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1995 Supreme(SC) 797
SUPREME COURT OF INDIA
B.P.Jeevan Reddy : M.K.Mukherjee
Union Of India
Versus
R.K.L.D.Azad
Case No. : .
Date of Decision : 8/9/95
Advocates Appeared: Chari T.V.S.N. : Katiyar Anil : Malhotra P.P. : Nayar Nikhil : Srivastava A.K.
A.K.SRIVASTAVA, ANIL KATIYAR, NIKHIL NAYAR, P.P.MALHOTRA, T.V.S.N.Chari
Headnote:
Army Act, 1950 - Section 123 – Retired from service – Claim of compensation - According to learned Judge order whereby respondent was to be subject to Act till conclusion of trial only entitled the General court-Martial to proceed with the trial which, otherwise, would have been impermissible and illegal from the date of respondents retirement - Such an order under Section 123 of Act learned Judge observed, could not give any statutory imprimatur to an order of dismissal passed against an officer of the Army after he had ceased to hold his post consequent upon his retirement – Held, Though the appellant had retired from the Army service but by operation of Ss. of Section 123 of Army Act he could be tried by GCM in respect of the offences committed 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 - Said provision clearly states that a retired person can be tried and punished for such offences as if he continued to be so subject – Court therefore do not agree with first contention raised by learned counsel for the appellant and reject the same. The GCM could award any of the punishments which could be awarded by 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 proceedings are initiated within the period of limitation provided under Ss. of Section 123 of Army Act - AS the facts of the case presented before us are on all fours with those in and as we respectfully agree with the above-quoted observations, the first question must be answered in the affirmative - Coming now to the second question we find that the grant of pension and gratuity to Junior Commissioned Officers, Other Ranks and Non Combatants is regulated by Ch. III of the Pension Regulations for the Army, 1961 Regulation 113 which comes under Section I of the above Ch. reads, after its amendment in 1967, as follows - An individual who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of all 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 he been discharged on the same date. (b) An individual who is discharged under the provisions of Army Act and the rules made there under remains eligible for pension or gratuity under these Regulations – Appeal allowed
Judgment
M.K. MUKHERJEE, J.
(1) SPECIAL leave granted.
(2) THE two short questions that are required to be answered in these 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 (ii) whether a Junior Commissioned Officer of the Indian Army who has to his credit the minimum period of qualifying service required 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.
(3) WHILE employed as a Junior Commissioned Officer in the Indian Army the respondent herein was placed under closed arrest on 7/8/1990 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 31/8/1990 on attaining the age of superannuation the Army authorities passed an order on 23/8/1990, extending a his subjection to the Act till completion of the trial. In the trial that commenced from 1/11/1990 and ended on 26/11/1990, the respondent was convicted and the sentences imposed for the conviction 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 promulgated on 15/1/1991.
(4) ASSAILING the above order of the General court-Martial the respondent filed a writ petition in the A. P. High court which was heard by a learned Single Judge. The learned Judge allowed the writ 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 to his retirement on 31/8/1990 the question of his dismissal from service could not have arisen. According to the learned Judge the order dated 23/8/1990, whereby the respondent 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 respondents 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 ceased to hold his post consequent upon his retirement.
(5) 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 confirmed. Aggrieved thereby these appeals have been filed at the instance of the Army authorities.
(6) RELYING upon the provisions of Ss. (1 and (2 of Section 123 of the Act which read as under:
"123. Liability of offender who ceases to be subject to Act.- (1 Where an offence under this Act had been committed by any 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 person shall be tried for an offence, unless his trial commences within a period of three years after he had ceased to be subject to this Act; and in computing such period, the time during which such person has avoided arrest by absconding 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 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 tha
