Union of India & Ors Vs. R.K.L.D. Azad
 INSC 372 (9
M.K. (J) Mukherjee M.K. (J) Jeevan Reddy, B.P. (J) M.K. Mukherjee, J.
1996 AIR 845 1995 SCC Suppl. (3) 426 1995 SCALE (4)711
two short questions that ate required to be answered in these appeals are;-
a person who is subject to the Army Act, 1950 (`Act' for short) can be
dismissed from service for committing an offence under the Act even after he
had retired on attaining the age of superannuation? and
a Junior Commissioned Officer of the Indian Army who has to his credit the
minimum period of qualifying service required to earn a pension or gratuity is
eligible for the same in case he is dismissed from service under the provisions
of the Act?
arise in the wake of the following undisputed facts.
employed as a Junior Commissioned Officer in the Indian Army the respondent
herein was placed under closed arrest on August 7, 1990 pending his trial by a General
Court Martial for an offence under Section 64 (e) of the Act. Since the
respondent was due to retire on August 31, 1990 on attaining the age of superannuation the Army authorities
passed an order on August
23, 1990, extending
his subjection to the Act till completion of the trial. In the trial that
commenced from November
1, 1990 and ended on November 26, 1990, the respondent was convicted and
the sentences imposed for the conviction were rigorous imprisonment for one
year and dismissal from service. After due confirmation in accordance with
Section 154 of the Act the order of conviction and sentence was promulgated on January 15, 1991.
the above order of the General Court Martial the respondent filed a writ
petition in the Andhra Pradesh High Court which was heard by a learned Single
Judge. The learned Judge allowed the writ petition in part by setting aside the
order of dismissal of the respondent, but upholding his conviction and sentence
of rigorous imprisonment for one year. The reason which weighed with the
learned Judge in setting aside the dismissal was that consequent his retirement
on August 31, 1990 the question of his dismissal from
service could not have arisen. According to the learned Judge the order dated
August 23, 1990, whereby the respondent was to be subject to the Act till
conclusion of the trial, only entitled the General Court Martial to proceed
with the trial which, otherwise, would have been impermissible and illegal from
the date of the respondent's retirement. Such an order under Section 123 of the
Act, the learned Judge observed, could not give any statutory imprimatur to an
order of dismissal passed against an officer of the Army after he had ceased to
hold his post consequent upon his retirement.
success of either of the contesting parties in the writ petition was only
partial, both preferred Letters Patent Appeals in the High Court but they were
dismissed and the order of the learned Single Judge was confirmed.
thereby these appeals have been filed at the instance of the Army authorities.
upon the provisions of sub-section (1) and (2) of Section 123 of the Act which
read as under:
Liability of offender who ceases to be subject to Act- (1) Where an offence
under this Act had been committed by any person while subject to this Act, and
he has ceased to be so subject, he may be taken into and kept in military
custody, and tried and punished for such offence as if he continued to be so
such persons shall be tried for an offence, unless his trial commences within a
period of three years after he had ceased to be subject to this Act;
computing such period, the time duting which such person has avoided arrest by
absconding or concealing himself or where the institution of the proceeding in
respect of the offence has been stayed by an injunction or order, the period of
the continuance of the injunction or order, the day on which it was issued or
made, and the day on which it was withdrawn, shall be excluded." it was
contended on behalf of the appellants that a plain reading thereof made it
abundantly clear that notwithstanding the fact that the respondent had ceased
to be subject to the Act consequent upon his retirement, he could be tried for the
offence under Section 64(e) of the Act, as it was committed before his
retirement, and punished for the same in view of the deemed extension of his
subjection to the Act under Section 123 of the Act. It was next contended that
both the trial, and the punishment of dismissal that followed, were legal and
valid as the former commenced within the period stipulated under sub-section
(2) of Section 123 and the latter could be combined with the sentence of
imprisonment imposed upon the respondent in view of Section 73 of the Act. In
support of their contention the appellant relied upon Major (Retd.) Hari Chand Pahwa
vs. Union of India & Anr. 1995 Supp (1)
repudiating the above contention of the appellants by adopting the reasoning of
the learned single Judge in this regard, as confirmed by the Division Bench in
the Letters Patent Appeal, the learned counsel for the respondent submitted
that in case it was held that the order of dismissal of the respondent was
legally sustainable still he could not be deprived of his pension and gratuity
in the absence of any express embargo to that effect in the dismissal order.
case of Maj. (Retd.) Hari Chand Pahwa (supra) this Court while repelling the
contention raised on behalf of the appellant therein that he could only be
awarded a punishment of imprisonment after conviction but not also of being
cashiered from the Army (which was imposed upon the appellant therein) because
he had earlier retired this Court observed:
the appellant had retired from the Army service but by operation of sub-section
(1) of Section 123 of the Army Act, he could be tried by the GCM in respect of
the offences committed by him during the period of his actual service and could
be committed and punished in the same manner who was subject to the Army Act
could be tried and punished. The said provision clearly states that a retired
person can be tried and punished for such offences as if he continued to be so
subject. We, therefore, do not agree with the first contention raised by the
learned counsel for the appellant and reject the same.
GCM could award any of the punishments which could be awarded by the said court
under law including to be cashiered from the Army. The provisions of section
123 make no difference between an officer who is still in service and who was
retired from service provided the GCM proceedings are initiated within the
period of limitation provided under sub-section (2) of Section 123 of the Army
Act." As the facts of the case presented before us are on all fours with
those in Hari Chand Pahwa (Supra) and as we respectfully agree with the above
quoted observations, the first question must be answered in the affirmative.
now to the second question we find that the grant of pension and gratuity to Junior
Commissioned Officers, other Ranks and Non-Combatants (Enrolled) is regulated
by Chapter III of the Pension Regulations for the Army, 1961 (Part I).
Regulation 113 which comes under Section I of the above Chapter reads, after
its amendment in 1967, as follows:
(a) An individual who is dismissed under the provisions of the Army Act, is
ineligible for pension or gratuity in respect of all previous service.
exceptional cases, however, hemay, at the discretion of the President be
granted service pension or gratuity at a rate not exceeding that for which he
would have otherwise qualified had he been discharged on the same date.
individual who is discharged under the provisions of Army Act and the rules
made thereunder remains eligible for pension or gratuity under these
Regulations." In view of the plain language of the above regulation the
respondent cannot lay anylegal or legitimate claim for pension and gratuity on
the basis of his previous service as, admittedly, he stands dismissed in
accordance with Section 73 read with Section 71 of the Act. The second question
must, therefore, be answered in the negative.
conclusions as above these appeals are allowed.
impugned judgments of the High Court so far as they held that the dismissal of
the respondent was legally unsustainable are hereby set aside and the writ
petition filed by the respondent is dismissed. There will be no order as to
we part with this record we make it clear that this judgment of ours will not stand
in the way of the respondent to make a representation seeking exercise of the
discretionary powers of the President under Regulation 113 to grant pension or