SWAPAN KUMAR MISHRA Vs. UNION OF INDIA

JUDGEMENT

(1.) REFUSAL to grant pensionary benefits to an ex -Lieutenant of Indian Navy on the ground that he had been dismissed with disgrace from service is the subject -matter of this Writ application.

(2.) BEREFT of unnecessary details the short facts necessary for appreciation of this case are as follows : The petitioner had joined Indian Navy on 20th January, 1973. After successful completion of training he was posted as Engineering Mechanic, II Class on 20th, July 1974. In course of time by dint of sincerity and merit he had been promoted to the cadre of Lieutenant with effect from 1.1.1985. In the year 1993 while he was working as a Logistics Officer in the ship INS Jamuna allegations having been levelled with regard to certain omissions and commissions, five charges were framed against him. After serving a charge -sheet he was put on trial in Court Martial. The initiation of trial before the Court Martial and the charges levelled against him were just like bolt from the blue. He was given no opportunity to contact any person competent enough to advise him in the matter and as to the legal consequences thereof. He was under great mental shock and while in traumatic state he thought not guilty, admitted the charges to be true. Accepting the said admission of the petitioner, the Court Martial gave him an opportunity to state the mitigating circumstances in his favour before passing any sentence against him. The petitioner made his statement and relying upon the same the Court Martial by order dated 19th September, 1995 Annexure -3 sentenced him to six months rigorous imprisonment as an 'A class prisoner and ordered that he be dismissed from Naval Service and to suffer consequential penalties involved. The petitioner assailed the order/sentence of the Court Martial by filing a review petition before the Chief of the Naval Staff in consonance with Section 160 of the Navy Act, 1957. The said authority considered the charges framed against the petitioner and the materials available on record and holding the Charges 2, 4 and 5 not to have been established set aside the conviction and sentence under the said charges. While upholding the conviction under charges 1 and 3 the substantive sentence was modified from six months rigorous imprisonment to four months. The petitioner made a representation to the Chief of Naval Staff, Ministry of Defence, New Delhi praying for grant of pensionary benefits to him he having rendered 'twenty -one years of unblemished service. After receipt of the application a notice was issued to him calling upon him to show cause as to why pensionary benefits should be granted. The petitioner submitted his reply inter alia stating that the order of his dismissal from service was in terms of Section 81(1)(e) of The Navy Act, 1957 and as such he was entitled to get pensionary benefits. No steps having been taken by the authorities in the matter for quite some time the petitioner was subjected to unsurmountable hardship and passed his days under stringent financial difficulties and mental tension. Finding no way out, the wife of the petitioner made a representation before the National Commission for Women seeking its help. The said National Commission requested the Flag Officer and Commandant in Chief to look into the matter. The latter without properly appreciating the facts and circumstances of the case communicated to the petitioner on 28th October, 1997 that as he had been dismissed from Navy service with disgrace, and as such was not entitled to any pensionary benefit. Being aggrieved by the communication dated 28th October, 1997 the petitioner approached this Court in OJC No.11180 of 1998 alleging that the opposite parties had not properly appreciated his case, inasmuch as the order of his dismissal from Navy Service being not in terms of Section 81(1)(c) of The Navy Act, 1957 but was dismissal simpliciter under Section 81(1)(e), he was entitled to pensionary benefits. After receiving notice the opposite parties entered appearance in the Writ application and filed their counter -affidavit taking the stand that the dismissal from service of the petitioner was in terms of Section 81(1)(c) of the Navy Act and, as such, he was not entitled to any pension. It was further stated in the counter affidavit that in place of Regulation 15(2), it had been wrongly mentioned as Regulation 15(1) in the order in question and as such the petitioner who had been dismissed from service with disgrace was not entitled to any pension. This Court after hearing the learned counsel for the parties came to the conclusion that a person who faced order of dismissal simpliciter was entitled to claim pension; whereas a person who is dismissed from service with disgrace had no right to claim pension under Regulation 15(1) of the Navy Pension Regulations, 1964. This Court further observed that as the petitioner had faced dismissal simpliciter, his claim for pension was to be considered under Regulation 15(2) of the aforesaid Regulations. This Court therefore quashed the impugned communication that the petitioner was not entitled to pension and directed the opposite parties to consider his case afresh. In consonance with the aforesaid direction of this Court the matter was once again considered by the opposite parties and by order dated 11th June, 2001 (Annexure -5/A) the petitioner was once again intimated that his request for grant of pensionary benefits had been turned down. Being aggrieved by the said order Annexure -5/A, the petitioner has again approached this Court with the present Writ application.

(3.) HEARD Mr. Jagannath Patnaik, learned Senior Advocate appearing for the petitioner and Mrs. Bharati Das, learned counsel appearing for the opposite parties. Relying on Annexure -3, the order passed by the Court Martial, Mr. Patnaik submitted that the said authority found the petitioner guilty of two charges under Section 54(2) of the Navy Act and one charge under Section 406 IPC read with Section 77(2) of the Navy Act and adjudging the guilt sentenced him to suffer six calendar months rigorous imprisonment as a class 'A prisoner and further directed that he be dismissed from service and to suffer consequential penalties involved. The said sentence was subsequently modified to four months rigorous imprisonment. According to Mr. Patnaik a dismissal simpliciter and not with disgrace does not disentitle the petitioner to get pensionary benefits. Mrs. Das on the other hand submitted that a number of allegations as to malfeasance and misfeasance and also misappropriation of Government funds having been proved against the petitioner he had been dismissed from Naval Service. He having been convicted of such grave charges it should be held that he was dismissed with disgrace and the authorities rightly refused him pensionary benefits.