EX Vs. UNION OF INDIA AND ANOTHER

JUDGEMENT

(1.) The petitioner joined the Army on 27.10.1970. He was transferred to Pension Establishment (Discharged from Service) on 1.7.1986. He fulfilled the conditions under Item III(i) of the Table annexed to army Rule 13-A(3), having completed 15 years and 247 days of service. This fact is noticed in the discharge certificate issued to him by Records Artillery, Nasik. The petitioner claims pension under Rule 132 of the Pension Regulations. The aforesaid Rule reads as under :-

(2.) A perusal of the aforesaid Rule shows that the petitioner was clearly entitled to receive pension at the time when the order of discharge was passed. The petitioner was, however, tried by a General Court Martial under Section 37(b) and 28(1) of the Army Act. He was awarded 18 months rigorous imprisonment. Copy of the charge-sheet, findings of the Court Martial, sentence and confirmation/promulgation are attached with the petition as Annexures P-1 to P-4 respectively. The petitioner was charge-sheeted on two counts. The first charge was under Section 37-B of the Army Act, of mutiny for having left alongwith some other Army Personnel the unit lines in commandeered vehicles in open defiance of their superior officers. The second charge was under Section 38(1) of the Army Act "Deserting the Services" with regard to the same episode. The allegation was that the petitioner alongwith certain other Army officials absented themselves from the camp location of 166 Mountain Regiment until apprehended by the Military Police at New Jalpaiguri Railway Station on 11.6.1984. The petitioner was found not guilty of the second charge of deserting the Army. He was, however, ordered to suffer RI for 18 months on the first charge of mutiny. A period of 424 days of unexpired portion of the sentence was remitted w.e.f. 6.2.86. He was released from Military jail on 12.2.1986. Thereafter he continued to service in the Army till 30.6.1986. The petitioner made numerous representations to the respondents for the release of pensionary benefits. He was informed by letter dated 2.9.86 (Annexure P-6) that his claim for pension has been rejected, as the petitioner had been tried under Section 38(1) of the Army Act, and therefore, he has forfeited his entire service towards pension. The petitioner has challenged the conviction awarded by the General Court Martial on the ground that there has been a breach of Rule 22 of the Army Rules. The petitioner was never marched to the Commanding Officer on any charge. No witness deposed in his presence, there was no chance for him to cross-examine any witness against him. Even his statement or statements of any defence witnesses were not taken by the Officer Commanding. It has been further stated that the Officer Commanding had acted on the instructions from higher authorities. Therefore, the trial had not been conducted fairly. According to the petitioner, the proceedings had been conducted in breach of Rule 23 of the Army Rules. There had also been breach of Rule 180 of the Army Rules which provides that full opportunity must be afforded to the concerned Officer during the hearing. It is further the case of the petitioner that the joint trial against the petitioner and other Army Officials is patently illegal as it violates Note 8 to the Section 38 of the Army Act. The aforesaid Note reads as under :-

(3.) Even otherwise, according to the petitioner, no offence had been committed under Section 37(b)AA of the Army Act as there was no evidence of any conspiracy. Consequently, it is pleaded that the conviction for the offence of mutiny is not sustainable. For the same reason, the petitioner cannot be denied the benefit of pension.