SUPREME COURT OF INDIA

Before:- K.T. Thomas and R.P. Sethi, JJ.

Civil Appeals No. 7804 of 1997 with Nos. 7805-08 of 1997, IAs Nos. 5 and 6, SLP (C) No. 18889 of 1998. D/d. 17.1.2001.

Union of India - Appellants

Versus

SPS Dhinda N.M. - Respondent

For the Appellant in appeals & Respondent in SLP (UOI) :- P.P. Malhotra, Senior Advocate (Ms Indra Sawhney, Ms Inna Smita, Hemant Sharma, C. Radhakrishna and Ms Anil Katiyar, Advocates, with him).

For the Petitioner in SLP :- Avijit Bhattacharjee, Advocate.

For the Respondent (in CA No.7808 of 1997) :- Ms Kawal Jit Kochar, Ms Sonal Mahajan and J.D. Jain, Advocates.

For the Respondent (in CAs Nos. 7804 and 7805) :- Harish Uppal, Ms Amita Lalit and Uday Umesh Lalit, Advocates.

For the Respondent (in CA No. 7800) :- Ashok Kr. Sharma, Advocate.

For the Respondent (in CA No. 7807) :- Jagdev Singh Manhas, Advocate.

For the Intervener (in CA No. 7808) :- K.S. Bhati, Advocate.

Army Act, 1950, Section 71 - Pension Regulations for the Army, 1961, Regns. 16(a) and 113 - Court Martial - Power of Court Martial to deal with pensionary benefits under Section 71, Army Act and forfeit the same under Regns. 16(a) and 113 of Pension Regulations (for the Army) - Conflicting decisions of the Supreme Court - Matter directed to be placed before a larger Bench for decision.

[Para ]

Cases Referred :-

Union of India v. Brig. P.K. Dutta (Retd.), 1995 Supp (2) 29 : : (1995) 29 ATC 654.

ORDER

K.T. Thomas, J. - Leave granted in SLP (Civil) No. 18889 of 1998.

2. Applications for restoration/intervention are dismissed as withdrawn.

3. In all these matters when the arguments proceeded, the main point emphasised is this:

Whether the Court Martial has power under Section 71 of the Army Act, while imposing punishment, to deal with pensionary benefits. If the Court Martial has the power, can the power under non-statutory regulations like Regulations 16(a) and 113 of the Pension Regulations for the Army, 1961 Part I be further exercised to forfeit the pensionary benefits of an officer? [Regulation 16(a) is intended to apply to commissioned officers and Regulation 113 is intended to apply to personnel below the rank of officers, otherwise both the Regulations are identical.]

4. Mr P.P. Malhotra, learned Senior Counsel appearing for the Union of India invited our attention to a two-Judge Bench decision of this Court in Union of India v. Brig. P.K. Dutta (Retd.), 1995 Supp (2) 29 : : (1995) 29 ATC 654 in which the question was considered whether Section 71(h) of the Army Act and Regulation 16(a) of the Pension Regulations would overlap each other and it was held that they are intended to cover two different stages of two different fields.

5. Mr Harish Uppal, learned counsel invited our attention to an unreported three-Judge Bench decision of this Court in Lt. Col. (T.S.) Harbans Singh Sandhu v. Union of India, WP(C) No. 553 of 1972, dated 22-11-1978 (by Hon'ble V.R. Krishna Iyer, P.S. Kailasam and A.D. Koshal, JJ.) and contended that the observations therein had taken a different stand, but unfortunately the said decision was not brought to the notice of the two-Judge Bench while dealing with Brig. P.K. Dutta case.

6. Mr P.P. Malhotra, learned Senior Counsel contended that the three-Judge Bench decision referred to above had not taken a different view.

7. We deem it necessary that this question is heard and decided by a larger Bench, due to the importance of its application to personnel in the Defence Department. Hence, these appeals can be placed for appropriate orders of the Hon'ble the Chief Justice of India.

Court Masters