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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

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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:

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             "     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

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             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