2011 (9) TMI 1237 - SC - Indian Laws

Issues Involved:
1. Whether the High Court was justified in quashing the order forfeiting the pension.
2. Whether the General Court Martial (GCM) proceedings violated any rules.
3. Whether the findings of guilt in regard to charges 1, 4, and 5(c) require interference.
4. Whether the punishment of dismissal was excessively disproportionate to the gravity of the charges proved.

Issue-wise Detailed Analysis:

1. Whether the High Court was justified in quashing the order forfeiting the pension:
The High Court quashed the pension forfeiture order, reasoning that the General Court Martial (GCM) did not deem it necessary to forfeit the pension and pensionary benefits, implying that the GCM found the punishment of dismissal sufficient. The High Court relied on the Delhi High Court decision in Brig. A.K. Malhotra, which was later reversed by the Supreme Court in Union of India v. P.D. Yadav. The Supreme Court clarified that the President of India has the power to direct forfeiture of pension under Pension Regulation 16(a) independent of the GCM's punishment. The High Court's interference with the President's discretion under Regulation 16(a) was deemed erroneous. Therefore, the appeal by the Appellants (Criminal Appeal No. 876 of 2003) succeeded, subject to the outcome of the first Respondent's appeal.

2. Whether the General Court Martial (GCM) proceedings violated any rules:
The first Respondent contended procedural irregularity in the GCM, particularly the participation of Brig. S.K. Kaushal as the Presiding Officer, who had previously summarily tried two prosecution witnesses. The Supreme Court found that the Presiding Officer did not suffer from any disqualifications under Rule 39 of the Army Rules 1954. The High Court also found no merit in other procedural challenges, including allegations of bias against the Judge Advocate and Dy. JAG. The Supreme Court upheld the High Court's finding that there was no infirmity in the constitution of the GCM and the procedure followed.

3. Whether the findings of guilt in regard to charges 1, 4, and 5(c) require interference:
The Supreme Court emphasized that judicial review of court martial proceedings is limited to jurisdictional errors or procedural violations and does not extend to re-assessing evidence. The High Court found the trial was conducted according to rules, with due opportunity for defense. The Supreme Court agreed, noting that the GCM had jurisdiction, followed prescribed procedures, and the findings were based on sufficient evidence. Thus, there was no reason to interfere with the findings of guilt regarding charges 1, 4, and 5(c).

4. Whether the punishment of dismissal was excessively disproportionate to the gravity of the charges proved:
The Supreme Court assessed whether the punishment of dismissal was shockingly disproportionate to the gravity of the charges. The charges involved a technical interpretation of contractual terms and supervisory lapses. The Supreme Court found the punishment of dismissal to be excessively harsh and substituted it with forfeiture of eight years of service for pension purposes and a severe reprimand. Consequently, the order forfeiting the pension was set aside, as pension can only be denied to officers who are cashiered, dismissed, or removed from service. The first Respondent was not entitled to back wages from the date of dismissal to the date of superannuation.

Conclusion:
- Criminal Appeal No. 876 of 2003 was allowed, setting aside the High Court's quashing of the pension forfeiture order.
- Criminal Appeal No. 877 of 2003 was allowed, substituting the punishment of dismissal with forfeiture of eight years of service for pension purposes and a severe reprimand.
- The order dated 22.12.1995 forfeiting the pension was set aside, and the Respondents were directed to process and settle the pension claim within six months, without back wages from the date of dismissal to superannuation.

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