An Analytical Examination of Granting Pension Benefits to Dismissed Army Personnel 2023

• FastrackGovind
• Armed forces tribunal
• December 13, 2023

Judicial Approach in Granting Pensionary Benefits to Army Personnel Dismissed Under the Army Act

The outdated notion of pension as a discretionary payment dependent on the goodwill of the employer, not enforceable as a right, has been challenged and overruled by the Constitution Bench in Deo Kinandan Prasad v. State of Bihar, 1971 Supp SCR 634 (AIR 1971 SC 1409). The Supreme Court authoritatively declared that pension is a right governed by rules, and a government servant within the scope of those rules is entitled to claim pension.

This view was reiterated in D S Nakara’s case (1983 (1) SCC 305), emphasizing that pension is a reward for past service and a social welfare measure to support individuals who have toiled devotedly for their employer, secure in the knowledge of a dignified retirement. Considering this rationale for granting pension, a pertinent question arises: should a defense personnel, who has served the qualifying period for pension but is dismissed under the Army Act for a non-serious offense without financial irregularities, be automatically deprived of pension—a social welfare measure? Especially when the Court Martial that tried the individual did not impose a sentence of forfeiture of service pension.

Relevant Provisions Regarding Pension Grant and Forfeiture

Pension Regulations for the Army 1961 (Para 1) govern the grant and forfeiture of pension, and they are of a non-statutory nature. Reg 2 A stipulates that pension includes gratuity, except when used in contrast to the term gratuity.

Regs 25 and 132 outline the minimum qualifying service required for retiring pension—20 years for officers and 15 years for non-officers, respectively.

Reg 16 (a) addresses the situation where an officer with the minimum qualifying service required for pension is cashiered, dismissed, or removed from service. In such cases, the President’s discretion can either forfeit the pension or grant it at a rate not exceeding what the individual would have otherwise qualified for upon retirement.

Reg 113 (a) states that a person other than an officer dismissed under the provisions of the Army Act is ineligible for pension for all previous service. However, in exceptional cases, the President may, at his discretion, grant service pension or gratuity at a rate not exceeding what the individual would have otherwise qualified for upon discharge on the same day. Notably, the government, through letter No. 12(6)195/D (Pen/Sers) dated 09 June 99, has aligned Regn 16 (a) with Regn 113 (a).

Also read Armed Forces Tribunal in India a Brief 2023

Judicial Trend in Granting Pension to Dismissed Personnel Under Army Act

The issue of granting pensionary benefits to personnel cashiered or dismissed under the Army Act has been subject to varied interpretations and rulings in different cases. Some judicial decisions seem to echo the famous “To be or not to be” theme from Shakespeare’s works, leaving the courts perplexed as to whether to grant pension or not. This inconsistency prevails, and the matter is currently before the Hon’ble Supreme Court.

Stage-1: Judicial Approach Inclined More Towards Facts Rather Than Rules – Liberal View

Initially, courts tended to grant pension based on the facts of each case rather than analyzing the rules in detail. One such case is Maj G S Sodhi v Union of India and ors reported in AIR 1991 SC 1617. Maj G S Sodhi was tried by a General Court Martial for ill-treating a subordinate (slapping a Jawan) and was subsequently dismissed from service. At that time, he had served only 17½ years.

The Apex Court dismissed the writ petition challenging the court-martial proceedings. However, in a Miscellaneous Application filed for pensionary benefits, the Hon’ble Supreme Court directed the payment of pension according to the rules.

This decision was primarily based on two earlier judgments wherein two dismissed service personnel were granted pension, and the Court Martial did not sentence them to forfeit their service pension. The government filed a review petition seeking a review of the Hon’ble Supreme Court’s order.

In the case of Maj G S Sodhi, the court, considering the facts rather than the rules, directed the payment of pension based on two earlier judgments that granted pension to dismissed service personnel without imposing forfeiture of service pension. However, the court clarified that this decision was limited to the specific case and could not be considered a precedent.

Two other cases, Lt Col H S Sandha v Union of India and N/Sub R K Sharma v. COAS, were also cited by the Hon’ble Supreme Court in Maj G S Sodhi’s case. In these cases, the pension regulations were not examined, and no action was taken to forfeit pension in either case.

In a related case, Ex Major Chandra Singh’s situation was analogous to Maj G S Sodhi’s, but the Hon’ble Supreme Court, in its order dated 11 Mar 94, did not grant pensionary benefits as in the former case. This highlights the court’s inclination to consider the individual circumstances without a detailed examination of the pension regulations.

Stage – II

Following Maj G S Sodhi’s case, various High Courts granted relief to petitioners, emphasizing that if the Court Martial did not impose forfeiture of service pension, then under Reg 16 (a) or Reg 113 (a) of Pension Regulations for the Army 1961, pension cannot be forfeited. This trend persisted for some time.

Stage – III: Pension Can Be Forfeited Under Pension Regulation For The Army 1961 Part-I Even If Court Martial Has Not Awarded Punishment Of Forfeiture of Service For Pension.

In subsequent cases, the Apex Court’s decisions in Union of India v. Brig P K Dutta and Maj H C Pahwa v Union of India introduced a different perspective. These judgments ruled that the President could forfeit pension based on justified grounds under Pension Regulations, even if the Court Martial did not impose forfeiture of service for pension. According to these rulings, pensionary benefits are granted under Pension Regulations, which contain provisions for such forfeiture.

Malhotra, Challenged and Matter Pending in Supreme Court

The government has contested the decision passed by the Full Bench of Delhi High Court in Brig A K Malhotra’s case. The Apex Court has granted leave to appeal and stayed the decision of the Full Bench of Delhi High Court, and the matter is currently pending before the Hon’ble Supreme Court.

Analysis of the Trend of Judicial Pronouncements

The approach of the courts in granting pensionary benefits has not been uniform due to the conflicting nature of the Pension Regulations, which stipulate forfeiture of pension while the courts lean towards a liberal approach, considering pension as a socio-economic measure. This divergence becomes more pronounced when dealing with disability pension cases, where the courts consistently adopt a liberal approach to ensure socio-economic justice.

For instance, the Hon’ble Supreme Court’s order dated 20 Jul 98 in SLP filed by Union of India and ors v. K Sudhir reflects the court’s reluctance to interfere with a particular case’s outcome, despite acknowledging certain erroneous findings. The varied interpretations and decisions across different courts leave the Supreme Court’s final decision eagerly awaited.

Conclusion

Pension holds significant importance as a measure of socio-economic justice, providing economic security in old age when physical and mental capabilities wane with aging. It becomes crucial for individuals to have a safety net to fall back on during retirement. Consequently, the interpretation of pension schemes or statutes introducing pension schemes must lean towards a liberal construction, as held by the Constitution Bench of the Supreme Court in D S Nakara’s case.

While considering appeals for pensionary benefits under the government’s directive in the letter dated 9 June 99, the competent authority must take into account the nature of duty, the requirement of strict discipline, and the nature of the offense—whether purely military or not. Denying pensionary benefits could have severe implications for the families of dismissed or cashiered individuals. However, in cases involving extraordinarily grave offenses or large-scale embezzlement, the option to forfeit pension should be available.

Furthermore, the effect of forfeiture of pension on sentencing by the Court Martial needs in-depth examination. The possibility of withholding pensionary benefits upon dismissal or cashiering might influence the sentencing calculus of the Court Martial, leading to potential repercussions for maintaining discipline within the Army.

In essence, the issue of granting pensionary benefits to dismissed personnel remains controversial, with divergent judicial approaches stemming from the conflicting provisions of the Pension Regulations. The pending Supreme Court decision in Brig A K Malhotra’s case is expected to bring clarity to this matter.

Overall, the subject of granting pensionary benefits to dismissed Army personnel calls for careful consideration of the individual circumstances, adherence to relevant regulations, and the overarching goal of ensuring socio-economic justice for those who have dedicated their lives to serving the nation.