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Union of India & Ors Vs. Brg. P.K. Dutta (Retd.) [1994] INSC 638 (7 December 1994)

Jeevan Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Manohar Sujata V. (J)

CITATION: 1995 SCC Supl. (2) 29 JT 1995 (1) 413 1994 SCALE (5)178



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 there under. 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;


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