MALKIAT SINGH KHELA Vs UNION OF INDIA
Bench: H.L. DATTU,RANJAN GOGOI
Case number: C.A. No.-000713-000713 / 2013
Diary number: 2616 / 2009
Advocates: ARUN K. SINHA Vs
ANIL KATIYAR
Page 1
1
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
Page 2
2
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
Page 3
3
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
Page 4
4
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
Page 5
5
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
Page 6
6
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.
Page 7
7
19.Accordingly, we dismiss this appeal.
Ordered accordingly.
.......................J.
(H.L. DATTU)
.......................J.
(RANJAN GOGOI)
NEW DELHI;
JANUARY 22, 2013.