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2015 DIGILAW 64 (JK)

Bhoj Singh v. Union of India

2015-03-02

B.L.BHAT, MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J.:- 1. Instant Letters Patent Appeal is directed against the Judgment passed by Learned Single Judge dated 7th March, 2014 where under the petition has been dismissed being without merit. Admitted position as has emerged is that the petitioner on 14th October, 1969 was enrolled as REN in 11 JAK, RIF of Indian Army and was medically discharged on 7th March, 1957. In accordance with the rules, pensioner benefits were sanctioned in his favour. 2. In connection with case FIR No. 07/1996 dated 12th January, 1996, he has been convicted and sentenced under Section 20 NDPS Act to undergo imprisonment of 10 years and fine of Rs. 1.00 lac (One lac). 3. Criminal Appeal No. 44/2012 has been filed challenging the conviction and sentence. After suspension of sentence, petitioner has been enlarged on bail vide order dated 19th February, 2013. 4. When the petitioner suffered conviction, the DPDO (AR) Jammu vide communication dated 08.10.2013 informed the Officer I/C, Legal Cell 16 Corps C/O 526 ASC Bn C/O 56 APO that the pension of the petitioner has been suspended by the said office w.e.f. 1st November, 2012 i.e. after the petitioner suffered the conviction. 5. Petitioner filed the writ petition praying therein that the respondents may be directed to release the pension as has been withheld since 2012. The stand of the respondents is that the petitioner has been convicted and sentenced to 10 years imprisonment, therefore, pension has been stopped, in opposition petitioner has projected that in terms of Regulation 8 of Pensionary regulations Army (Part-I), (2008), the competent authority was to issue the order in writing for withholding the pension or a part thereof. No such order has been passed. Since the sentence awarded has been suspended, therefore, respondents are bound to release the pension. 6. The respondents alongwith objections had filed R2, communication addressed by DPDO (AR) Jammu to Officer I/C Legal Cell to the effect that the pension of the petitioner has been suspended w.e.f. from 01.11.2012 after the conviction of the petitioner by the Court of Principal Session Judge, Jammu. On the basis of the said communication, learned Single Judge has observed that the order reference of which has been made in Annexure R2 has already been issued for suspension of pension of the petitioner. Said order is not called in question. Based on such observation has dismissed the writ petition. On the basis of the said communication, learned Single Judge has observed that the order reference of which has been made in Annexure R2 has already been issued for suspension of pension of the petitioner. Said order is not called in question. Based on such observation has dismissed the writ petition. 7. In the instant appeal, it has been specifically projected that Annexure-R2 is simply a communication, the order in writing which was required to be recorded by the respondent-authorities has not been passed. Relying on the Judgment of High Court of Madhya Pradesh rendered in the case of Dagdulal Sharma v. Union of India (UOI) (2005) 4 MPHT 323 submitted that the Annexure R2 is vague. It does not specify the period for which, the pension has been suspended. Same was taken note of in the order dated 07.07.2014, when learned CGSC on 04.09.2014 was confronted with the contention that no order of suspension of pension has been issued or conveyed to the appellant, he sought two weeks time to get the records. 8. Learned CGSC has produced the records which after perusal stand returned to him. He was fair enough to state that records do not contain any order of suspension to have been passed by the authority except for the communication i.e. R2. 9. R2 as observed hereinabove is a communication conveying that the pension has been suspended but there is no such order based on which the communication has been issued. 10. Regulation 8 read with Regulation 101 of Pension Regulations for the Army, Part 11 (2008) provides that when a pensioner is convicted of a crime by court of law or is guilty of grave misconduct, his pension shall be suspended by the Pension Disbursing Authority from the date of his imprisonment and the case reported to the Principal Controller of Defence Accounts (Pensions) for obtaining the order of the competent authority. No such order is shown to have been obtained nor is available on the records as produced. 11. Regulation No. 102 provides procedure for suspension of pension which enjoins Principal Controller of Defence Accounts (Pensions) to report the case to the competent authority, who on recommendation of the administration concerned has to issue order withholding the pension. Records do not disclose that the competent authority has passed any such order. 12. 11. Regulation No. 102 provides procedure for suspension of pension which enjoins Principal Controller of Defence Accounts (Pensions) to report the case to the competent authority, who on recommendation of the administration concerned has to issue order withholding the pension. Records do not disclose that the competent authority has passed any such order. 12. Regulation 104 provides that when a case is covered by Regulation 8 and 28 of Pension Regulations then before passing order regarding withholding, suspension or discontinuance of the whole or part of pension, the competent authority shall serve upon the pensioner, a notice specifying the action proposed to be taken and calling upon him to submit within 30 days of the receipt of the notice, such representation, as he may wish to make against, the proposal. Thereafter, the competent authority shall decide and issue orders in writing to withhold or suspend the whole of pension or part thereof and to indicate whether the order in case of pension shall apply permanently or for a specified period. As against such decision of the competent authority, appeal is also prescribed. 13. The procedure prescribed has been observed in breach. Simply a communication has been issued that the pension is stopped which communication has no legal sanctity unless same has its origin to the order passed in this behalf by the competent authority in accordance with Regulation No. 104. The conclusion drawn by the learned Single Judge that the order issued has not been challenged is not correct, order as noticed above has not been passed at all. When the order is not passed, there is no occasion to challenge the same. The judgment under challenge, as such, is not sustainable, same is set aside. The respondents are directed to consider the release of the pension in favour of the appellant. They shall also be at liberty, if they, so chose to have recourse to above referred regulations for suspension of the pension as may be warranted. Appeal succeeds, disposed of as above.