IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11449 of 2005 SUBEDAR ROY S/o- Shri Kamal Roy, resident of village-Dhanegoraul, P.O. and P.S. Goraul, District-Vaishali Versus 1. THE UNION OF INDIA through Secretary, Ministry of Defence, New Delhi. 2. Officer Commanding, Assam Regiment Akhiles Karyalaya Records the Assam Regiments, Happly Valley, Shillong 793007 3. Senior Account Officer, Central Defence Account (C.D.A.), (Pension), Allahabad (U.P.) 4. Officer in charge, Defence Security Corps (D.S.C), Records Mill Road, Cannanore 670013 (Kerala) 5. Treasury Officer, Muzaffarpur District Muzaffarpur. 6. The CCDA (Pension) At/4 Section, Allahabad-14 (U.P.) 7. General Officer Commanding 1010, Area C/o-99 A.P.O 8. District Magistrate, Vaishali. 9. The State of Bihar, ----------- 8 10.05.2010 Heard Mr. Surendra Kumar, learned counsel for the petitioner, Mr. Dudheshwar Singh, learned counsel for the Union of India and Mr. Gyan Prakash Ojha, learned A.C. to G.A.7 for the State. The petitioner has challenged the order dated 17.12.2003 (Annexure-24) whereby and whereunder the respondent No.3, Senior Accounts Officer, Pension, Allahabad, purporting to dispose of the representation of the petitioner in compliance of the direction of this Court in C.W.J.C.No.4284 of 2002 (Annexure-21), has rejected the same inter alia on grounds that in view of the provisions 2 stipulated in paragraph 82(B) of the Pension Regulation for the Army part-II, the petitioner was not entitled for pension for the period 12.3.1984 to 27.10.1997. The respondent, Senior Accounts Officer, has further proceeded to hold that the decision of the Supreme Court in the case of Rameshwar Yadav versus Union of India was judgment ‘in personam’ and was not extendable to the case of the petitioner. It is in these circumstances that the petitioner was forced to file the writ petition in question. With the consent of the parties, the matter has been taken up for disposal at the stage of admission itself. Facts necessary for disposal in brief, is that the petitioner was recruited in Army as Sepoy on 28.12.1963 in Assam Regiment, Shillong and after completing 15 years of service, he superannuated with effect from 14.12.1979 having unblemished service record. Consequent upon his superannuation the petitioner was drawing his pension from the Muzaffarpur Treasury since January, 1980. The petitioner again got employment on 15.5.1981 in Defence Security Crops (DSC) and was posted in 3 Sirsa in the State of Haryana. He was charged for an offence punishable under section 302 of the Indian Penal Code. The petitioner was convicted and was sentenced to life imprisonment. He however was released by reason of his good conduct before the fulfillment of the sentence under order dated 29.10.1996 of the Financial Commissioner-cum- Secretary, Government of Haryana Jail Department (Annexure-1). Upon release of the petitioner, the pension has restored with effect from 28.10.1997. However, as no pension was paid to the petitioner for the period of incarceration i.e. 12.3.1984 to 27.10.1997, he filed a representation for payment thereof. On non consideration of the claim, the petitioner was forced to move this Court through C.W.J.C.No.4284 of 2002 and which was disposed of by order dated 5.8.2002 permitting the petitioner to withdraw the writ petition to pursue his remedy before the concerned officer and who was expected to take a final decision on the representation of the petitioner in accordance with law (Annexure-21). The representation was rejected vide order dated 17.12.2003 as contained in Annexure-24 giving 4 rise to the present proceedings. During the pendency of the proceedings, the original writ petitioner Subedar Roy expired and has been substituted by his legal heirs vide order passed on 5.5.2010 in I.A. No. 4244 of 2010, and who are pursuing the matter on his behalf. Learned counsel for the petitioner in support of his submissions relied upon the order passed by the Supreme Court in the case Rameshwar Yadav. Learned counsel submits that an identical situation came up for consideration before the Supreme court in the case of Rameshwar Yadav, who also was convicted for an offence under Section 302 of the Indian Penal Code and denied pension for the period of incarceration. The Supreme Court upon considerations of the relevant statutory provisions as also the case advanced on behalf of the petitioner, came to a conclusion that the issue could only be disposed of by due application of mind by the authority concerned as to whether or not the pension be suspended in whole or in part. It was further held that the disbursing authority while determining the question should also consider the nature of 5 offence, the circumstances in which the same was committed as also the other matters. It was held that as the pension was payable not only to the petitioner but also to the dependents, the suspension thereof would result in undue hardship to the dependents. In these circumstances, the Supreme Court held the order suspending pension of the said employee, bad in law, unreasonable and set aside the same with a direction for making payment thereof. While allowing the said payment, the Supreme Court also permitted the authorities to withhold a part of the amount but the same was also allowed to be paid to the employee, no sooner he was released after undergoing imprisonment. Learned counsel submits that the case of the petitioner is fully covered by the law settled by the Hon’ble Supreme Court in the case of Rameshwar Yadav and thus the withholding of the pension amount is not only unreasonable but also an attempt to override a judicial pronouncement. Learned counsel for the petitioner submits that the respondents have not addressed themselves to the judgment passed by the Supreme Court and have simply 6 rejected his case inter alia on grounds that the judgment of the Supreme Court was a judgment ‘in personam’ and did not apply to the case of the petitioner. He thus submits that the substituted petitioners are entitled for the benefits flowing from the judgment of the Supreme Court. Mr. Dudheshwar Singh, learned C.G.C. while defending the impugned order as contained in Annexure-12 referred to the statutory provisions as appended at Annexure-P/2 of the counter affidavit and with particular reference to the provisions of Section 82B, he submits that it is clearly stipulated that no pension was to be paid during the period of imprisonment for a serious crime. He thus submits that as admittedly, the petitioner was convicted for an offence punishable under Section 302 of the Indian Penal Code hence he came within the scope of paragraph 82B of the Pension Regulations and thus was not entitled for pension during the period of incarceration. He reiterated the views expressed by the authorities disposing of the representation, submitting that the judgment of the Supreme Court was passed on the special facts and 7 circumstances of the case relating to, Rameshwar Yadav and could not be extended to the case of the present petitioner and that his case had to be tested on its own merits. Before proceeding to deal with the rival contentions of the parties it would be but appropriate to set out the relevant provisions under which the impugned order has been passed by the respondent authorities and extract whereof has been Annexed as Annexure- R/2 to the counter affidavit of the Central Government. “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 Defense 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. 82-C Suspension,discontinuance or withholding of pension of a pensioner under Regulations 3,5, 18 and 19 of part 1 of these Regulations-In regard to cases covered by Regulations 3,5,18 and 19. Pension Regulations for the Army, Part 1 (1961) the procedure 8 will be as under :- (a) Before passing orders regarding withholding, suspension or discontinuance of the whole or part of pension (including commuted value thereof which has not been paid) children’s allowance or gratuity (including Death-cum-Retirement Gratuity) the competent authority shall serve upon the individual pensioner a notice specifying the action proposed to be taken and directing upon him/her to submit within 30 days of the receipt of the notice (or such further time not exceeding 30 days as may be allowed by the competent authority) such representations as he/she may wish to make against the proposal. (b) Take the representation, if any, received during the prescribed period into consideration. (c) having taken action as indicated at (a) and (b) above, the competent authority shall decide and issue orders in writing withhold or suspend or discontinue the whole of pension, children’s allowance and gratuity or part thereof indicating whether the orders in the case of pension and children allowance will apply permanently or only for a specified period. (d) An appeal against the decision of the competent authority in case falling under Regulation 5 can be made to the appellate authority. The appellate authority will be the President in the case of commissioned officers through the G.O C- in-C Command in whose jurisdiction the Record Office of the individual is located. In the case of personnel below officer rank the appeal will be made through the Record Office concerned. 9 (e) In the case of personnel below officer rank the competent authority/appellate authority will consult the CDA (Pension) Allahabad while passing final orders. In the event of difference of opinion between these authorities and the CDA (P) the matter will be referred to the Government of India.” (Emphasis supplied by me) A perusal of the provisions manifests that the suspension, withholding or discontinuance of the pension or part thereof, of an army pensioner is not automatic but is conditional upon passing of an order under Regulation 82C (c) of the pension Regulations of the army. Whereas the provisions of Clause 82C(a) requires the concerned competent authority to serve a notice upon the individual pensioner specifying the proposed action to be taken and requiring him to respond thereto, the provisions at sub Clause-(c) of the said paragraph further requires the competent authority to decide the matter and issue orders in writing, withholding or suspending or discontinuing the whole or part of pension. Upon a query being posed on the learned counsel for the petitioner and the Union of India as well, as to whether the mandatory compliance of the statutory provisions has been 10 ensured before issuance of the impugned order and whether the original writ petitioner had been served with a notice under Regulation 82C(a), the answer was in negative. It was stated that the stoppage of the pension by the respondent authorities had been done merely on grounds of the imprisonment of the petitioner and was restored after his release. Though the respondent No. 3 while disposing the claim of the petitioner by the impugned order dated 17.12.2003(Annexure-24) has dealt with the statutory provisions but he has completely overlooked the important aspect that a stoppage of pension was conditional upon issuance of a notice under 82C(a) indicating such intendment, receiving of an explanation 82C(b) followed by on order under Regulation 82C (c) of the Pension Regulations and was not automatic upon suffering an incarceration. Thus no notice nor any order having been passed in conformity with the provisions of Regulation 82C, the pension of the original writ petitioner for the period 12.3.1984 on 27.10.1997 could not be stopped. The action in withholding the same was clearly without jurisdiction, illegal and void ab initio. That no order can now be passed by the 11 authorities, that the original writ petitioner has expired on 9.2.2009, the defect/lacuna in the actions of the respondent authorities cannot be remedied. For the reason that the procedure as envisaged under Regulation 82C cannot be completed, the order dated 17.12.2003 (Annexure-24) cannot be sustained. In the circumstances, the impugned order as contained in Annexure-24 is set aside, the respondents had directed to restore the pension of the original petitioner for the period 12.3.1984 to 27.10.1999 and make payment of the same to the petitioners within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed. Bibhash ( Jyoti Saran, J.)