said
\noffice and to come afterwards and thereby committed an offence punishable
\nunder Section 47(a) of the Navy Act, 1957.\n<\/p>\n
3.          Did on the Twenty ninth day of September one thousand nine
\nhundred eighty nine at about 1402 hours behave in a disorderly manner in
\nthe office of the Officer-in-Charge, Communication centre, Delhi and
\nthereby committed an offence punishable under Section 48(c) of the Navy
\nAct, 1957.\n<\/p>\n
4.          Did on the Twenty ninth day of September one thousand nine
\nhundred eighty nine at about 1402 hours strike Lieutenant Commander
\n(Special Duties Communication) Man Singh Rawat (81917 Z) his superior
\nofficer in the office of the Officer-in-Charge, Communication Centre, Delhi
\nand thereby committed an offence punishable under Section 45(a) of the Navy
\nAct, 1957.\n<\/p>\n
5.  Did on the Twenty ninth day of September one thousand nine hundred
\neighty nine at about 1403 hours use violence against Lieutenant Commander,
\n(Special Duties Communication) Man Singh Rawat (81917 Z) his superior
\nofficer in the office of the Officer-in-Charge, Communication Centre, Delhi
\nand thereby committed an offence under Section 45(c) of the Navy Act, 1957.\n<\/p>\n
Twelve charges were framed against B.S. Ahluwalia (respondent in CA
\n7806\/97) but the Court Martial found him guilty of charges 5, 7 and 10 and
\nwith certain variations of charges 1, 2 and 3. They are :-\n<\/p>\n
1.          At Dehradun on 22.2.1985″, while employed as CWE, Dehradun and
\nhaving already given technical sanction for Table dining (OR) FD-165 @ Rs.
\n450 per tabel, with intent to defraud, vide contract Agreement No.
\nCWE\/CLT\/23 of 84-85, entered into an agreement with M\/s. Doon Furnishers
\nfor 496 dining tables @ Rs. 730 per table and thereby caused loss to the
\nState to the tune of Rs. 1,38,800.\n<\/p>\n
2.          At Dehradun, on 21.6.1985, while employed as CWE, Dehradun with
\nintent to defraud vide CA No. CWE\/DDN\/6 of 85-86, final-ized a contract
\nagreement with Allied Traders for supply and fixing of ceiling fans at an
\nexorbitant rate of Rs. 498 per fan, while DGS & D contract rate was Rs.
\n413.56 per fan,<\/p>\n
3.          At Dehradun, on 21.6.1985, while employed as CWE, Dehradun with
\nintent to defraud vide CA No. CWE\/CLT\/7 of 85-086 finisalised a contract
\nagreement with M\/s. Allied Traders for supply and fixing of ceiling fans at
\nan exorbitant rate of Rs. 488 per fan, while DGS & D contract rate was Rs.
\n413.56 per fan.\n<\/p>\n
5. At the place and date mentioned in the Charge No. 4. improperly accepted
\nthe contract agreement with the altered rates as mentioned in the said
\ncharge.\n<\/p>\n
7. At the place and date mentioned in the charge 6 (21.6.1985) improperly
\naccepted the contract agreement with the altered rates as mentioned in the
\nsaid charge.\n<\/p>\n
10, At Dehradun between 29.3.1985 and 5.7.1985, while employed as CWE,
\nDehradun, contrary to the provisions of para 24 of the General conditions
\nof contract (IAFW-1815Z) instead of claim-ing composition from M\/s. Doon
\nFurnishers for failure to com-plete the work by due date, improperly
\nallowed extension of time by 15 days and 30 days for phases I and II
\nrespectively.\n<\/p>\n
Thirteen charges were framed against E.K. Sugathan (respondent in CA
\n7807\/97) and was found guilty of charges 6, 10,11 and 12 and of charges 1,
\n2, 3,4, 5, 7, 8 and 9 with certain variations. He was sentenced to be
\ncashiered and to suffer rigorous imprisonment for two months. However,
\nwhile confirm-ing the finding and sentence GOC-in-C, Northern Command
\nremitted the sentence of rigorours imprisonment. The said charges are :\n<\/p>\n
1.         He at field between 28th January, 1991 to 6th March, 1991 while
\nbeing Garrison Engineer 571 Engr. Park when ordered to fabri-cate 28 SL
\nshelters at the cost of Rs. 10 lacs, with intent to defraud, splitted the
\npurchases of said order by placing the supply orders in contravention to
\npara 748 of Military Engr. Services Regulations 1968 edition read with HQ
\nNorthern Command letter No. 12846\/2\/policy\/II\/SB dt. 31st October, 1975
\nwhich prohib-ited splitting of the purchase order to avoid the necessity of
\nobtaining the sanction of higher authority with reference to the total
\namount of the said order.\n<\/p>\n
2.         He at field, between 25th January, 1991 to 6th March, 1991 while
\nbeing Garrison Engineer 571 Engr. Park when ordered to pur-chase 5 SI
\nShelters, 6 bathing cubicles flock and 6 latrine cubicles valued at Rs. 10
\nlacs, with intent to defraud splitted the said purchase order by placing
\nthe supply orders in contravention to para 748 of Military Engr. Services
\nRegulations 1968 edition read with the Northern Command letter No.
\n42346\/2\/policy\/ll\/Eng, Dated 31st October. 1975 which prohibit splitting of
\nthe purchase order to avoid the necessity of obtaining the sanction of
\nhigher authority with reference to the total amount of the said amount.\n<\/p>\n
3.          He, at field, between 12th March, 1991 to 25th March, 1991,
\nwhile being Garrison Engineer 571 Engr. Park when ordered to purchase 10 SI
\nshelters valued Rs. 10 lacs, with intent to defraud, splitted the said
\npurchase order by placing the supply orders in contravention to para 748 of
\nMilitary Engineer Services Regula-tions edition read with HQ Northern
\nCommand letter No. 42346\/ 2\/policy\/l 1\/E3 dt. 31st October, 1975 which
\nprohibited splitting of the purchase order to avoid the necessity of
\nobtaining the sanction of higher authority with reference to the total
\namount of the said order.\n<\/p>\n
4.          He, at field between February 1,1991 to February 18,1991 while
\nbeing Garrison Engineer 571 Engr. Park when ordered to pur-chase 713
\nchassis valued Rs 4.281 lacs, with intent to defraud splitted the said
\npurchase order by placing the supply order in contravention to para 748 of
\nMilitary Engineering Services Regu-lations 1968 edition read with HQ
\nNorthern Command letter No. 42346\/2\/Policy\/ll\/EB dated 31st October, 1975
\nwhich prohib-ited splitting of the purchase order to avoid the necessity of
\nobtaining the sanction of higher to authority with reference to the total
\namount of the said order.\n<\/p>\n
5.         He, at field, between February 1, 1991 to February 18, 1991,
\nwhile being GE 571 Engr. Park, when directed by Chief Engineer Northern
\nCommand vide letter No. 42392\/203\/E3 RR dated November 17, 1990 to procure
\n713 chassis, without authority purchased 213 timber planks of various sizes
\nfor which no sanction existed.\n<\/p>\n
6.          He, at field, on 13 Feb. 1991, when Garrison Engineer 571 Engr.
\nPark with intent to defraud placed supply order No. 3027\/169 IWS dt. 13th
\nFebruary, 1991 for “Steel door she 6′ -10″ double leaf type each divided in
\nthe four parts for fixing of glass sheets of size 12-3\/4″x20″ 4 Nos. and
\nPGI sheets 27″x20″ duly fixed and welded provided with two lower bolt 6″
\nsliding door belt duly fixed for looking arrangements. The frame of door
\nmade out of angle iron 40x4x40x6mm thick door leaf duly fixed with three
\nhinges of 4″ to each leaf with two bow handle of 9” size and leaf made out
\nof angle iron 32x32x6mm qty. 20 on M\/s CDS Traders Malhard Road, Garhi
\nUdhampur at the rate of Rs. 1650 each well knowing that the rate approved
\nby him was higher than the prevailing market rate of Rs. 1329 each.\n<\/p>\n
7.          He, at field, on 12th March, 1991, when Garrison Engineer, 571
\nEngr. Park with intent to defraud placed supply order No. 3027\/ 185\/IWS dt
\n12th March, 1991 for “Rear corner column made out of ISMB 6″x3″xlO’ long
\nwelded with base plate 10″xlO”xlOmm thick having 4 holes of 7\/8″ dia and
\ngusset plate 4″x4″x6″mm thick welded to base plate. Top plate 7″x7″xlOmm
\nthick having 2 holes of 9\/10″ dia welded at tope cleats of angle iron
\n50x50x6mm 9″ long 4 Nos. having two holes of 9\/16” dia welded to the column
\nat place sq. 10, on M\/s. Indow Traders, Transport Yard, Udhampur, at the
\nrate of each well knowing that the rate approved by him was higher than the
\nprevailing market rate of Rs. 1147.50 each Rs. 2680.\n<\/p>\n
8.          He, at field, on 13th March, 1991, when Garrison Engineer, 571
\nEngr. Park with intent to defraud placed the supply order No. 3027\/199\/IWS
\ndt. 13th March, 1991 for “front right hand side column made out of ISMB
\n6″x3″xlO’ long welded with base plate 10″xlO”xlOmm thick having 4 holes of
\n7\/8″ dia and gusset plate 4″x4″x6mm thick welded to the base plate, top
\nplate 7″x7″xlOmm thick having 2 holes of 9\/10″ dia welded atop, 4 cleats of
\nangle iron 50x50x6 mm 6″ long having 2 holes of 9\/16” dia welded to the
\ncolumn at places, qty. 10 on M\/s. Mushtak Hardware, Garhi Udhampur at the
\nrate of Rs. 2680 each well knowing that the rate approved by him was higher
\nthan the prevailing market rate of Rs. 1147.5 each.\n<\/p>\n
9.          He, at field, on 16th March, 1991, Garrison Engineer, 571 Engr.
\nPark with intent to defraud placed the supply order No. 3027\/205\/ IWS dt.
\n16th March, 1991 for middle column made of ISMB 6″x3″xlO long welded with
\nbase plate 10″xlO”mm thick having four holes of 7\/8″ dia and gusset plate
\n4″x4″x6mm thick having four holes of 7\/8″ dia and gusset plate 4″x4″x6mm
\nthick welded to the base plate, top plate 7″x7″xlOmm thick having two holes
\nof 9\/10 welded at top. 4 cleats of angle iron 50x50x6mm6″ long having two
\nholes of 9\/10″ dia welded to the column at places qty. 10, on M\/s. Veekay
\nEnterprises Dhar Road, Udhampur at the rate of Rs. 2680 each well knowing
\nthat the rate approved by him was higher than the prevailing market rate of
\n1147.50 each.\n<\/p>\n
10.       He, at field, on 12th March, 1991, when Garrison Engineer, 571
\nEngr, Park with intent to defraud placed the supply order No. 3027\/183\/IWS
\ndated 12th March, 1991 for middle side made out of at 50x50x6mm welded to
\n6mm thick plate of size 14×7″ 1 nos. at Joints, 6 cleats of AI 60x50x6mm 6″
\nlong welded attend to each truss having 9\/16″ dia hole for fixing columns 6
\nnos. cleats angle iron 50x50x6mm 4 “long having two holes 9×16″ dia welded
\nto truss for fixing of purlin at places” qty. 10 on M\/s Bansi Dhar and Sone
\nnear Krishna Mandir, Adarsh Colony, Udhampur at the rate of Rs. 2770 each
\nwell knowing that the rate approved by market rate of Rs. 2218.72 which was
\nhigher than the prevail-ing market rate.\n<\/p>\n
11.       He, at field, on 1st Feb., 1991, when Garrison Engineer, 571
\nEngr. Park with intent to defraud placed the supply order No. 3027\/148\/ IWS
\ndt. 1st Feb., 1991 for “timber plank partal 11×11″x8-3\/4” free from cracks
\nqty. 60 on M\/s Akbar Furniture House and Saw Mills, Garhi, Udhampur, at the
\nrate of Rs. 570 each well knowing that the rate approved by him was higher
\nthan the prevailing market rate of Rs. 429 each.\n<\/p>\n
12.       He, at field, on 12th Feb., 1991, when Garrison Engineer, 571
\nEngr. Park with intent to defraud placed the supply order No. 3027\/162\/IWS
\ndt. 12th Feb., 1991 for sal wood plants 3600mmx 225mmx 100mm” qty. 25 on
\nM\/s. Sharma Saw Mills Ram Nagar Chowk, Udhampur at the rate of Rs. 1250
\neach well knowing that the rate approved by him was higher than the
\nprevailing market rate of Rs. 858 each.\n<\/p>\n
A.K. Malhotra (respondent in CA 7808\/97) was tried on eleven charges. He
\nwas not found guilty of charges 1, 2, 4 and 6 to 11. He was found guilty of
\ncharges 3 and 5. He was sentenced to be cashiered and his five years
\nservice was forfeited for the purpose of pension. On revision he was not
\nfound guilty of charges 1, 6, 7, 8 and 11 but was found guilty of charges
\n2, 9 and 10 with exceptions. Consequently there was revision in sentence
\nalso sentencing him to be cashiered, to suffer rigorous imprisonment for
\nsix months and to forfeit all the arrears of pay due to him at the time of
\nhis cashiering. Confirming authority while confirming the finding and
\nsentence, had revised and remitted the sentence of forfeiture of all
\narrears of pay and allowances and other public money due to him at the time
\nof his cashiering on 13.2.1991, which was promulgated on 16.3.1991. Charges
\n2, 3, 5, 9 and 10 are :-\n<\/p>\n
2.          At Madras, between Aug. 87 and Nov. 87, when DDST HQ ATNKK & G
\nArea, improperly ordered dispensation of sample testing from Composite Food
\nLaboratory, of 41.098 tons of Tea (CTC) locally purchased by Supply Depot,
\nMadras, from M\/s. Vickey Enterprises, Madras, contrary to Army HQ letter
\nNo. 72312\/III\/2\/SI-4 dated 11 Nov. 86.\n<\/p>\n
3.          At Madras between October, 1987 and November, 1987, when DDST
\nHQ ATNKK and G Area, improperly ordered dispensation of sample testing from
\nComposite Food Laboratory or Defence Research Laboratory (Material),
\nKanpur, of 19.85 IL of Cresoli Liquid Black locally purchased from M\/s.
\nGautam Chemicals, Madras and M\/s. Testo Chemicals, Madras, contrary to Para
\n1086 of ALC Training Volume II (Supplies) 1968.\n<\/p>\n
5. At Madras, between 24th October, 1987 and 14th December, 1987 when DDST
\nHQ ATNKK & G Area, improperly and with-out justification obtained approval
\nfor local purchase of 29 KL of Cresoli Liquid Black from MG ASC HQ Southern
\nCommand, when there was no emergent requirement of local purchase of that
\nquantity of the said item.\n<\/p>\n
9.          At Madras, between 31 Oct. 1987 and 25 November, 1987 when DDST
\nHQ ATNKK & G Area, improperly allowed Supply Depot, Madras, to split-up the
\nsanctioned local purchase of 19.85 KL of Cresoli Liquid Black valued at Rs.
\n2,67,975.00 (Rupees two lakhs sixty seven thousand nine hundred seventy
\nfive only), in order to bring the same within the financial powers of MG
\nASC, HQ Southern Command, contrary to Rule 133 of Financial Regula-tion
\nPart I (Volume I), 1983, which prohibits such splitting-up.\n<\/p>\n
10.        At Madras, between November 1987 and February 1988, When DDST HQ
\nATNKK & G Area, with intent to defraud, directed Supply Depot, Margao, to
\nsplit-up the sanctioned local purchase of 86,190.800 Kgs. of Meat Tinned
\nvalued at Rs. 61,19,451.23 (Rupees sixty one lakhs nineteen thousand four
\nhundred fifty one and paise twenty three only), in order to bring the same
\nwithin the financial powers of MG ASC, HQ Southern Command.\n<\/p>\n
We notice the relevant provisions of the Acts and Regulations :-The Army
\nAct, 1950<\/p>\n
“71. Punishments awardable by courts-martial. – Punishments may be
\ninflicted in respect of offences committed by persons subject to this Act
\nand convicted by courts-martial, according to the scale following, that is
\nto say,-\n<\/p>\n
(a)    ...........\n\n(b)   ...........\n\n(c)   ...........\n\n(d)   ...........\n\n(e)    ...........\n\n(0    ...........\n\n(g)    ...........\n\n(h)    forfeiture of service for the purpose of increased pay, pen-sion or\nany other prescribed purpose;\n\n(i)     .............. (i)      ..............\n\n<\/pre>\n
(k) forfeiture in the case of a person sentenced to cashiering or dismissal
\nfrom the service of all arrears of pay and allow-ances and other public
\nmoney due to him at the time of such cashiering or dismissal;\n<\/p>\n
(1)     ………..\n<\/p>\n
Pension Regulations for the Army, 1961<\/p>\n
“1. Unless otherwise provided, these Regulations shall apply to the
\npersonnel of the Army and all claims to pension, gratuity or allowances
\nshall be regulated by the regulations in force at the time of an individu-
\nal’s retirement, release, resignation, discharge, death etc., as the case
\nmay be.”\n<\/p>\n
“2-A Unless there be something repugnant in the subject of context, the
\nterms defined in this Chapter are used in the regulations in the sense here
\nexplained :-\n<\/p>\n
(1) to (3)<\/p>\n
(4)    Pension shall include gratuity except when it is used in contradic-
\ntion to term gratuity.\n<\/p>\n
(5)  to (7)………..”\n<\/p>\n
“3. The full rate of pension or gratuity provided for in these Regula-tions
\nshall not be granted unless the service rendered has been satis-factory. If
\nthe service has not been satisfactory, the competent author-ity may make
\nsuch reduction in the amount of pension or gratuity as it thinks proper.”\n<\/p>\n
“4. Future good conduct shall be an implied condition of every grant of a
\npension or allowance.”\n<\/p>\n
“16. (a) When an officer who has to his credit the minimum period of
\nqualifying service required to earn a pension, is cashiered or dismissed or
\nremoved from the service, his\/her pension, may at the discretion of the
\nPresident, be either forfeited or be granted at a rate not exceeding that
\nfor which he\/she would have otherwise qualified, had he\/she retired on the
\nsame date.”\n<\/p>\n
The Navy Act, 1957<\/p>\n
“81. (1) The following punishments may be inflicted under this Act, namely
\n:-\n<\/p>\n
(a)   …………….\n<\/p>\n
(b)   …………….\n<\/p>\n
(c)    dismissal with disgrace from the naval service;\n<\/p>\n
(d)   …………….\n<\/p>\n
(e)    dismissal from the naval service; (0   to (l)  …………….\n<\/p>\n
(m) forfeiture of pay, head money, bounty, salvage, prize money and
\nallowances earned by, and all annuities, pensions, gratuities, medals and
\ndecorations granted to, the offender or of any one or more of the above
\nparticulars; also in the case of desertion, of all clothese and effects
\nleft by the deserter in the ship to which he belongs;\n<\/p>\n
(n)   …………….\n<\/p>\n
(2)   …………….”\n<\/p>\n
The Navy (Pension) Regulations, 1964<\/p>\n
“15. Officers dismissed, discharged, etc. – (1) No pension shall be granted
\nto an officer who is dismissed with disgrace from service.\n<\/p>\n
(2) In the case of an officer who is dismissed otherwise than with disgrace
\nfrom the service, the question whether any pension shall be granted and if
\nso, the rate of such pension shall be decided by the Central Government,
\nprovided that the pension, if granted shall not exceed the rate which would
\nhave been admissible to him if he had retired on the same date.\n<\/p>\n
(3)<\/span><\/p>\n
It is useful to look at the position of law emerging from various deci-
\nsions. The facts of the case in Lt. Col. (T.S.) Harbans Singh Sandhu v.
\nUnion of India & Ors., Writ Petition No.<\/a> 553 of 1972 decided on November
\n22, 1978 were that a General Court Martial tried the petitioner and imposed
\na punish-ment of cashiering under Section 71(d) of the Army Act and no
\nfurther pun-ishment was imposed under Section 71(h) of the Army Act for
\nforfeiture of service for the purpose of increased pay, pension or any
\nother prescribed purpose: he applied for grant of pensionary benefits; the
\nauthorities did not respond: hence, he filed writ petition seeking
\ndirection to the authorities for granting gratuity and pension due. Both
\nthe sides pointed to Regulation 16(a). From the records, it was found that
\nno order had been passed under the said Regulation. In the absence of
\npassing any order under Section 16(a), the Court directed the respondent to
\npay the sum due towards gratuity and pension. Under Section 71(h) a
\npunishment of forfeiture of service for the purpose of pension could be
\npassed but neither that punishment was imposed on the petitioner nor order
\nwas passed under Regulation 16(a) forfeiting his pensionary benefits. In
\nthose circumstances, the Court gave direction as stated above.\n<\/p>\n
It is clear from the said judgment that the questions of law, whether
\nregulations being non-statutory could be enforced for denying pension;
\nwhether those regulations were contrary to the provisions of the Act or
\nRules or whether when punishment was not imposed under Sections 71(h) or\n<\/p>\n
(k), even then pension could be forfeited under Regulation 16(a) that arise
\nfor consideration in the present cases, were neither raised nor decided.\n<\/p>\n
In the case of Major G.S. Sodhi v. Union of India,<\/a> [1991] 2 SCC 371 also,
\nrelief was granted relying on the decision of Harbans Singh Sandhu
\nmentioned above without deciding questions of law as is clear from para 3
\nof the judgment. This judgment proceeded on the ground that in Harbans
\nSingh Sandhu’s case, a question of law that if no other penalty of
\nforfeiting the pensionary benefits was passed under Section 71, pensionary
\nbenefits could not be withheld; but in Harbans Singh Sandhu’s case, this
\nquestion was not de-cided; it was only noticed as a fact that no further
\npenalty was imposed under Section 71(h) of the Act. The direction was given
\nin that case as no order had been passed forfeiting pension under
\nRegulation 16(a). No principle of law was decided in the said cases. In
\nthis view, these two judgments do not support the respondents. The Full
\nBench of the High Court itself in Malhotra’s case has said that in G.S.
\nSodhi’s case, no legal issue was decided and, therefore, it cannot be a
\nprecedent. The High Court in Yadav’s case specifically referring to the
\ncases of Harbans Singh Sandhu and G.S. Sodhi held that they were not
\napplicable to support the case of the petitioner.\n<\/p>\n
This Court in Major (Retired) Hari Chand Pahwa v. Union of India & Anr.
\n[1995] Supp. 1 SCC 221 while dealing with the specific contention that
\nPension Regulations have no statutory force and pensionary benefits could
\nnot be forfeited under Regulation 16(a), has in clear terms in para 5
\nstated that “We do not agree with the second contention advanced by the
\nlearned counsel. The provisions of Regulation 16(a) are clear. Even if it
\nis assumed that the Pension Regulations have no statutory force, we fail to
\nunderstand how the provisions of the said Regulations are contrary to the
\nstatutory provisions under the Act or the Rules. The pension has been
\nprovided under these Regulations. It is not disputed by the learned counsel
\nthat pension was granted to the appellant under the said Regulations. The
\nRegulations which provided for the grant of pension can also provide for
\ntaking it away on justifiable grounds. A show-cause notice was issued to
\nthe appellant. His reply was considered and thereafter the Presi-dent
\npassed the order forfeiting the pension and death-cum retirement gratuity.
\nWe see no infirmity in the order. The appeal is, therefore dismissed.” We
\nare in respectful agreement with the view expressed in the aforementioned
\ndecision that the Regulations, which provide for grant of pension, can also
\nprovide for taking it away not arbitrarily but subject to satisfying the
\nconditions incorpo-rated in the Regulations.\n<\/p>\n
In Union of India & Ors. v. Brig. P.K. Dutta (Retd.), [1995] Supp. 2 SCC 29
\nwhile specifically dealing with the effect of order passed under Sections
\n71(h) and (k) and the order passed under Regulation 16(a) directly arising
\non the contentions as are raised in the present cases held that clause (h)
\nof Section 71 contemplates forfeiture of service for the purpose of
\nincreased pay, pension or any other prescribed purpose and is wholly
\ndifferent from Regulation 16(a). It is further slated that a reading of
\nboth these provisions clearly brings out the distinct fields occupied by
\nthem and this Court went on to say :-\n<\/p>\n
“Regulation 16(a) contemplates a situation where an officer is cashiered,
\ndismissed or removed from service and provides how his pension is to be
\ndealt with. Whereas Section 71(h) provides the punishments which can be
\nawarded by the Court Martial. Section 71(h) contem-plates a punishment
\nawarded at the conclusion of the Court Martial while Regulation 16(a)
\ncontemplates a stage subsequent to the award-ing of punishment of Court-
\nMartial and its confirmation. The nature and content of both the
\nimpositions is altogether different and distinct. So is the field occupied
\nby clause (k) of Section 71 wholly distinct from Regulation 16(a). We are,
\ntherefore, unable to see any inconsist-ency between Section 71(h) and
\nRegulation 16(a).”\n<\/p>\n
In this judgment, a reference is made to the case of Major (Retd.) Hari
\nChand Pahwa (supra) and affirmed that the pension regulations, though non-
\nstatutory in character, the pensionary benefits are provided for and are
\npayable under the said regulations; therefore, the same can be withheld or
\nforfeited as provided by the very regulations. In this judgment, it is also
\nstated that Army Rule 14 has absolutely no relevance in regard to the
\nforfeiture of pension under Regulation 16(a).\n<\/p>\n
Yet again in the case of Union of India & Ors. v. Lt Col. P.S. Bhargava,<\/a>
\n[1997] 2 SCC 28 it is stated that Regulation 16(a) gives the President the
\npower either to forfeit or to reduce the rate of pension in the event of an
\nofficer being cashiered, dismissed or removed from the service. Reference
\nis made to Regu-lation 4 to say that conduct of the officer must be good as
\na condition for the grant of pension or allowance. Dealing with the
\ncontention that withholding the pension when the respondent had been Court
\nMartialled and dismissed, would amount to double jeopardy, this Court in
\nUnion of India & Ors. v. Subedar Ram Narain & Ors.,<\/a> [1998] 8 SCC 52 did not
\nfind any merit in the contention and held thus :-\n<\/p>\n
“Section 71 of the Army Act provides for different types of punish-ments
\nwhich could be inflicted in respect of an offence committed by a person
\nsubject to the Army Act and convicted by courts martial. The punishments
\nare of varying degrees, from death as provided by Section 71 (a) to
\nstoppage of pay and allowance as provided by Section 71(h). The punishment
\nof forfeiture of pay and allowances as provided by Section 71(j) is of a
\nlesser nature than that of dismissal from service as provided by Section
\n71(e). When punishment under Section 71(j) is imposed, no recourse can be
\nhad to Regulation 113(a), because the said regulation applies only if an
\norder of dismissal is passed against the person concerned. In other words
\nSection 71(j) and Regulation 113(a) cannot apply at the same time. On the
\nother hand, when the punishment of dismissal is inflicted under Section 71\n<\/p>\n
(e) the provisions of Regulation 113(a) become attracted. The result of
\npunishment is that the benefit of pension or gratuity which is given under
\nthe regu-lation is taken away. The order of dismissal under the provisions
\nof the Army Act in the case of an employee like the respondent would make
\nhim ineligible for pension or gratuity. For a person to be eligible to the
\ngrant of pension or gratuity, it is imperative that he should not have been
\ndismissed from service. The dismissal under the provisions of the Army Act
\nis, therefore, a disqualification for getting pension or gra-tuity.”\n<\/p>\n
The High Court in the impugned judgments has held that Regulation 16(a) is
\nnot inconsistent with Sections 71(h) and (k) of the Army Act and that they
\ncover different fields; so also Regulation 16(a) and Rules 14(5) and 15 of
\nthe Army Rules operate in different fields. The High Court has upheld the
\nvalidity of Army Pension Regulation 16(a) and Navy Pension Regulation
\n15(2). The High Court also did not find that these Regulations were
\ninconsist-ent with or contrary to relevant provisions of the Act relating
\nto punishment referred to in the judgment. We approve these conclusions of
\nthe High Court. The High Court quashed the impugned orders forfeiting
\npension on the ground that prior satisfactory service of the respondents,
\ncoupled with the fact that Court Martial did not consider it appropriate to
\nimpose the punishment under Section 71(h), was not taken into consideration
\nby the authorities. The High Court was of the view that although a person
\nmay be cashiered or dismissed from service; that itself was not enough to
\nforfeit pension and that prior satisfactory services of the respondents
\nought to have been taken into consid-eration before passing the order
\nforfeiting pension fully or partly. The High Court also held that
\nprovisions of Regulation 15(2) of the Navy Pension Regulation are not ultra
\nvires of the provisions of Sections 81, 82, 47 and 27 of the Navy Act and
\nthat where the Court Martial has imposed a punishment (like dismissal)
\nwhich does not entail forfeiture of pension, it is still open to the
\ncompetent authority under the Regulation 15(2) to forfeit a part or whole
\nof the pension by following due procedure. With regard to the delay in
\npassing orders under the Pension Regulations, the High Court observed that
\nthe orders should be passed within a reasonable period, preferably within
\nsix months of cessation of service. Of course, whether there was delay or
\nnot, in passing the order forfeiting pension depends on the facts of each
\ncase. However, the High Court having regard to the facts of the cases did
\nnot consider the delay unreasonable and, therefore, declined to quash the
\norders of forfeiting pension merely on the ground of delay in passing them
\nand rightly so in our opinion.\n<\/p>\n
Section 71 of the Army Act provides for various kinds of punishments which
\nmay be imposed for offences committed by persons subject to the Act and
\nconvicted by Court Martial which may vary from death to stoppage of pay and
\nallowances. In terms of Army Pension Regulation 16(a) and Navy Pension
\nRegulation 15(2), pension may be forfeited partly or fully subject to the
\nconditions mentioned therein. These Regulations are independent and the
\nauthority to grant or forfeit pension is the President of India and the
\nCentral Government respectively. As rightly found by the High Court, the
\nsaid Regu-lations are neither inconsistent with nor contrary to the
\nprovisions of the Army Act or the Navy Act as the case may be. The said
\nRegulations and the provi-sions dealing with the punishments under the Acts
\ncover different fields and have different purposes to serve. Punishments
\nare imposed after trial on the basis of the misconduct proved. The Pension
\nRegulations deal with the grant or refusal of pension depending on
\nsatisfactory qualifying service earned by a person and depending on the
\nnature of punishments imposed, mentioned in the Regulations. The
\nRegulations come into play at a stage subsequent to the imposition of
\npunishemnt. No doubt, pension is not a bounty but it is the earning of a
\nperson after satisfactory completion of qualifying service and if not
\notherwise disentitled. Under Section 71(h), a punishment of forfeiture of
\nservice for the purpose of increased pay, pension or any other prescribed
\npurpose, can be imposed. If forfeiture of service has the effect of
\nreducing total qualifying service required to earn pension, a person
\nconcerned is disentitled for pension itself. In other cases, it may have
\nbearing in regard to claim for increased pay or any other purpose. If by
\nvirtue of such punishment itself, a person is not entitled for any pension,
\nthe question of passing an order forfeit-ing pension under Regulation 16(a)
\nmay not arise. As per Section 71(k), in case of a person sentenced to
\ncashiering or dismissal from the service, a further punishment of
\nforfeiture of all arrears of pay and allowances and other public money due
\nto him at the time of such cashiering or dismissal may be imposed. Clause\n<\/p>\n
(k) of Section 71 does not speak of pension unlike clause (h) of the same
\nSection.\n<\/p>\n
The argument that since no punishment was imposed under clause (k) by the
\nauthorities, although it could have been done, then there is no warrant to
\npass an order forfeiting pension under the Army Pension Regulations in
\nrespect of same offence cannot be accepted. As already noticed above, the
\nprovisions relating to punishments under the Acts and Pension Regulations
\noperate in different fields. Clause (k) refers to forfeiture of arrears of
\npay and allowances and other public money due to a person at the time of
\ncashiering or dismissal. Pension is one, which becomes due subsequent to
\nretirement or termination of service subject to satisfying certain
\nconditions of satisfactory qualifying service and if not otherwise
\ndisentitled for claiming pension. Firstly, clause (k) does not speak of
\npension as such; it speaks of all arrears, pay, allowances and other public
\nmoney due to a person. It cannot be said that on the date of cashiering or
\ndismissal there could be any arrears of pension. Section 73 of the Army Act
\nenables the authorities to impose punishments in combination. Merely
\nbecause punishment is not imposed under clauses (h) or (k) of Section 71
\nand other punishments are imposed, it does not mean that the President is
\ndeprived of his power and jurisdiction to pass order under Regu-lation
\n16(a); so also the Central Government under Regulation 15(2) of the Navy
\nPension Regulations taking note of the punishment imposed under Sec-tion 81
\nof the Navy Act. In a case where punishment is imposed under Section 81(m)
\nof the Navy Act forfeiting pension and\/or gratuity, need for passing an
\norder forfeiting pension under Regulation 15(2) of the Navy (Pension) Regu-
\nlations may not arise. But that does not mean that in case of punishments
\nimposed, which are covered by Regulation 15 the Central Government is
\ndeprived of its power to pass appropriate orders under the said Regulation,
\nwhen such power is specifically conferred on the Cetnral Government under
\nthe very Regulations, which enables granting of pension and\/or grantuity.
\nIt is rather not possible to accept the contention that a General Court
\nMartial and confirming authorities imposing punishments can debar the
\nPresident or the Central Government from passing orders as provided for
\nspecifically and expressly under the Pension Regulations.\n<\/p>\n
A contention, though feebly, was advanced on behalf of some of the
\nrespondents that forfeiture of pension in addition to the punishment
\nimposed under Section 71 of the Army Act amounted to double jeopardy. In
\nour view, this contention has no force. There is no question of prosecuting
\nand punishing a person twice for the same offence. Punishment is imposed
\nunder Section 71 of the Army Act after trial by Court Martial. Passing an
\norder under Regulation 16(a) in the matter of grant or forfeiture of
\npension comes thereafter and it is related to satisfactory service. There
\nis no merit in the contention that the said Regulation is bad on the ground
\nthat it authorized imposition of a double penalty; may be in a given case,
\npenalty of cashiering or dismissal from service and the consequential
\nforfeiture of pension may be harsh and may cause great hardship but that is
\nan aspect which is for the President to consider while exercising his
\ndiscretion under the said Regulation. May be in his discretion, the
\nPresident may hold that the punishment of cashiering or dismissal or
\nremoval from service was sufficient having regard to circumstances of the
\ncase and that a person need not be deprived of his right to pension. A
\ncrime is a legal wrong for which an offender is liable to be prosecuted and
\npunished but only once for such a crime. In other words, an offender cannot
\nbe punished twice for the same offence. This is demand of justice and
\npublic policy supports it. This principle is embodied in the well-known
\nmaxim “Nemo debet bis vexari, si constet curiae quod sit pro una et eadem
\ncausa” meaning no one ought to be vexed twice if it appears to the court
\nthat it is for one and the same cause. Doctrine of double jeopardy is a
\nprotection against prosecution twice for the same offence. Under Articles
\n20-22 of the Indian Constitution, provisions are made relating to personal
\nliberty of citizens and others. Article 20(2) expressly provides that “No
\none shall be prosecuted and punished for the same offence more than once.”
\nOffences such as criminal breach of trust, misappro-priation, cheating,
\ndefamation etc., may give rise for prosecution on criminal side and also
\nfor action in civil court\/other forum for recovery of money by way of
\ndamages etc., unless there is a bar created by law. In the proceedings
\nbefore General Court Martial, a person is tried for an offence of
\nmisconduct and whereas in passing order under Regulation 16(a) for
\nforfeiting pension, a person is not tried for the same offence of
\nmisconduct after the punishment is imposed for a proved misconduct by
\nGeneral Court Martial resulting in cashiering, dismissing or removing from
\nservice. Only further action is taken under Regulation 16(a) in relation to
\nforfeiture of pension. Thus, punishing a person under Section 71 of the
\nArmy Act and making order under Regulation 16(a) are entirely different.
\nHence, there is no question of applying principle of double jeopardy to the
\npresent cases.\n<\/p>\n
Our discussion and reasoning with reference to scope and application of
\nArmy Pension Regulation 16(a) will equally apply in relation to Navy
\nPension Regulation 15(2).\n<\/p>\n
It is to be noted that the punishment imposed on these respondents by Court
\nMartial, as confirmed, have become final as the respondents have not
\nquestioned their validity and correctness any further. The High Court
\nhaving rejected all other contentions raised by the respondents, partly
\nallowed their claim on the ground that the otherwise prior satisfactory
\nservices of the re-spondents till the date of imposition of various
\npunishments on them was not taken into consideration by the President or
\nthe Central Government, as the case may be, in passing the orders under the
\nPension Regulations forfeiting their pension. Mainly on this ground, the
\nHigh Court directed the authorities to reconsider the cases of the
\nrespondents and pass orders after issuing supple-mentary show-cause
\nnotices. Consideration of prior satisfactory service of a person till the
\ndate of imposition of punishment of cashiering or dismissal or removal from
\nservice cannot be read into Army Pension Regulation 16(a) or Navy Pension
\nRegulation 15(2). For exercise of power under the said Regu-lations, what
\nis to be seen is whether the very terms of these Regulations are satisfied
\nor not. A plain reading of these Regulations shows that in case of a person
\nwho has been cashiered or dismissed or removed from service, at the
\ndiscretion of the President under Regulation 16(a) and in case of an
\nofficer who is dismissed otherwise than with disgrace from the service, the
\nCentral Gov-ernment under Regulation 15(2) of the Navy Pension Regulations
\ncan pass order forfeiting pension, partly or fully. The very fact that such
\npunishment is imposed on a person for proved misconduct after trial by the
\nCourt Martial, itself shows his unsatisfactory service. In our view, the
\nHigh Court has read something more in these Regulations in insisting for
\nconsidering prior satisfactory service of a person upto the date of
\nimposition of punishment, which is not required by the very Regulations. We
\nmay clarify here itself that in these cases we are only considering, so far
\nas they relate to grant or forfeiture of pension in relation to and in the
\ncontext of Regulation 16(a) of Pension Regulations for the Army and
\nRegulation 15(2) of the Navy (Pension) Regu-lations. Under Regulation 2-
\nA(4) of the Army Pension Regulations ‘pension’ is defined as including
\ngratuity except when it is used in contradiction to the term gratuity.
\nHence the pension and gratuity, as defined, are included for consideration.
\nRegulation 3 shows that full rate of pension or gratuity shall not be
\ngranted unless the service rendered has been satisfactory; if the service
\nhas not been satisfactory the competent authority may reduce the rate of
\npension or gratuity as it thinks proper. Thus, Regulation 3 and Regulation
\n16(a) of the Army Pension Regulations deal with distinct and different
\nsituations. Further, Regulation 4 states that future good conduct shall be
\nan implied condition for every grant of pension or allowances.
\nConsideration of satisfactory service may be relevant in terms of
\nRegulation 3 for granting pension in the normal course after satisfactory
\nqualifying service. But Regulation 16(a) being a distinct and specific
\nRegulation enables for forfeiture of pension, partly or fully, as a sequel
\nto imposition of a particular type of punishment. Regulation 16(a) in this
\nregard is self-contained. The High Court clearly committed an error in
\nholding that previous satisfactory service of a person upto the date of
\nimposition of punishment should have been taken into consideration for
\nexercise of power under Regulation 16(a) and it cannot be sustained. This
\nbeing the position we are unable to agree with the High Court that a
\nprevious satisfactory service of a person prior to the date of imposition
\nof punishment should be considered for the purpose of Regulation 16(a).
\nConsequently the impugned judgments cannot be sustained.\n<\/p>\n
What remains to be seen is whether the orders passed by the President and
\nthe Central Government, as the case may be, forfeiting pension of the
\nrespondents, were arbitrary, unreasonable or without application of mind.\n<\/p>\n
It is the case of the appellants that before passing orders forfeiting
\npension either under Army Pension Regulation 16(a) or Navy Pension
\nRegulation 15(2), show cause notices were issued to the respondents;
\nreplies received from the respondents and all the relevant factors
\nappearing from the records were considered. According to them, the orders
\npassed in their discretion by the President or the Central Government, as
\nthe case may be, having regard to all aspects, are justified and
\nsustainable. We have perused copies of the notings of the Ministry of
\nDefence and the orders made pursuant thereto. From the said records, we
\nfind that there has been application of mind and having regard to the
\nserious nature of charges already narrated above and keeping in view the
\nrelevant circumstances including the punishments imposed on proved charges,
\nthe impugned orders appear to have been passed forfeiting pension. The said
\norders passed forfeiting pension are not merely based on the fact that the
\nappellants were punished by Court Martial, as assumed by the High Court.
\nMoreover, by issuing show-cause notices giving opportunity to the
\nrespondents to explain the circumstances and their hardship before passing
\nthe impugned order, the principles of natural justice were also complied.
\nIn the given circumstances when the impugned orders forfeiting pension were
\npassed in the discretion of the authorities exercising the power available
\nunder the Regulations, we cannot find fault with them. Thus, the orders
\npassed are neither arbitrary nor unreasonable. In this view, we do not find
\nany error or infirmity or illegality in passing the said orders.\n<\/p>\n
Having regard to the provisions and position of law, the discussion made
\nand for the reasons recorded hereinabove, we find merit in these appeals
\nand they deserve to be accepted. Hence, the impugned judgments of the High
\nCourt are set aside and the appeals are allowed. No cost.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India And Anr vs P.O. Yadav on 16 October, 2001 Bench: B.N. Kirpal, Shivaraj V. Patl, P. Venkatarama Reddi CASE NO.: Appeal (civil) 7805 of 1997 PETITIONER: UNION OF INDIA AND ANR. RESPONDENT: P.O. YADAV DATE OF JUDGMENT: 16\/10\/2001 BENCH: B.N. KIRPAL & SHIVARAJ V. PATL & P. VENKATARAMA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-225895","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India And Anr vs P.O. 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