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2007 DIGILAW 1233 (PAT)

Binod Kumar Singh v. Union Of India

2007-07-27

BARIN GHOSH

body2007
Judgment 1. After having served the Army for a period in excess of 15 years and few months a Courts Martial awarded the punishment of dismissal to the petitioner when he was serving as Sepoy (Sep/MT), i.e. as member of the rank and file. Service cf 15 years in Army entails pension. Petitioner having been denied pension has approached this Court by filing the present writ petition. 2. The learned counsel appearing in support of the writ petition, on the basis of the provisions contained in Section 71 of the Army Act, 1950 , has submitted that there is a distinction in between the punishment of dismissal from service and sentenced to dismissal. In order to highlight the arguments, he has drawn my attention to Clauses (e) & (k) of Section 71 of the said Act. Clause (e) provides dismissal from the service as one of the punishments awardable by Courts Martial in terms of the said Section of the said Act; whereas Clause (k) provides for forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal, a yet another punishment awardable by the Courts Martial in terms of the said Section of the said Act. 3. Admittedly, Section 71 of the said Act does not contemplate punishment by way of sentenced to dismissal as a punishment awardable by the Courts Martial. It was urged by the learned counsel for the petitioner that when a person is sentenced for dismissal, in such case forfeiture of all arrears of pay and allowances and other public money is awardable and in such case the pension cannot be interfered with. According to the provisions of the said Act, the Courts Martial awards a sentence and thereby punishes the delinquent. What punishments by such sentence can be awarded has been specified in Section 71 of the Act. In that one of the sentence that can be awarded is dismissal from the service. While a sentence of dismissal from the service can be awarded, on top of that forfeiture of all arrears of pay and allowances and other public money may also be awarded when a sentence for dismisal has been awarded. In that one of the sentence that can be awarded is dismissal from the service. While a sentence of dismissal from the service can be awarded, on top of that forfeiture of all arrears of pay and allowances and other public money may also be awarded when a sentence for dismisal has been awarded. The contention of the learned counsel for the petitioner that sentenced to dismissal and dismissal from the service are two different species of punishments is, therefore, not acceptable. 4. The above submission was made by the learned counsel for the petitioner only to get out from Clause 113(a) of the Army Pension Regulations, 1961. Regulation 112 is contained in Chapter III of the said Regulations. Regulation 112 provides that Chapter III shall apply to persons as that of the writ petitioner. Regulation 113(a) provides that an individual, who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of previous service. It further provides that 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. If the petitioner can establish that dismissal from the service and sentenced to dismissal are different species, he can avoid the provisions of Regulation 113(a) of the said Regulations and for that purpose, he had made the arguments as noted above and rejected. 5. Therefore, in terms of the provisions contained in Regulations 112 & 113(a) of the said Regulations, the petitioner having been dismissed is ineligible for pension or gratuity in respect of previous service but, at the same time, the President has discretion to grant service pension or gratuity provided the petitioner comes within exceptional cases. What would be considered as exceptional cases has not been indicated in the Regulations. Therefore, an exercise must be made to ascertain whether the case of the petitioner falls within exceptional cases. Admittedly that has not been done. If the case of the petitioner comes within exceptional cases, then the matter must be placed before the President of India for the purpose of enabling her to exercise her discretion one way or the other. The same has also not been done. 6. Admittedly that has not been done. If the case of the petitioner comes within exceptional cases, then the matter must be placed before the President of India for the purpose of enabling her to exercise her discretion one way or the other. The same has also not been done. 6. In those circumstances the writ petition is disposed of directing the respondents to consider whether the case of the petitioner falls within the expression "exceptional cases", as mentioned in Regulation 113(a) of the said Regulations and, if not, to inform the petitioner in writing within a period of two months from today why the same does not fall within exceptional cases. 7. In the event the case of the petitioner falls within the meaning of exceptional cases in terms of the provisions contained in the said Regulations, the respondents are directed to place the papers of the petitioner within three months from today before Her Excellency the President of India for the purpose of enabling Her Excellency to exercise discretion granted to her by the said Regulation. 8. The writ application is accordingly disposed of.