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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 713    OF 2013

(@ SPECIAL LEAVE PETITION (C) NO.9608 OF 2009)

LT.CDR.MALKIAT SINGH KHELA (RETD.)   APPELLANT

VERSUS

UNION OF INDIA & ANR.   RESPONDENTS

O R D E R

1. Leave granted.

2. This appeal, by special leave, is directed against  

the  judgment  and  order  passed  by  the   High  Court  of  

Judicature  of  Bombay  in  W.P.  No.  307  of  1998,  dated  

22.07.2008,  whereby  and  whereunder  the  High  Court  has  

dismissed the petition filed by the appellant.  

3. The facts in brief are: The appellant is a retired  

personnel of Indian Navy.  He had joined the Indian Navy as  

Aviation Cadet in October 1971. He was commissioned as Sub-

Lieutenant in the Executive Branch (Pilot) on 02.06.1973,  

thereafter,  he  was  promoted  to  the  rank  of  Lieutenant  

Commander.

4. It has come on record that the appellant had allowed  

his family friends from Afghanistan to stay in his official  

residential  accommodation  from  10.01.1989  to  21.01.1989.  

This, according to the respondents, was in violation of an

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order of the Western Naval Command orders, 1986. In view of  

the  said  violation,  the  appellant  was  tried  by  a  Court  

Martial in the year 1989.  

 5. After the inquiry, the Court Martial has held that  

the  appellant  is  guilty  of  the  offence  punishable  under  

Section 68 of the Navy Act, 1957 ('the Act' for short) and,  

accordingly,  has  passed  an  order  imposing  punishment  of  

forfeiture  of  36  months  of  seniority  in  the  rank  of  

Lieutenant  Commander  and  severe  reprimand,  as  prescribed  

under Section 81(1)(f) and (l) of the Act.

6. Sometime in the month of June 1993, the appellant  

had  sought  voluntary  retirement  from  service  after  

completing 20 years of service. The request of the appellant  

was conceded to by the respondents and, accordingly, they  

had permitted him to retire from service with effect from  

07.03.1994.

7. It  is  an  admitted  fact  that  the  respondents  had  

sanctioned pensionary benefits to the appellant in a sum of  

Rs.1910/- per month with effect from 01.07.1993, by their  

order dated 07.03.1994.   

8. The  respondents,  by  their  order  dated  16.11.1994,  

had intimated the appellant of their decision to discontinue  

the pension of the appellant. They had opined that the said  

grant  of  pensionary  benefits  was  erroneous  as  the

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abovementioned order of disciplinary authority imposing the  

punishment  of  forfeiture  of  seniority  in  the  rank  for  a  

period of 36 months continued to subsist and in view of the  

said punishment the appellant is not entitled for pension,  

since  he  had  not  completed  the  qualifying  service  of  20  

years to avail such grant.  Accordingly, had issued a Show  

Cause  Notice,  dated  20.01.1996,  interalia,  directing  the  

appellant  to  show  cause  as  to  why  the  excess  amount  of  

pension  paid  should  not  be  recovered  from  him.   After  

considering the reply of the appellant, the respondents have  

confirmed their show cause notice and further have directed  

the appellant to refund the amounts paid to him.

9. Aggrieved by the aforesaid order, the appellant had  

filed the Writ Petition No. 307 of 1998 before the High  

Court.  The  Court,  by  its  order  dated  22.07.2008,  has  

dismissed the Writ Petition.

10.We  have  heard  Shri  Ashok  Kumar  Gupta,  learned  senior  

counsel appearing for the appellant and Shri Paras Kuhad,  

learned  Additional  Solicitor  General  appearing  for  the  

respondents.

11.Shri Gupta would submit that the imposition of punishment  

in  terms  of  “forfeiture  of  seniority  in  rank”  would  not  

amount  to  “forfeiture  of  service”  of  the  appellant  and,  

therefore, the period of service of the appellant must be

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calculated as 20 years instead of 17 years entitling him for  

the grant of pensionary benefits.  

12.Section 81 of the Act provides for the various type of  

punishments that can be imposed under the Act.  Clause (f)  

speaks of forfeiture of seniority in rank in the case of  

officers  and  master  chief  petty  officers  and  clause  (l)  

speaks of severe reprimand or reprimand.

13.Section 82 of the Act provides provisions as to award of  

punishment. Sub-Section (12) of Section 82 is relevant for  

the purpose of disposal of this appeal. It is as under:

“Section 82 provides as to award of punishment:- x         x        x       x      x x  x        x  x      x

(12) The punishment of forfeiture of seniority  shall involve the loss of the benefit of service  included  in  the  seniority  forfeited  for  the  purposes  of  pay,  pension,  gratuity,  promotion  and such other purposes, as may be prescribed,  provided that such pay, pension, gratuity and  promotion and other purposes depend upon such  service.”  

14.After noticing sub-section (12) of Section 82, Appendix  

III  framed  under  Regulation  20  of  the  Navy  (Pension)  

Regulations,  1964  (“the  Regulations”  for  short),  which  

provides for qualifying service for grant of pension to the  

officers of general list, also requires to be noticed by us.  

The relevant clauses in Appendix III are clause (1) and its

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proviso is under:

“(1)Commissioned service.- Period of service as a  permanent  commissioned  officer  and,  if  it  is  preceded without a break, by service of one or  more of the following categories subject to the  refund  to  Government  of  the  gratuity,  if  any,  other than war gratuity, received in respect of  such service namely:-

(a) Service as commissioned officer in the Army,  Indian Navy or Air Force, irrespective of the type  of commission; (b) Mobilized  commissioned  service  in  the  Indian Naval Reserve/ Indian Army in India Reserve  of officers or called up commissioned service in  the Indian Air Force Volunteer Reserve;   (c) Embodied or called out commissioned service  as an officer of the late Indian Territorial Force  or of the late Auxiliary Force (India) or of the  Territorial Army [or the Auxiliary Air Force]  Provided that - (a) Any service which was forfeited for seniority,  and  (b) Any period of unauthorized absence unless pay  and  allowance  are  admitted  for  the  period  of  absence  shall  not  be  regarded  as  qualifying  service.”     

15.It is neither in dispute nor can it be disputed by the  

appellant  that  an  order  of  punishment  was  passed  by  the  

disciplinary authority for violation of the orders issued by  

the Western Naval Command and the punishments so imposed  

therein was forfeiture of 36 months seniority in the rank of  

Lieutenant Commander and severe reprimand.  

16.The language employed in the aforesaid provisions which  

we  have  noticed  earlier  clearly  envisages  that  for  the  

purposes  of  calculating  the  pensionary  benefits,  the  

qualifying service would exclude the period of service which

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was forfeited under Section 82(f)(l) of the Act.

17.In the instant case though the appellant has completed 20  

years of service, but in view of sub-section (12) of Section  

82 of the Act, the imposition of forfeiture of seniority  

would involve loss of benefit of service.  This means that  

in view of the punishment imposed by the respondents, he  

would lose three years of the benefit of service. In other  

words, that his total tenure of service would be only 17  

years  of  service  out  of  the  statutory  requirement  of  20  

years.  However, while  calculating the  qualifying service,  

the  respondents  had  committed  a  mistake  which  they  have  

rectified  after  complying  the  requirements  under  the  

Statute.   

18.In our considered view, all these provisions and facets  

of the matter have been taken note of by the High Court  

while dismissing the Writ Petition filed by the appellant  

and, upon due consideration of the matter, we are in full  

agreement with the reasoning and conclusion reached by the  

High Court in the impugned judgment and order.  

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19.Accordingly, we dismiss this appeal.  

Ordered accordingly.

.......................J.

(H.L. DATTU)

.......................J.

(RANJAN GOGOI)

NEW DELHI;

JANUARY 22, 2013.