Civil Writ Petition No. 8774 of 2007 [1] IN THE HIGH COURT OF PUNAJB AND HARYANA AT CHANDIGARH Date of Decision: May 26, 2008 Ex-Sep. Ram Singh (Retd) ............ Petitioner versus Union of India and others ............. Respondents CORAM HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present: Shri B.S. Ghuman, Advocate for the petitioner Shri S.K. Sharma, Central Govt. Standing Counsel for the respondents. HEMANT GUPTA, J. The petitioner has invoked the writ jurisdiction of this Court for claiming a writ of certiorari for quashing orders dated 31-01-2007 (Annexure P-1) and 27-04-2007 (Annexure P-2) whereby the claim of the petitioner for pension was rejected. The petitioner was enrolled as a Sepoy and was allotted to 4 Sikh Light Infantry on 16.11.1985. The petitioner did not join his duties after expiry of his annual leave from March 2000 to May 2000. He was Civil Writ Petition No. 8774 of 2007 [2] handed over to his unit by the civil police after he was apprehended in September, 2000. The petitioner was tried by Summary Court Martial under section 39(b) of the Army Act, 1950 (hereinafter to be referred as “the Act”). An order of dismissal from service was passed on 22.03.2001 (Annexure P-2). Learned counsel for the petitioner has contended that since the petitioner has rendered service for almost 15 years, therefore, he is entitled to pensionary benefits as such pensionary benefits cannot be deemed to be forfeited by an order of punishment passed on 22.03.2001. Reliance is placed upon judgment of Supreme Court reported as Major G.S. Sodhi vs. Union of India, (1991) 2 Supreme Court Cases 371 and Full Bench decision of Delhi High Court in Brig. A.K. Malhotra vs. Union of India and others, 1997(4) Services Law Reporter, 151. Reliance is also placed upon decision of Supreme Court in D.V. Kapoor vs. Union of India and others, (1990) 4 Supreme Court Cases 314. On the other hand, learned counsel for the respondents has relied upon Regulation 113 (a) of the Pension Regulations For the Army, 1961 (Part-1) (hereinafter to be referred as “Pension Regulations”) to contend that an individual who is dismissed under the provisions of the Act is ineligible for pension or gratuity in respect of all previous service. It is only in exceptional cases, at the discretion of the President, service pension or gratuity can be granted. The said clause reads as under:- “ 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 the rate not exceeding that for which he would have otherwise qualified had he been discharged on the same date”. Civil Writ Petition No. 8774 of 2007 [3] Learned counsel for the respondents placed reliance upon decision of the Supreme Court in cases reported as Union of India and others vs. R.K.L.D. Azad, AIR 1996 Supreme Court 845 and Union of India and others vs. Subedar Ram Narain and etc., AIR 1998 Supreme Court 3225. He contended that the judgements referred to by learned counsel for the petitioner deal with Regulation 16(a) falling in Chapter 2 of the Pension Regulations relating to Commissioned Officers, whereas the claim of the petitioner for pension is required to be examined in terms of Regulation 113 (a) of the Pension Regulations. It is the said distinction which has been considered and noticed by the Supreme Court in Subedar Ram Narain's case (supra), R.K.L.D. Azad's case (supra). The Full Bench of Delhi High Court in Brig. A.K. Malhotra's case (supra) and Supreme Court in Major G.S. Sodhi's case (supra) dealt with Regulation 16(a), which as reproduced in the aforesaid judgment is to the following effect:- “16(a): When an officer who has to his credit the minimum period of qualifying service required to earn a pension, is cashiered or dismissed or removed from the service, his/ her pension, may, at the discretion of the President, be either forfeited or be granted at a rate not exceeding that for which he/she would have otherwise qualified, and he/she retired on the same date”. Considering the provisions of Regulation 113(a) of the Pension Regulations in R.K.L.D. Azad's case (supra), Supreme Court held that 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 Subedar Ram Narain's case (supra), while considering Regulation 113(a), Supreme Court held that in case of a junior Commissioned Officer or a person belonging to other rank or a non-combatant, he would become Civil Writ Petition No. 8774 of 2007 [4] ineligible for grant of pension or gratuity on the passing of an order of dismissal. The disentitlement to pensionary benefits is the normal result of a dismissal order but the President may, in exceptional cases, at his discretion, order the grant of pension. Considering the distinction between Regulations 16(a) and 113(a) of the Pension Regulations, Supreme Court held to the following effect:- “ 10. The terms of Regulation 16(a) are clearly different from Regulation 113 (a). According to Regulation 16(a), when an officer, as defined in Section 3 (xvii) of the Army Act, 1950, is cashiered or dismissed or removed from service then the President has the discretion of either forfeiting his pension or ordering that he be granted pension at a lesser rate. The dismissal, removal etc of a commissioned officer does not, in other words, automatically result in the forfeiture or lessening of his pension. Power is, however, given to the President that in such a case he may either direct the forfeiture of the officer's pension or reduction in the rate thereof. Major Sodhi's case (1991(2) SCC 371) was one which dealt with the question of forfeiture of a commissioned officer's pension on his being dismissed from service. It is in the context of Regulation 16 (a) that it was observed that as no order was passed under the said regulation, therefore, the officer concerned would be entitled to the receipt of full amount of pension or gratuity which would normally be payable to him”. Hon'ble Supreme Court also negated the argument raised that Regulation 113(a) of Pension Regulations is discriminatory. It was concluded to the following effect:- “ 14. It was also submitted by Sh. Malhotra that Regulation 113(a) was discriminatory and, further, pension which is earned becomes the property of the person concerned and the same cannot be taken away. But as no such contention was raised before the High Court. In any case we see no merit in the said Civil Writ Petition No. 8774 of 2007 [5] contention. Firstly, junior commissioned officers and commissioned officers belong to different classes. They are not similarly situated. Moreover pension is granted by the rules and regulations which can and do provide for the circumstances which would make a person ineligible to receive the same. Dismissal makes a junior commissioned officer dis-entitled to receive pension or gratuity. Regulation 113(a) is not in any way invalid. 15. For the aforesaid reasons we come to the conclusion that unlike Regulation 16 (a) which applies to the commissioned officers, in the case of non-commissioned officers other ranks and non-combatants (enrolled) the dismissal of such a person under the Army Act would ipso facto render him ineligible for pension or gratuity.....” In view of the above, we are of the opinion that the petitioner having been dismissed from army is not entitled to pension or gratuity. Consequently, present writ petition is dismissed. (HEMANT GUPTA) JUDGE May 26, 2008 (MOHINDER PAL) ks JUDGE