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2013 DIGILAW 408 (HP)

Rattani Devi v. State Of Himachal Pradesh

2013-05-09

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. Petitioner is widow of Sh. Kushal Singh. Sh. Kushal Singh was appointed as Junior Engineer in the Himachal Pradesh Public Works Department on 10.7.1961. A memorandum was served upon Sh. Kushal Singh under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. He was permitted to file reply within ten days to the memorandum. Sh. P.A. Sharma, Director of Departmental Inquiries, Himachal Pradesh was appointed as Inquiry Officer by the Superintendent Engineer on 20.5.1972 to inquire into the charges framed against him. The Inquiry Officer submitted his report during August, 1975. The Disciplinary Authority agreed with the inquiry report and held that charges 1, II, III and IV were proved against Sh. Khushal Singh, Junior Engineer. Thereafter, Sh. Kushal Singh was served with a notice by the Disciplinary Authority on 6.11.1975. Sh. Khushal Singh submitted the reply to the same on 9.12.1975. The Disciplinary Authority, i.e. Chief Engineer (South) after taking into consideration the representation furnished by the petitioner ordered his removal on 22.6.1976. Thereafter, Sh. Kushal Singh was appointed by way of fresh appointment as Junior Engineer in Investigation Division, H.P.P.W.D. Sundernagar on 24.7.1978. It is evident from Annexures R-1, II, III and IV filed with the supplementary affidavit on 27.4.2013 by Sh. R.K. Malhotra, Superintending Engineer, I.P.H. Circle, Sunderangar that the appointment of Kushal Singh was fresh as Junior Engineer in Investigation Division, H.P.P.W.D. Sundernagar. He was paid minimum basic pay by the employer. 2. Petitioner was charged with offence punishable under section 302 of the Indian Penal Code for murdering Sh. Khushal Singh. She was convicted by the Sessions Judge. The conviction was upheld by this Court. However, petitioner was acquitted by the Honble Supreme Court on 4.2.1993. Petitioner submitted an application seeking family pension on 4.2.1993, which was followed by representation dated 4.4.1994. She also served a legal notice on 5.9.1996, to which reply was filed by the competent authority on 3.3.1997. She again served legal notice on 2.4.2002. Petitioner has also placed on record Annexure P-7 whereby Superintending Engineer has sent certain information to the Public Information Officer-cum-Executive Engineer (SP) on 23.3.2007. 3. Mr. Sunil Awasthi has strenuously argued that the petitioner is entitled to family pension after her acquittal by the Honble Supreme Court on 4.2.1993. She again served legal notice on 2.4.2002. Petitioner has also placed on record Annexure P-7 whereby Superintending Engineer has sent certain information to the Public Information Officer-cum-Executive Engineer (SP) on 23.3.2007. 3. Mr. Sunil Awasthi has strenuously argued that the petitioner is entitled to family pension after her acquittal by the Honble Supreme Court on 4.2.1993. He has also argued that once the husband of the petitioner has been reinstated, the entire service of Khushal Singh with effect from 1961 till his death is to be taken into consideration. He has placed strong reliance on rule 25 of the Central Civil Services (Pension) Rules, 4. Mr. Pramod Thakur, learned Additional Advocate General has vehemently argued that petitioners husband was appointed as fresh Junior Engineer on 24.7.1978. He has worked only for one month and eight days. His appointment was temporary and he was paid minimum basic pay. Mr. Pramod Thakur has also contended that the services with effect from 10.7.1961 rendered by the petitioners husband stood forfeited after removal from service on 22.6.1976. He has further contended that since the petitioners husband has only worked for one month and 28 days, his case for family pension was not covered under rule 54 of the Central Civil Services (Pension) Rules, 1972. 5. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 6. What emerges from the facts enumerated herein above is that the petitioners husband was appointed as Junior Engineer on 10.7.1961. Disciplinary proceedings were initiated against him on 27.11.1971, which resulted into his removal on 22.6.1976. According to rule 24 of the Central Civil Services (Pension) Rules, 1972, dismissal or removal of a Government servant from a service or post entails forfeiture of his past service. It is true that Sh. Khushal Singh has been appointed as a Junior Engineer afresh on 24.7.1978 in Investigation Division, H.P.P.W.D. Sundernagar. As already noticed, as per Annexures I, II, III and IV, his appointment was not in continuity of service but it was a fresh appointment. 7. Mr. Sunil Awasthi has placed strong reliance on rule 25. Rule 25 would be applicable in case of dismissal, removal or compulsorily retirement of Government servants from service and are reinstated on appeal or review; in that eventuality their past service is to be counted as qualifying service. 7. Mr. Sunil Awasthi has placed strong reliance on rule 25. Rule 25 would be applicable in case of dismissal, removal or compulsorily retirement of Government servants from service and are reinstated on appeal or review; in that eventuality their past service is to be counted as qualifying service. There is no material placed on record by the petitioner that reinstatement of her husband was on the basis of orders passed in appeal or review by the competent authority. In view of this, petitioner cannot take advantage of rule 25. Since the petitioner has been removed from service with effect from 22.6.1976, his entire service stood forfeited in view of rule 24 of the Central Civil Services (Pension) Rules, 1972. 8. It will be apt at this stage to refer to F.R.S.R. 54. Petitioner has not completed one year service. Rule 25 has to be read with F.R.S.R. 54 and 54-A. Detailed procedure has been provided under rule 54 (1) the manner in which the person dismissed, removed or compulsorily retired is to be reinstated as a result of appeal or review. Rule 54-A provides that where the dismissal, removal or compulsory retirement of a Government servant is set aside by a court of law and the manner in which the Government servant is to be reinstated without holding any further inquiry. There is no order, as noticed above, issued under rule 54 of the F.R.S.R. qua the petitioners late husband. Petitioners husband has worked only for one month and 28 days, that too, in a temporary capacity and on minimum basic pay. In view of this, sub-rule (2) of rule 54 of the Central Civil Services (Pension) Rules, 1972 is also not attracted. 9. Mr. Sunil Awasthi has placed strong reliance on Major G.S. Sodhi v. Union of India, (1991) 2 SCC 371 whereby their Lordships of the Honble Supreme Court have held that the dismissed officer of the Army is entitled to entire pension, gratuity and provident fund under the rules. 10. However, their Lordships of the Honble Supreme Court in Union of India and others v. Brig. P.K. Dutta (Retd.), 1995 Supp (2) SCC 29 have held that clause (k) of section 71 of the Army Act, 1950 is wholly distinct from Regulation 16 (a). Their Lordships have further held that there is no inconsistency between section 71 (h) and Regulation 16 (a). P.K. Dutta (Retd.), 1995 Supp (2) SCC 29 have held that clause (k) of section 71 of the Army Act, 1950 is wholly distinct from Regulation 16 (a). Their Lordships have further held that there is no inconsistency between section 71 (h) and Regulation 16 (a). Regulation 16 (a) contemplates a situation where an officer is cashiered, dismissed or removed from services and provides how his pension is to be dealt with, whereas section 71 (h) provides the punishments which can be awarded by the Court-Martial. Their Lordships have held as under: "6. We are of the opinion that clause (h) of Section 71 contemplates forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose and is wholly different from Regulation 16(a), which reads thus: "16. (a) When an officer who has to his credit the minimum period of qualifying service required to earn pension, is cashiered or dismissed or removed from service, his pension, may at the discretion of the President, be forfeited or be granted at a rate not exceeding that for which he would have otherwise qualified had he retired on the same date." A. reading of both the provisions clearly brings out the distinct fields occupied by them. Regulation 16(a) contemplates a situation where an officer is cashiered, dismissed or removed from service and provides how his pension is to be dealt with. Whereas Section 71 (h) provides the punishments which can be awarded by the court-Martial, Section 71 (A) contemplates a punishment awarded at the conclusion of the court-Martial while Regulation 16(a) contemplates a stage subsequent to the awarding of punishment of court-Martial and its confirmation. The nature and content of both the impositions is altogether different and distinct. So is the field occupied by clause (k) of Section 71 wholly distinct from Regulation 16(a). We are, therefore, unable to see any inconsistency between Section 71(h) and Regulation 16(a). 7. It is true that the Pension Regulations are non-statutory in character. But as held by this court in Major (Reld.) Hari Chand Pahwa v. Union of India, the pensionary benefits are provided for and are payable only under those Regulations and can, therefore, be withheld or forfeited under and as provided by those very Regulations. The following holding from the said judgment makes the position clear: "WE do not agree even with the second contention advanced by the learned counsel. The following holding from the said judgment makes the position clear: "WE do not agree even with the second contention advanced by the learned counsel. The provisions of Regulation 16(a) are clear. Even if it is assumed that the Pension Regulations have no statutory force, we fail to understand how the provisions of the said Regulations are contrary to the statutory provisions under the Act or the Rules. The pension has been provided under these Regulations. It is not disputed by the learned counsel that the pension was granted to the appellant under the said Regulations. The regulations which provided for the grant of pension can also provide for taking it away on justifiable grounds. A show-cause notice was issued to the appellant. His reply was considered and thereafter the President passed the order forfeiting the pension and death-cum-retirement gratuity. We see no infirmity in the order." We may also mention that Army Rule 14 has absolutely no relevance on this aspect." 11. Their Lordships of the Honble Supreme Court in Union of India and others v. R.K.L.D. Azad, 1995 Supp (3) SCC 426 have held that a person dismissed from service under the provisions of Army Act, 1950 is not entitled to claim pension and gratuity on the basis of his previous service. Their Lordships have formulated following questions for determination: "(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." Their Lordships have held as under: "10. Coming now to the second question we find that the grant of pension and gratuity to Junior Commissioned Officers, other Ranks and Non-Combatants (Enrolled) is regulated by Chapter III of the Pension Regulations for the Army, 1961 (Part I). Regulation 113 which comes under Section 1 of the above Chapter reads after its amendment in 1967 as follows. Coming now to the second question we find that the grant of pension and gratuity to Junior Commissioned Officers, other Ranks and Non-Combatants (Enrolled) is regulated by Chapter III of the Pension Regulations for the Army, 1961 (Part I). Regulation 113 which comes under Section 1 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 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 thereunder remains eligible for pension or gratuity under these Regulations." 11. In view of the plain language of he 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 accordance with Section 73 read with Section 71 of the Act. The second question must, therefore be answered in the negative." 12. Their Lordships of the Honble Supreme Court in Ex-Subedar Joginder Singh (JC-116244) v. Union of India and others, (2001) 9 SCC 602 have held that where an Army person was dismissed for committing theft of Government property such a person is ineligible for pension or gratuity under the Regulation 113 (a). Their Lordships have held as under: "5. Under Regulation 113(a) he was ineligible for pension or gratuity in respect of previous service as he was dismissed from service under Section 52(a) of the Army Act. Unlike Regulation 16(a) passing of an order by the President for forfeiting the pensionary benefits is not required under this Regulation governing the respondent. But, however, in exceptional case the President has the discretion to grant pension, partly or fully, depending upon the circumstances of each case." 13. All these judgments have been considered by their Lordships of the Honble Supreme Court in Union of India and another v. P.D. Yadav and other connected matters, (2002) 1 SCC 405. Their Lordships have specifically considered (1991) 2 SCC 371 as under: "17. All these judgments have been considered by their Lordships of the Honble Supreme Court in Union of India and another v. P.D. Yadav and other connected matters, (2002) 1 SCC 405. Their Lordships have specifically considered (1991) 2 SCC 371 as under: "17. In the case of Major G.S. Sodhi v. Union of India, [1991] 2 SCC 371 also, relief was granted relying on the decision of Harbans Singh Sandhu mentioned above without deciding questions of law as is clear from para 3 of the judgment. This judgment proceeded on the ground that in Harbans Singh Sandhus case, a question of law that if no other penalty of forfeiting the pensionary benefits was passed under Section 71, pensionary benefits could not be withheld; but in Harbans Singh Sandhus case, this question was not decided; it was only noticed as a fact that no further penalty was imposed under Section 71(h) of the Act. The direction was given in that case as no order had been passed forfeiting pension under Regulation 16(a). No principle of law was decided in the said cases. In this view, these two judgments do not support the respondents. The Full Bench of the High Court itself in Malhotras case has said that in G.S. Sodhis case, no legal issue was decided and, therefore, it cannot be a precedent. The High Court in Yadavs case specifically referring to the cases of Harbans Singh Sandhu and G.S. Sodhi held that they were not applicable to support the case of the petitioner. 23. 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. 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 dis entitled. 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 dis entitled 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. 24. 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. 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 dis entitled 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 clauses (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 case 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. 25. 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. 25. 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 authorised 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 curiae 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, mis-appropriation, 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. 26. 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). 27. 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 cases 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." 14. Petitioners husband was removed from service on 22.6.1976. Petitioner has been acquitted by the Honble Supreme Court on 4.2.1993. Present petition has been filed on 29.5.2012. Consequently the impugned judgments cannot be sustained." 14. Petitioners husband was removed from service on 22.6.1976. Petitioner has been acquitted by the Honble Supreme Court on 4.2.1993. Present petition has been filed on 29.5.2012. The delay in filing the present petition has also not been explained satisfactorily by the petitioner after the accrual of the cause of action to her. Mere exchange of correspondence will not constitute sufficient case for condonation of delay. 15. Accordingly, in view of the observations and discussions made herein above, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.