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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 REDDI

JUDGMENT:

JUDGMENT

2001 Supp(4) SCR 209

The Judgment of the Court was delivered by

SHIVARAJ V. PAIL, J. In short the facts leading to filing of these appeals,

are as stated below.

Civil Appeal No. 7805/1997

The respondent here in joined Navy as a Sailor in April, 1965 and was

commissioned in October, 1980. On account of certain alleged misconduct and

irregularities, he was tried by General Court Martial on five charges. He

was found guilty of the charges 2,3,4 and 5 and consequently a penalty of

dismissal from service was imposed on him on 26.2.1990. He was given a

show-cause notice on 21.6.1991 under Regulation 15(2) of the Navy (Pension)

Regula-tions, 1964 as to why his pensionary benefits should not be

forfeited. He sent a reply on 24.7.1991. The appellants informed him on

7.5.1992 that the action will be taken soon pursuant to the show-cause

notice issued. However, without waiting any further, he filed a writ

petition on 20.1.1993 in the High Court. After the filing of the said writ

petition, an order was passed on 28.3.1994 forfeiting 50% of the pensionary

benefits. The High Court partly allowed his writ petition and remanded the

case giving certain directions to the appellants by the order dated

4.3.1997. Feeling aggrieved by the same, the appellants are before this

Court in this appeal.

Civil Appeal No. 7806/1997

The respondent was commissioned in the Indian Army on 30.6.1963 and was due

to retire on 31.3.1989. On 17.2.1988, he was tried by General Court Martial

on certain charges and was dismissed from service on 13.6.1988 under

Section 71 of the Army Act. He submitted papers for payment of pension

stating that he had qualifying service. Since pension was not given to him,

he filed Civil Writ Petition No. 1249/90 in the High Court on 3.3.1990. On

16.4.1991, a show-cause notice was issued under Section 16(a) of the

Pension Regulations of the Army (Part I) proposing forfeiture of pension on

the ground that he was dismissed from service. He submitted reply to the

said show-cause notice. However, the President of India by order dated

22.7.1992 under said Regulation 16(a) forfeited 50% of the pensionary

benefits. He filed Writ Petition No. 2866/90 for amendment of the writ

petition challenging the said order. The High Court by the impugned order

quashed the order dated 22.7.1992 and directed the appellants to reconsider

his case in the light of the directions given in the judgment. Hence this

appeal.

Civil Appeal No. 7807 of 1997

The respondent was commissioned in the Army as Engineer Graduate Officer on

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11.1.1968. He was tried by General Court Martial on the allegation of

splitting purchase orders for shelters, to bring them within the financial

limits and for making purchases at rates higher than scheduled and

sanctioned rates. After trial by General Court Martial he was cashiered on

11.3.1994 and was directed to undergo rigorous imprisonment for two months.

He forwarded papers on 29.6.1994 to the authorities for grant of pension.

On 22.2.1995, a show-cause notice was issued to him under Regulation 16(a)

of Army Pension Regulations for forfeiture of pension. He claimed to have

sent a reply to the show cause notice but the order was passed forfeiting

his pensionary benefits stating that he had not sent any reply to the show-

cause notice. The High Court quashed the impugned order forfeiting his

pension and directed the appellants for re-consideration and passing fresh

order. Aggrieved by the said order of the High Court dated 4th March, 1997,

this appeal is filed.

Civil Appeal No. 7808 of 1997

The respondent herein entered Army service and was commissioned on

12.6.1960. He was promoted to Selection Grade rank of Acting Brigadier in

December, 1986. He retired from service on 31.5.1990 on attaining the age

of superannuation. He was tried by General Court Martial between 26.5.1990

to 26.9.1990 on certain charges of misconduct. Charges 2, 3,5,9 & 10 were

held proved. Consequently he was ordered to be (i) cashiered (ii) to suffer

rigorous imprisonment for six months and (iii) to forfeit all arrears of

pay and allow-ances and other public money due to him at the time of

cashiering. The first two of the sentences were confirmed by the Chief of

Army Staff on 12.2.1991 but the third one was remitted. Consequently, it

stood set aside. After retire-ment on 31.5.1990, he was initially paid

provisional pension w.e.f. 1.6.1990. However, a show-cause notice was

issued to him on 13.11.1992 under Regu-lation 16(a) of Army Regulations. He

sent a reply to the said notice. Since no order was passed for quite some

time, he sent reminders to the authorities. A final order was passed by the

President on 4.1.1994 forfeiting the entire pensionary benefits.

Questioning this order, he filed Civil Writ Petition No. 2813/1994 in the

High Court. The High Court quashed the order impugned in the writ petition

and directed the appellants to reconsider and pass fresh orders in the

light of certain directions given. Hence this appeal is filed by the

appellants aggrieved by the impugned judgment.

Mr. Mukul Rohtagi, learned Additional Solicitor General, urged that -

1. Section 71 and Regulation 16(a) are distinct and operate in dif-ferent

fields. While Section 71(h) contemplates a punishment at the conclusion of

the Court Martial, Regulation 16(a) contem-plates a stage subsequent to the

awarding of punishment by Court Martial and its confirmation; Regulation

16(a) deals with the pension of an officer, who is cashiered, dismissed or

removed from service.

2. Though the Army Pension Regulations are non-statutory in char-

acter the pensionary benefits are provided for and payable under them;

these very Regulations provide for forfeiting pension in given situations;

in other words, the Regulations which provide for grant of pension also

provide for taking it away on justifiable ground; further these Regulations

may not have statutory force but they are not contrary to any statutory

provisions under the Act or the Rules.

3. The High Court committed an error in stating that the

authorities did not consider in forfeiting pension, partly or fully, that

the services of the respondents up to the date of commission of offences

were satisfactory and that the Court Martial did not inflict the punishment

of forfeiture of services.

4. The orders passed by the President of India forfeiting pension

were neither arbitrary nor unreasonable; in fact they were passed after

taking into consideration the nature of offences, the punishments awarded

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and all relevant factors.

5. (a) The High Court has also failed to see that the right to

grant pension is not with the Court Martial under Section 71; the grant of

pension is within the powers of the President under Regulations, who can

grant/forfeit pension to the officers who are cashiered, dismissed, removed

or called upon to retire. (b) In passing the orders forfeiting pension of

the respondents, partly or fully, well established procedure was followed

in that a show cause notice was issued; on receipt of reply to the show

cause notice from the respondents and after consid-eration orders were

passed.

6. The High Court was also not right in saying that the services

of the respondents cannot be termed as unsatisfactory because of their

involvement in the cases of misconduct; the High Court was not right in

giving directions to the appellants to reconsider the matter after issuing

a supplementary show cause notice.

He added that Army Pension Regulation 16(a) and Navy Pension Regulation

15(2) are similar in content except that the authority to pass order under

Regulation 16(a) vests with the President and whereas under Regulation

15(2) it vests in the Central Government; the Army Pension Regulations are

non-statutory and Navy Pension Regulations are statutory; hence the same

submissions cover the cases dealt with Army Pension Regulations and Navy

Pension Regulations.

In short and substance the arguments advanced by the learned counsel on

behalf of the respondents are :

1. Pension is not a bounty or a charity given by the State; it is a

deferred portion of compensation for services rendered; right to receive

pension is a Fundamental Right and is right to property under Article 300A

of the Constitution of India which cannot be taken away except by authority

of law.

2. Under the Army Act it is only the Court Martial, which can order

for forfeiture of service for purposes of increased pay, pension or any

other prescribed purpose under Section 71(h) or 71(k) of the Army Act; in

case service of army personnel is terminated on the administrative side

(without holding court martial) then the statu-tory authority to decide

forfeiture or the grant of these benefits is the competent authority under

Rule 14(5) and 15 of the Army Rules. Therefore, there is no question of

applying non-statutory pensionary regulations to the respondents;

alternatively Regulation 16(a) is inconsistent with and contrary to Section

71(h) and 71(k) of the Army Act and Rules 14(5) and 15 of the Army Rules.

3. If the Court Martial has not thought fit to forfeit the

pensionary benefits then those benefits cannot be forfeited by the non-

statu-tory regulations and there has been undue delay in passing the order

forfeiting the pension in some cases.

4. The orders passed forfeiting the pensionary benefits, fully or

partially, as the case may be, are unreasonable and without proper

application of mind to the facts and circumstances of the case.

5. Since no punishment was imposed forfeiting pensionary benefits

under Section 71(h) or (k) by the General Court Martial, it was not open to

pass orders forfeiting pension, partially or fully, exercising power under

Regulation 16(a); it may amount to im-posing punishment twice in respect of

the same charges of mis-conduct.

It may be necessary to narrate in brief as to the nature of charges framed

against the respondents and the punishment imposed on them to appreciate

the contentions urged on behalf of the respondents as to the validity,

reasonableness and justification in passing the orders forfeiting pension.

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Five charges were framed against P.D. Yadav (respondent in CA 7805/ 97). He

was found guilty in respect of charges 2 to 5. The said charges 2 to 5 are

:-

2. Did on the Twenty ninth day of September one thousand nine

hundred eighty nine at about 1401 hours willfully disobey the lawful

command of Lieutenant Commander (Special Duties Com-munication) Man Singh

Rawat (81917 Z), his Superior officer in the office of the Officer-in-

Charge? Communication Centre, Delhi when ordered to go out of the said

office and to come afterwards and thereby committed an offence punishable

under Section 47(a) of the Navy Act, 1957.

3. Did on the Twenty ninth day of September one thousand nine

hundred eighty nine at about 1402 hours behave in a disorderly manner in

the office of the Officer-in-Charge, Communication centre, Delhi and

thereby committed an offence punishable under Section 48(c) of the Navy

Act, 1957.

4. Did on the Twenty ninth day of September one thousand nine

hundred eighty nine at about 1402 hours strike Lieutenant Commander

(Special Duties Communication) Man Singh Rawat (81917 Z) his superior

officer in the office of the Officer-in-Charge, Communication Centre, Delhi

and thereby committed an offence punishable under Section 45(a) of the Navy

Act, 1957.

5. Did on the Twenty ninth day of September one thousand nine hundred

eighty nine at about 1403 hours use violence against Lieutenant Commander,

(Special Duties Communication) Man Singh Rawat (81917 Z) his superior

officer in the office of the Officer-in-Charge, Communication Centre, Delhi

and thereby committed an offence under Section 45(c) of the Navy Act, 1957.

Twelve charges were framed against B.S. Ahluwalia (respondent in CA

7806/97) but the Court Martial found him guilty of charges 5, 7 and 10 and

with certain variations of charges 1, 2 and 3. They are :-

1. At Dehradun on 22.2.1985", while employed as CWE, Dehradun and

having already given technical sanction for Table dining (OR) FD-165 @ Rs.

450 per tabel, with intent to defraud, vide contract Agreement No.

CWE/CLT/23 of 84-85, entered into an agreement with M/s. Doon Furnishers

for 496 dining tables @ Rs. 730 per table and thereby caused loss to the

State to the tune of Rs. 1,38,800.

2. At Dehradun, on 21.6.1985, while employed as CWE, Dehradun with

intent to defraud vide CA No. CWE/DDN/6 of 85-86, final-ized a contract

agreement with Allied Traders for supply and fixing of ceiling fans at an

exorbitant rate of Rs. 498 per fan, while DGS & D contract rate was Rs.

413.56 per fan,

3. At Dehradun, on 21.6.1985, while employed as CWE, Dehradun with

intent to defraud vide CA No. CWE/CLT/7 of 85-086 finisalised a contract

agreement with M/s. Allied Traders for supply and fixing of ceiling fans at

an exorbitant rate of Rs. 488 per fan, while DGS & D contract rate was Rs.

413.56 per fan.

5. At the place and date mentioned in the Charge No. 4. improperly accepted

the contract agreement with the altered rates as mentioned in the said

charge.

7. At the place and date mentioned in the charge 6 (21.6.1985) improperly

accepted the contract agreement with the altered rates as mentioned in the

said charge.

10, At Dehradun between 29.3.1985 and 5.7.1985, while employed as CWE,

Dehradun, contrary to the provisions of para 24 of the General conditions

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of contract (IAFW-1815Z) instead of claim-ing composition from M/s. Doon

Furnishers for failure to com-plete the work by due date, improperly

allowed extension of time by 15 days and 30 days for phases I and II

respectively.

Thirteen charges were framed against E.K. Sugathan (respondent in CA

7807/97) and was found guilty of charges 6, 10,11 and 12 and of charges 1,

2, 3,4, 5, 7, 8 and 9 with certain variations. He was sentenced to be

cashiered and to suffer rigorous imprisonment for two months. However,

while confirm-ing the finding and sentence GOC-in-C, Northern Command

remitted the sentence of rigorours imprisonment. The said charges are :

1. He at field between 28th January, 1991 to 6th March, 1991 while

being Garrison Engineer 571 Engr. Park when ordered to fabri-cate 28 SL

shelters at the cost of Rs. 10 lacs, with intent to defraud, splitted the

purchases of said order by placing the supply orders in contravention to

para 748 of Military Engr. Services Regulations 1968 edition read with HQ

Northern Command letter No. 12846/2/policy/II/SB dt. 31st October, 1975

which prohib-ited splitting of the purchase order to avoid the necessity of

obtaining the sanction of higher authority with reference to the total

amount of the said order.

2. He at field, between 25th January, 1991 to 6th March, 1991 while

being Garrison Engineer 571 Engr. Park when ordered to pur-chase 5 SI

Shelters, 6 bathing cubicles flock and 6 latrine cubicles valued at Rs. 10

lacs, with intent to defraud splitted the said purchase order by placing

the supply orders in contravention to para 748 of Military Engr. Services

Regulations 1968 edition read with the Northern Command letter No.

42346/2/policy/ll/Eng, Dated 31st October. 1975 which prohibit splitting of

the purchase order to avoid the necessity of obtaining the sanction of

higher authority with reference to the total amount of the said amount.

3. He, at field, between 12th March, 1991 to 25th March, 1991,

while being Garrison Engineer 571 Engr. Park when ordered to purchase 10 SI

shelters valued Rs. 10 lacs, with intent to defraud, splitted the said

purchase order by placing the supply orders in contravention to para 748 of

Military Engineer Services Regula-tions edition read with HQ Northern

Command letter No. 42346/ 2/policy/l 1/E3 dt. 31st October, 1975 which

prohibited splitting of the purchase order to avoid the necessity of

obtaining the sanction of higher authority with reference to the total

amount of the said order.

4. He, at field between February 1,1991 to February 18,1991 while

being Garrison Engineer 571 Engr. Park when ordered to pur-chase 713

chassis valued Rs 4.281 lacs, with intent to defraud splitted the said

purchase order by placing the supply order in contravention to para 748 of

Military Engineering Services Regu-lations 1968 edition read with HQ

Northern Command letter No. 42346/2/Policy/ll/EB dated 31st October, 1975

which prohib-ited splitting of the purchase order to avoid the necessity of

obtaining the sanction of higher to authority with reference to the total

amount of the said order.

5. He, at field, between February 1, 1991 to February 18, 1991,

while being GE 571 Engr. Park, when directed by Chief Engineer Northern

Command vide letter No. 42392/203/E3 RR dated November 17, 1990 to procure

713 chassis, without authority purchased 213 timber planks of various sizes

for which no sanction existed.

6. He, at field, on 13 Feb. 1991, when Garrison Engineer 571 Engr.

Park with intent to defraud placed supply order No. 3027/169 IWS dt. 13th

February, 1991 for "Steel door she 6' -10" double leaf type each divided in

the four parts for fixing of glass sheets of size 12-3/4"x20" 4 Nos. and

PGI sheets 27"x20" duly fixed and welded provided with two lower bolt 6"

sliding door belt duly fixed for looking arrangements. The frame of door

made out of angle iron 40x4x40x6mm thick door leaf duly fixed with three

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hinges of 4" to each leaf with two bow handle of 9" size and leaf made out

of angle iron 32x32x6mm qty. 20 on M/s CDS Traders Malhard Road, Garhi

Udhampur at the rate of Rs. 1650 each well knowing that the rate approved

by him was higher than the prevailing market rate of Rs. 1329 each.

7. He, at field, on 12th March, 1991, when Garrison Engineer, 571

Engr. Park with intent to defraud placed supply order No. 3027/ 185/IWS dt

12th March, 1991 for "Rear corner column made out of ISMB 6"x3"xlO' long

welded with base plate 10"xlO"xlOmm thick having 4 holes of 7/8" dia and

gusset plate 4"x4"x6"mm thick welded to base plate. Top plate 7"x7"xlOmm

thick having 2 holes of 9/10" dia welded at tope cleats of angle iron

50x50x6mm 9" long 4 Nos. having two holes of 9/16" dia welded to the column

at place sq. 10, on M/s. Indow Traders, Transport Yard, Udhampur, at the

rate of each well knowing that the rate approved by him was higher than the

prevailing market rate of Rs. 1147.50 each Rs. 2680.

8. He, at field, on 13th March, 1991, when Garrison Engineer, 571

Engr. Park with intent to defraud placed the supply order No. 3027/199/IWS

dt. 13th March, 1991 for "front right hand side column made out of ISMB

6"x3"xlO' long welded with base plate 10"xlO"xlOmm thick having 4 holes of

7/8" dia and gusset plate 4"x4"x6mm thick welded to the base plate, top

plate 7"x7"xlOmm thick having 2 holes of 9/10" dia welded atop, 4 cleats of

angle iron 50x50x6 mm 6" long having 2 holes of 9/16" dia welded to the

column at places, qty. 10 on M/s. Mushtak Hardware, Garhi Udhampur at the

rate of Rs. 2680 each well knowing that the rate approved by him was higher

than the prevailing market rate of Rs. 1147.5 each.

9. He, at field, on 16th March, 1991, Garrison Engineer, 571 Engr.

Park with intent to defraud placed the supply order No. 3027/205/ IWS dt.

16th March, 1991 for middle column made of ISMB 6"x3"xlO long welded with

base plate 10"xlO"mm thick having four holes of 7/8" dia and gusset plate

4"x4"x6mm thick having four holes of 7/8" dia and gusset plate 4"x4"x6mm

thick welded to the base plate, top plate 7"x7"xlOmm thick having two holes

of 9/10 welded at top. 4 cleats of angle iron 50x50x6mm6" long having two

holes of 9/10" dia welded to the column at places qty. 10, on M/s. Veekay

Enterprises Dhar Road, Udhampur at the rate of Rs. 2680 each well knowing

that the rate approved by him was higher than the prevailing market rate of

1147.50 each.

10. He, at field, on 12th March, 1991, when Garrison Engineer, 571

Engr, Park with intent to defraud placed the supply order No. 3027/183/IWS

dated 12th March, 1991 for middle side made out of at 50x50x6mm welded to

6mm thick plate of size 14x7" 1 nos. at Joints, 6 cleats of AI 60x50x6mm 6"

long welded attend to each truss having 9/16" dia hole for fixing columns 6

nos. cleats angle iron 50x50x6mm 4 "long having two holes 9x16" dia welded

to truss for fixing of purlin at places" qty. 10 on M/s Bansi Dhar and Sone

near Krishna Mandir, Adarsh Colony, Udhampur at the rate of Rs. 2770 each

well knowing that the rate approved by market rate of Rs. 2218.72 which was

higher than the prevail-ing market rate.

11. He, at field, on 1st Feb., 1991, when Garrison Engineer, 571

Engr. Park with intent to defraud placed the supply order No. 3027/148/ IWS

dt. 1st Feb., 1991 for "timber plank partal 11x11"x8-3/4" free from cracks

qty. 60 on M/s Akbar Furniture House and Saw Mills, Garhi, Udhampur, at the

rate of Rs. 570 each well knowing that the rate approved by him was higher

than the prevailing market rate of Rs. 429 each.

12. He, at field, on 12th Feb., 1991, when Garrison Engineer, 571

Engr. Park with intent to defraud placed the supply order No. 3027/162/IWS

dt. 12th Feb., 1991 for sal wood plants 3600mmx 225mmx 100mm" qty. 25 on

M/s. Sharma Saw Mills Ram Nagar Chowk, Udhampur at the rate of Rs. 1250

each well knowing that the rate approved by him was higher than the

prevailing market rate of Rs. 858 each.

A.K. Malhotra (respondent in CA 7808/97) was tried on eleven charges. He

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was not found guilty of charges 1, 2, 4 and 6 to 11. He was found guilty of

charges 3 and 5. He was sentenced to be cashiered and his five years

service was forfeited for the purpose of pension. On revision he was not

found guilty of charges 1, 6, 7, 8 and 11 but was found guilty of charges

2, 9 and 10 with exceptions. Consequently there was revision in sentence

also sentencing him to be cashiered, to suffer rigorous imprisonment for

six months and to forfeit all the arrears of pay due to him at the time of

his cashiering. Confirming authority while confirming the finding and

sentence, had revised and remitted the sentence of forfeiture of all

arrears of pay and allowances and other public money due to him at the time

of his cashiering on 13.2.1991, which was promulgated on 16.3.1991. Charges

2, 3, 5, 9 and 10 are :-

2. At Madras, between Aug. 87 and Nov. 87, when DDST HQ ATNKK & G

Area, improperly ordered dispensation of sample testing from Composite Food

Laboratory, of 41.098 tons of Tea (CTC) locally purchased by Supply Depot,

Madras, from M/s. Vickey Enterprises, Madras, contrary to Army HQ letter

No. 72312/III/2/SI-4 dated 11 Nov. 86.

3. At Madras between October, 1987 and November, 1987, when DDST

HQ ATNKK and G Area, improperly ordered dispensation of sample testing from

Composite Food Laboratory or Defence Research Laboratory (Material),

Kanpur, of 19.85 IL of Cresoli Liquid Black locally purchased from M/s.

Gautam Chemicals, Madras and M/s. Testo Chemicals, Madras, contrary to Para

1086 of ALC Training Volume II (Supplies) 1968.

5. At Madras, between 24th October, 1987 and 14th December, 1987 when DDST

HQ ATNKK & G Area, improperly and with-out justification obtained approval

for local purchase of 29 KL of Cresoli Liquid Black from MG ASC HQ Southern

Command, when there was no emergent requirement of local purchase of that

quantity of the said item.

9. At Madras, between 31 Oct. 1987 and 25 November, 1987 when DDST

HQ ATNKK & G Area, improperly allowed Supply Depot, Madras, to split-up the

sanctioned local purchase of 19.85 KL of Cresoli Liquid Black valued at Rs.

2,67,975.00 (Rupees two lakhs sixty seven thousand nine hundred seventy

five only), in order to bring the same within the financial powers of MG

ASC, HQ Southern Command, contrary to Rule 133 of Financial Regula-tion

Part I (Volume I), 1983, which prohibits such splitting-up.

10. At Madras, between November 1987 and February 1988, When DDST HQ

ATNKK & G Area, with intent to defraud, directed Supply Depot, Margao, to

split-up the sanctioned local purchase of 86,190.800 Kgs. of Meat Tinned

valued at Rs. 61,19,451.23 (Rupees sixty one lakhs nineteen thousand four

hundred fifty one and paise twenty three only), in order to bring the same

within the financial powers of MG ASC, HQ Southern Command.

We notice the relevant provisions of the Acts and Regulations :-The Army

Act, 1950

"71. Punishments awardable by courts-martial. - Punishments may be

inflicted in respect of offences committed by persons subject to this Act

and convicted by courts-martial, according to the scale following, that is

to say,-

(a) ...........

(b) ...........

(c) ...........

(d) ...........

(e) ...........

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(0 ...........

(g) ...........

(h) forfeiture of service for the purpose of increased pay, pen-sion or

any other prescribed purpose;

(i) .............. (i) ..............

(k) forfeiture in the case of a person sentenced to cashiering or dismissal

from the service of all arrears of pay and allow-ances and other public

money due to him at the time of such cashiering or dismissal;

(1) ...........

Pension Regulations for the Army, 1961

"1. Unless otherwise provided, these Regulations shall apply to the

personnel of the Army and all claims to pension, gratuity or allowances

shall be regulated by the regulations in force at the time of an individu-

al's retirement, release, resignation, discharge, death etc., as the case

may be."

"2-A Unless there be something repugnant in the subject of context, the

terms defined in this Chapter are used in the regulations in the sense here

explained :-

(1) to (3)

(4) Pension shall include gratuity except when it is used in contradic-

tion to term gratuity.

(5) to (7)..........."

"3. The full rate of pension or gratuity provided for in these Regula-tions

shall not be granted unless the service rendered has been satis-factory. If

the service has not been satisfactory, the competent author-ity may make

such reduction in the amount of pension or gratuity as it thinks proper."

"4. Future good conduct shall be an implied condition of every grant of a

pension or allowance."

"16. (a) When an officer who has to his credit the minimum period of

qualifying service required to earn a pension, is cashiered or dismissed or

removed from the service, his/her pension, may at the discretion of the

President, be either forfeited or be granted at a rate not exceeding that

for which he/she would have otherwise qualified, had he/she retired on the

same date."

The Navy Act, 1957

"81. (1) The following punishments may be inflicted under this Act, namely

:-

(a) ................

(b) ................

(c) dismissal with disgrace from the naval service;

(d) ................

(e) dismissal from the naval service; (0 to (l) ................

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(m) forfeiture of pay, head money, bounty, salvage, prize money and

allowances earned by, and all annuities, pensions, gratuities, medals and

decorations granted to, the offender or of any one or more of the above

particulars; also in the case of desertion, of all clothese and effects

left by the deserter in the ship to which he belongs;

(n) ................

(2) ................"

The Navy (Pension) Regulations, 1964

"15. Officers dismissed, discharged, etc. - (1) No pension shall be granted

to an officer who is dismissed with disgrace from service.

(2) In the case of an officer who is dismissed otherwise than with disgrace

from the service, the question whether any pension shall be granted and if

so, the rate of such pension shall be decided by the Central Government,

provided that the pension, if granted shall not exceed the rate which would

have been admissible to him if he had retired on the same date.

(3)

It is useful to look at the position of law emerging from various deci-

sions. The facts of the case in Lt. Col. (T.S.) Harbans Singh Sandhu v.

Union of India & Ors., Writ Petition No. 553 of 1972 decided on November

22, 1978 were that a General Court Martial tried the petitioner and imposed

a punish-ment of cashiering under Section 71(d) of the Army Act and no

further pun-ishment was imposed under Section 71(h) of the Army Act for

forfeiture of service for the purpose of increased pay, pension or any

other prescribed purpose: he applied for grant of pensionary benefits; the

authorities did not respond: hence, he filed writ petition seeking

direction to the authorities for granting gratuity and pension due. Both

the sides pointed to Regulation 16(a). From the records, it was found that

no order had been passed under the said Regulation. In the absence of

passing any order under Section 16(a), the Court directed the respondent to

pay the sum due towards gratuity and pension. Under Section 71(h) a

punishment of forfeiture of service for the purpose of pension could be

passed but neither that punishment was imposed on the petitioner nor order

was passed under Regulation 16(a) forfeiting his pensionary benefits. In

those circumstances, the Court gave direction as stated above.

It is clear from the said judgment that the questions of law, whether

regulations being non-statutory could be enforced for denying pension;

whether those regulations were contrary to the provisions of the Act or

Rules or whether when punishment was not imposed under Sections 71(h) or

(k), even then pension could be forfeited under Regulation 16(a) that arise

for consideration in the present cases, were neither raised nor decided.

In the case of Major G.S. Sodhi v. Union of India, [1991] 2 SCC 371 also,

relief was granted relying on the decision of Harbans Singh Sandhu

mentioned above without deciding questions of law as is clear from para 3

of the judgment. This judgment proceeded on the ground that in Harbans

Singh Sandhu's case, a question of law that if no other penalty of

forfeiting the pensionary benefits was passed under Section 71, pensionary

benefits could not be withheld; but in Harbans Singh Sandhu's case, this

question was not de-cided; it was only noticed as a fact that no further

penalty was imposed under Section 71(h) of the Act. The direction was given

in that case as no order had been passed forfeiting pension under

Regulation 16(a). No principle of law was decided in the said cases. In

this view, these two judgments do not support the respondents. The Full

Bench of the High Court itself in Malhotra's case has said that in G.S.

Sodhi's case, no legal issue was decided and, therefore, it cannot be a

precedent. The High Court in Yadav's case specifically referring to the

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cases of Harbans Singh Sandhu and G.S. Sodhi held that they were not

applicable to support the case of the petitioner.

This Court in Major (Retired) Hari Chand Pahwa v. Union of India & Anr.

[1995] Supp. 1 SCC 221 while dealing with the specific contention that

Pension Regulations have no statutory force and pensionary benefits could

not be forfeited under Regulation 16(a), has in clear terms in para 5

stated that "We do not agree 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 pension has been

provided under these Regulations. It is not disputed by the learned counsel

that pension was granted to 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 Presi-dent

passed the order forfeiting the pension and death-cum retirement gratuity.

We see no infirmity in the order. The appeal is, therefore dismissed." We

are in respectful agreement with the view expressed in the aforementioned

decision that the Regulations, which provide for grant of pension, can also

provide for taking it away not arbitrarily but subject to satisfying the

conditions incorpo-rated in the Regulations.

In Union of India & Ors. v. Brig. P.K. Dutta (Retd.), [1995] Supp. 2 SCC 29

while specifically dealing with the effect of order passed under Sections

71(h) and (k) and the order passed under Regulation 16(a) directly arising

on the contentions as are raised in the present cases held that clause (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). It is further slated that a reading of

both these provisions clearly brings out the distinct fields occupied by

them and this Court went on to say :-

"Regulation 16(a) contemplates 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) contem-plates a punishment

awarded at the conclusion of the Court Martial while Regulation 16(a)

contemplates a stage subsequent to the award-ing of punishment 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 inconsist-ency between Section 71(h) and

Regulation 16(a)."

In this judgment, a reference is made to the case of Major (Retd.) Hari

Chand Pahwa (supra) and affirmed that the pension regulations, though non-

statutory in character, the pensionary benefits are provided for and are

payable under the said regulations; therefore, the same can be withheld or

forfeited as provided by the very regulations. In this judgment, it is also

stated that Army Rule 14 has absolutely no relevance in regard to the

forfeiture of pension under Regulation 16(a).

Yet again in the case of Union of India & Ors. v. Lt Col. P.S. Bhargava,

[1997] 2 SCC 28 it is stated that Regulation 16(a) gives the President the

power either to forfeit or to reduce the rate of pension in the event of an

officer being cashiered, dismissed or removed from the service. Reference

is made to Regu-lation 4 to say that conduct of the officer must be good as

a condition for the grant of pension or allowance. Dealing with the

contention that withholding the pension when the respondent had been Court

Martialled and dismissed, would amount to double jeopardy, this Court in

Union of India & Ors. v. Subedar Ram Narain & Ors., [1998] 8 SCC 52 did not

find any merit in the contention and held thus :-

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"Section 71 of the Army Act provides for different types of punish-ments

which could be inflicted in respect of an offence committed by a person

subject to the Army Act and convicted by courts martial. The punishments

are of varying degrees, from death as provided by Section 71 (a) to

stoppage of pay and allowance as provided by Section 71(h). The punishment

of forfeiture of pay and allowances as provided by Section 71(j) is of a

lesser nature than that of dismissal from service as provided by Section

71(e). When punishment under Section 71(j) is imposed, no recourse can be

had to Regulation 113(a), because the said regulation applies only if an

order of dismissal is passed against the person concerned. In other words

Section 71(j) and Regulation 113(a) cannot apply at the same time. On the

other hand, when the punishment of dismissal is inflicted under Section 71

(e) the provisions of Regulation 113(a) become attracted. The result of

punishment is that the benefit of pension or gratuity which is given under

the regu-lation is taken away. The order of dismissal under the provisions

of the Army Act in the case of an employee like the respondent would make

him ineligible for pension or gratuity. For a person to be eligible to the

grant of pension or gratuity, it is imperative that he should not have been

dismissed from service. The dismissal under the provisions of the Army Act

is, therefore, a disqualification for getting pension or gra-tuity."

The High Court in the impugned judgments has held that Regulation 16(a) is

not inconsistent with Sections 71(h) and (k) of the Army Act and that they

cover different fields; so also Regulation 16(a) and Rules 14(5) and 15 of

the Army Rules operate in different fields. The High Court has upheld the

validity of Army Pension Regulation 16(a) and Navy Pension Regulation

15(2). The High Court also did not find that these Regulations were

inconsist-ent with or contrary to relevant provisions of the Act relating

to punishment referred to in the judgment. We approve these conclusions of

the High Court. The High Court quashed the impugned orders forfeiting

pension on the ground that prior satisfactory service of the respondents,

coupled with the fact that Court Martial did not consider it appropriate to

impose the punishment under Section 71(h), was not taken into consideration

by the authorities. The High Court was of the view that although a person

may be cashiered or dismissed from service; that itself was not enough to

forfeit pension and that prior satisfactory services of the respondents

ought to have been taken into consid-eration before passing the order

forfeiting pension fully or partly. The High Court also held that

provisions of Regulation 15(2) of the Navy Pension Regulation are not ultra

vires of the provisions of Sections 81, 82, 47 and 27 of the Navy Act and

that where the Court Martial has imposed a punishment (like dismissal)

which does not entail forfeiture of pension, it is still open to the

competent authority under the Regulation 15(2) to forfeit a part or whole

of the pension by following due procedure. With regard to the delay in

passing orders under the Pension Regulations, the High Court observed that

the orders should be passed within a reasonable period, preferably within

six months of cessation of service. Of course, whether there was delay or

not, in passing the order forfeiting pension depends on the facts of each

case. However, the High Court having regard to the facts of the cases did

not consider the delay unreasonable and, therefore, declined to quash the

orders of forfeiting pension merely on the ground of delay in passing them

and rightly so in our opinion.

Section 71 of the Army Act provides for various kinds of punishments which

may be imposed for offences committed by persons subject to the Act and

convicted by Court Martial which may vary from death to stoppage of pay and

allowances. In terms of Army Pension Regulation 16(a) and Navy Pension

Regulation 15(2), pension may be forfeited partly or fully subject to the

conditions mentioned therein. These Regulations are independent and the

authority to grant or forfeit pension is the President of India and the

Central Government respectively. As rightly found by the High Court, the

said Regu-lations are neither inconsistent with nor contrary to the

provisions of the Army Act or the Navy Act as the case may be. The said

Regulations and the provi-sions dealing with the punishments under the Acts

cover different fields and have different purposes to serve. Punishments

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are imposed after trial on the basis of the misconduct proved. The Pension

Regulations deal with the grant or refusal of pension depending on

satisfactory qualifying service earned by a person and depending on the

nature of punishments imposed, mentioned in the Regulations. The

Regulations come into play at a stage subsequent to the imposition of

punishemnt. No doubt, pension is not a bounty but it is the earning of a

person after satisfactory completion of qualifying service and if not

otherwise disentitled. Under Section 71(h), a punishment of forfeiture of

service for the purpose of increased pay, pension or any other prescribed

purpose, can be imposed. If forfeiture of service has the effect of

reducing total qualifying service required to earn pension, a person

concerned is disentitled for pension itself. In other cases, it may have

bearing in regard to claim for increased pay or any other purpose. If by

virtue of such punishment itself, a person is not entitled for any pension,

the question of passing an order forfeit-ing pension under Regulation 16(a)

may not arise. As per Section 71(k), in case of a person sentenced to

cashiering or dismissal from the service, a further punishment of

forfeiture of all arrears of pay and allowances and other public money due

to him at the time of such cashiering or dismissal may be imposed. Clause

(k) of Section 71 does not speak of pension unlike clause (h) of the same

Section.

The argument that since no punishment was imposed under clause (k) by the

authorities, although it could have been done, then there is no warrant to

pass an order forfeiting pension under the Army Pension Regulations in

respect of same offence cannot be accepted. As already noticed above, the

provisions relating to punishments under the Acts and Pension Regulations

operate in different fields. Clause (k) refers to forfeiture of arrears of

pay and allowances and other public money due to a person at the time of

cashiering or dismissal. Pension is one, which becomes due subsequent to

retirement or termination of service subject to satisfying certain

conditions of satisfactory qualifying service and if not otherwise

disentitled for claiming pension. Firstly, clause (k) does not speak of

pension as such; it speaks of all arrears, pay, allowances and other public

money due to a person. It cannot be said that on the date of cashiering or

dismissal there could be any arrears of pension. Section 73 of the Army Act

enables the authorities to impose punishments in combination. Merely

because punishment is not imposed under clauses (h) or (k) of Section 71

and other punishments are imposed, it does not mean that the President is

deprived of his power and jurisdiction to pass order under Regu-lation

16(a); so also the Central Government under Regulation 15(2) of the Navy

Pension Regulations taking note of the punishment imposed under Sec-tion 81

of the Navy Act. In a case where punishment is imposed under Section 81(m)

of the Navy Act forfeiting pension and/or gratuity, need for passing an

order forfeiting pension under Regulation 15(2) of the Navy (Pension) Regu-

lations may not arise. But that does not mean that in case of punishments

imposed, which are covered by Regulation 15 the Central Government is

deprived of its power to pass appropriate orders under the said Regulation,

when such power is specifically conferred on the Cetnral Government under

the very Regulations, which enables granting of pension and/or grantuity.

It is rather not possible to accept the contention that a General Court

Martial and confirming authorities imposing punishments can debar the

President or the Central Government from passing orders as provided for

specifically and expressly under the Pension Regulations.

A contention, though feebly, was advanced on behalf of some of the

respondents that forfeiture of pension in addition to the punishment

imposed under Section 71 of the Army Act amounted to double jeopardy. In

our view, this contention has no force. There is no question of prosecuting

and punishing a person twice for the same offence. Punishment is imposed

under Section 71 of the Army Act after trial by Court Martial. Passing an

order under Regulation 16(a) in the matter of grant or forfeiture of

pension comes thereafter and it is related to satisfactory service. There

is no merit in the contention that the said Regulation is bad on the ground

that it authorized imposition of a double penalty; may be in a given case,

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penalty of cashiering or dismissal from service and the consequential

forfeiture of pension may be harsh and may cause great hardship but that is

an aspect which is for the President to consider while exercising his

discretion under the said Regulation. May be in his discretion, the

President may hold that the punishment of cashiering or dismissal or

removal from service was sufficient having regard to circumstances of the

case and that a person need not be deprived of his right to pension. A

crime is a legal wrong for which an offender is liable to be prosecuted and

punished but only once for such a crime. In other words, an offender cannot

be punished twice for the same offence. This is demand of justice and

public policy supports it. This principle is embodied in the well-known

maxim "Nemo debet bis vexari, si constet curiae quod sit pro una et eadem

causa" meaning no one ought to be vexed twice if it appears to the court

that it is for one and the same cause. Doctrine of double jeopardy is a

protection against prosecution twice for the same offence. Under Articles

20-22 of the Indian Constitution, provisions are made relating to personal

liberty of citizens and others. Article 20(2) expressly provides that "No

one shall be prosecuted and punished for the same offence more than once."

Offences such as criminal breach of trust, misappro-priation, cheating,

defamation etc., may give rise for prosecution on criminal side and also

for action in civil court/other forum for recovery of money by way of

damages etc., unless there is a bar created by law. In the proceedings

before General Court Martial, a person is tried for an offence of

misconduct and whereas in passing order under Regulation 16(a) for

forfeiting pension, a person is not tried for the same offence of

misconduct after the punishment is imposed for a proved misconduct by

General Court Martial resulting in cashiering, dismissing or removing from

service. Only further action is taken under Regulation 16(a) in relation to

forfeiture of pension. Thus, punishing a person under Section 71 of the

Army Act and making order under Regulation 16(a) are entirely different.

Hence, there is no question of applying principle of double jeopardy to the

present cases.

Our discussion and reasoning with reference to scope and application of

Army Pension Regulation 16(a) will equally apply in relation to Navy

Pension Regulation 15(2).

It is to be noted that the punishment imposed on these respondents by Court

Martial, as confirmed, have become final as the respondents have not

questioned their validity and correctness any further. The High Court

having rejected all other contentions raised by the respondents, partly

allowed their claim on the ground that the otherwise prior satisfactory

services of the re-spondents till the date of imposition of various

punishments on them was not taken into consideration by the President or

the Central Government, as the case may be, in passing the orders under the

Pension Regulations forfeiting their pension. Mainly on this ground, the

High Court directed the authorities to reconsider the cases of the

respondents and pass orders after issuing supple-mentary show-cause

notices. Consideration of prior satisfactory service of a person till the

date of imposition of punishment of cashiering or dismissal or removal from

service cannot be read into Army Pension Regulation 16(a) or Navy Pension

Regulation 15(2). For exercise of power under the said Regu-lations, what

is to be seen is whether the very terms of these Regulations are satisfied

or not. A plain reading of these Regulations shows that in case of a person

who has been cashiered or dismissed or removed from service, at the

discretion of the President under Regulation 16(a) and in case of an

officer who is dismissed otherwise than with disgrace from the service, the

Central Gov-ernment under Regulation 15(2) of the Navy Pension Regulations

can pass order forfeiting pension, partly or fully. The very fact that such

punishment is imposed on a person for proved misconduct after trial by the

Court Martial, itself shows his unsatisfactory service. In our view, the

High Court has read something more in these Regulations in insisting for

considering prior satisfactory service of a person upto the date of

imposition of punishment, which is not required by the very Regulations. We

may clarify here itself that in these cases we are only considering, so far

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as they relate to grant or forfeiture of pension in relation to and in the

context of Regulation 16(a) of Pension Regulations for the Army and

Regulation 15(2) of the Navy (Pension) Regu-lations. Under Regulation 2-

A(4) of the Army Pension Regulations 'pension' is defined as including

gratuity except when it is used in contradiction to the term gratuity.

Hence the pension and gratuity, as defined, are included for consideration.

Regulation 3 shows that full rate of pension or gratuity shall not be

granted unless the service rendered has been satisfactory; if the service

has not been satisfactory the competent authority may reduce the rate of

pension or gratuity as it thinks proper. Thus, Regulation 3 and Regulation

16(a) of the Army Pension Regulations deal with distinct and different

situations. Further, Regulation 4 states that future good conduct shall be

an implied condition for every grant of pension or allowances.

Consideration of satisfactory service may be relevant in terms of

Regulation 3 for granting pension in the normal course after satisfactory

qualifying service. But Regulation 16(a) being a distinct and specific

Regulation enables for forfeiture of pension, partly or fully, as a sequel

to imposition of a particular type of punishment. Regulation 16(a) in this

regard is self-contained. The High Court clearly committed an error in

holding that previous satisfactory service of a person upto the date of

imposition of punishment should have been taken into consideration for

exercise of power under Regulation 16(a) and it cannot be sustained. This

being the position we are unable to agree with the High Court that a

previous satisfactory service of a person prior to the date of imposition

of punishment should be considered for the purpose of Regulation 16(a).

Consequently the impugned judgments cannot be sustained.

What remains to be seen is whether the orders passed by the President and

the Central Government, as the case may be, forfeiting pension of the

respondents, were arbitrary, unreasonable or without application of mind.

It is the case of the appellants that before passing orders forfeiting

pension either under Army Pension Regulation 16(a) or Navy Pension

Regulation 15(2), show cause notices were issued to the respondents;

replies received from the respondents and all the relevant factors

appearing from the records were considered. According to them, the orders

passed in their discretion by the President or the Central Government, as

the case may be, having regard to all aspects, are justified and

sustainable. We have perused copies of the notings of the Ministry of

Defence and the orders made pursuant thereto. From the said records, we

find that there has been application of mind and having regard to the

serious nature of charges already narrated above and keeping in view the

relevant circumstances including the punishments imposed on proved charges,

the impugned orders appear to have been passed forfeiting pension. The said

orders passed forfeiting pension are not merely based on the fact that the

appellants were punished by Court Martial, as assumed by the High Court.

Moreover, by issuing show-cause notices giving opportunity to the

respondents to explain the circumstances and their hardship before passing

the impugned order, the principles of natural justice were also complied.

In the given circumstances when the impugned orders forfeiting pension were

passed in the discretion of the authorities exercising the power available

under the Regulations, we cannot find fault with them. Thus, the orders

passed are neither arbitrary nor unreasonable. In this view, we do not find

any error or infirmity or illegality in passing the said orders.

Having regard to the provisions and position of law, the discussion made

and for the reasons recorded hereinabove, we find merit in these appeals

and they deserve to be accepted. Hence, the impugned judgments of the High

Court are set aside and the appeals are allowed. No cost.