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JAI LAL & ORS versus UNION OF INDIA & ORS

High Court of Punjab and Haryana, Chandigarh

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Jai Lal & Ors v. Union of India & Ors - CWP-11566-1999 [2006] RD-P&H 4231 (17 July 2006)

In the High Court of Punjab and Haryana, Chandigarh

C.W.P. No. 11566 of 1999

Date of Decision: July 18, 2006

Jai Lal and others

...Petitioners

Versus

Union of India and others

...Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR.
HON'BLE MR. JUSTICE M.M.S. BEDI.

PRESENT: Mr. Sanjay Vashisth, Advocate,

for the petitioners.

JUDGMENT

M.M. KUMAR, J.

This petition filed under Article 226 of the Constitution prays for a declaration to the effect that Para 4 and 5 of the Pension Regulation, Part-I and Para 82 of the Pension Regulation Part-II, are against Articles 14 and 16(1) of the Constitution. A further direction has been sought to grant the petitioners arrears of their pension along with interest at the rate of 18% per annum from the due date till the date of payment. A consequential relief of quashing the order suspending the pension of the petitioners during the period they were serving the sentence has also been made.

Brief facts of the case are that the petitioners are pensioners and after their retirement from Army as Hawaldars they CWP No. 11566 of 1999

were living at village Rajgarh, District Bhiwani. The petitioners had retired on 1.4.1986, 1.8.1983 and 22.2.1983 respectively. A case under Sections 302/148/397/326/506/149 IPC at Police Station Sadar, Bhiwani, was registered against them. They were convicted under Sections 323/148/149 IPC by the learned Sessions Judge, Bhiwani on 6.11.1993 and were sentenced to undergo imprisonment for a period of two years and on appeal the sentence and order of conviction were upheld. They served the sentence from 16.2.1996. Petitioner Nos. 1 and 2 were released after serving sentence on 30.4.1997 whereas petitioner No. 3 served the sentence till 16.5.1997. For the period they served their respective sentences, their pension was suspended by the respondents. The petitioners made representation on 10.12.1997 (P-2), which was replied by the respondents vide letter dated 20.1.1998 (P-4) by pointing out that in terms of Rule 82-B of the Army Pension Regulations Part-II, 1961, sanction of pension from the date of their release after serving sentence has been accorded but the pension in respect of the period the petitioners had served the sentence was not released. The action of suspending pension for the period of sentence undergone by the petitioners appears to have emanated from Para 82 of the Army Pension Regulations, which provide that pension may be suspended from the date a pensioner is sentenced till the date of his release from the jail custody. Para 82 (a) of the Regulations has been made subject matter of challenge in the instant petition.

CWP No. 11566 of 1999

When the matter came up for motion hearing on 5.10.1999, a Division Bench of this Court passed the following order:-

"Present: Mr. Surender Gandhi, Advocate, for Mr. Sanjay Vasisth, Advocate,

for the petitioner.

Third time, case is coming up for

preliminary hearing to enable learned counsel to examine law in support of challenge to vires of the pension regulations. This time, he has put in written request for adjournment. Mr. Surender Gandhi, Advocate, is appearing on behalf of Mr. Vasishth, Advocate.

We find no justification for granting

repeated adjournments. In the interest of justice, however, we adjourn the case sine die, with liberty to the petitioner to apply for relisting and preliminary hearing as and when he finds it convenient.

Sd/-

(Arun B. Saharya)

Chief Justice

Sd/-

(V.K. Bali)

October 5, 1999 Judge"

Although no application was filed for re-listing the case for preliminary hearing, yet, such like matters were ordered to be listed. The case is listed before us after about seven years.

CWP No. 11566 of 1999

Mr. Sanjay Vashisth, learned counsel for the petitioner has firstly submitted that the conviction of the petitioners under Section 323 read with Sections 148 and 149 cannot be considered to be for a serious offence and, therefore, Para 82 read with Para 4 of the Regulations would not apply and the action of suspending pension for the period of imprisonment is liable to be declared as illegal. He has further argued that suspension of pension would amount to double jeopardy as on the one hand the petitioners have suffered by serving the sentence and then they have to undergo the trauma of forfeiting their pension for that period. It is pertinent to mention that no argument has been raised with regard to the vires of Para 82 of the Regulations.

We have thoughtfully considered the submissions made by the learned counsel and are of the view that the action of the respondents in stopping the pension for the period the petitioners have served the sentence, does not suffer from any illegality warranting interference of this Court. Para 82 of the Regulations armed the respondents with ample power to take such an action and the same reads as under:

"82. Suspension, discontinuation or withholding of pension of a pensioner who is convicted of a crime by a court of Law or is guilty of grave misconduct not of a political nature. If a pensioner is convicted of a crime by court of Law or it guilty of grave misconduct, which is not of a Political nature, the following procedure shall be followed:-

CWP No. 11566 of 1999

(a) If a pensioner is sentenced to imprisonment for criminal offence, his pension shall be suspended from the date of his imprisonment and the case reported by the Chief Controller of Defence Accounts (Pension) for the order of the competent authority. In a case where a pensioner is kept in police or jail custody as an under- trial prisoner and is eventually sentenced to a term of imprisonment for a criminal offence. The suspension of pension shall take effect from the date of imprisonment only.

(b) The competent authority shall decide in consultation with the Chief Controller of Defence Accounts (Pension) and if necessary, with the civil authorities also whether the offence is a serious one and if so, he shall order the removal of the pensioner's name from pension list, from the date of the commencement of his imprisonment. Pension thereupon shall cease to be payable from that date.

(c) If the competent authority decides that the offence is not so serious as to justify the removal of the pensioner's name from the pension list, it shall not be removed, the payment of arrears of pension due from the date of last payment before imprisonment shall be made on release from prison.

(d) If a pensioner is sentenced to imprisonment to imprisonment for a criminal offence by a lower court CWP No. 11566 of 1999

but is acquitted, on appeal, by a higher court the pension withheld shall be restored.

(e) If a pensioner is in imprisonment for debt, pension shall continue to be paid."

A perusal of the above Regulation would show that pension given to a pensioner could be suspended, discontinued or withheld on the conviction of such a pensioner by a Court of law.

Clause (a) clearly delineate the cases where payment of pension is to be suspended. It provides that the suspension of pension is to take place from the date of imprisonment. Clause (b) of Regulation 82 further provides the powers of the Chief Controller of Defence Accounts (Pension) to decide in consultation with civil authorities as to whether offence committed by a pensioner was serious one which would result into removal of the name of the pensioner from the list and thereupon pension shall ceased to be payable. Clause (c) of Regulation 82 postulate that if the competent authority comes to a conclusion that the offence was not so serious as to justify the removal of the name of the pensioner from the pension list then his name should not be removed and all arrears of pension are required to be paid. We are unable to see any illegality in the action of the respondents that the offence committed by the petitioners was not a serious offence. Explanation (a) appended to Para 4(4) of the Regulations reads as under:

"Grant of Pension is subject to future good conduct

4. XXX XXX XXX XXX CWP No. 11566 of 1999

EXPLANATION: (a) The expression `serious crime' or offence means a crime or an offence under the Indian Penal Code or Official Secrets Act 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 three years or more with or without a fine. [M/D No. 12(17)/86/D (Pen/Ser) dated 29/8/88]"

The above reproduced Explanation (a) explains the expression `serious crime' to mean any offence committed under the Indian Penal code or Official Secrets Act for which the maximum punishment prescribed under the law is imprisonment for a period of three years or more with or without a fine. The petitioners have been convicted admittedly, under Sections 323, 148 and 149 IPC According to Section 148 IPC the offence of rioting armed with a deadly weapon is punishable for three years or fine or both.

Therefore, by no stretch of imagination it could be concluded that the offence committed by the petitioners was not a `serious crime' as the maximum punishment prescribed under the law is imprisonment for a period of three years or more with fine.

The first argument of the learned counsel, therefore, falls to the ground when he argued that the offence under Sections 323, 148 and 149 of IPC cannot be regarded as a serious crime. The statutory provision of Explanation (a) appended to Sub-para (4) of Para 4 of the Regulations itself regards an offence such as Sections 323/148/149 IPC as a serious crime because the offence under CWP No. 11566 of 1999

Section 148 IPC is punishable with three years and with or without fine.

The second argument that it would result into double jeopardy, is also wholly misconceived. The concept of double jeopardy emanates from Section 2 of Article 20 of the Constitution, which provides that no person is to be prosecuted and punished for the same offence more than once. It is well settled that proceedings before departmental and administrative authorities cannot be considered as proceedings of judicial nature as postulated by Article 20(2) of the Constitution. In S.A. Vanktaraman v. Unionof India, AIR 1954 SC 375, a delinquent employee was dismissed from service after holding a regular inquiry under the Public Service Enquiry Act, 1960. He was later prosecuted under the Prevention of Corruption Act, 1988 and the Indian Penal Code. It was held that the proceedings of the departmental inquiry did amount to prosecution for an offence within the meaning of Article 20(2) of the Constitution. The aforementioned view was followed by a Constitution Bench of the Supreme Court in Jawala Ram v. State of Pepsu, AIR 1962 SC 1246. Therefore, we have no hesitation to reject the second argument raised on behalf the petitioners.

No other argument has been urged.

The writ petition is, thus, wholly without merit and the same is accordingly dismissed.

(M.M. KUMAR)

JUDGE

CWP No. 11566 of 1999

(M.M.S. BEDI)

July 18, 2006 JUDGE

Pkapoor


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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