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The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and therefore no right to pension can be en forced through court has been swept under the carpet by the decision of the Constitution Bench in Deo kinandan Prasad v. State of Bihar, 1971 Supp SCR 634 (AIR 1971 SC 1409), wherein the Supreme Court authoritatively ruled that Pension is a right and payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. Same view was reiterated by Constitution Bench of Apex Court in D S Nakara's case (1983 (1) SCC 305) and it was held that Pension is a payment for past service rendered and it is a social welfare measure rendering socio economic justice to those who in their hey days ceasessly toiled for the employer on an assurance that in their old age they would not be left in the lurch. If this is the underlying rationale for grant of pension then the question which requires consideration is as to whether a defence personnel, who after putting in qualifying service for pension gets involved in a disciplinary case and is dismissed under the Army Act, not for a very grave offence or involving gross financial irregularities, becomes ipso facto disentitled to get pension, which is a social welfare measure specially when Court Martial which had tried. him, did not award him any sentence of forfeiture of service pension.
Relevant Provisions Regarding Grant of/Forfeiture of Pension Under Pension Regulation 1961Grant and forfeiture of pension is governed by Pension Regulations for the Army 1961 (Para 1) which are non-statutory. Reg 2 A lays down that pension shall include gratuity except when it is used in contradistinction to the term gratuity. Regs 25 and 132 unfolds that mini mum qualifying service required for re tiring pension is 20 years for officers and 15 years in case of persons other than officers respectively. Reg 16 (a) unfurls that 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 service, his pension may, at the discretion of the President be either forfeited or be granted at a rate not exceeding that for which he would have otherwise qualified had he retired on the same date. Reg 113 (a) ordains that a person other than an officer who is dismissed under the provision of the Army Act is ineligible for pension in respect of all previous service though in exceptional cases, President may at his discretion grant service pension, gratuity or both at a rate not exceeding that for which he would have other wise qualified had he been discharged on the same day. However, Government vide letter No. 12(6)195/D (Pen/Sers) dated 09 June, 99 has brought Regn 16 (a) at par with Regn 113 (a).
Judicial Trend In Grant of Pension To Cashieredidis Missed Personnel Under Army ActAs stated above, there are specific provisions in Pension Regulations for the Army regarding forfeiture of Pensionary benefits to a person cashiered dismissed from service under the Army Act. Considering the relevance of Pension at old age, persons cashiered or dismissed from his service have approached the courts for relief in pension matters. Perusal of cases reveal that 'judicial Approach' in this regard has not been uniform. At times, one gets reminded of 'Shakespearian theme' to be or not to be. That is whether to pass a direction for grant of pension or not. This confounding dilemma still confronts the Courts and the matter is pending before the Hon'ble Supreme Court.
Stage-1: Judicial Approach Inclined More Towards Facts Rather Than Rules - Liberal view
Initially the approach of the courts have been to pass directions for grant of pension considering facts of the case rather than examining the Rules in de tail. This is evident from the case of Maj G S Sodhi v Union of India and ors reported in AIR 1991 SC 1617. Maj G S Sodhi was tried by General Court Martial for ill-treating his subordinate (he had slapped a Jawan). He was dismissed from the service. That time he had put in only 17Y2 years of service. Writ petition challenging court martial proceedings on various grounds was dismissed by the Apex Court. Then he filed Miscellaneous Application for grant of pensionary benefits wherein the Hon'ble Supreme
Court directed that he be paid pension as per the Rules. The Apex Court directed payment of pension as per Rules prima rily on two counts viz relying on two earlier judgments of Apex Courts wherein two dismissed service personnel were granted pension and secondly that the Court Martial did not award any sentence of forfeiture of service for pension. Govt. filed Review Petition praying for review of the order passed by the Hon'ble Supreme Court. When pensionary benefits were not granted to him, he filed contempt petition No.3 of 1991 in WP (Crl) 478 of89 and CrlMP 8905 of90in WP (Crl) 478 of 89, vide its order dated 11 Mar 94 the Apex Court clarified that, "We need not examine this question in detail. We gave a direction for payment of the retirement benefits following two earlier judgments of this Court. of course, there also the effect of these Regulations has not been considered. This matter has been pending for a number of years. It is also not clear whether the total service of the petitioner has been correctly computed. At this distance of time, we cannot undertake an investigation or order an enquiry whether as a fact the Regulations apply to the case of the petitioner on the ground that service of period of 20 years has not actually been computed and that there is some shortage. We once again make it clear that this observation of ours is confined to the facts of this case and cannot be treated as a precedent. However, in view of what has been stated in the counter affidavit, we do not think that a case of contempt is made out. Therefore, the contempt petition is dismissed with no order as to costs. The Respondents are directed to pay all the pensionary benefits to the petitioner as early as possible preferably within three months from today". This shows that the Apex Court had gone by facts of the case rather than Rules with a view to do complete justice in this case.
The earlier two cases referred by the Hon'ble Supreme Court in Maj 0 S Sodhi's case were case of Lt Col H S Sandha v Union of India and ors in WP 553/72 decided on 22 Nov 78 and the case of N/Sub R K Sharma v. COAS and others in Crl MP 349/80 in WP (Crl) 244/ 80 decided on 29 April, 80. In H S Sandha's case, no action under Reg 16 (a) towards forfeiting pension was taken against him as also Court Martial too did not forfeit service for pension under Army Act, Sec 71 (h). In Ex N/Sub R K Sharma's case, the counsel for Union of India had agreed that whatever pension and service benefits are permissible to the petition under the law will be given to him. It is submitted that in the aforesaid two cases also, provision of Pension Regulations were not examined.
In Ex Major Chandra Singh Case (WP (Crl) 678 of 91) which was tagged with Maj 0 S Sodhi's case that is contempt petition No 3 of 91 in CW (Crl) 478 of 89 and Crl MP 8905 of 90, the Hon'ble Supreme Court vide its order dated 11 Mar 94 did not grant pensionary benefit as in the case of Maj 0 S Sodhi. Maj Chander Singh was also dismissed from the service but for grave offence whereas Maj Sodhi was convicted and sentenced to be dismissed from service for slapping his subordinate (Ill treating a subordinate). The above cases indicate that the Apex Court with a view to do complete justice going by the facts of the case without examining the Pension Regulations as such had given direction for payment of pensionary benefits.
Following Maj OS Sodhi's case, various High Courts granted relief's
to petitioners on the ground that Courts Martial though competent, have
not awarded the sentence of forfeiture of pension under Sec 71 (h) of the
Army Act. The view taken was that if Court Martial, which tried the
petitioner, did not forfeit service for pension then under Reg 16 (a) or
113 (a) of Pension Regulations for the Army 1961 (Para 1) pension cannot
be forfeited. This trend continued for some time.
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