Delhi High Court
Ex. Major Kuldip Singh Dutta vs Union Of India & Others on 8 July, 2008
Author: A.K.Sikri
Unreportable
IN THE HIGH COURT OF DELHI AT NEW DELHI
+WP(C) No.4053/1992
Date of Decision:08.07.2008
#Ex. Major Kuldip Singh Dutta ....Petitioner
! Through: Nemo
Versus
$Union of India & Ors. .....Respondents
^ Through Nemo
CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE MANMOHAN SINGH
1.Whether Reporters of Local papers may be allowed to
see the Judgment?
2.To be referred to the Reporter or not?
3.Whether the judgment should be reported in the Digest?
A.K. SIKRI, J. (Oral)
:
1. The petitioner herein was commissioned in the Indian Army, before
independence in the Corps of Electrical and Mechanical Engineers
(EME) on 4.5.1947. He continued in the Indian Army after
independence as well and rose to the rank of Major. In the year 1968-
69 the petitioner was detailed as the Officer Commanding of XV Corps
Provost Unit (Military Police), which was deployed in operational/field
area of Jammu and Kashmir. His duties included enforcement of
military discipline, investigation of certain military incidents and traffic
control generally in the military area and during movement of troops
for military operations.
2. According to the petitioner, he performed his duties very dedicatedly
and ensured the same from his subordinates, which was not liked by
few of his subordinates. They made complaints against the petitioner
which, the petitioner alleges, were motivated. On the basis of those
complaints the petitioner was served with charge-sheet dated
11.8.1969. As many as 10 charges were leveled against him under
different provisions of the Army Act. Some of these charges were held
not proved whereas the General Court Martial (GCM) took place which
inquired into the aforesaid charges. As per the findings recorded by
the GCM, some of the charges were not proved whereas some chares
stood proved. On the basis of the said findings of the GCM, which
were accepted by the Convening Authority, the petitioner was
awarded the following punishments vide orders dated 27.9.1969:-
i) To forfeit five years service for the purpose of
promotion.
ii) To forfeit two years past service for the purpose of
increased pay and pension.
iii) To be severely reprimanded.
iv) To be put under stoppages of pay and allowances until
he has made good the sum of Rs.829.94 in respect of
833 liters of 70 MT gas, the property of the
Government.
3. We may note that one of the charges against the petitioner was
regarding embezzlement of the aforesaid property of the Government,
which was held proved in the GCM. The petitioner, at that time, had
completed more than 22 years of service. Qualifying service for the
purposes of pension is 20 years as prescribed in Para 25(a) of the
Pension Regulations Part I Army.
4. We may note at this stage that after the GCM recorded its findings
holding the petitioner guilty of certain charges, the petitioner has
preferred pre-confirmation petition under Section 164(1) of the Army
Act on 21.10.1969. According to the petitioner, this pre-confirmation
petition was not decided and instead the GOC XV Corps (Respondent
No.5 herein) passed orders dated 3.11.1969 whereby he ordered re-
assembly of the GCM. Pursuant to these orders the GCM re-assembled
on 4.11.1970. On the basis of this GCM, fresh punishment orders were
passed awarding the punishment of dismissal from service. The
petitioner made another petition thereagainst on 13.11.1969, which
was pre-confirmation petition under Section 164(1) of the Army Act.
According to the petitioner, even this petition was not decided. The
Confirming Authority, namely, the Chief of Army Staff passed orders
dated 26.3.1970 confirming the aforesaid punishment of dismissal
from service. These orders were promulgated on 31.3.1970. The
petitioner was given full pay upto 31.3.1970 and was released from
army service. However, as he was dismissed from service, no
pensionery benefits or gratuity was granted to him.
5. The petitioner did not challenge the aforesaid orders immediately.
After a gap of almost 14 years the petitioner submitted post-
confirmation petition under Section 164(2) of the Army Act on
25.1.1984. In this post-confirmation petition he challenged the re-
assembly of the GCM and sought setting aside of the court martial
proceedings on various grounds. He also requested for grant of
pensionery benefits. After the submission of the post-confirmation
petition, which was a belated action on the part of the petitioner, no
further action was taken by the petitioner even thereafter either
challenging the orders of dismissal by filing a petition in the court or
otherwise.
6. We may point out at this stage that even when an army officer is
dismissed from service his case for payment of pension can be
considered in view of the provisions of Regulation 16(a) of the Army
Act. Therefore, on the dismissal of the petitioner's service in the year
1970 the respondent should have considered the case of the petitioner
as to whether he is entitled to pensionery benefits or not. Only on
4.12.1988 the respondent served show cause notice to the petitioner
as to why his pensionery benefits be not forfeited. The petitioner
submitted his reply dated 11.1.1989 and in this reply he categorically
accepted his termination from service by making the following
averments:-
"I submit that I am not in any way challenging the
verdict of any GCM and subsequent confirmation
of its proceedings by the Confirming Authority. I
have asked for Mercy and requested for grant of
pension on humanitarian grounds."
7. After receiving the reply to the show cause notice, orders dated
3.9.1992 were passed by the respondent No.3 forfeiting the entire
pensionery benefits payable to the petitioner under Para 16(a) of
the Pension Regulations Part I.
8. Feeling aggrieved by these orders the petitioner filed the present
petition on 11.11.1992. In this petition the petitioner has prayed
for two reliefs, namely: (a) he wants setting aside of the GCM
proceedings and the resultant punishment of dismissal imposed
upon him; (b) orders dated 3.9.1992 forfeiting his pensionery
benefits is also challenged.
9. In so far as the first prayer is concerned, the petition not only
suffers from unexplained laches and delays, but is also barred by
principles of estoppels. As already pointed out above, though the
impugned orders giving the punishment of dismissal were passed
on 26.3.1970 and promulgated on 31.3.1970, the petitioner did
not challenge these orders immediately thereafter. He filed post-
confirmation petition only on 25.1.1984 and after filing this
petition the petitioner went into slumber once again. It is only
when his pension was forfeited by orders dated 3.9.1992, while
challenging these orders, the petitioner has also challenged the
GCM proceedings. In this manner the orders passed in 1970 is
challenged by filing petition in the year 1992.
10.Not only that the petitioner has not given any explanation for the
aforesaid gross delay as noted above, in his reply dated 11.1.1989
the petitioner specifically accepted the verdict of the GCM and
subsequent confirmation of its proceedings by the Confirming
Authority. After having accepted the same in his own words the
petitioner is precluded from challenging the GCM proceedings
and confirmation of these proceedings by the Confirming
Authority whereby he was given the punishment of dismissal.
11.The only question, in these circumstances which is to be
considered on merits, is as to whether the orders dated 3.9.1992
forfeiting the entire pensionery benefits payable to the petitioner
is valid or not.
12.We had heard the learned counsel for the petitioner for some
time, on this issue, on 3.7.2008 and felt that it would be proper to
peruse the original records. Case was, therefore, adjourned for
today to enable the respondents to produce the original records
wherein the case of the petitioner for grant of pension had been
rejected.
13.The matter was called out in the morning session at about 11:30
a.m. However, neither the counsel for the petitioner nor the
counsel for the respondent appeared in the morning session. In
the interest of justice we passed over this matter and took up
other regular matters. In the afternoon session at 2:30 p.m. this
matter was called out again. However, position remains the
same, namely, nobody either on behalf of the petitioner or the
respondent is present. In these circumstances, we have no option
but to consider this issue on the basis of the material on record.
14.As mentioned above, the petitioner was issued show cause notice
vide Memo dated 4.12.1988, inter alia, stating that the petitioner
was tried by a GCM on first, third, fourth and fifth charges under
the Army Act Section 52(b), and second, sixth to tenth charges
under Army Section 63. He was not found guilty of the first, third
and fourth charges but was held guilty of second, fifth, sixth,
seventh, eighth, nineth and tenth charges. Findings of the GCM
were confirmed by the Chief of Army Staff as the Confirming
Authority on 26.3.1970 and the petitioner was dismissed from
service. In view of the said dismissal in the said show cause notice
it was proposed to withhold whole or part of his pensionery
benefits and the petitioner was asked to show cause as to how he
is entitled to pensionery benefits. We may note at this stage that
the dismissal of an official from Army service as a result of GCM
proceeding normally entails forfeiture of the pension. However,
under Regulation 16(a) of the Pension Regulations for Army Part I
(1961) the President of India is conferred with the discretion to
grant the pension notwithstanding such dismissal orders.
Therefore, normally with the dismissal from service the official is
not entitled to pension unless the President in exercise of his
powers deems it proper to grant pension to such an employee. It
is, thus, the discretion vested in the President and there is not
vested right to receive such a pension in favour of the official who
served in the Army but was dismissed from service on certain
charges.
15.In order to see as to whether exercise in this behalf is properly
done by the respondents or not, we had directed the learned
counsel for the respondents to produce the original records.
However, nobody is present on behalf of the respondents. At the
same time, counsel for the petitioner has also remained absent
today. Therefore, we have no option but to reject the prayer of
the petitioner for grant of pension as well. This petition is
accordingly dismissed and the rule is discharge. However, there
shall be no orders as to costs.
(A.K. SIKRI)
JUDGE
July 08, 2008 (MANMOHAN SINGH)
HP. JUDGE
