2001 Supreme(SC) 1447

2001(7) Supreme 565
Supreme Court of India
(From Delhi High Court)
B.N. Kirpal, Shivaraj V. Patil and P. Venkatarama Reddi, JJ.
Union of India & Anr. —Appellants
versus
P.D. Yadav —Respondent
Civil Appeal No. 7805 of 1997
With
C.A. Nos. 7806, 7807, 7808 of 1997
Decided on 16-10-2001
Counsel for the Parties :
For the Appearing Parties : Mukul Rohtagi, Additional Solicitor General, M.N. Krishnamani, Ranjit Kumar, Sr. Advocates, Ms. Indra Sawhney, Hemant Sharma, Ms. Smita Inna, B.V. Balaram Das, C. Radha Krishna, Ms. Anil Katiyar, Arvind Kumar Sharma, Avijit Bhattacharjee, and K.S. Bhati, Advocates (NP), Ms. Kanwaljit Kochhar, S.C. Paul, Gurmeet Singh, Ms. Sonal Mahajan, J.D. Jain, Ashok Kumar Sharma Harish Uppal, Uday Umesh Lalit, Jadev Singh Manhas, Seeraj Bagga and Ms. Shureshtha Bagga, Advocates.

Very Important Point
High Court has read something more in Regulation 16(a) of Pension Regulations for the Army 1961 and Regulation 15(2) of the Navy (Pension) Regulations, 1964 in insisting for considering prior satisfactory service of a person upto the date of imposition of punishment, of forfeiture pension of the respondents which is not required by the very Regulations.

Headnote:(i) The Army Act, 1950—Section 71(h) and (k)—Punishment awardable by court-martial—Pension Regulations for the Army, 1961—Regulation 16(a)—Discretion of President of India to forfeit pension in certain cases—Army Rules—Rules 14(5) and 15—The Navy Act, 1957—Section 81(c)(e)(m)—Punishment to be inflicted—The Navy (Pension) Regulations, 1964—Regulation 15(1) and 15(2)—No pension when dismissed with disgrace etc.—High Court holding that Regulations are not inconsistent with Act or Rules—Whether correct? (Yes)—High Court also held the Regulation 16(a) and 15(2) to be valid—Whether correct? (Yes).

       Held : The High Court in the impugned judgments has held that Regulation 16(a) is not inconsistent with Section 71(h) and (k) of the Army Act and that they cover different fields; so also Regulation 16(a) and 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 inconsistent with or contrary to relevant provisions of the Act relating to punishment referred to in the judgment. We approve these conclusions of the High Court. (Para 22)

       Held further : Section 71 of the Army Act provides for various kinds of punishments which may be imposed for offences committed by persons subject to the Act 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 Regulations 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 provisions 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 or refusal of pension depending on satisfactory qualifying service earned 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 punishment. No doubt, pension is not a bounty but it is the earning of a person after satisfactory completion of qualifying service and if not otherwise disentitled. Under Section 71(h), a punishment of forfeiture of service for the purpose of increased pay, pension or any other prescribed 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 forfeiting 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. (Para 23)

       (ii) Navy (Pension) Regulations, 1964—Regulation 15(2)—The Navy Act, 1957—Sections 27, 47, 81, 82—Punishment in Regulation 15(2) whether ultra vires Sections 81, 82, 47 and 27 of the Act—High Court holding No —Result forfeiture of pension under Regulation 15(2) can be inflicted by following due procedure within a reasonable time—Order of forfeiture of pension—Whether be quashed on ground of delay alone? (No)—High Court upheld on this point.

       Held : The High 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 and 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 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 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. (Para 22)

       (iii) The Army Act, 1950—Section 71(k)—Punishment under—Not awarded by court-martial although it could have been done—Argument in such a case there is no warrant to pass an order forfeiting pension under the Regulations in respect of same offence—Whether tenable? (No).

       Held : 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 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, 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 clause (h) or (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 Regulation 16(a); so also the Central Government under Regulation 15(2) of the Navy Pension Regulations taking note of the punishment imposed under Section 81 of the Navy Act. In a case where punishment is imposed under Section 81(m) of the Navy Act forfeiting pension and/or gratuity, need for passing an order forfeiting pension under Regulation 15(2) of the Navy (Pension) Regulations may not arise. But that does not mean that in cases 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 Central Government under the very Regulations, which enables granting of pension and/or gratuity. 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. (Para 24)

       (iv) The Army Act, 1957—Section 71—Punishment under—Pension Regulations for the Army 1961—Regulation 16(a)—Forfeiture of pension under—Whether forfeiture of pension under Regulation 16(a) in addition to punishment under Section 71 of the Act amounts to double jeopardy ? (No).

       Held : 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 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 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 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 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 constet curial 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 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, misappropriation, 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 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. Thus, punishing a person under Section 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. (Para 25)

       (v) The Army Act, 1950—Section 71—Pension Regulations for the Army, 1961—Regulation 16(a)—Supreme Court’s discussion on its scope and application—Whether will apply equally in relation to Navy (Pension) Regulation 15(21)? (Yes).

       Held : 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). (Para 26)

       (vi) Pension Regulations for the Army, 1961—Regulation 16(a)—Discretion of President of India to forfeit pension in certain cases—The Navy (Pensions) Regulations, 1964—Regulation 15(2)—Punishment about stopping pension—High Court quashing the impugned orders in the four cases forfeiting pension on the ground that prior satisfactory service of the four respondents was not taken into consideration and remanded the cases—Whether sustainable in law? (No)—Whether order passed by President or Central Govt. in forfeiting pension arbitrary? (No)—Result—Appeals allowed.

       Held : It is to be noted that the punishment imposed on these respondents by 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 respondents till the date of imposition of various punishments on them was not taken into consideration by the President or the Central Government, as the 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 supplementary show-cause notices. Consideration of prior satisfactory service of a person till the date of imposition of punishment of cashiering or dismissal or 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 Regulations, 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 Government 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 satisfactory 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 case 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 Regulations for the Army and Regulation 15(2) of the Navy (Pension) Regulations. 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 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 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 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) and it cannot be sustained. This being the position we are unable to agree with the High Court that a 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 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. It is the case of the appellants that before passing orders forfeiting pension either under Army Pension Regulation 16(a) or Navy Pension Regulation 15(2), show cause notices were issued to the respondents; replies received from the respondents and all the relevant factors appearing from the records were considered. According to them, the orders passed in their discretion by the President or the Central Government, 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 keeping in view the relevant circumstances including the punishments imposed on proved charges, the impugned orders appear to have been passed forfeiting 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 given circumstances when the impugned orders forfeiting pension were passed in the discretion of the authorities exercising the power available 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. (Paras 27 to 29)

       Held finally : 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 costs. (Para 30)