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Judicial Approach In Grant of Pensionary Benefits to Army Personnel who are Dismissed Under the Army Act

Written by: Lt Col Rajinder Kumar, Dy Commandant, Institute of Military Law, Kampteee

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 1961

Grant 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 Act

As 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.

Stage- II
If Court Martial Has Not Passed A Sentence of For Feiture of Pension then Pension has to be Paid Reliance on maj Gssodhi's Case

Pension Can Be Forfeited Under Pension Regulation For The Army 1961 Part-I Even If Court Martial has not awarded punishmet 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

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.

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.

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.