Judgment:
S.S. Nijjar, J.
1. In this petition under Articles 226/227 of the Constitution of India, the petitioner has prayed for quashing the order of dismissal passed against him on 15th June, 1989. He has also prayed that after quashing the order of dismissal it be declared that the petitioner is entitled for the pensionary benefits. In the alternative he has prayed that even if the order of dismissal is upheld nonetheless it be decided that he is entitled to the pensionary benefits.
2. The facts leading to the passing of the order of dismissal may be briefly noticed.
The petitioner joined the Indian Army as a Sepoy on 14-1-1975. He was promoted to the post of N Naik in 1986 and further promoted as Naik in 1987-88 whereupon he has designated as D.M.T. under drivers trade. He availed annual sanctioned leave to visit his parental home from 19th November, 1988 to 12th January, 1989. Thereafter he did not join duty till 30th April, 1989. Thus he was absent from duty without any sanctioned leave for a period of 108 days. The petitioner has given a long winded story as to why he did not report for duty after the expiry of his leave. Upon his return to duty, an enquiry was conducted and a Court Martial was appointed. In the Court Martial he made a statement to the effect that he set out on the return journey after the leave by bus on 9th January, 1989. The bus had mechanical failure. Thus he reached Bombay V.T. Railway Station at 21.00 Hrs. on the same evening. Due to his late arrival he missed the train which was to take him to his place of duty. He states that he fell asleep at 10.30 p.m. When he woke up the next following morning at 5.00 a.m. he found that his suit case was missing. He approached the Railway Police who advised him to lodge an F.I.R. with the Bombay V.T. Police Station. He thereafter lodged an F.I.R. The next following day his lost suit case had been recovered but the police did not hand over the same as the matter had been referred to the Court of law. Ultimately he was constrained to go home because on 12th January, 1989 the Court hearing had been adjourned to 21st Jan. 1989. At that time instead of leaving for his place of duty he decided rather to visit his home. He also states that he was suffering from pain in the chest and, therefore, doctor had advised him to take rest. Upon reaching his village his parents took him to a private doctor. He was undergoing treatment with his private doctor till he left home for resuming his duty. During this interregnum he attended the Court on 21st January, 2nd February and 17th February, 1989. It was on 17th February 1989 that the suit case was ultimately handed back to him. Curiously in the statement it is stated as follows.
' Thereafter many times I made up my mind to rejoin but did not feel like leaving home. Later my parents and wife brought me twice to Bombay V.T. Railway Station and bought me ticket also. I had no desire to board the train and used to return home. I do not know why I did so.
Finally I left home on 24 April 89 and reached Bombay in the evening. The same evening I boarded a train and rejoined voluntarily on 30 April 89 at 1900 Hrs. I have been a disciplined soldier till now. I do not know why I did this mistake of not reporting to Military Hospital, Poona, Bombay or any other Military Hospital for medical treatment.'
On the basis of the fact that he had been absent without sufficient cause he was charge-sheeted under section 39(b) of the Army Act, 1950. The charge was to the effect that ' at Misamari while granted annual leave w.e.f. 10th November 1988 to 12th January, 1989 he failed to rejoin the unit on expiry of the said leave till voluntarily rejoined on 30th April, 1989 at 19.00 Hrs.' He pleaded guilty to the charge. On the basis of the plea of guilty an order of dismissal was passed on 15th June, 1989. On the very same day he was asked that he may submit a petition against this award to the Competent Authority. He was asked to give his consent as to whether he would like to submit a petition against the punishment awarded on the basis of the summary Court Martial proceedings. On the very same day the petitioner wrote a letter stating therein that he does not wish to submit any petition against the punishment of dismissal from service awarded to him by the Summary Court Martial held on 15th June, 1989. From 15th June, 1989 until 12th October, 1992 the petitioner kept quiet and did not take any action against the impugned order of dismissal. It was on 12th October, 1992 for the first time when he addressed a petition to respondent No. 4. No explanation has been given in the petition as to why it took him three years. Thereafter he sent reminders in November and December, 1992. In August, 1993 he submitted a representation through respondent No. 4 asking them to modify the penalty of dismissal to compulsory retirement. On 13th September, 1993 respondent No. 5 informed the petitioner that his petition dated 12th October, 1992 was rejected by respondent No. 4. Not satisfied, in February, 1994 he sent a mercy petition to respondent No. 2. The said mercy petition also stands rejected by an order dated 17-1-1996 which was communicated to him by a covering letter dated 29th January, 1996.
3. The petitioner had filed the present petition during the pendency of his mercy petition. In the petition the petitioner claims that his absence from duty was innocent and unintentional. He has also stated that the authorities had compelled him to write letter dated 15th June, 1989 wherein he had stated that he would not be filing any petition against the punishment imposed on him. He has also tried to make out a case that the punishment is disproportionate to the misconduct committed. His conduct prior to the order of dismissal was satisfactory. He , therefore, claims that he should have been treated leniently. At best an order of compulsory retirement could have been passed. In any event even if they were to pass an order of dismissal then his pensionary benefits ought not to have been forfeited. A perusal of paragraph 13 of the petition, however, shows that he admits that he has completed only 14 years, 5 months and 2 days till his dismissal on 15th June, 1989. He also admits that he would have been eligible for voluntarily retirement only after completion of 15 years of service i.e. on 13-1-1990. Thus he admits that he was short by six months of service to retire in normal course and to avail pension/gratuity and other benefits. However, due to the dismissal the petitioner did not get any pensioner/retirement benefits at all and in addition he is declared unfit for any Government employment due to penalty of dismissal.
4. An affidavit in reply has been filed by the respondents in which it is clearly stated that the petitioner is not entitled to any pensionary benefits as he had not completed the qualifying service as required under the Army Act and the Rules. It is further stated that the punishment of dismissal was imposed on the petitioner on account of the fact that he pleaded guilty to the charge. It is specifically stated that 'I say that the petitioner had pleaded guilty to the specific question by the Court asking him whether he was guilty or not to the charge preferred against him to which he answered that he was guilty.' It is further pleaded that the service of the petitioner was not free from blemish as he had been punished twice earlier for the same misconduct i.e. being absent without authorised leave. On 14th May, 1981 he was punished for 7 days detention under section 39(b) of the Army Act for overstaying leave without sufficient cause. On 12th November, 1982 he was punished for 28 days imprisonment under section 39(b) of the Army Act and under section 48(1) of the Army Act for overstaying leave without sufficient cause and for being found intoxicated when on duty. It is further the case of the respondents that having been dismissed from service, the petitioner is not entitled to any pensionary benefits as his claims is to be decided under Regulation 113 of the Pension Regulations for the Army, 1961 (Part I) as amended in 1967. It is further pleaded that the punishment is not disproportionate to the misconduct committed. To maintain discipline in the Armed Forces is of utmost importance. Not only that it is stated that the petitioner at the time when he overstayed his leave was posted in a sensitive sector.
5. We have heard Counsel for both the sides. Counsel for the petitioner submits that the penalty of dismissal is disproportionate to the misconduct having been committed by the petitioner. He submits that the petitioner was victim of adverse circumstances as narrated by him in the petition. He had lost his luggage, he was not keeping good health and he had no previous blemish on his service. Thus he ought to have been treated leniently. Counsel for the respondents on the other hand pointed out that a bare perusal of the statement of the petitioner would show that he had no genuine desire to continue serving with the Army. He pointed out that during the interregnum while the petitioner was absenting himself, his father had been making appeals to the authorities to transfer his son back to Pune or Nasik. Even otherwise it becomes evident from the statement made by the petitioner that even though the parents were cajoling the petitioner to rejoin the Army, he did not however cherish the idea of going back to the Army. Shri Rajguru Counsel for the respondent has also pointed out that he had earlier been punished twice for the same misconduct of being absent without leave. On one occasion he was even found to be intoxicated whilst on duty. He, therefore, submits that the punishment of dismissal is not disproportionate to the misconduct committed by the petitioner. The very same plea has been made by the petitioner to the competent authorities by way of statutory appeal as also by way of mercy petition. It is settled beyond doubt by now that the High Court while exercising its jurisdiction under Article 226 to examine the gravity or otherwise of the punishments awarded do not sit as a Court of Appeal. This is the exclusive domain of the departmental authorities i.e. the disciplinary as also the appellate authorities. In the present case the matter has been thoroughly examined by the disciplinary authority as also by the appellate authority. His appeal as well as the mercy petition had been dismissed. In this view of the matter, little can be done by this Court while exercising its jurisdiction under Article 226 of the Constitution. This is not to say that this Court will never quash a punishment given by the disciplinary authority even if it holds the same to be perverse. The High Court can always interfere if the punishment imposed is so perverse that it shocks the judicial conscience of the Court, or it is found that the punishment has been imposed without authority of law. At the same time having quashed the order of punishment the High Court would not substitute the punishment by another. The matter would have to be remanded back to the departmental authorities to re-examine the issue in accordance with law. However, in the present case we find that the authorities had considered the matter. We are also of the view that the punishment granted is not disproportionate to the misconduct committed by the petitioner in view of the fact that he was a member of the Armed Forces which is a disciplined force. Highest discipline is required to be maintained in the Armed Forces. In the realm of devotion to duty and discipline Army personnel have to be the shining examples to the rest of the society and other para-military and civil forces like the police. Thus we do not find any merit in the submission of the Counsel for the petitioner to quash the order of dismissal on the ground that it is disproportionate to the misconduct committed.
6. The next submission of Shri Saxena, Counsel for the petitioner is that the statement made by the petitioner on 15th June, 1989 to the effect that he does not wish to make any petition against the order of dismissal, was obtained under duress. He submits that the petitioner was not given any time to think as the order of dismissal was passed on the same day. Further when he was asked to give his consent he was still in custody therefore he was not in his senses. Apart from this bald statements there is no allegation of bias or male fide against any officer . No foundation whatsoever has been laid in the petition as to why it could be treated as a statement having been made under duress. It is settled proposition of law that allegations of mala fide have to be proved beyond reasonable doubt. There has to be very cogent reasons before the Court to enable it to come to the conclusion that the action is vitiated by mala fides. In any event this statement of the petitioner has been specifically denied by the respondents in their affidavit in reply. Thus we are unable to hold that the statement made by the petitioner was under duress. Even the events subsequent thereto lend support to the fact that there was no duress exerted on the petitioner while making this statement. It is to be noted that he was ordered to be dismissed on 15th June, 1989. He did not make any protest against the order of dismissal until 12th October 1982 i.e. more than three years after the order of dismissal has been passed. This plea of duress seems to have been taken just for the sake of being taken in the writ petition. This grievance is not voiced in any of the petitions which he had filed before the respondent authorities. In this view of the matter, we are constrained to hold that there is no substance in the submission of the learned Counsel for the petitioner.
7. The Counsel for the petitioner next submitted that the petitioner was in any event entitled to receive his pensionary benefits. His submission is that under section 71 individual punishments are provided which are according to the scheme of the gravity of the offence. The gravest punishment prescribed under section 71 is death. Sub-clause (e) provides for dismissal from the service, sub-clause (h) provides that apart from dismissal the authorities can order forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose. It is the submission of the Counsel for the petitioner that in order to forfeit the pension of any individual who is governed by the provisions of the Act it is necessary to pass a separate and independent order under clause(h) forfeiting the pension of the individual. Since no separate order has been passed it is presumed that the petitioner was permitted to retain his pensionary benefits. In support of his submission the Counsel for the petitioner has relied on a judgement of the Supreme Court in the case of Major G.S. Sodhi v. Union of India, : (1991)2SCC371 . It would be appropriate at this stage to reproduce section 71 of the Army Act in order to appreciate the submission of the Counsel for the petitioner.
'71. Punishments awarded by Courts martial :
Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Courts martial, according to the scale following, that is to say:-
(a) death;
(b) transportation for life or for any period not less than seven years;
(c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years;
(d) cashiering, in the case of officers;
(e) dismissal from the service;
(f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers; and reduction to the ranks or to a lower rank or grade, in the case of non-commissioned officers;
Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy.
(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officer;and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service.
(h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose.
(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers;
(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service.
(k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal;
(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.'
Section 71 as reproduced above no doubt provides that pension can be forfeited as an individual punishment. The aforesaid judgement was given on the basis that the petitioners therein were entitled to the pensionary benefits which they had earned before an order of removal was passed. In paragraph 3 of the said judgement it is held as under.
'3. The two petitioners herein have put in number of years of service. Major G.S. Sodhi has put in about 171/2 years of service and was also awarded some medals for his meritorious service. Likewise, Lt. Col. S.K. Duggal, the other petitioner has rendered about 21 years of service without any blemish. Therefore their services upto the date of punishment have been satisfactory. However, we do not propose to examine the other provisions of the Army Act or Rules or Regulations in view of the fact that this Court on two earlier occasions granted similar relief to the officers who were Court-Martialled and removed from service. In Lt. Col. (T.S.) Harbans Singh Sandhu v. Union of India, a bench of three Judges of this Court passed an order in favour of the Army officer who was cashiered holding that he was entitled to be paid the entire pension and gratuity under the rules. In passing such an order, this Court took into consideration the fact that no other penalty forfeiting the pensionary benefits was passed. Therefore, he cannot be deprived of his pensionary benefits by applying any of the regulations. It was held as under :
' So he filed the present writ petition to compel the Government to pay him what is due by way of gratuity and pension. This was his property and could not be taken away except by due process of law. The only provision of law pointed out to us by Counsel on either side is section 16(a) [sic Regulation 16(a)] of the Pension Regulations, 1961 (for the Army). It is found from the records that there is no order passed under the said regulation nor is it the case of the Union of India in their return that any such order depriving the petitioner wholly or partly of his pension or gratuity has been made by the President. The inevitable consequence is that he is entitled to be paid the entire pension and gratuity under the Rules. We direct the respondent to pay the said sum within three months from today.' A similar order was also passed in Religious Teacher Ex. N. Sub. R.K. Sharma v. Chief of the Army Staff, by a bench of two Judges of this Court. While dismissing the writ petition, the Bench observed that 'the Court-Martial has not inflicted a punishment on him of forfeiture of pension or other service benefits and Counsel for the other side has assured the Court that whatever the pension and other service benefits are permissible to the petitioner under the law will be given to him.'
A bare perusal of paragraph 3 of the judgement would show that the said judgement had been passed on the basis of the judgement rendered in the case of Lt. Col. (T.S.) Harbans Singh Sandhu v. Union of India, given in Writ Petition No. 553 of 1972. The paragraph reproduced from the said judgement makes it clear that in that case the only provision of law pointed out to Their Lordships of the Supreme Court was section 16(a) [sic Regulation 16(a)] of the Pension Regulations for the Army, 1961. The said section 16(a) [sic Regulation 16(a)] can be quoted hereinbelow.
'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, had he/she retired on the same date.' A perusal of section 16(a) [sic Regulation 16(a)] shows that it deals with the case of an officer who has to his credit the minimum qualifying service required to earn a pension, is then cashiered or dismissed or removed from the service. In these circumstances, his 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. Thus reading of the judgement given in Major G.S. Sodhi's case, together with the extract reproduced from Harbans Sings's case, along with the provisions of section 16(a) [sic Regulation 16(a)] would make it clear that the said judgements were given on the basis that the officers therein had put in the requisite qualifying period of service before an order of removal was passed. Since they had become entitled to pension under the Rules, it has been held by the Supreme Court, firstly by a three Judges Bench, followed by a two Judges Bench, that it was necessary to pass an order under section 16(a) [sic Regulation 16(a)] of the Pension Regulations, 1961. They are not cases pertaining to an employee who has not put in the requisite number of years making him eligible for pension. Thus, in our opinion, the judgement cited by the learned Counsel for the petitioner is not applicable to the facts of this case. We find it was not at all necessary to pass an order under section 16(a) [sic Regulation 16(a)] or under section 71(h). The submission of the Counsel for the respondent, however, is that the case of the petitioner is squarely covered by Regulation 113 as found in Chapter-III of the Pension Regulations for the Army, 1961 (Part-I) Regulation 113 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.
(b) An individual who is discharged under the provisions of Army Act and the Rules made thereunder remains eligible for pension or gratuity under these Regulations.'
A bare perusal of the language of the above Regulation shows that an individual who is dismissed under the provisions of the Army Act is ineligible for pension or gratuity in respect of all previous service. This is the mandate of the Rule. However, in exceptional cases the power has been given to the President to grant service pension or gratuity at a rate not exceeding that for which he would have otherwise qualified had he been discharged on the same day. It is to be noted that this power of the President under Regulation 113 is similar to the power of the President under section 16(a). There is, however, one condition precedent before this power can be invoked. The said condition precedent is that as provided under section 16(a) [sic Regulation 16(a)] a person must have completed the requisite qualifying service for being entitled to the pension under the Regulations. Regulation 16(a) clearly states that the President may forfeit or grant the pension of an officer who has to his credit the minimum period of qualifying service required to earn such a pension when he is cashiered or dismissed. Apart from this, it stands to reason that in order to deprive a person of any benefit he must otherwise be eligible to receive the said benefit under the Rules. In other words he must have at least put in one bare minimum qualifying service to make him entitled to receive the pension. This view of ours also finds support from the case reported as Union of India v. R.K.L.D. Azad AIR1996 S.C.W. 213. This is a case which squarely covers the case of the petitioner. In para 2 of the said judgement the following question to be decided has been formulated.
' (ii) whether a Junior Commissioned Officer of the Indian Army who has to his credit the minimum period of qualifying service required to earn a pension or gratuity is eligible for the same in case he is dismissed from service under the provisions of the Act.....' Answering the said question the Supreme Court has held that in view of the plain language of Regulation 113 the respondent (therein) cannot lay any legal or legitimate claim for pension and gratuity on the basis of his previous service as, admittedly, he stands dismissed in accordance with section 73 read with section 71 of the Act. In the present case it is to be noticed that it is an admitted fact that the petitioner did not have the qualifying service to his credit at the time when he was dismissed from service. Furthermore, Regulation 113 categorically mandates that 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 view of the above, we find no merit in the submissions of the learned Counsel for the petitioner.
8. Lastly it has been submitted by the Counsel for the petitioner that the judgement in Azad's case (supra) is per incurium as it has not taken note of the earlier judgement given in the case of Major G.S. Sodhi and the judgement given in Col. Harbans Singh. We have already expressed our view that the judgement given in the case of Major G.S. Sodhi and Col. Harbans Singh are not applicable to the facts and circumstances of this case. It was, therefore, obvious that it was not necessary to consider the two judgements in the case of Azad. It is indeed a strange argument to advance that even if a person has been rendered ineligible for pension by Regulation 113 upon being dismissed, it was still necessary to pass a separate order forfeiting his pension under section 71(h) of the Act. We are of the opinion, as we have earlier observed, that in order to forfeit a benefit a person must first be entitled to the said benefit. Since the petitioner was not eligible to the grant of pension in view of the fact that he did not render the necessary qualifying service it would now be incongruous to require the authority to pass a separate order inflicting the punishment under section 71(h). The said punishment could only have been imposed on the petitioner had he been entitled to pension under the Regulations. Thus, in our view, we are unable to hold that the subsequent judgement of the Supreme Court is per incurium.
9. In view of what has been stated above, we find no merit in the submissions of the Counsel for the petitioner. Consequently the writ petition is dismissed. Rule is discharged but with no order as to costs.