Army Laws in India

Stage- II

If Court Martial Has Not Passed A Sentence of Forfeiture of Pension Then Pension Has to Be Paid � Reliance on Maj Gssodhi's Case

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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Stage - I I I

Pension Can Be Forfeited Under Pension Regulation For The Army 1961 Part-I Even If Court Martial Has Not Awarded Punishment of Forfeiture of Service For Pension

As stated above, in Maj OS Sodhi's case the Apex Court without examining the provisions of Pension Regulations as such and relying on two earlier judgments of Apex Court as discussed above held that the petitioner is entitled to pensionary benefits. However, in subsequent cases, Union of India v. Brig P K Dutta (1995 (1) SLR 342 SC) and Maj H C Pahwa v Union of India (1995 (3) SLR 703 SC) Apex Court has held that President could forfeit pension on justified grounds under Pension Regulations even if the Court Martial has not awarded sentence of forfeiture of service for pension. View taken was that pensionary benefits are granted under Pension Regulations and the same can provide for its

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Malhotra, Challenged and Matter Pending in Supreme Court

The Govt has challenged the correct ness of the decision passed by Full Bench of Delhi High Court in Brig A K Malhotra's case. The Apex Court has granted leave to Appeal and stayed the decision of Full Bench of Delhi High Court and the matter is pending in the Hon'ble Supreme Court.

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Analysis of the Trend of Judicial Pronouncements

Thus, judicial approach has not been uniform as regards grant of pension for the reason that Pension Regulations clearly stipulate forfeiture of pension but the Courts adopt a liberal approach and considering pension as a socio economic measure tends to grant pensionary benefits to concerned person. This approach gets more pronounced in the case of grant of disability pension wherein the Courts have adopted almost uniform liberal approach in grant of disability pension by interpreting the relevant provisions of Pension Regulations to do socio economic justice.

This is evident from the order dated 20 Jul 98 passed by the Hon'ble Supreme Court in SLP filed by Union of India and ors v. K Sudhir (CC 4862 of 98) wherein the question was as to on whom the onus lies to show that disability is attributable to or aggravated by military service. The Hon'ble Supreme Court dismissed the SLP and held, "Though we do find that there is sub stance in the submission made by the learned Additional Solicitor General regarding the erroneous findings of the High Court with regard to onus but in the peculiar facts and circumstances of this case, we are not inclined to interfere with the impugned order. In view of varying decision and different interpretation by various Courts the Supreme Court's decision is eagerly awaited.

However, as stated above the Govt vide its letter No 12(6)/951D(Pens/Sers) dated 9 June, 99 has conveyed its decision that all Indian Army personnel including Commissioned Officers who are cashiered/dismissed under the provisions of Army Act, 1950, or removed under Army Rule 14 i.e. as a measure of penalty, will be ineligible for pension or gratuity in respect of all previous service. In exceptional cases, however, the competent authority on submission of an appeal to this effect may at his discretion, sanction pension/gratuity or both. Prior to issue of ibid letter, the officers, who were dismissed or cashiered under the Army Act were entitled to pension unless forfeited and persons other than officers who were dismissed from the service under the Army Act ipso facto were not entitled to Pension unless granted by the competent authority in exceptional cases. Considering DS Nakara's case wherein the Apex Court has held that grant of pension is social welfare measure rendering socio economic justice to those who had worked for the employer, it is submitted that with a view to remove the disparity between the provisions granting pensionary benefits to officers and persons other than officers. Reg 113 (a) concerning JCOs/ OR should have been amended in consonance with Reg 16(a) instead of doing it vice versa.

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Conclusion

Pension has a broader significance in that it is a measure of socio-economic justice which inhers economic security with a fall of life when physical and mental prowess is ebbing corresponding to ageing process and therefore, one is required to fall back on savings. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. The discernible purpose thus understanding pension scheme or a statute introducing the pension scheme must inform interetative process and accordingly it should receive a liberal construction, held the Constitution Bench of Supreme Court 10 D S Nakara's case.

While considering the appeals submitted by the concerned persons for grant of pension as envisaged by Government letter dated 9 June, 99 (supra) quoted, the competent authority should consider the nature of duty, requirement of strict discipline and nature of offence whether purely military or not. It is submitted that to deny them pensionary benefits would work too harsh on their families. However, if a person is involved in extraordinarily grave case or cases involving large scale embezzlement, then action to forfeit pension may be taken.

In addition, it is significant to note that non grant of pensionary benefits to a person cashiered or dismissed from the service would directly affect the sentencing calculus of the Courts Martial because Courts Martial might not inflict a sentence of cashiering or dismissal on a person considering that such a sentence would deprive him of the pensionary benefits whereas the necessities of discipline may require imposing of such a sentence.

For example:

In a given case, if the Court Martial considers that imposing of single sentence of cashiering/dismissal from service alone would be most appropriate and the Court Martial itself did not want to pass forfeiture of any past service for pension in addition to dismissal as it wanted the concerned person to get pension but if they know that consequent to dismissal or cashiering the accused would not get pension then they might not pass sentence of dismissal itself as they themselves did not want to pass sentences of cashiering/ dismissal along with forfeiture of past service for pension. The net result would be that a person not fit to be retained in service would be kept in service which would be prejudicial to the interests of discipline in the Army and this would not subserve the purpose of maintenance of discipline.

This factor of forfeiture of pension consequent to cashiering or dismissal by Court Martial, therefore, would play important role in all cases where Courts Martial consider that passing of a single sentence of cashiering or dismissal alone would meet the ends of justice. It is, therefore, submitted that the effect of forfeiture of pension of a person cashiered or dismissed from the service on the sentencing process by the Court Martial need to be studied in greater detail.

In nut shell, considering the trend of Court cases on this aspect, it appears that even after issuance of ibid Govt letter, this issue as to whether the competent authority under Reg 16 (a) or Reg 113 (a) of Pens ion Regulation should record good reasons in support of their decision to forfeit pension in cases in which Courts Martial have not awarded any sentence of forfeiture of service for pension would remain controversial. The Apex Court's decision in Brig A K Malhotra's case which is pending, would settle this aspect.