( 1 ) LEAVE granted,

( 2 ) HEARD learned Additional Solicitor General for the appellant Union of India and the learned counsel for the respondent. The appeal is preferred against the judgment of the Delhi High court allowing the writ petition filed by the respondent and directing the Union of India to disburse the retiral benefits such as pension, gratuity etc. as permissible under the Rules to him within one month from the date of the judgment. It was further directed that the respondents claim for payment in respect of encashment of 202 days annual leave shall be dealt with and decided in accordance with the Rules and the amount found payable shall be paid to him within the same period. The claim for interest on the said amounts was however rejected.

( 3 ) THE respondent joined the Army as a Commissioned Officer on 12/6/1960. He earned promotions in due course and retired in the rank of Brigadier on 31/12/1991 on attaining the age of superannuation. Since the retiral benefits due to him were not paid, he laid a claim therefor. While so, in January 1992, disciplinary proceedings were initiated against him. He was tried by a General court-Martial and awarded three years rigorous imprisonment and was also cashiered. The findings of the court-Martial were confirmed by the Chief of Army Staff and have become final. Since the retiral benefits were not paid to him, he approached the Delhi High court by way of Writ Petition No. 5414 of 1993. The High court held, following the decision of this court in Major G. S. Sodhi v. Union of India that cashiering does not by itself result in forfeiture of the retiral benefits and accordingly allowed the writ petition and gave the directions aforementioned.

( 4 ) THE learned Additional Solicitor General, Shri V. R. Reddy, submits that the Delhi High court was in error in giving the directions aforementioned in view of the pendency of the proceedings for forfeiture of retiral benefits as contemplated by Regulation 16 (a) of the Pension Regulations. This fact is, however, not referred to or mentioned in the judgment of the High court. In the ordinary course we would not have allowed the appellant to raise this plea but we find that in the counter-affidavit filed by the Union of India in the Delhi High court, this fact was clearly stated at two places. The following statements in the counter-affidavit bear it out:

"it is further submitted that encashment of leave is not permissible under the Rules because of his involvement in disciplinary proceedings. Copy of government of Indias letter dated 20/8/1990 attached as Annx. R-1. In the face of filing this Writ Petition, the provisional pension being paid to officer has not been stopped though it should have been stopped and action should have been initiated for exercising the discretion of the competent authority i. e. , the President. The action has been initiated. " (emphasis added) Again:

"it is further submitted that in case the disciplinary proceedings are completed/concluded, the operation of Regulation 3-B causes its operation and pension case of the petitioner has to be regulated under the provision of Regulation 16 (a) of PRA Pt-I, 1961 for issue of discretionary power of the President for grant or otherwise of pensionary benefits. The case has been initiated for the same. "

( 5 ) IT appears that this aspect was not specifically brought to the notice of the High court. Had it been so brought to its notice, we are sure the High court would not have made the directions in the manner complained of. But having regard to the crucial relevance of the said averment and in the facts and circumstances of the case, we are inclined to take note of the said statements in the counter-affidavit. Once this is so, it should follow that the directions as given by the High court become unsustainable in law. At the same time the proceedings initiated under Regulation 16 (a) have to be directed to be disposed of expeditiously. But before we make the final direction