Allowed

Shyam Singh v. the Union of India

Uttarakhand HC4 Jun 2024WPSB/172/2022

Case brief

AI extract

What is this about?

This court held that pension is a statutory right enforceable under Article 300-A. It allowed the petition, quashing the Armed Forces Tribunal's order and setting aside the State Bank's unilateral freezing of pension accounts. The court directed the Army authorities to decide merit and pass a mandatory order within two months.

What did the court decide?

Writ petition allowed. Competent Authority directed to consider the matter and pass necessary order regarding pension including arrears within two months.

Shyam Singh Vs the Union of India — Pension and Retirement Benefits | Uttarakhand HC (2024)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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WRIT PETITION (S/B) NO.172 OF 2022

Ex Naik Shyam Singh.

…..Petitioner

Vs.

The Union of India & others. .…Respondents

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Counsel for the petitioner : Mr. Lalit Kumar and Mr. Siddhartha Bisht, Advocates. Counsel for the respondent nos.1 to 3 : Mr. Rajesh Sharma, Standing Counsel Counsel for the respondent nos.5 & 6 : Mr. Ashish Joshi, Advocate

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Dated: 4^th June, 2024

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Coram : Hon’ble Manoj Kumar Tiwari, J. Hon’ble Pankaj Purohit, J.

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Per: Hon’ble Manoj Kumar Tiwari, J.

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Petitioner was enrolled as Soldier in Brigade of Guards, on 30.11.1982. After rendering more than 18 years of satisfactory Army service, he retired as Nayak on 30.06.2001. Upon retirement from Brigade of Guards, petitioner opened Pension Account No.11795437352 with State Bank of India, Almora Branch and, according to him, he started receiving pension regularly. Petitioner was having another Pension Account No.20048462406, in which he was getting pension for the services rendered by him as Sepoy in Defence Security Corps (D.S.C.), where he was re-employed between 15.03.2002 to 30.06.2018. Both these Pension Accounts were frozen by the Manager, State Bank of India, Almora Branch. Petitioner approached Armed Forces Tribunal, Regional Bench, Lucknow by filing Original Application No.157 of 2020, seeking the following reliefs:

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“(i) To direct the respondents to unfreeze forthwith applicant’s Pension Account Nos. 20048462406 and

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11795437352 maintained by him with Respondent No. 6, with a further direction to the respondents, particularly Respondents 5 and 6 to permit the applicant to withdraw the money from these accounts as per his wish and requirement.

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(ii) To direct the respondents to supply the copies of the following documents to the applicant:-

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(a) A copy of the letter which had led respondents 5 and 6 to conclude that the applicant was fraudulently drawing the service pensions from the above pension accounts.

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(b) A copy of the inquiry/investigation report on the basis of which such opinion was formed by the said respondents 5 and 6 against the applicant.

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(d) A copy of the relevant provisions of law under which the above action of freezing/ putting on hold the above pension accounts of the applicant had been taken by the respondents.

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(e) A copy of the writ petition which has been allegedly filed in the High Court at Nainital against the applicant.

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(iii) To award the exemplary cost to the applicant as against the respondents, particularly respondents 5 and 6 if it is found by the Hon’ble Tribunal that the impugned action of freezing/putting on hold the above pension accounts of the applicant, had been taken by them without authority of law.

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(iv) To award interest @ 18% p.a. on the amount which was illegally frozen/ put on hold by the respondents from the date of such action till the date of actual unfreezing of these accounts.”

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His Original Application, however, was dismissed with cost of ₹50,000/- vide judgment dated 06.10.2021. Relevant extract of the impugned judgment passed by Armed Forces Tribunal is reproduced below:

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“ 23. The school leaving certificate filed by the applicant shows that he was admitted in school in the year 1970 in Class- 1 and left the school in 1976 after

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having passed class-5. In another original application O.A. No 289 of 2018 filed by the younger brother Shyam Singh applicant of that case has filed copy of his school certificate and it shows that applicant’s younger brother passed his School in the year 1981. If applicant’s younger brother Shyam Singh passed High School in 1981, this means he would have passed Class- V in 1976. It is not applicant’s case that he and his younger brother both passed Class- V in the same year i.e. 1976. If both applicant and his younger brother did indeed pass Class – V in same year, it gives rise to only one possibility that School Leaving Certificate which applicant has filed is of his younger brother Shyam Singh, and not his. This supports the respondents’ case that applicant got enrolment in Indian Army and thereafter in DSC service using School Leaving Certificate of his younger brother Shyam Singh and this was the reason that name and date of birth of his younger brother got recorded in his service records which was intentionally done by the applicant for the reasons best known to him. Applicant cannot claim innocence saying a wrong was perpetuated by someone else (his nana) by wrong mentioning name and date of birth of his younger brother Shyam Singh at the time of his admission in school and therefore in his educational record. As a matter of fact, applicant being fully aware about the wrong he got enrolled in the Indian Army and then in DSC service by using School Leaving Certificate of his younger brother perhaps due to the reason that either he did not actually go to school or if he had, he must have failed. But, in any case, he has committed a grave fraud by getting enrolled in the Indian Army and then in DSC, which he did not deserve. The grave misconduct and fraud the applicant committed warrant not only stoppage of his pension for both services, (Army and DSC) he has rendered, but being a penal offence also it needs to be investigated by the police to meet the ends of justice.

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24. We find from the admitted and pleaded facts that the action taken against the applicant by respondents for fraudulent act done by him in getting enrolment in the army falls within the preview of the above PCDA (P) provisions.

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25. In view of the above discussions, We do not find any merit in the application to interfere with the impugned order passed by the respondents in stopping both the pensions. Consequently, the application being devoid of merit is liable to be dismissed.

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26. In view of the aforesaid, the Original Application is dismissed with exemplary cost Rs. 50,000/- on the applicant to be deposited with Registry of this Tribunal. Further Registrar of this Tribunal is directed

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to approach Superintendent of Police/ Senior Superintendent of Police, District – Almora, along with a copy of this judgment to lodge FIR against Naik Shyam Singh No 13683855W (Real Name Narayan Singh) son of Madan Singh, Resident of Village - Dhudalia Manral, Post - Ganai, TehsilRanikhet, District- Almora (Uttrakhand), PIN- 263656 to take action under appropriate Sections of law for grave misconduct/ fraud committed by him and to take necessary action as per law.”

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Petitioner has challenged the impugned judgment rendered by learned Tribunal on various grounds. It is contended by learned counsel for the petitioner that the authorities of State Bank of India had no authority to stop payment of service pension to the petitioner, which he earned after rendering exemplary service in Indian Army. It is further contended that the competent authority in Indian Army has not passed any order stopping pension of the petitioner, therefore, the State Bank of India, which has to disburse pension, cannot question petitioner’s entitlement for pension. It is further contended that pension is in the nature of deferred salary and, after rendering more than 18 years of service in Brigade of Guards and more than 16 years of service in Defence Security Corps (D.S.C.), petitioner earned the right to get pension, which cannot be taken away without following the procedure prescribed by law.

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Learned counsel for the petitioner submits that learned Tribunal has relied upon Section 43 of the Army Act, 1950 for denying relief to petitioner which, however, is not applicable to the facts of the case. He submits that there is no allegation that petitioner got enrolled in the Army, without having obtained a regular discharge from the Corps or Department, to which he belongs. He further submits that the question is of identity alone, as it

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is alleged that petitioner and his brother were enrolled in the Army with the same name and petitioner was enrolled in the Army on the basis of School Leaving Certificate of his brother. He submits that, at the time of petitioner’s recruitment in the Army, Recruitment Officer had examined all documents, he had enrolled petitioner in Army only after being satisfied that everything is in order and thereafter, Police verification was also done, therefore, after 35 years, his eligibility for pension cannot be questioned. He further submits that Section 122 of the Army Act, 1950 provides the period of limitation for trial for any offence shall be three years and sub-section (4) of Section 122 provides that no trial for an offence of desertion or of fraudulent enrolment shall be commenced, if the person in question, subsequent to the commission of the offence, has served continuously in an exemplary manner for not less than three years with any portion of the regular Army. He, thus, submits that provision contained in Section 122 of the Act, was completely ignored by learned Tribunal. Section 43 and Section 122 of the Army Act are reproduced below for ready reference:

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“43. Fraudulent enrolment.- Any person subject to this Act who commits any of the following offences, that is to say,-(a) without having obtained a regular discharge from the corps or department to which he belongs, or otherwise fulfilled the conditions enabling him to enrol or enter, enrols himself in, or enters the same or any other corps or department or any part of the naval or air forces of India or the Territorial Army; or

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(b) is concerned in the enrolment in any part of the Forces of any person when he knows or has reason to believe such person to be so circumstanced that by enrolling he commits an offence against this Act , shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned. ”

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“ 122. Period of limitation for trial.- (1) Except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years and such period shall commence,(a) on the date of the offence; or

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(b) where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or

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(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.

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(2) The provisions of sub- section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37.

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(3) In the computation of the period of time mentioned in sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.

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(4) No trial for an offence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army.”

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Learned counsel for the petitioner further submits that pension is a statutory right of every Exserviceman, which is governed by Pension Regulations. He submits that, as per the relevant Regulations, the competent authority may withhold or withdraw pension or a part thereof, only if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. He submits that, in the present case, there is no such finding either by Criminal Court or by a Court Martial, therefore, pension, which is a statutory right of the petitioner, cannot be withheld. Learned counsel for the petitioner

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has relied upon Regulation 8 of Pension Regulations for the Army, Part-I (2008), which reads as under:

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“ PENSION SUBJECT TO FUTURE GOOD CONDUCT

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8. (a) Future good conduct shall be an implied condition for every grant of pension or allowance and its continuance under these Regulations.

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(b) The competent authority may, by an order in writing, withhold or withdraw a pension or a part thereof whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct.

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Provided that where only a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of minimum pension fixed by Government from time to time.

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(c) Where a pensioner is convicted of a serious crime by a court of law or by court martial or is found guilty of grave misconduct, action under clause (b) above shall be taken in the light of the judgment of the court relating to such conviction.

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(d) In a case not falling under clause (c) above, as well as other cases where the competent authority considers that the pensioner is prima facie guilty of grave misconduct, the competent authority before passing an order under clause (b) above;

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(i) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken against him and calling upon him to submit, within 15 days of the receipt of the notice or such further time not exceeding 15 days as may be allowed by the competent authority, such representation as he may wish to make against the proposal, and

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(ii) take into consideration the representation, if any, submitted by the pensioner under sub clause (i) above.

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Notes: 1. The expression ‘serious crime’ means an offence under the Indian Penal Code 1860 or Official Secrets Act, 1923 or any other law for the time being in force in the country for which the maximum punishment prescribed under the law is imprisonment for a period of 3 years or more with or without a fine.

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The expression ‘grave misconduct’ includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in

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Section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interest of the general public or the security of the State.”

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Learned counsel for the petitioner further submits that even if there is a finding that the pensioner is guilty of a serious crime or grave misconduct, then also the competent authority cannot unilaterally pass an order withholding, suspending or discontinuing whole or part of pension and it shall be incumbent upon him to serve a show cause notice of not less than 30 days before an order withholding, suspending or discontinuing pension is passed and such order can be passed only after considering the reply to the show cause notice given by the person concerned. Thus, he submits that even the Army Authorities have to follow the procedure prescribed in the Pension Regulations before passing an order withholding or suspending pension, however, in the present case, the Bank Authorities have done what the Army Authorities could not have done. Regulation 104 of Pension Regulations for the Army, Part-II (2008), on which heavy reliance has been placed by learned counsel for the petitioner, is reproduced below for ready reference:

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“ SUSPENSION DIS-CONTINUANCE OR WITHHOLDING OF PENSION UNDER REGULATIONS OF PENSION REGULATIONS FOR THE ARMY, PART-I (2008)

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104. In regard to cases covered by Regulations 8 and 28 of Pension Regulations for the Army, Part-I (2008), the procedure shall be as under:

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(a) Before passing orders regarding with-holding, suspension or dis-continuance of the whole or part of pension (including commuted value thereof which has not been paid) or gratuity (including Retirement/Death Gratuity), the competent authority shall serve upon the individual pensioner, a notice specifying the action proposed to be taken and calling upon him to submit within 30 days of the receipt of the notice (or such

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further time not exceeding 30 days as may be allowed by the competent authority) such representation, as he may wish to make against the proposal.

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(b) Take the representation, if any, received during the prescribed period into consideration.

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(c) Having taken action as indicated at (a) and (b) above, the competent authority shall decide and issue orders in writing to with-hold or suspend or discontinue the whole of pension and gratuity or part thereof indicating whether the orders in the case of pension shall apply permanently or only for a specified period.

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(d) An appeal against the decision of the competent authority in cases falling under Regulation 8 of Part-1 of these Regulations can be made to the appellate authority. The appellate authority shall be the President in the case of Commissioned Officers and the GOC-in-C command in whose jurisdiction the Record Office of the individual is located. In the case of Personnel Below Officer Rank the appeal shall be made through the Record Office concerned.

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(e) In the case of Personnel Below Officer Rank, the competent authority/appellate authority shall consult the Principal Controller of Defence Accounts (Pensions) while passing final orders. In the event of difference of opinion between these authorities and the Principal Controller of Defence Accounts (Pensions), the matter shall be referred to the Government of India.”

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Based on Rule 8 and Rule 104 of Pension Regulations for the Army, it is contended by learned counsel for the petitioner that sine qua non for withholding, suspension or discontinuing whole or part of pension is conviction for a serious crime or when grave misconduct is proved to have been committed by the pensioner. He submits that, in the present case, there is no finding against the petitioner that he is guilty of grave misconduct nor he has been convicted for a serious crime by any criminal Court, therefore, the condition precedent for exercise of power under Regulation 8(b) of Pension Regulations is non-existent. He further submits that, during his entire service career with the Indian Army, he was never found guilty by a Court Martial nor he was

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convicted by any Criminal Court; no disciplinary enquiry is pending or contemplated against the petitioner, therefore, his service pension could not have been withheld in the absence of any adverse material against him. He further submits that Regulation 104 unequivocally provides that, before passing any order withholding, suspending or discontinuing whole or part of pension or gratuity, the competent authority is duty bound to issue a show cause notice in terms of Regulation 104(a). He submits that no notice, as contemplated in Regulation 104(a), was ever issued to the petitioner and, to the best of his knowledge, no order has been passed by competent authority, withholding or discontinuing his pension. He, thus, submits that the authorities of State Bank of India have acted wholly beyond the scope of their powers in withholding the pension of the petitioner, and dismissal of his original application by learned Tribunal is unsustainable in the eyes of law.

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Learned Standing Counsel appearing for Union of India fairly submits that the Competent Authority in the Indian Army has not passed any order under Regulation 8 of Pension Regulations for the Army, Part-I (2008).

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Vide order dated 27.09.2023, this Court had called upon the respondents to give answer to certain queries, which are reproduced below:-

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“(i) Whether pension payment order(s) favouring the petitioner, in respect of both the pensions, have been withdrawn/cancelled or not.

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(ii) Whether any criminal/departmental/court martial proceeding was initiated against the petitioner for the charge of impersonation.

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(iii) Whether payment of pension to the petitioner was stopped by taking recourse to any provision of pension

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regulations applicable to him.

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(iv) Whether any order was passed by the competent authority after petitioner’s retirement, for stopping payment of pension to the petitioner, if yes, the reason therefor.

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(v) The authority under which payment of pension to the petitioner is stopped.

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(vi) Whether army authorities instructed State Bank of India not to release any amount as pension to the petitioner.”

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Learned Standing Counsel for Union of India submits that answer to aforesaid six queries are given in paragraph nos.4 to 7 of the counter affidavit dated 07.11.2023 filed by Major Manish Sharma on behalf of respondent nos.1 to 4. Paragraph nos.4 to 7 of the counter affidavit are extracted below for ready reference:

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“ 4- That as par direction issued in para 6 (i) of the order dated 27/09/2023 passed by this Hon’ble Court it is submitted that letter dated 17 Aug 2020 issued by State Bank of India, CPPC, Chandni Chowk, Delhi, in which it has mentioned, that a letter was received from Sri Narayan Singh confessing that the documents of Shyam Singh were used for availing undue advantage of getting service in Indian Army and thereafter its related consequential benefits. Accordingly, pension in both the account of Ex Naik Shyam Singh (real name Narayan Singh) i.e. (1)11795437352 and (2)-11180503040 was discontinued since May 2017 and in Account No 20048462406 the pension is put on hold. A Copy of the letter dt. 17/08/2020 is annexed herewith and marked as ANNEXURE NO CA-1 to this Affidavit.

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5- That as par direction issued in para 6 (ii) of the order dated 27/09/2023 passed by this Hon’ble Court it is submitted that no criminal/department/Court Martial Proceeding was initiated against the petitioner by the answering respondents, however as par order dated 06/10/21 passed by the Hon’ble AFT, Registrar Hon’ble AFT was directed to approach Senior Supt. Of Police District Almora to lodge FIR against the petitioner for Grave Misconduct/Fraud Committed by him.

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6- That as par direction issued in para 6 (iii) to 6(v) of the order dated 27/09/2023 passed by this Hon’ble Court it is submitted that PCDA(P) Allahabad is the sole authority to sanction the pension and release the

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pension to be executed by concerned CPPCs and pension paying Bank. PCDA Allahabad vide letter dated 03/07/2017 had intimated record, Brigade of the Guards to investigate the matter of genuiness and take necessary action accordingly. A Copy of the letter dated 03/07/17 are annexed herewith and marked as ANNEXURE NO CA-2 to this Affidavit.

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7- That as par direction issued in para 6 (vi) of the order dated 27/09/2023 passed by this Hon’ble Court it is submitted that the Army Authorities had never passed any instructions for stoppage of the Pension and rather it was CPPCs SBI, Chandani Chowk, Delhi vide letter dated 08/05/17 who had intimated that the above pensioner has been getting duel pension on the basis of forged documents as per the statement given by him, we have suspended the payment of pension w.e.f. May 2017. A Copy of the letter dated 08/05/2017 are annexed herewith and marked as ANNEXURE NO CA-3 to this Affidavit.”

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From reply to the queries posed by this Court, given in the counter affidavit, it is revealed that the authorities of State Bank of India unilaterally stopped paying pension to the petitioner in the absence of any order/instruction by the Army Authorities. The Bank Authorities appear to have acted upon a confessional letter allegedly sent by petitioner. Petitioner submits that he had never sent any such letter to the Bank and it may be an act of some mischief monger. The Authorities of State Bank of India cannot assume the role of adjudicator and if such letter was received by them, then it was incumbent upon the Bank Authorities to refer the matter to Army Authorities and wait for their decision. However, in the present case, the Bank Authorities have unilaterally stopped payment of pension, without there being any order/instruction by the Army Authorities. The counter affidavit reveals that neither any criminal proceedings nor Departmental/Court Martial proceedings were initiated against the petitioner. Thus, the condition precedent for exercise of power under Regulation 8 of Pension Regulations is missing.

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It is not in dispute that petitioner served in Brigade of Guards for more than 18 years, thus, he earned the right to pension, in terms of the Pension Regulations for the Army. Upon retirement from Brigade of Guards, Pension Payment Order was issued to petitioner and he was also paid pension continuously between 2001 to 2017 which, however, was stopped in the absence of any order by the Competent Authority. Petitioner thereafter rendered more than 16 years of service in Defence Security Corps (D.S.C.) and separate pension for the services rendered in (D.S.C.) was also sanctioned to him, however, payment of said pension was also abruptly stopped in November, 2019, without there being any order by the Competent Authority under Regulation 8 of Pension Regulations for the Army, (2008). In the absence of any order passed by the Army Authorities under Regulation 8 read with Regulation 104 of Pension Regulations for the Army, Part-I (2008), the officers of State Bank of India had no authority to withhold pension of the petitioner. This aspect, however, has been overlooked by learned Armed Forces Tribunal.

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Learned counsel appearing for State Bank of India submits that the officers of State Bank of India acted on the basis of a complaint received from brother of the petitioner (Hawaldar Shyam Singh). We are not impressed by said submission. Bank has to act as agent of the employer, therefore, in the absence of any order or instruction from the Competent Authority in the India Army, the Bank had no authority to withhold pension of the petitioner.

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14. It is now well settled that gratuity and pension are not bounty and an employee earns these benefits by dint of his long continuous faithful and unblemished service. Hon’ble Supreme Court in the case of D.N. Nakara vs Union of India & others reported in 1983 (1) SCC 305 has held that pension is a right and its payment does not depend upon the discretion of the Government but is governed by the Rules and the Government Servant coming within those Rules is entitled to claim pension.

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15. In the case of State of Jharkhand & others vs Jitendra Kumar Srivastava & another reported in 2013 (12) SCC 2010, Hon’ble Supreme Court has reiterated that right to receive pension is property, which cannot be withheld by an Administrative Order. Para 14 to 17 of the said judgment are reproduced below:-

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“ 14. The right to receive pension was recognised as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330 : 1971 Supp SCR 634] , as is apparent from the following discussion: (SCC pp. 342-43, paras 27-33)

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“27. The last question to be considered, is, whether the right to receive pension by a government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.

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28. According to the petitioner the right to receive pension is property and the respondents by an executive order dated 12-6-1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on 5-8-1996. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting

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pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution.

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29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of qualifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the rules. The rules, we have already pointed out, clearly recognise the right of persons like the petitioners to receive pension under the circumstances mentioned therein.

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30. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India [AIR 1962 Punj 503]. It was held that such a right constitutes ‘property’ and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh [ILR (1965) 2 Punj 1] approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is ‘property’ within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as ‘property’ cannot possibly undergo such mutation at the whim of a particular person or authority.

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31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab [AIR 1967 Punj 279 : ILR (1967) 1 Punj 278] . The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of

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misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.

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32. This Court in State of M.P. v. Ranojirao Shinde [AIR 1968 SC 1053 : (1968) 3 SCR 489] had to consider the question whether a ‘cash grant’ is ‘property’ within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing ‘it is obvious that a right to sum of money is property’.

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33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by clause (5) of Article 19. Therefore, it follows that the order dated 12-6-1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.”

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15. In State of W.B. v. Haresh C. Banerjee [(2006) 7 SCC 651 : 2006 SCC (L&S) 1719] this Court recognised that even when, after the repeal of Article 19(1)(f) and Article 31(1) of the Constitution vide Constitution (Forty-fourth Amendment) Act, 1978 w.e.f. 20-6-1979, the right to property no longer remained a fundamental right, it was still a constitutional right, as provided in Article 300-A of the Constitution. Right to receive pension was

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treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.

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16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”. Article 300-A of the Constitution of India reads as under:

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“300-A.Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.”

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Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

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17. It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different.”

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16. Admittedly, petitioner had served for 34 years in Brigade of Guards and Defence Security Corps (D.S.C.) of Indian Army, thus, he has earned right to get pension after rendering such long services, which have been certified to be exemplary in his discharge certificate. It is also not in dispute that the Competent Authority in the Indian Army had sanctioned pension to the petitioner which was being paid regularly to him, therefore, before withholding or discontinuing his pension, the procedure prescribed by Pension Regulations had to be followed.

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17. The allegation against the petitioner is that he used the educational certificate of his brother for getting enrolled in the Indian Army or that he used the identity of

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his brother. The stand taken by petitioner is that it was a bonafide mistake, as his father, who was also serving in Indian Army, died at a young age during enemy action in 1962 War, and petitioner’s mother was unable to recover from the shock of untimely death of her husband. Consequently, petitioner’s maternal grandfather got him admitted in school and due to confusion; petitioner was admitted in school with the same name as that of his brother.

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18. According to petitioner, in the year 1982 when he was enrolled in the Brigade of Guards, no educational qualification was required for serving as Soldier and even an illiterate person could have been enrolled as Soldier in the Army. Thus, he submits that petitioner did not derive any undue benefit and the mistake was a bonafide one. It is further contended that disciplinary action, if at all, could be taken while petitioner was in service, not after his retirement when pension was also sanctioned to him. The fact of the matter is that petitioner has rendered exemplary service in the Indian Army for more than three decades, therefore, he is entitled to get service pension, as per the relevant Regulations, and this right cannot be taken away from him without following the procedure prescribed by law.

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19. Pension Regulations for the Army governs the field which provides that service pension would be subject to future good conduct and the Competent Authority may withhold or withdraw pension, whether permanently or for a specified period, if the pensioner is convicted of serious crime or is found guilty of grave misconduct.

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20. Regulation 104 of the Pension Regulations for the Army lays down the procedure which has to be followed before passing any order for withholding or suspending or discontinuing whole or part of pension.

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21. In the present case, there is no order by Competent Authority as per Regulation 8 of the aforesaid Regulations, therefore, withholding of pension of the petitioner by the Authorities of State Bank of India is without any authority of law. This aspect, however, was overlooked by learned Armed Forces Tribunal. On this short point alone the impugned judgment dated 06.10.2021 is liable to be set aside and is hereby set aside.

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22. Accordingly, the writ petition is allowed. The Competent Authority in the Indian Army is directed to look into the matter and pass necessary order regarding pension, including arrears, payable to petitioner, as per law, within two months from the date of production of certified copy of this order.

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(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)

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04.06.2024

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Arpan

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Shyam Singh v. the Union of India

Case brief

What is this about?

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Shyam Singh v. the Union of India

Case brief

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