- (1.) The appellant retired from the Indian Army on 30/9/1984 in the rank of Major on attaining the age of superannuation. A General court-Martial (GCM) was ordered against him in the year 1985 on charges of theft while he was in active service. The GCM acquitted him by the order dated 14/2/1985. The revisional authority reviewed the proceedings of the GCM under the Army Act and remanded the same for fresh trial. On reconsideration the GCM by its order dated 8/7/1985 held the appellant guilty and awarded six months' rigorous imprisonment and also cashiered him. The punishment was promulgated and came to be effective from 23/9/1986. The conviction and sentence awarded by the GCM was not challenged before any court of law and in fact the appellant has already undergone the sentence awarded to him by the GCM. A notice dated 16/7/1990 was issued to the appellant asking him to show cause why his pension and death-cum-retirement gratuity be not forfeited. The said notice was as a consequence of his conviction by GCM. The appellant filed his reply to the notice. The President of India by the order dated 26/6/1991 ordered the forfeiture of his pension and death-cum-retirement gratuity. The appellant challenged the conviction/sentence by the GCM as well as the order of forfeiture of his pension etc. by way of a writ petition before the Delhi High court. The High court dismissed the writ petition in limine. This appeal by way of special leave is against the order of the High court.
(2.) We have (sic heard) learned counsel for the parties. Mr J. S. Manhas, learned counsel for the appellant has raised two contentions -for our consideration. Inviting our attention to Section 123 of the Army Act (the Act) , he has contended that even though a retired personnel who is not subject to the Act may be tried by the GCM but the punishment which can be awarded to him is only that which can be given the provisions of the Act. To be precise the contention is that the appellant could be awarded the punishment of imprisonment but the punishment of being cashiered from the Army could not be awarded to him because he had retired from the Army. The second contention raised by the learned counsel for the appellant is that the Pension Regulations, 1961 having not been notified in the Official Gazette, these regulations have no statutory force and as such the pension and death-cum-retirement gratuity already awarded to the appellant can (sic not) be forfeited.
(3.) We may notice the provisions of Section 123 of the Act and Regulation 16 (a) of the Pension Regulations for the Army, 1961 which are as under: "123.Liability of offender who ceases to be subject to Act.- (1 Where an offence under this Act had been committed by any person while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in military custody, and tried and punished for such offence as if he continued to be so subject. (2 No such person shall be tried for an offence, unless his trial commences within a period of three years after he had ceased to be subject to this Act; and in computing such period, the time during which such person has avoided arrest by absconding or concealing himself or where the institution of the proceeding in respect of the offence has been stayed by an injunction or order, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded, (3 When a person subject to this Act is sentenced by a court-martial to transportation or imprisonment, this Act shall apply to him during the term of his sentence, though he is cashiered or dismissed from the regular Army, or has otherwise ceased to be subject to this Act, and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act. (4 When a person subject to this Act is sentenced by a court-martial to death, this Act shall apply to him till the sentence is carried out. " "16.(A) When an officer who has to his credit the minimum period of qualifying service required to earn pension, is cashiered or dismissed or removed from service, his pension, may at the discretion of the President, be forfeited or be granted at a rate not exceeding that for which he would have otherwise qualified had he retired on the same date. ";