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TMI Blog2001 (10) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice was imposed on him on 26.2.1990. He was given a show-cause notice on 21.6.1991 under Regulation 15(2) on the Navy (Pension) Regulations, 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 At. He submitted papers for payment of pension stating that he had qualifying service. Since pension was not given to him, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 retirement 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 Regulation 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. 2. Mr. Mukul Rohtagi, learned Additional Solicitor General, urged that - 1. Section 71 and Regulation 16(a) are distinct and operate in different fields. While Section 71(h) contemplates a punishment at the conclusion of the Court Martial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 4. 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 statutory 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unication center, 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 center, Delhi and thereby committed an offence under Section 45(c) of the Navy Act, 1957. 7. 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 @ 450/- per table, 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 @ ₹ 760/- per table and thereby caused loss to the State to the tune of ₹ 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 bathing cubicles flock and 6 latrine cubicles valued at ₹ 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/11/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 Eng. Park when ordered to purchase 10 Sl shelters valued ₹ 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 Regulations edition read with HQ Northern Command letter No. 42346/2/policy/11/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 Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 x10 long welded with base plate 10 x10 x10mm thick having 4 holes of 7/8 dia and gusset plate 4 x4 x6mm thick welded to the base plate, top plate 7 x7 x10mm thick having 2 holes of 9/10 dia welded atop. 4 cleats of angle iron 50x60x6mm 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 ₹ 2680/- each well knowing that the rate approved by him was higher than the prevailing market rate of ₹ 1147.50 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 x10 long welded with base plate 10 x10 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 x10mm thick having two holes of 9/10 welded at top. 4 cleats of angle iron 50x50x6mm 6 long having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his cashiering. Confirming authority while confirming the finding and sentence, had revised and remitted the sentence of forfeiture of all arrears of pay no 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 without justification obtained ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion shall include gratuity except when it is used in contradiction to term gratuity. (5) to (7) ... 3. The full rate of pension or gratuity provided for in these Regulations shall not be granted unless the service rendered has been satisfactory. If the service has not been satisfactory, the competent authority 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; (f) to (1) ... (m) forfeiture of pay, head money, bounty, salvage, prize money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct or Rules or whether when punishment was not imposed under Section 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. 13. In the case of Major G.S. Sodhi vs. Union of India (1991)2SCC371 : (1991)2SCC371 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 decided; 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 no support the respondents. The Full Bench of the High Court itself in Malhotra's case has said that in G.S.Sodhi's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed 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) contemplates a punishment awarded at the conclusion of the Court Martial while Regulation 16(a) contemplates a stage subsequent to the awarding 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 inconsistency between Section 71(h) and Regulation 16(a). In this judgment, a reference is made to the case of Major 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 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). 16. Yet again in the case of Union of India Ors. vs. Lt. Col. P.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ension Regulation 16(a) and Navy Pension Regulation 15(2). The High Court also did not find that these Regulations were inconsistent 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 consideration 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 Section 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 forfeiting 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. 20. The argument that since no punishment was imposed under clause (k) by the authorities, although it could have been done, then 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it authorized imposition of a double penalty; may be in a given case, 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 sid 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, provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government 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 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) Regulations. Under Regulation 2-A(4) of the Army Pension Regulations 'pensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26. Having regard to the provisions and position of law, the discussion made and for the reasons recorded hereinab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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