Holding

A retired officer can be dismissed under the Army Act for an offence committed while in service, and such dismissal disqualifies him from pension or gratuity under Regulation 113, subject only to the President's discretionary power.

Summary

The respondent, a Junior Commissioned Officer in the Indian Army, was arrested in August 1990 and tried for an offence under Section 64(e) of the Army Act. Although he retired on superannuation on 31 August 1990, the Army extended his subjection to the Act until the trial concluded. He was convicted, sentenced to one year rigorous imprisonment and dismissed from service. A writ petition set aside the dismissal but upheld the conviction; the High Court affirmed that decision. On appeal, the Supreme Court held that a person can be dismissed under the Army Act even after retirement if the offence was committed while in service, and that a dismissed officer is ineligible for pension or gratuity under Regulation 113 of the 1961 Pension Regulations, though the President may exercise discretion to grant them. Consequently, the Army's appeals were allowed and the respondent's petition dismissed.

Issues considered

Whether a person who has retired upon superannuation can be dismissed from service under the Army Act for an offence committed while he was still subject to the Act.
Whether a Junior Commissioned Officer dismissed under the Army Act remains eligible for pension or gratuity under the Army's pension regulations.

Legislation cited

Army Act, 1950s. 123, s. 154, s. 64(3), s. 71, s. 73
Pension Regulations for the Army, 1961s. 113

Subjects

Army Actdismissal after retirementpension eligibilitygratuityJunior Commissioned Officermilitary lawSection 123Regulation 113superannuationGeneral Court Martial

Judgment

A UNION OF INDIA AND ORS.
V.

R.K.L.D. AZAD

AUGUST 9, 1995

B [B.P. JEEVAN REDDY AND M.K. MUKHERJEE, JJ.]

Army Act, 1950/Pension Regulations of the Army, 1961 (Part I)

Sections 71, 73, 123/Regulation 113-0fficer committing an offence-
C Subjected to Army Act even after attaining age of superannuation-Sub-
sequently dismissed from service-Whether justified-Held: Yes, Junior Com-
missioned Officer with eligibility to earn pension or gratui[JWhether
dismissal takes away the eligibili[JHeld: Yes.

The respondent, a Junior Commissioned Officer in the Indian Army
D was placed under closed arrest on August 7, 1980 pending his trial by a
General Court Martial for an offence under Section 64(3) of the Army Act.
Since the respondent was due to retire on August 31, 1990 on attaining the
age of superannuation, the Army authorities passed an order extending
his subjection to the Army Act till completion of the trial. The respondent
·...::-
was convicted and sentenced to rigorous imprisonment for one year and
E dismissal from service. After confirmation the order of conviction and
sentence was promulgated on January 15, 1991.

The respondent assailed the said order by filing a writ petition and
the Single Judge set aside the order of dismissal but upheld the conviction
F and sentence of one year rigorous imprisonment.

Both the contesting parties filed Letters Patent Appeals which were
dismissed by the High Court, against which the present appeals were
preferred by the Army authorities.

G Allowing the appeals, this Court

HELD : 1. A person who is subject to the Army Act, 1950 can be
dismissed from service for committing an offence under the Act even after
he had retired on attaining the age of superannuation. [603-G] ...,._

H, Major (Retd.) Hari Chand Pahwa v. Union of India & Anr., [1995]
602
U.0.1. v. R.K.L.D.AZAD [M.K. MUKHERJEE,J.] 603

Supp. 1 SCC 221, applied. A
2. The grant of pension and gratuity to Junior Commissioned Of-
ficers, other Ranks and Non-Combatants (Enrolled) is regulated by Chap-
ter III of the Pension Regulations for the Army, 1961 (Part I). Regulation
113 comes under Section I of the above Chapter. In view of the plain
language of the said regulation the respondent cannot lay any legal or B
legitimate claim for pension and gratuity on the basis of his previous
service as, admittedly, he stands dismissed in accordance with Section 73
read with Section 71 of the Act. [606-F; 607-B]

3. This judgment will not stand in the way of the respondent to make
a representation seeking exercise of the discretionary powers of the Presi-
c
dent under Regulation 113 to grant pension or gratuity. [607-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7107-
7108 of 1995.
D
From the Judgment and Order dated 4.4.93 of the Andhra Pradesh
High Court in W.A.Nos. 594 & 906 of 1991.

P.P. Malhotra, AK. Srivastava and Mrs. Anil Katiyar for the Appel-
lants.
E
Nikhil Nair and T.V.S.N. Chari for the Respondents.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. Special leave granted.

The two short questions that are required to be answered in these F
appeals are :-

(i) whether a person who is subject to the Army Act, 1950 ('Act' for
short) can be dismissed from service for committing an offence under the
Act even after he had retired on attaining the age of superannuation? and G
(ii) whether a Junior Commissioned Officer of the Indian Army who
has to his credit the minimum period of qualifying service require,d to earn
a pension or gratuity is eligible for the same in case he is dismissed from
service under the provisions of the Act? The questions arise in the wake
of the following undisputed facts. H
604 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A While employed as a Junior Commissioned Officer in the Indian
Army the respondent herein was placed under closed arrest on August 7,
1990 pending his trial by a General Court Martial for an offence under
Section 64(e) of the Act. Since the respondent was due to retire on August
31, 1990. on attaining the age of superannuation the Army authorities
passed an order on August 23, 1990, extending his subjection to the Act
B till completion of the trial. In the trial that commenced from November 1,
1990 and ended on November 26, 1990, the respondent was convicted and -
the sentenced imposed for the convietion were rigorous imprisonment for
one year and dismissal from service. After due confirmation in accordance
with Section 154 of the Act the order of conviction and sentence was
C promulgated on January 15, 1991.

Assailing the above order of the General Court Martial; the respon-
dent filed a writ petition in the Andhra Pradesh High Court which was
heard by a learned Single Judge. The learned Judge allowed the writ
D petition in part by setting aside the order of dismissal of the respondent,
but upholding his conviction and sentence of rigorous imprisonment for
one year. The reason which weighed with the learned Judge in setting aside
the dismissal was that consequent his retirement on August 31, 1990 the
question of his dismissal from service could not have arisen. According to
the learned Judge the order dated August 23, 1990, whereby the respon-
E dent was to be subject to the Act till conclusion of the trial, only entitled
the General Court Martial to proceed with the trial which, otherwise,
would have been impermissible and illegal from the date of the
respondent's retirement. Such an order under Section 123 of the Act, the
learned judge observed, could not give any statutory imprimatur to an
order of dismissal passed against an officer of the Army after he had
F ceased to hold his post consequent upon his retirement.

As success of either of the contesting parties in the writ petition was
only partial, both preferred Letters Patent Appeals in the High Court but
they were dismissed and the order of the learned Single Judge was con-
G firmed. Aggrieved thereby these appeals have been filed at the instance of
the Army authorities.

Relying upon the provisions of sub-sections (1) and (2) of Section
123 of the Act which read as under :

H "123 Liability of offender who ceases to be subject to Act -
U.0.1. v. R.K.L.D. AZAD [M.K. MUKHERJEE, J.] 605

(1) Where an offence under this Act had been committed by any A
person while subject to this Act, and he has ceased to be so subject,
he may be taken into and kept in military custody, and tried and
punished for such offence as if he continued to be so subject.

(2) No such persons shall be tried for an offence, unless his trial
commences within a period of three years after he had ceased to B
be subject to this Act and in computing such period, the time
during which su;;h person has avoided arrest by absc;onding or
concealing himself or where the institution of the proceeding in
respect of the offence has been stayed by an injunction or order,
the period of the continuance of the injunction or order, the day C
on which it was issued or made, and the day on which it was
withdrawn, shall be excluded."

it was contended on behalf of the appellants that a plain reading thereof
made it abundantly clear that notwithstanding the fact that the respondent
had ceased to be subject to the Act consequent upon his retirement, he D
could be tried for the offence under Section 64(e) of the Act, as it was
committed before his retirement, and punished for the same in view of the
deemed extension of his subjection to the Act under Section 123 of the
Act. It was next contended that both the trial, and the punishment of
dismissal that followed, were legal and valid as the former commenced E
within the period stipulated under sub-section (2) of Section 123 and the
latter could be combined with the sentence of imprisonment imposed upon
the respondent in view of Section 73 of the Act. In support of their
contention the appellant relied upon Major (Retd.) Hari Chand Pahwa v.
Union of India & Anr., [1995] Supp. 1 SCC 221.
F
While repudiating the above contention of the appellants by adopting
the reasoning of the learned single .Judge in this regard, as confirmed, by
the Division Bench in the Letters Patent Appeal, the learned counsel for
the respondent submitted that in case it was held that the order of dismissal
of the respondent was legally sustainable still he could not be deprived of G
his pension and gratuity in the absence of any express embargo to that
effect in the dismissal order.
.
In the case of Maj. (Retd.) Hari Chand Pahwa (supra) this Court
while repelling the contention raised on behalf of the appellant therein that
he could only be awarded a punishment of imprisonment after conviction H
606 SUPREME COURT REPORTS (1995)SUPP. 2 S.C.R.

A but not also of being cashiered from the Army (which was imposed upon
the appellant therein) because he had earlier retired this Court observed:

"Though the appellant had retired from the Army service but by
operation of sub-section (1) of Section 123 of the Army Act, he
could be tried by the GCM in respect of the offences committed
B by him during the period of his actual service and could be
committed and punished. in the same manner who was subject to
the Army Act could be tried and punished..
The said provision
/

clearly states that a retired person can be tried and punisned for
such offences as if he continued to be so subject. We, therefore,
c do not agree with the first contention raised by the learned counsel
for the appellant and reject the same. The GCM could award any
of the punishments which could be awarded by the said court under
law including to be ·cashiered from the Army. The provisions of
Section 123 make no difference between an officer who is still in
service and who was retired from service provided the GCM
D proceedings are initiated within the period of limitation provided
under sub-section (2) of Section 123 of the Army Act."

As the facts of the case presented before us are on all fours with
those in Hari Chand Pahwa (supra) and as we respectfully agree with the
E above quoted observations, the first question must be answered in the
affirmative.

Coming now to the second question we find that th~ grant of pension
and gratuity to Junior Commissioned Officers, other Ranks and Non-Com-
F batants (Enrolled) is regulated by Chapter III of the Pension Regulations
for the Army, 1961 (Part I). Regulation 113 which comes under Section I
of the above Chapter reads after its amendment_ in 1967, as follows:

"113 (a) An individual who is dismissed under the provisions of
the Army Act, is ineligible for pension or gratuity in respect of all
G previous service.

In exceptional cases, however, he may, at the discretion of the
President be granted service pension or gratuity at a rate not
exceeding that for which he would have otherwise qualified had
H he been discharged on the same date.
U.0.1. v. R.KL.D. AZAD [M.K. MUKHERJEE, J.] 607

(b) An individual who is discharged under the provisions of Army A
Act and the rules made thereunder remains eligible for pension
or gratuity under these Regulations."

In view of the plain language of the above regulation the respondent
cannot lay any legal or legitimate claim for pension and gratuity on the
basis of his previous service as, admittedly, he stands· dismissed in accord- B
ance with Section 73 read with Section 71 of the Act. The second question
must, therefore, be answered in the negative.

On the conclusions as above these appeals are allowed. The im-
pugned judgments of the High Court so far as they held that the dismissal C
of the respondent was legally unsustainable are hereby set aside and the
writ petition filed by the respondent is dismissed. There will be no order
as to costs.

Before we part with this record we make it clear that this judgment
of ours will not stand in the way of the respondent to make a representation D
seeking exercise of the discretionary powers of the President under Regula-
tion 113 to grant pension or gratuity.

G.N. Appeals allowed.

..