Madhya Pradesh High Court
Ex. Nk. Surya Bhan Prasad vs Union Of India on 2 January, 2024
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 2 nd OF JANUARY, 2024
WRIT PETITION No. 29399 of 2023
BETWEEN:-
EX. NK. SURYA BHAN PRASAD S/O LATE SHRI JAGDISH
PRASAD TIWARI, AGED ABOUT 82 YEARS,
OCCUPATION: EX. SERVICEMEN R/O VILLAGE
BADHAURA DISTRICT SIDHI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ROHIT SOHGAURA - ADVOCATE)
AND
1. UNION OF INDIA THROUGH SECRETARY
MINISTRY OF DEFENCE SOUTH BLOCK NEW
DELHI.
2. SENIOR RECORD OFFICER TOPKHANA
ABHILEKH, ARTILLERY RECORDS NASIK ROAD
CAMP, PIN 908802 C/O 56 APO.
.....RESPONDENTS
(BY MS. KANAK GAHARWAR - ADVOCATE)
This petition coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
Challenge is made to the order dated 21.03.2022 passed by the learned
Armed Forces Tribunal, Regional Bench, Jabalpur in O.A.No.80 of 2021
whereby the prayer for release of pension has been rejected.
2. It is the case of the petitioner that he was recruited in the Indian Army in
the Regiment of Artillery as a soldier on 14.11.1961. After completion of 17
years of dedicated service to the Nation, he was discharged from service on
31.05.1977 on extreme compassionate grounds after fulfilling the conditions of
enrollment under Item III (i) of Rule 13(3) of the Army Rules, 1954. The
petitioner was granted pension of the rank of Naik @ Rs.93/- per month plus
dearness allowance in Group 'D' vide order dated 02.06.1977 which was
revised from time to time. On 19.05.1980, the petitioner was found involved in a
criminal case registered at Crime No.61 of 1980 for offences under Section 302
of Indian Penal Code at Police Station Churhat, District Sidhi (M.P.). A
Sessions Trial No.38 of 1980 was conducted and vide judgment of conviction
dated 28.03.1981 he was sentenced to rigorous imprisonment for life with fine
of Rs.300/- and in default further rigorous imprisonment for two years. The
criminal appeal was filed being Criminal Appeal No.472 of 1981 which was
dismissed vide order dated 13.10.1984. Thereafter, he preferred an application
under Section 4 of the Madhya Pradesh Prisoner's Release on Probation Act,
1954 before the Competent Authority and therefore, due to some delay in
disposing off the matter by the Competent Authority, the petitioner approached
the Hon'ble Supreme Court and vide order dated 13.05.1985, it was directed
that the Competent Authority should consider the case of the petitioner within
three months failing which the petitioner would be released on bail. Since the
application filed by the petitioner under Section 4 of the Madhya Pradesh
Prisoner's Release on Probation Act, 1954 was not considered within the time
frame as granted by the Hon'ble Supreme Court, the petitioner was released
from the Central Jail, Rewa on 01.10.1985. Thereafter, the petitioner
approached the respondents Authorities for restoration of his service pension.
The District Sainik Welfare Office vide its communication dated 10.10.2013 has
collected all the records of the petitioner but vide communication dated
25.10.2013, it was observed that if a prisoner is sentenced for imprisonment on
a criminal case, his pension shall be suspended from the date of his
imprisonment. Thereafter, he preferred Misc. Application No.MA/09(J)/2017
before the learned Armed Forces Tribunal, Regional Bench, Jabalpur praying
for quashment of the order dated 25.10.2013. The same is finally decided vide
impugned order dated 21.03.2022 and the learned Armed Forces Tribunal was
pleased to dismiss the Original Application filed by the petitioner.
3. It is the case of the petitioner that the learned Armed Forces Tribunal has
failed to appreciate the communication dated 25.10.2013 which was under
challenge. The aforesaid communication was passed with reference to para
82(B) of the Pension Regulations for the Army, 1961 (Part II) denying pension
to the petitioner. The learned Armed Forces Tribunal has committed an error in
exceeding its jurisdiction. It was only required to consider the provisions under
which the said impugned order dated 25.10.2013 was passed. It is submitted
that 82 (B) deals with restoration of pension withheld and the language of the
provisions clearly says that the regulation shall only be taken on his application
after release, therefore, the word 'release' has to be taken note of by the learned
Tribunal. The learned Tribunal has misunderstood the regulation as far as
release is concerned and equated the same with the word 'acquittal'. The same
is not the language which has been used in the provision. The provision has to
be read as it is. There is huge amount of difference between the word 'release'
or 'acquittal'. If it is the intention of the legislation the word 'acquittal' should be
used in the provision and the word 'release' should not have been inserted.
4. It is contended that similar issue has been dealt with by the learned Armed
Forces Tribunal, Chandigarh in O.A.No.159 of 2013 (Chander Singh Vs.
Union of India and others) wherein considering the provisions of Section
82(B) of the Regulations, the pension was restored after release. In the present
case also the petitioner has been released in pursuance to the order passed by
the Hon'ble Supreme Court on 01.10.1985. Thereafter, he approached the
authorities for restoration of his pension. The learned Tribunal committed an
error in appreciating the word 'release' with that of 'acquittal'. Counsel appearing
for the petitioner has placed heavy reliance upon Section 12 of the Probation of
Offenders Act which deals with removal of disqualification attaching to
conviction. Therefore, the present petition has been filed.
5. Per contra, counsel appearing for the respondents has supported the
impugned order and has contended therein that the learned Tribunal has passed
a well reasoned and a justified order. They have categorically distinguished the
judgment passed in the case of Chander Singh (supra) placing reliance upon
the judgment passed by the Hon'ble Supreme Court in case of Sushil Kumar
Singhal Vs. Regional Manager, Punjab National Bank reported in (2010)
8 SCC 573. It is contended by her that the learned Tribunal in the case of
Chander Singh (supra) has failed to take note of the judgment passed by the
Hon'ble Supreme Court as far as release on probation and acquittal is
concerned. It is argued that the conviction of a person amounts to a
disqualification whereas release of a prisoner extending the benefit of Probation
of Offenders Act will amount to suspending his sentence but the conviction
continues and amounts to disqualification. That has been taken note of by the
learned Tribunal and it was held that until and unless, the petitioner is being
acquitted, the disqualification continues and he is not entitled for restoration of
his pension and the original application was rightly dismissed. She has prayed
for dismissal of the petition.
6. Heard learned counsels for the parties and perused the record.
7. The only question which arises for consideration before this Court is
whether a convict after his release on probation is entitled to get benefit of
restoration of his pension in view of provisions of Section 82(B) of the Pension
Regulations for the Army, 1961 (Part-II).
8. The provisions of 82(b) are relevant which reads as under :-
"82(b) Restoration of Pension withheld - A pension withheld in
whole or in part may be restored in full or in part by the competent
authority in consultation with the State Government or
Administration concerned in political cases and with the Controller
of Defence Accounts (Pensions) and the civil authorities, if
necessary, in other cases. In the case of a pensioner undergoing
imprisonment, any action under this Regulation shall only be taken
on his application after release but in no case, shall pension be
sanctioned for the period of imprisonment in jail for a serious
crime."
9. The language which has been used in the aforesaid regulations deals with
the word 'release' but the word 'release' has to be read as if the convicted
person has been released on his acquittal not by extending the benefit of
Probation of Offenders Act. The Hon'ble Supreme Court in the case of Sushil
Kumar (supra) has held as under :-
"18. In view of the above, the law on the issue can be summarised to
the effect that the conviction of an employee in an offence permits
the disciplinary authority to initiate disciplinary proceedings
against the employee or to take appropriate steps for his
dismissal/removal only on the basis of his conviction. The word
"disqualification" contained in Section 12 of the 1958 Act refers to
a disqualification provided in other statutes, as explained by this
Court in the abovereferred cases, and the employee cannot claim a
right to continue in service merely on the ground that he had been
given the benefit of probation under the 1958 Act."
10. The Hon'ble Supreme Court further considered the similar issue in the
case of Shankar Das Vs. Union of India reported in (1985) 2 SCC 358 and
has held as under :-
"28. In view of the above, we reach the conclusion that once a
criminal court grants delinquent employee the benefit of the 1958
Act, its order does not have any bearing so far as the service of
such employee is concerned. The word "disqualification" in Section
12 of the 1958 Act provides that such a person shall not stand
disqualified for the purposes of other Acts like the Representation
of the People Act, 1950 etc. The conviction in a criminal case is one
part of the case and release on probation is another. Therefore,
grant of benefit of the provisions of the 1958 Act, only enables the
delinquent not to undergo the sentence on showing his good
conduct during the period of probation. In case, after being
released, the delinquent commits another offence, benefit of the
1958 Act gets terminated and the delinquent can be made liable to
undergo the sentence. Therefore, in case of an employee who stands
convicted for an offence involving moral turpitude, it is his
misconduct that leads to his dismissal."
11. After going through the judgment passed by the Hon'ble Supreme Court in
the aforesaid cases, it is apparently clear that the word 'disqualification' as
contained in Section 12 of the Probation of Offenders Act, 1958 refers to a
disqualification provided in other statute as explained by the Hon'ble Supreme
Court. An employee cannot claim a right to continue in service merely on the
ground that he has been granted benefit of Probation of Offenders Act. The
release of an employee after granting the benefit of Probation of Offenders Act
does not have any bearing, so far as the service of employee with the employer
is concerned. A reading of the aforesaid provision and the judgment passed by
the Hon'ble Supreme Court makes it clear that the word 'disqualification'
appearing in Section 12 of the Probation of Offenders Act does not disqualify
the person for other Acts or statues like Representation of Peoples Act, 1950. It
was held by the Hon'ble Supreme Court that conviction in a criminal case is one
part of the case and the release on probation is another part. Grant of benefit of
probation only enables the delinquent not to undergo the sentence on showing
his good conduct during the probation period but as far as the conviction is
concerned, the same is maintained and amounts to disqualification. In the facts
of the present case, it is clear that the petitioner was convicted for an offence
under Section 302 of I.P.C. and sentenced for life imprisonment vide judgment
of conviction and order of sentence dated 28.03.1981. The appeal preferred
against the same was also dismissed. He filed an application under Section 4 of
the Madhya Pradesh Prisoners' Release on Probation Act, 1954 before the
competent authority. As the same was not decided for some time, he
approached the Hon'ble Supreme Court. The Hon'ble Supreme Court has fixed
the time frame for decision on the application failing which he would be released
on bail. As application was not decided within the time frame fixed by the
Hon'ble Supreme Court, the petitioner was released from Central Jail, Rewa on
01.10.1985. Taking advantage of the aforesaid situation, he preferred a
miscellaneous petition seeking for restoration of his pension. The same was
rejected by the Authorities vide order dated 10.10.2013 placing reliance upon
para 82(B) of Pension Regulations for the Army 1961 (Part II) as follows :-
"If the pensioner is sentenced to imprisonment for a criminal
offence, his pension shall be suspended from the date of his
imprisonment."
12. The aforesaid makes it clear that as soon as he has been convicted, his
pension comes under suspension. The argument advanced that he has already
been released from the jail and the word used in para 82(b) is only 'release' that
cannot be equated with 'acquittal' is contrary to what has been held by the
Hon'ble Supreme Court in the case of Sushil Kumar (supra) and Shankar
Das (supra). The aforesaid judgments were not taken note of while deciding the
judgment in the case of Chander Singh (supra). The similar issue was taken
note of by the Hon'ble Supreme Court in the case of Athiya Chandra Rao Vs.
State of Andhra Pradesh reported in (1981) Suppl SCC 17 and Divisional
Personnel Officer, Southern Railway and another Vs. T.R.Chellappan
reported in (1976) 3 SCC 190. The Hon'ble Supreme Court has categorically
laid down the law with respect to entitlement of an employee who has been
released on probation as far as restoration of his pension is concerned to the
effect that release on the basis of Probation of Offenders Act will only amount
to suspending his sentence and will not have any bearing on service emoluments
of the employee. Since, the conviction is sustained, therefore, the same amounts
to disqualification.
13. Counsel appearing for the petitioner could not point out any judgment of
the Hon'ble Supreme Court contrary to the aforesaid proposition. He has only
placed reliance upon the judgment passed by the Tribunal in the case of
Chander Singh (supra) which is of no help to him in the light of the judgment
passed in the case of Sushil Kumar and Shanker Das (supra). Under these
circumstances, the learned Tribunal has not committed any error in dismissing
the application. The order passed by the Authorities in rejecting the claim of the
petitioner as well as by the Tribunal is just and proper and does not call for any
interference in the present petition.
14. The writ petition sans merit and is accordingly dismissed. No orders as to
costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
AM
