Supreme Court of India
UNION OF INDIA AND ANR.versusP.D. YADAV
- Citation
- 2001 INSC 509
- Decided
- 16 October 2001
- Disposal
- Appeal(s) allowed
- Bench
- B N KIRPAL
Holding
The forfeiture orders under Army Pension Regulation 16(a) and Navy Pension Regulation 15(2) are valid, not inconsistent with the respective Acts, do not amount to double jeopardy, and may be made without considering prior satisfactory service.
Summary
The Supreme Court examined orders that forfeited the pensions of four military officers who had been convicted by General Court Martials and dismissed or cashiered. The respondents challenged the forfeiture on the grounds that the Army Pension Regulation 16(a) and Navy Pension Regulation 15(2) were inconsistent with the Army and Navy Acts, that prior satisfactory service should have been considered, and that the forfeiture amounted to double jeopardy. The Court held that the regulations are valid, operate in a field distinct from the punishments under Section 71 of the Army Act and Section 81 of the Navy Act, and may be exercised without regard to prior satisfactory service. It further ruled that imposing a pension forfeiture in addition to a court‑martial punishment does not constitute double jeopardy and that the orders were not arbitrary or unreasonable. Consequently, the High Court's quashing of the forfeiture orders was set aside and the appeals were allowed.
Issues considered
- Whether Army Pension Regulation 16(a) and Navy Pension Regulation 15(2) are inconsistent with Section 71(h) and (k) of the Army Act and Section 81 of the Navy Act.
- Whether forfeiture of pension in addition to a punishment under Section 71 constitutes double jeopardy.
- Whether prior satisfactory service must be taken into account before invoking Regulation 16(a) or 15(2).
- Whether the forfeiture orders were arbitrary, unreasonable or passed without application of mind.
- Whether the pension regulations, though non‑statutory, have the force of law to deprive pensionary benefits.
Legislation cited
- Army Act, 1950s. 71(h), s. 71(k), s. 73
- Army Ruless. 14(5), s. 15
- Constitution of Indias. 20, s. 21, s. 22
- Navy Act, 1957s. 81
- Navy (Pension) Regulations, 1964s. 15(2)
Subjects
military lawpension forfeiturecourt‑martialdouble jeopardyArmy ActNavy Actshow‑cause noticeregulationconstitutional lawArticles 20-22
Judgment
UNION OF INDIA AND ANR. A
v.
P.D. YADAV
OCTOBER 16, 2001
[B.N. KIRPAL, SHIVARAJ V. PATIL AND B
P. VENKATARAMA REDDI, JJ.]
Military Law :
Anny Act, I950-Section 7I-Pension Regulations for Army, 196I-
Regulation I6(a):
c
Navy Act 1957-Section BI-The Navy (Pension) Regulations I964-
Regulation I 5(2):
Court Martial-Pensionary benefits-Fm:feiture o.f-Respondents guilty
of certain charges-Tried by General Court Martial-President/Central Gov- D
ernment ordered forfeiture of pensionary benefits-High Court interfering with
the order on the ground that prior satisfactory service of the re!>pondents not
considered and court martial did not consider it appropriate to impose punish-
ment under Section7I(h)-On appeal, held High Court not right in quashing
the orders o.ffor:feiture o.f pension as the pensionary authorities not debarred E
from passing orders under the pension Regulations-Imposing o.ffm:feiture o.f
pension in addition to punishment imposed under Section 71 does not amount
to double jeopardy-Constitution o.f India, Articles 20 to 22.
Maxims:
F
Nemo dibet bis vexari, si constet curiae quad sit pro una et eadem
causa-Meaning and applicability of
The Respondents were tried by General Court Martial on certain
charges and were penalised. Thereafter they·were issued show cause no-
ticts for forfeiture of pension under Regulatio.n 15(2) of the Navy (Pen- G
sion) Regulations 1964 and Regulation 16(a) of Army Pension Regulations
respectively. They submitted reply to the notice. However, order of forfei-
ture of pensionary benefits under the said regulations was passed; Re-
spondents filed a writ petition and the High Court interfered with the
order of forfeiture. Hence the present appeals. H
209
210 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A Allowing the appeal, the Court
HELD : 1. High Court was not right in quashing the orders of
forfeiture of pension passed by the President/Central Government under
the Army Pension Regulation 16(a) or Navy Pension Regulation 15(2) on
the ground that prior satisfactory service of the respondents was not taken
B into consideration by the authority and the court martial did not consider
it appropriate to impose the punishment under section 71(h) of the Army
Act. The orders of forfeiture of pension was passed after issuing show
cause notices giving opportunity to the respondent to explain the circum-
stances and the hardship, having regard to the serious nature of charges,
c keeping in view the relevant circumstances including the punishment im·
posed on proving charges and also on perusal of copies of the notings of the
Ministry of Defence. Thus, the orders are not arbitrary, unreasonable or
without application of mind. [233-C·D·E; 234-E]
Major (Retired) Hari Chand Pahwa v. Union of India & Am:, [1995]
D Supp. 1 SCC 221, relied on.
Lt. Col. (T.S.) Harbans Singh ·sandhu v. Union of India & Ors., Writ
Petition No. 553 of 1972 decided on November 22, 1978; Major G.S. Sodhi
v. Union of India, [1991] 2 SCC 371; Union of India & Ors. v. Brig. P.K. Dutta
(Retd.), [1995] Supp. 2 SCC 29 and Union of India & Ors. v. Lt. Col. P.S.
.E Bhargava, [1997] 2 SCC 28, referred to.
2. The High Court rightly held that Regulation 16(a) is not inconsist-
ent with Section 71(h) and (k) of the Army Act and they cover different
fields; also Regulation 16(a) and Rules 14(5) and 15 of the Army Rules
F operate in different fields. It also rightly upheld the va~idity of Army
Pension Regulation 16(a) and Navy Pension Regulation 15(2). [299-G]
3. It cannot be said that since no punishment was imposed under
clause (k) by the authorities, although it could have been done, there is no
warrant to pass an order forfeit~ng pension under the Army Pen.sion
G Regul~tions in respect of same offen~e. The provisions relating to punish·
ments under the Acts and pension Regulations operate in different fields.
Pension becomes due subsequent to retirement or termination of s~rvice
subject to satisfying. certain conditions of satisfacto1·y qualifying service
and if not otherwise disentitl-~d for claiming pension. Clause. (k) speaks of
H all arrears, pay, allowance.s and ot~~fil?Hbli,c money due to a person a_nd
U.0.1. v. P.D. YADAV 211
not of pension. So on the date of cashiering or dismissal there cannot be A
any arrears of pension. Section 73 of the Army Act enables the authorities
to impose punishments in combination. Merely because punishment is not
imposed under clause (h) or (k) of Section 71 and other punishments are
imposed it does not mean that the Pre~ident is deprived of his power and
jurisdiction to pass order under Regulation 16(a); so also the Central
B
Government, under Regulation 15(2) of the Navy Pension Regulations
taking note of the punishment imposed under Section 81 of the Navy Act.
Thus a General Court Martial and confirming authorities imposing pun-
ishments cannot debar the President or the Central Government from
passing orders as provided for specifically and expressly under the Pension
Regulations. [231-D-E-F-G-H; 232-A] c
4.Forfeiture of pension in addition to the punishment imposed under
Section 71 of the Army Act does not amount to double jeopardy. Punishing
a person under Section 71 of the Army Act and making order under
Regulation 16(a) are entirely different. Punishment is imposed under Sec-
tion 71 of the Army Act after trial by Court Martial. Passing an order D
under Regulation 16(a) in the matter of grant or forfeiture of pension
comes thereafter and it is related to satisfactory service. In the proceedings
before General Court Martial, a person is tried for an offence of miscon-
duct and whereas in pasing order under Regulation 16(a) for forfeiting
pension, a person is not tried for the same offence of misconduct after the E
punishment is imposed for a proved misconduct by General Court Martial
resulting in cashiering, dismissing or.removing from service. Only further
action is taken under Regulation 16(a) in relation to forfeiture of pension.
[232-B; G-H]
Union of India & Ors. v. Subedar Ram Narain & Ors., [1998] 8 SCC 52, F
relied on.
5.1. The High Court's insistence for considering prior satisfactory
service of a person upto the date of imposition of punishment is not
required by the Army Pension Regulation or Navy Pension Regulations.
For exercise of power under the said Regulations, it is to be seen whether G
the terms of the 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 H
212 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A 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. [233·E·F·G]
S.2. Regulation 16(a) is self contained, being a distinct and specific
B Regulation which enables forfeiture of pension, partly or fully, as a sequel
to imposition of a particular type of punishment. High Court holding that
·C
previous satisfactory service of a person upto the date of imposition of
punishment should have been taken into consideration for exercise of
power under Regulation 16(a) cannot be sustained. [234-C-D]
-
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7805of1997.
From the Judgment and Order dated 4.3.97 of the Delhi High Court in
C.W.P. No. 402 of 1993.
D WITH
Civil Appeal Nos. 7806, 7807, 7808/1997.
Mukul Rohtagi, Additional Solicitor General, M.N. Krishnamani, Ranjit
Kumar, Ms. Indra Sawhney, Hemant Sharma, Ms. Smita Inna, B.V. Balaram
E Das, C. Radha Krishna, Ms. Anil Katiyar, Arvind Kumar Sharma, Avijit
Bhattarcharjee and K.S. Bhati (N.P.), Ms. Kanwaljit Kochhar, S.C. Paul, Gurmeet
Singh, Ms. Sona! Mahajan, J.D. Jain, Ashok Kumar Sharma, Har.ish Uppal,
Uday Umesh Lalit, Jadev Singh Manhas, Seeraj Bagga and Ms. Shureshtha
Bagga for the appearing parties.
F
The Judgment of the Court was delivered by
SlllVARAJ V. PATIL, J. In short the facts leading to filing of these
appeals, are as stated below.
G Civil Appeal No. 780511997
The respondent here in joined Navy as a Sailor in April, 1965 and was
·commissioned in October, 1980. On account of certain alleged misconduct and
irregularities, he was tried by General Court Martial on five charges. He was
found guilty of the charges 2, 3, 4 and 5 and consequently a penalty of dismissal
H
U.0.1. v. P.D. YADAV [PATIL,J.] 213
from service was imposed on him on 26.2.1990. He was given a show-cause A
notice on 21.6.1991 under Regulation 15(2) of the Navy (Pension) Regula-
tions, 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. B
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.
c
Civil Appeal No. 780611997
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 D
Section 71 of the Army Act. He submitted papers for payment of pension
stating that he had qualifying service. Since pension was not given to him, he
filed Civil Writ Petition No. 1249/90 in the High Court on 3.3.1990. On
16.4.1991, a show-cause notice was issued under Section 16(a) of the Pension
Regulations of the Army (Part I) proposing forfeiture of pension on the ground E
that he was dismissed from service. He submitted reply to the said show-cause
notice. However, the President of India by order dated 22.7.1992 under said
Regulation 16(a) forfeited 50% of the pensionary benefits. He filed Writ
Petition No. 2866/90 for amendment of the writ petition challenging the said
order. The High Court by the impugned order quashed the order dated 22.7.1992
F
and directed the appellants to reconsider his case in the light of the directions
given in the judgment. Hence this appeal.
Civil Appeal No. 7807 of 1997
The respondent was commissioned in the Army as Engineer Graduate G
Officer on 11.1.1968. He was tried by General Court Martial on the allegation
of splitting purchase orders for shelters, to bring them within the financial
limits and for making purchases at rates higher than scheduled and sanctioned
rates. After trial by General Court Martial he was cashiered on 11.3.1994 and
was directed to undergo rigorous imprisonment for two months. He forwarded H
214 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A papers on 29.6.1994 to the authorities for grant of pension. On 22.2.1995, a
show-cause notice was issued to him under Regulation 16(a) of Army Pension.
Regulations for forfeiture of pension. He claimed to have sent a reply to the
•
show cause notice but the orde_r was passed forfeiting his pensionary benefits
stating that he had not sent any reply to the show-cause notice. The High Court
B quashed the impugned order forfeiting his pension and directed the appellants
for re-consideration and passing fresh order. Aggrieved by the said order of the
High Court dated 4th March, 1997, this appeal is filed.
Civil Appeal No. 7808 of 1997
C The respondent herein entered Army service and was commissioned on
12.6.1960. He was promoted to Selection Grade rank of Acting Brigadier in
December, 1986. He retired from service on 31.5.1990 on attaining the age of
superannuation. He was tried by General Court Martial between 26.5 .1990 to
26.9.1990 on certain charges of misconduct. Charges 2, 3, 5, 9 & 10 were held
D proved. Consequently he was ordered to be .(i) cashiered (ii) to suffer rigorous
imprisonment for six months and (iii) to forfeit all arrears of pay and allow-
ances and other public money due to him at the time of cashiering. The first
two of the sentences were confirme~ by the Chief of Army Staff on 12.2.1991 \
but the third one was remitted. Consequently, it stood set aside. After retire-
E ment 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 Regu-
lation 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 .. /
F·
2813/1994 in the High Court. The High Court quashed the order impugned i~
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.
G Mr. Mukul Rohtagi, learned Additional ·Solicitor General, urged that -
. 1. Section 71 and Regulation 16(a) are distinct and operate in dif-
ferent fields. While Section 71 (h) contemplates· a punishment at
the conclusion of the Court Martial, Regulation 16(a) contem-
H plates a stage subsequent to the awarding of punishment by Court
U.O.l. v. P.D. YADAV [PATIL, J.] 215
Martial and its confirmation; Regulation 16(a) deals with the A
pension of an officer, who is cashiered, dismissed or removed
from service.
,,, 2. Though the Army Pension Regulations are non-statutory in char-
acter the pensionary benefits are provided for and payable under
B
them; these very Regulations provide for forfeiting pension in
given situations; in other words, the Regulations which provide
for grant of pension also provide for taking it away on justifiable
ground; further these Regulations may not have statutory force
but they are not contrary to any statutory provisions under the Act
or the Rules. c
3. The High Court committed an error in stating that the authorities
did not consider in forfeiting pension, partly or fully, that the
services of the respondents up to the date of commission of
offences were satisfactory and that the Court Martial did not D
inflict the punishment of forfeiture of services.
4. The orders passed by the President of India forfeiting pension
were neither arbitrary nor unreasonable; in fact they were passed
after taking into consideration the nature of offences, the punish-
ments awarded and all relevant factors. E
5. (a) The High Court has also failed to see that the right to grant
pension is not with the Court Martial under Section 71; the
grant of pension is within the powers of the President und.er
Regulations, who can grant/forfeit pension to the officers F
who are cashiered, dismissed, removed or called upon to
retire.
(b) In passing the orders forfeiting pension of the respondents,
partly or fully, well established procedure was followed in
that a show cause notice was issued; on receipt of reply to G
the show cause notice from the respondents and after consid-
eration orders were passed.
6. The High Court was also not right in saying that the services of
the respondents cannot be termed as unsatisfactory because of H
216 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A their involvement in the cases of misconduct; the High Court was
not right in giving directions to the appellants to reconsider the
matter after issuing a supplementary show cause notice.
He added that Army Pension Regulation 16(a) and Navy Pension
Regulation 15(2) are similar in content except that the authority to pass order
B
under Regulation 16(a) vests with the President and whereas under Regulation
15(2) it vests 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.
c
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
D 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.
E 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 Aet; in case service of army personnel is terminated on the
administrative side (without holding court martial) then the statu-
tory authority to decide. forfeiture or the grant of these benefits
F 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 the respondents; alternatively
Regulation 16(a) is inconsistent with and contrary to Section
71(h) and 71(k) of the Army Act and Rules 14(5) and 15 of the
G Army Rules.
3. If the Court Martial has not thought fit to forfeit the pensionary
benefits then those benefits cannot be forfeited by the non-statu-
tory regulations and there· has been undue delay in passing the
H order forfeiting the pension in some cases.
U.O.l. v. P.D. YADAV [PATIL, J.] 217
4. The orders passed forfeiting the pensionary benefits, fully or A
partially, as the case may be, are unreasonable and without proper
application of mind to the facts and circumstances of the case.
5. Since no punishment was imposed forfeiting pensionary benefits
under Section 71(h) or (k) by the General Court Martial, it was B
not open to pass orders forfeiting pension, partially or fully,
exercising power under Regulation 16(a); it may amount to im-
pos.ing punishment twice in respect of the same charges of mis-
conduct.
It may be necessary to narrate in brief as to the nature of charges c
framed against the respondents and the punishment imposed on them to
appreciate the contentions urged on behalf of the respondents as to the
validity, reasonableness and justification in passing the orders forfeiting
pension.
D
Five charges were framed against P.D. Yadav (respondent in CA 7805/
97). He was found guilty in respect of charges 2 to 5. The said charges 2 to
5 are :-
2. Did on the Twenty ninth day of September one thousand nine E
hundred eighty nine at about 1401 hours willfully disobey the
lawful command of Lieutenant Commander (Special Duties Com-
munication) Man Singh Rawat (81917 Z), his Superior officer in
the office of the Officer-in-Charge? Communication Centre, Delhi
when ordered to go out of the said office and to come afterwards
and thereby committed an offence punishable under Section 47(a)
F
of the Navy Act, 1957.
3. Did on the Twenty ninth day of September one thousand nine
hundred eighty nine at about 1402 hours behave in a disorderly
manner in the office of the Officer-in-Charge, Communication G
centre, Delhi and thereby committed an offence punishable under
Section 48(c) of the Navy Act, 1957.
4. :Oid on the Twenty ninth day of September one thousand nine
hundred eighty nine at about 1402 hours strike Lieutenant Com- H
218 SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.
A mander (Special Duties Communication) Man Singh Rawat (81917
Z) his superior officer in the office of the Officer-in-Charge,
Communication Centre, 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
B
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 Centre, Delhi and thereby
committed an offence under Section 45(c) of the Navy Act, 1957.
c
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 l, 2 and 3. They are :-
1. At Dehradun on 22.2.1985, while employed as CWE, Dehradun
D
and having already given technical sanction for Table dining
· (OR) FD-165 @ Rs. 450 per tabel, 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 @ Rs. ·
730 per table and thereby caused loss to the State to the tune of
E Rs. 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 of 85-86, final-
ized a contract agreement with Allied Traders for supply and
F fixing of ceiling fans at an exorbitant rate of Rs. 498 per fan,
while DGS & D contract rate was Rs. 413.56 per fan.
3. At Dehradun, on 21.6.1985, while employed as CWE, Dehradun
with intent to defraud vide CA No. CWE/CLT/7 of 85-086
finisalised a contract agreement with Mis. Allied Traders for
G supply and fixing of ceiling fans at an exorbitant rate of Rs. 488
perfan, while DGS & D contract rate was Rs. 413.56 per fan.
5. At the place and date mentioned in the Charge No. 4. hp.properly
accepted the contract agreement with the altered rates as men-
H tioned in the said charge.
U.0.1. v. P.D. YADAV [PATIL, J.] 219
7. At the place and date mentioned in the charge 6 (21.6.1985) A
improperly accepted the contract agreement with the altered rates
as mentioned in the said charge.
10. At Dehradun between 29.3.1985 and 5.7.1985, while employed
as CWE, Dehradun, contrary to the provisions of para 24 of the
B
General conditions of contract (IAFW-1815Z) instead of claim-
ing composition from M/s. Doon Furnishers for failure to com-
plete the work by due date, improperly allowed extension of time
by 15 days and 30 days for phases I and II respectively.
Thirteen charges were framed against E.K. Sugathan (respondent in CA C
7807/97) and was found guilty of charges 6, 10,11 and 12 and of charges 1,
2, 3, 4, 5, 7, 8 and 9 with certain variations. He was sentenced to be cashiered
and to suffer rigorous imprisonment for two months. However, while confirm-
ing the finding and sentence GOC-in-C, Northern Command remitted the
sentence of rigorours imprisonment. The said charges are : D
1. He at field between 28th January, 1991 to 6th March, 1991 while
being Garrison Engineer 571 Engr. Park when ordered to fabri-
cate 28 SL shelters at the cost of Rs. 10 lacs. with intent to
defraud, splitted the purchases of said order by placing the supply
orders in contravention to para 748 of Military Engr. Services E
Regulations 1968 edition read with HQ Northern Command letter
No. 12846/2/policy/IUSB dt. 31st October, 1975 which prohib-
ited 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. F
2. He at field, between 25th January, 1991to6th March, 1991 while
being Garrison Engineer 571 Engr. Park when ordered to pur-
chase 5 SI Shelters, 6 bathing cubicles flock and 6 latrine cubicles
valued at Rs. 10 lacs, with intent to defraud splitted the said
purchase order by placing the supply orders in contravention to G
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. H
220 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A 3. He, at field, between 12th March, 1991 to 25th March, 1991,
while being Garrison Engineer 571 Engr. Park ~hen ordered to
purchase 10 SI shelters valued Rs. 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 Regula-
tions edition read with HQ Northern Command letter No. 42346/
B
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.
c 4. He, at field between February 1, 1991 to February 18, 1991 while
being Garrison Engineer 571 Engr. Park when ordered to pur-
chase 713 chassis valued Rs 4.281 lacs, with intent to defraud
splitted the said purchase order by placing the supply order in
contravention to para 748 of Military Engineering Services Regu-
lations 1968 edition read with HQ Northern Command letter No.
D 42346/2/Policy/ll/EB dated 31st October, 1975 which prohib-
ited splitting of the purchase order to avoid the necessity of
obtaining the sanction of higher to authority with reference to the
.....
total amount of the said order.
5. He, at field, between February 1, 1991 to Fe~ruary 18, 1991,
E
while being GE 571 Engr. Park, when directed by Chief Engineer
Northern Command vide letter No. 42392/203/E3 RR dated
November 17, 1990 to procure 713 .chassis, without authority
purchased 213 timber planks of various sizes for which no sane-
tion existed.
F
6. He, at field, on 13 Feb. 1991, when Garrison Engineer 571 Engr.
Park with intent to defraud placed supply order No. 3027/169
IWS dt. 13th February, 1991 for "Steel door si:-:e 6' -10" double
leaf type each divided in the four parts for fixing of glass sheets
of size 12-3/4"x20" 4 Nos. and PGI sheets 27"x20" duly fixed and
G welded provided with two lower bolt 6" sliding door belt duly
fixed for looking arrangements. The frame of door made out of
angle iron 40x4x40x6mm thick door leaf duly fixed with three
hinges of 4" to each leaf with two bow handle of 9" size and leaf
made out of angle iron 32x32x6mm qty. 20 on Mis CDS Traders
H Malhard Road, Garhi Udhampur at the rate of Rs. 1650 each well
U.O.I. v. ,r.D. YADAV [PATIL, J.] 221
knowing that the rate approved by him was higher than the A
prevailing market rate of Rs. 1329 each.
7. He, at field, on 12th March, 1991, when Garrison Engineer, 571
Engr. Park with intent to defraud placed supply order No. 3027I
185/IWS dt 12th March, 1991 for "Rear corner column made out
of ISMB 6"x3"x10' long welded with base plate 10"x10"x10mm B,
thick having 4 holes of 7/8" dia and gusset plate 4"x4"x6"mm
. thick welded to base plate. Top plate 7"x7"x10mm thick having
2 holes of 9/10" dia welded at tope cleats of angle iron 50x50x6mm
9" long 4 Nos. having two holes of 9/16" dia welded to the
column at place sq. 10, on M/s. Indow Traders, Transport Yard, c
Udhampur, at the rate of each well knowing that the rate approved
by him was higher than the prevailing market rate of Rs. 1147.50
each Rs. 2680.
8. He, at field, on 13th March, 1991, when Garrison Engineer, 571
Engr. Park with intent to defraud placed the supply order No. D
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
lO"xlO"xlOmm thick having 4 holes of 7/8" dia and gusset plate
4"x4"x6mm thick welded to the base plate, top plate 7"x7"xl0mm
thick having 2 holes of 9/10" dia welded atop, 4 cleats of angle
E
iron 50x50x6 mm 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 Rs. 2680 each well knowing that the rate
approved by him was higher than the prevailing market rate of
Rs. 1147.5 each.
F
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 lO"xlO"mrn 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
G
to the base plate, top plate 7"x7"x10mm thick having two holes
of 9/10 welded at top. 4 cleats of angle iron 50x50x6mm6" Jong
having two holes of 9/1 O" dia welded to the column at places qty.
10, on M/s. Veekay Enterprises Dhar Road, Udhampur at the rate
of Rs. 2680 each well knowing that the rate approved by him was H
222 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A higher than the prevailing market rate of 1147.50 each.
10: He, at field, on 12th March, 1991, when Garrison Engineer, 571
Engr, Park with intent to defraud placed the supply order No.
30271183/IWS dated 12th March, 1991 for middle side made out
of at50x50x6mm welded to 6mm thick plate of size 14x7" 1 nos.
B at Joints, 6 cleats of Al 60x50x6mm 6" long welded attend to
each truss having 9/16" dia hole for fixing columns 6 nos. cleats
angle iron 50x50x6mm 4 "long having two holes 9x16" dia
welded to truss for fixing of purlin at places" qty. 10 on Mis Bansi
Dhar and Sone near Krishna Mandir, Adarsh Colony, Udhampur
c at the rate of Rs. 2770 each well knowing that the rate approved
by market rate of Rs. 2218.72 which was higher than the prevail-
ing market rate.
11. He, at field, on 1st Feb., 1991, when Garrison Engineer, 571 Engr.
Park with intent to defraud placed the supply order No. 3027/1481
D IWS dt. 1st Feb., 1991 for "timber plank partal llxll "x8-314"
· free from cracks qty. 60 on Mis Akbar Furniture House and Saw
Mills, Garhi, Udhampur, at the rate of Rs. 570 each well knowing
that the rate approved by him was higher than the prevailing "
market rate of Rs. 429 each.
E 12. He, at field, on 12th Feb., 1991, when Garrison Engineer, 571
Engr. Park with intent to defraud placed the supply order No.
3027/162/IWS dt. 12th Feb., 1991 for sal wood plants 3600mmx
225mmx100mm" qty. 25 on Mis. Sharma Saw Mills Ram Nagar
Cho wk, Udhampur at the rate of Rs. 1250 each well knowing that
F the rate approved by him was higher than the prevailing market
rate of Rs. 858 each.
,. A.K. Malhotra (respondent in CA 7808197) was tried on eleven charges.
He was not found guilty of charges 1, 2, 4 and 6 to 11. He was found guilty
of charges 3 and 5. He was sentenced to be cashiered and his five years service
G was forfeited for the purpose of pension. On revision he was not found guilty
of charges l, 6, 7, 8 and 11 but was found guilty of charges 2, 9 and 10 with
exceptions. Consequently there was revision in sentence also sentencing him
to be cashiered, to suffer rigorous imprisonment for six months and to forfeit
all the arrears of pay due to him at the time of his cashiering. Confirming
H authority while confirming the finding and sentence, had revised and remitted
U.0.1. v. P.D. YADAV [PATIL, J.] 223
the sentence of forfeiture of all arrears of pay and allowances and other public A
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 DOST HQ
ATNKK & G Area, improperly ordered dispensation of sample
testing from Compo.;ite Food Laboratory, of 41.098 tons of Tea B
(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
DOST HQ ATNKK and G Area, improperly ordered dispensation G:
of sample testing from Composite Food Laboratory or Defence
Research Laboratory (Material), Kanpur, of l~.85 IL of Cresoli
Liquid Black locally purchased from Mis. Gautam Chemicals,
Madras and M/s. Testo Chemicals, Madras, contrary to Para 1086
of ALC Training Volume II (Supplies) 1968. b
5. At Madras, between 24th October, 1987 and 14th December,
. 1987 when DOST HQ ATNKK & G Area, improperly and with-
out justification obtained approval for local purchase of 29 KL of
Cresoli Liquid Black from MG ASC HQ Southern Command,
when there was no emergent requirement of local purchase of that E
quantity of the said item.
9. At Madras, between 31 Oct. 1987 and 25 November, 1987 when
DDST HQ ATNKK & G Area, improperly allowed Supply Depot,
Madras, to split-up the sanctioned local purchase of 19.85 KL of
Cresoli Liquid Black valued at Rs. 2,67 ,975 .00 (Rupees two lakhs F
sixty seven thousand nine hundred seventy five only), in order to
bring the same within the financial powers of MG ASC, HQ
Southern Command, contrary to Rule 133 of Financial Regula-
tion Part I (Volume I), 1983, which prohibits such splitting-up.
G
.... 10 . At Madras_, between November 1987 and February 1988, When
DDST HQ ATNKK & G Area, with intent to defraud, directed
Supply Depot, Margao, to split-up the sandioned local purchase
of 86,190.800 Kgs: of Meat Tinned valued at Rs. 61,19,451.23
(Rupees sixty one lakhs nineteen thousand four hundred fifty one
and paise twenty three only), in order to bring the same within H
224 SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.
A the financial powers of MG ASC, HQ Southern Command.
We notice the relevant provisions of the Acts and Regulations :-
The Army Act, 1950
"71: Punishments awardable by courts-martial. - Punishments
B may be inflicted in respect of offences committed by persons subject
to this Act and convicted by courtsjmartial, ·according to the scale
following, that is to say,-
(a)
c (b)
(c)
(d)
(e)
D r•
(f) 'i...
(g)
(h) forfeiture of service for the purpose of increased pay, pen-
sion or any other prescribed purpose;
E
(i)
(j)
(k) forfeiture in the case. of a person sentenced to cashiering or
F dismissal from the service of all arrears of pay and allow-
ances and other public money due to him at the time of such
cashiering or dismissal;
(l)
G Pension Regulations for the Anny, 1961
"l. Unless otherwise provided, these Regulations shall apply to the
personnel of the Army and all claims to pension, gratuity or allowances
shall be regulated by the regulations in force at the time of an individu-
al's retirement, release, resignation, discharge, death etc., as the case
H may be."
U.0.1. v. P.D. YADAV [PATIL, J.] 225
"2-A Unless there be something repugnant in the subject of context, A
the terms defined in this Chapter are used in the regulations in the sense
here explained :-
(1) to (3) ......... .
(4) Pension shall include gratuity except when it is used in contradic- B
tion to term gratuity.
(5) to (7) ........... "
"3. The full rate of pension or gratuity provided for in these Regula-
tions shall not be granted unless the service rendered has been satis- C
factory. If the service has not been satisfactory, the competent author-
ity 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." D
"16. (a) When an officer who has to his credit the minimum period of •
qualifying service required to earn a pension, is cashiered or ciismissed
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 E
retired on the same date."
The Navy Act, 1957
"81. (1) The following punishments may be inflicted under this Act,
namely:- F
(a) .............. ..
(b) .............. ..
(c) dismissal with disgrace from the naval service; G
(d) ............... .
(e) dismissal from the naval service;
(f) to (I) .............. ..
H
226 SUPREME COURT REPORTS (2001] SUPP. 4 S.C.R.
A (m) forfeiture of pay, head money; bounty, salvage, prize money and
allowances· earned by, and all annuities, .pensions, gratuities,
medals and decorations granted to, the offender or of any one or
more of the above particulars; also in the case of desertion, of all
clothese and effects left by the deserter in the ship to which he
belongs;
B
(n) .............. ..
(2) .............. ..
The Navy (Pension) Regulations, 1964
c
"15; Officers dismissed, discharged, etc. - (1) No pension shall be
granted to an officer who is dismissed with disgrace from service.
(2) In the case of an officer who is dismissed otherwise than with
. disgrace from the service, the question whether any pension shall be
D granted and if so, the rate of such pension shall be decided by the
Central Government, provided that the pension, if granted shall not
exceed the rate which would have been admissible to him if he had
retired on the same date.
(3) ............. "
E
It is useful to look at the position of law emerging from various deci-
sions. The facts of the case·in Lt. Col. (T.S.) Harbans Singh Sandhu v. Union
of India & Ors., Writ Petition No. 553of1972 decided on November 22,.1978
were that a General Court Martial tried the petitioner and imposed a punish-
ment of cashiering under Section 71(d) of the Army"Act and no further pun-
ishment was imposed under Section 7l(h) of the Army Act for forfeiture of
service for the purpose of increased pay, pension or any othel'. prescribed
purpose: he applied for grant of pensionary benefits; the authorities did not
respond: hence, he filed writ petition seeking direction to the authorities for
granting gratuity and pension due'. Both the sides pointed to Regulation 16(a).
G From the records, it was found that no order had been passed under the said
Regulation. In the absence of passing any order under Section 16(a), the Court
directed the respondent to pay the sum due towards gratuity and pension. Under
Section 71(h) a punishment of forfeiture of service for the purpose of pension
could be passed but neither that punishment was imposed on the petitioner nor
H order was passed under Regulation 16(a) forfeiting his pensionary benefits. In
U;O.I. v. P.O. YADAV [PATIL, J.] 227
those circumstances, the Court gave direction as stated above. A
It is clear from the said judgment that the questions of law, whether
regulations being non-statutory could be enforced for denying pension; whether
those regulations were contrary to the provisions of the Act or Rules or whether
when punishment was not imposed under Sections 71(h) or (k), even then
pension could be forfeited under Regulation 16(a) that arise for consideration : B
in the present cases, were neither raised nor decided.
In the case of Major G.S. Sodhi v. Union of India, [1991] 2 SCC 371
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
.C
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 de-
cided; 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 D
been passed forfeiting pension under Regulation 16(a). No principle oflaw was
decided in the said cases. In this view, these two judgments do not support the
respondents. The Full Bench of the High Court itself in Malhotra's case has
said that in G.S. Sodhi's case, no legal issue was decided and, therefore, it
cannot be a precedent. The High Court in Yadav's case specifically referring
E
to the cases of Harbans Singh Sandhu and G.S. Sodhi held that they were not
applicable to support the case of the petitioner.
This Court in Major (Retired) Hari Chand Pahwa v. Union of India &
Am: [1995] Supp. 1 SCC 221 while dealing with the specific contention that
Pension Regulations have no statutory force and pensionary benefits could not F
be forfeited under Regulation 16(a), has in clear terms in para 5 stated that "We
do not agree with the second contention advanced by the learned counsel. The
provisions of Regulation 16(a) are clear. Even if it is assumed that the Pension
Regulations have no statutory force, we fail to understand how the provisions
of the said Regulations are contrary to the statutory provisions under the Act
or the Rules. The pension has been provided under these Regulations. It is not
G
disputed by the learned counsel that pension was granted to the appellant under
the said Regulations. The Regulations which provided for the grant of pension
can also provide for taking it away on justifiable grounds. A show-cause notice I
was issued to the appellant. His reply was considered and thereafter the Presi-
a
I
dent passed the order forfeiting the pension arid death-cum-retirement gratuity.
228 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A We see no infinnity in the order. The appeal is, therefore dismissed." We are
in respectful agreement with the view expressed in the aforementioned decision
that the Regulations, which provide for grant of pension, can also provide for
taking it away not arbitrarily but subject to satisfying the conditions incorpoi
rated in the Regulations. -I
B In Union of India & Ors. v. Brig. P.K. Dutta (Retd.), [1995] Supp. 2 SCC
29 while specifically dealing with the effect of order passed under Sections
71(h) and (k) and the order passed under Regulation 16(a) directly arising on
the contentions as are raised in the present cases held that clause (h) of Section
71 contemplates forfeiture of service for the purpose of increased pay, pension
C or any other prescribed purpose and is wholly different from Regulation 16(a).
It is further stated that a reading of both these provisions clearly brings out the
distinct fields occupied by them and this Court went on to say :-
"Regulation 16(a) contemplates a situation where an officer is cashiered,
dismissed or removed from service and provides how his pension is
·D to be dealt with. Whereas Section 71(h) provides the punishments
which can be awarded by the Court Martial. Section 71(h) contem-
plates a punishment awarded at the conclusion of the Court Martial
while Regulation 16(a) contemplates a stage subsequent to the award-
ing of punishment of Court-Martial and its confirmation. The nature
and content of both the impositions is altogether different and distinct.
E
So is the field occupied by clause (k) of Section 71 wholly distinct
from Regulatjon 16(a). We are, therefore, unable to see any inconsist-
ency between Section 71(h) and Regulation 16(a)."
In this judgment, a reference is made to the case of Major (Retd.) Hari ·
F 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 very 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).
G
Yet again in the case of Union of India & Ors. v. Lt Col. P.S. Bhargava,
(1997] 2 SCC 28 it is stated that Regulation 16(a) gives the President the power
either to forfeit or to reduce the rate of pension in the event of an officer b~ing
cashiered, dismissed or removed from the service. Reference is made to Regu-
H lation 4 to say that ~onduct of the officer must be good as a condition for the
U.0.1. v. P.D. YADAV [PATIL, J.] 229
grant of pension or allowance. Dealing with the contention that withholding the A
pension when the respondent had been Court Martialled and dismissed, would
amount to double jeopardy, this Court in Union of India & Ors. v. Subedar Ram
Narain & Ors., [1998] 8 SCC 52 did not find any merit in the contention and
held thus :-
"Section 71 of the Army Act provides for different types of punish- B
ments which could be inflicted in respect of an offence committed by
a person subject to the Army Act and convicted by courts martial. The
punishments are of varying degrees, from death as provided by Section
71(a) to stoppage of pay and allowance as provided by Section 71(h).
The punishment of forfeiture of pay and allowances as provided by c
Section 710) is of a lesser nature than that of dismissal from service
as provided by Section 71(e). When punishment under Section 71(j)
is imposed, no recourse can be had to Regulation 113(a), because the
said regulation applies only if an order of dismissal is passed against
the person concerned. In other words Section 71 U) and Regulation D
113(a) cannot apply at the same time. On the other hand, when the
punishment of dismissal is inflicted under Section 71 (e) the provisions
of Regulation l 13(a) become attracted. The result of punishment is
that the bene:(it of pension or gratuity which is given under the regu-
lation is taken away. The order of dismissal under the provisions of the
Army Act in the case of an employee like the respondent would make
E
him ineligible for pension or gratuity. For a person to be eligible to the
grant of pension or gratuity, it is imperative that he should not have
been dismissed from service. The dismissal under the provisions of the
Army Act is, therefore, a disqualification for getting pension or gra-
tuity." F
The High Court in the impugned judgments h. ,, held that Regulation
16(a) is not inconsistent with ~krtions 71(h) and (k) · ~·the Army Act and that
they cover different fields; ~" . Regulation J(;(a) <111J Rules 14(5) and 15
--- of the Army Rules operate in different fields. The High Court has upheld the
validity of Army Pension Regulation 16(a) and Navy Pension Regulation
15(2). The High Court also did not find that these Regulations were inconsist-
ent with or contrary to relevant provisions of the Act relating to punishment
G
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
230 SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.
A Court Martial did n'ot 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 consid-
eration before passing the order forfeiting pension fully or partly. The High
B
Court also 'held that provisions of Regulation 15(2) of the Navy Pension
Regulation are not ultra vires of the provisions of Sections 81, 82, 47 and 27
of the Navy Act aild that where the Court Martial has imposed a punishment
(like dismissal) which· does not entail forfeiture of pension, it is still open to
the competent authority under the Regulation 15(2) to forfeit a part or whole
c of the pension by following due procedure. With regard to the delay in passing
orders under the Pension Regulations, the High Court observed that the orders
should be passed within a reasonable period, preferably within six months of
cessation of service.' Of course, whether there was delay or not, in passing the
order forfeiting pension depends on the facts of each case. However, the High
D Court having regard to the facts of the cases did not consider the delay
unreasonable and, therefore, declined to quash the orders of forfeiting pension
merely on the ground of delay in passing them and rightly so in our opinion.
Section 71 of the Army Act provides for various kinds of punishments
which may be imposed for ?ffences committed by persons. subject to the Act
E· and convicted by Court Martial which may vary from death to stoppage of pay
and allowances. In terms of Army Pension.Regulation 16(a) and Navy Pension
Regulation 15(2), pension may be forfeited partly or fully subject to the
conditions mentioned therein. These Regulations are independent and the
authority to grant or forfeit pension is the President of India and the Central
Government respectively. As rightly found by the High Court, the said Regu-
F
lations are neither inconsistent with nor contrary to the provisions of the Army
Act or the Navy Act as the case may be. The said Regulations and the provi-
sions dealing with the punishments under the Acts cover different fields and
have different purposes to serve. Punishments are imposed after trial on the
basis of the misconduct proved. The Pension Regulations deal with the grant
G or refusal of pension depending on satisfactory qualifying service earne~ by
a person and depending on the nature of punishments imposed, mentioned in
the Regulations. The Regulations come into play at a stage subsequent to the
imposition of punishemnt. No doubt, pension is not a bounty but it is the
ear~ing of a person after satisfactory completion of qualifyi~g service and if
n9l otherwise disentitled. Under Section 7l(h}, a punishment of forfeiture of
H
U.O.l. v. P.D. YADAV [PATIL, J.] 231
service for the purpose of increased pay, pension or any other prescribed A
purpose, can be imposed. If forfeiture of service has the effect of reducing total
qualifying service required to earn pension, a person concerned is disentitled
for pension itself. 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 forfeit-
B
ing 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. c
· The argument that since no punishment was imposed under clause (k)
by the authorities, although it could have been done, then there 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
D
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 subsequent to retirement or
termination of service subject to satisfying certain conditions of satisfactory
qualifying service and if not otherwise disentitled for claiming pension. Firstly, E
clause (k) does not speak of pension as such; it speaks of all arrears, pay,
allowances and other public money due to a person. It cannot be said that on
the date. of cashiering or dismissal there could be any arrears of pension.
Section 73 of the Army Act enables the authorities to impose punishments in
combination. Merely because punishment is not imposed under clauses (h) or F
(k) of Section 71 and other punishments are imposed, it does not mean that the
President is deprived of his power and jurisdiction to pass order under Regu-
lation 16(a); so also the Central Government under Regulation 15(2) of the
Navy Pension Regulations taking note of the punishment imposed under Sec-
tion 81 of the Navy Act. In a case where punishment is imposed under Section
Sl(m) of the Navy Act forfeiting pension and/or gratuity, need for passing an G
order forfeiting pension under Regulation 15(2) of the Navy (Pension) Regu-
lations may not arise. But that does· not mean that in case of punishments
imposed, which are covered by Regulation 15 the Central Government is
deprived of its power to pass appropriate orders under the said Regulation,
when such power is specifically conferred on the Cetnral Government under H
232 SUPREME COURT REPORTS (2001] SUPP. 4 S.C.R.
A the very Regulations, which enables granting of pension and/or grantuity. It is
rather not possible· to accept the contention that a General Court Martial and
confirming authorities imposing punishments can debar the President or the
Central Government from passing orders as provided for specifically and
expressly under the Pension Regulations. · ~•
B A contention, though feebly, was advanced on behalf of some of the
respondents that forfeiture of pension in addition to the punishment imposed
under Section 71 of the Army Act amounted to double jeopardy. In our view,
this contention has no force. There is no question of prosecuting and punishing
a person twice for the same offence. Punishment is imposed under Section 71
c of the Army Act after trial by Court Martial. Passing an order under Regulation
16(a) in the matter of grant or forfeiture of pension comes thereafter and it is
related to satisfactory service. There is no merit in the contention that the said
Regulation is bad on the ground that 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
D 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
.
I
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
·E 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 COrt$tet curiae quod sit 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
F
cause. Doctrine of double jeopardy is a protection against prosecution twice for
the same offence. Under Articles 20-22 of the Indian Constitution, provisions
are made relating to personal liberty of citizens and others. Article 20(2)
expressly provides that "No one shall be prosecuted and punished for the same
offence more than once." Offences such as criminal breach of trust, misappro•
G priation, cheating, defamation etc., may give rise for prosecution on criminal
side and also for action in civil court/other forum for recovery of money by
way of damages etc., unless there is a bar created by law. In the proceedings
before General Court Martial, a person is. tried for an offence of misconduct
and whereas in passing order under Regulation 16(a) for forfeiting pension, a
person is not tried for the same offence of misconduct after the punishment is
H
U.0.1. v. P.D. YADAV [PATIL, J.] 233
imposed for a proved misconduct by General Court Martial resulting in A
cashiering, dismissing or removing from service. Only further action is taken
under Regulation 16(a) in relation to forfeiture of pension. Thus, punishing a
person under Secti"on 71 of the Army Act and making order under Regulation
16(a) are entirely different. Hence, there is no question of applying principle
of double jeopardy to the present cases.
B
Our discussion and reasoning with reference to scope and application of
Army Pension Regulation 16(a) will equally apply in relation to Navy Pension
Regulation 15(2).
It is to be noted that the punishment imposed on these respondents by c
Court Martial, as confirmed, have become final as the respondents have not
questioned their validity and correctness any further. The High Court having
rejected all other contentions raised by the respondents, partly allowed their
claim on the ground that the otherwise prior satisfactory services of the re-
spondents till the date of imposition of various punishments on them was not I
taken into consideration by the President or the Central Government, as the
D
case may be, in passing the orders under the Pension Regulations forfeiting
their pension. Mainly on this ground, the High Court directed the authorities
to reconsider the cases of the respondents and pass orders after issuing supple-
mentary show-cause notices. Consideration of prior satisfactory service of a
person till ~he date of imposition of punishment of cashiering or dismissal or E
removal from service cannot be read into Army Pension Regulation 16(a) or
Navy Pension Regulation 15(2). For exercise of power under the said Regu-
. lations, what is to be seen is 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 Gov-
ernment 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 satisfac-
tory 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 H
234 SUPREME COURT REPORTS [2001] .~UPP. 4 S.C.R.
A Regulations for the Army and Regulation 15(2) of the Navy (Pension) Regu-
lations. Under Regulation 2-A(4) of the Army Pension Regulations 'pension'
is defined as including gratuity except when it is used in contradiction to the
term gratuity. Hence the pension and gratuity, as defined, are included for
consideration. Regulation 3 shows that full rate of pension or gratuity shall not
be granted unless the service rendered has been satisfactory; if the service has
B
not been satisfactory the competent authority may reduce the rate of pension
or gratuity as it thinks proper. Thus, Regulation 3 and Regulation 16(a) of the
Army Pension Regulations deal with distinct and different situations. Further,
Regulation 4 states that future good conduct shall be an implied condition for
every grant of pension or allowances. Consideration of satisfactory service may
c be relevant in terms of Regulation 3 for granting pension in the normal course
after satisfactory qualifying service. But Regulation 16(a) being a distinct and
specific Regulation enables for forfeiture of pension, partly or fully, as a sequel
to imposition of a particular type of punishment. Regulation 16(a) in this regard
is self-contained. The High Court clearly committed an error in holding that
D previous satisfactory service of a person upto the date of Imposition of pun-
ishment should have be~n take~ into consideration for exercise of power under
Regulation 16(a) and it cannot be sustained. This being the position we are
a
unable to agree with the High Court that previous satisfactory service of a
person prior to the date of imposition of punishment should be considered for
the purpose of Regulation 16(a). Consequently the impugned judgments cannot
E be sustained.
What remains to be seen is whether the orders passed by the President
and the Central Government, as the case may be, forfeiting pension of the
respondents, were arbitrary, unreasonable or without application of mind.
F
It is the case of the appellants that before passing orders forfeiting
pension either under Army Pension Regulation 16(a) or Navy Pension Regu-
lation 15(2), show cause notices were issued to' the respondents; replies re-
ceived from the respondents and all the relevant factors appearing from the
records were considered. According to them, the orders passed in their discre-
G tion by the President or the Central Governinent, as the case may be, having
regard to all aspects, are justified and sustainable. We have perused copies of
the notings of the Ministry of Defence and 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
H keeping in view the relevant circumstances including the punishments imposed
U.O.I. v. P.D. YADAV [PATIL, J.] 235
on proved charges, the impugned orders appear to have been passed forfeiting A
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
B
given circumstances when the impugned orders forfeiting pension were passed
in the discretion of the authorities exercising the power avaik · 1e 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.
c
Having regard to the provisions and position of law, the discussion made
and for the reasons recorded hereinabove, we find merit in these appeals and
they deserve to be accepted. Hence, the impugned judgments of the High Court
are set aside and the appeals are allowed. No cost.
N.J. Appeals allowed.
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