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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: R.K.L.D. AZAD

DATE OF JUDGMENT09/08/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) JEEVAN REDDY, B.P. (J)

CITATION:  1996 AIR  845            1995 SCC  Supl.  (3) 426  1995 SCALE  (4)711

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      Special leave granted.      The  two  short  questions  that  ate  required  to  be answered in these appeals are;-      (i) whether  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      (ii) whether  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? The question arise in the wake of the following undisputed facts.      While 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.      Assailing 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

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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.      As 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. Aggrieved thereby  these appeals  have  been  filed  at  the instance of the Army authorities.      Relying upon  the provisions of sub-section (1) and (2) of Section 123 of the Act which read as under:      "123 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 subject.      (2) No  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;      and in  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) SCC 221.      While  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

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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.      In the  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:      Though 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.      The  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.      Coming 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:      "113 (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.      In 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.      (b)  An  individual  who  is  discharged      under the provisions of Army Act and the      rules made  thereunder remains  eligible      for  pension  or  gratuity  under  these

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    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.      On the  conclusions as above these appeals are allowed. The 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 costs.      Before 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 gratuity.