SC restores the punishment of ‘Cashiering’ imposed on Army ‘Medical Specialist’ for ‘abused position of trust being a Doctor’.

Pranjal Sharma | Symbiosis Law School, Hyderabad | 1st August 2020

UNION OF INDIA & ORS. V.  LT. COL. S. S. BEDI

FACTS

1. The current case is an Appeal against the judgement of the Armed Forces Tribunal, Principal Bench, New Delhi under which the judgment of General Court Martial, i.e., conviction of Ex. Lt. Col. S. S. Bedi for misbehaving and inappropriately touching the private parts of two women was upheld. However, the sentence of cashiering from service was converted into a fine of Rs.50,000/- by the Tribunal. Ex Lt Col S S Bedi filed an application seeking permission to file an Appeal which was dismissed by the Tribunal, however the Appellant later filed Criminal Appeal aggrieved by the judgment of the Tribunal upholding the conviction ordered by the General Court Martial and imposition of fine of Rs.50,000/-.
2. The Appellant was a Medical Specialist posted at Base Hospital Lucknow. On the 15^th of May 1986 two women made a complaint against the Appellant that he misbehaved with them during checkup by inappropriately touching their private parts. The GOC-in-C directed recording of summary evidence, on the basis of which, the convening authority directed trial of the Appellant by the General Court Martial, On 29^th of November 1986 a charge sheet was filed against the Appellant for committing a civil offence by using criminal force on two women with intent to outrage their modesty, Appellant was held guilty by the General Court Martial on 09.12.1986 and was sentenced to be cashiered from service on 14.01.1987 after which he appealed in the tribunal and the Tribunal upheld the conviction of the Appellant but converted the punishment of cashiering to a fine of Rs.50,000/-
3. The learned counsel appearing for the Appellant submitted that the conviction of the Appellant is unsustainable as the evidence on record was not properly appreciated by both the General Court Martial and the Tribunal. He also submitted that the evidence of Mrs. Gita Ray & R. Sharma which is in favour of the Appellant has not been taken into account. He argued that the physical examination of both the complainants was necessary for the ailments that were being suffered by them.
4. The Respondent contended that there was ample evidence on record pointing to the guilt of the Appellant which has been properly appreciated by the General Court Martial and the Tribunal and argued that the conversion of cashiering into fine was unnecessary. The Appellant had misbehaved with two patients and the expert evidence also shows that there was no necessity of the Appellant touching the private parts of the complainants. There was no motive for false implication of the Appellant by the complainants.
5. The appellant argued that even if the penalty imposed by the Court Martial of cashiering from service is upheld, forfeiture of all the pensionary benefits of the Appellant is not automatic. He relied upon the judgments of this Court in Union of India v. Brig. P.K. Dutta (Retd.) 1 and Union of India v. P.D. Yadav[1], and Union of India v. P.K. Dutta (Retd.) in which the Delhi High Court held that cashiering does not itself result in forfeiture of retiral benefits, the court also opined that Regulation 16 (a) contemplates a situation where an officer is cashiered on dismissal or removal from service and provides how his pension is to be dealt with, while Section 71 (h) provides for a punishment relating to forfeiture of pension at the conclusion of Court Martial, concluding that the nature and content of both the impositions is different and there is no inconsistency between Section 71 (h) and Regulation 16 (a).

JUDGMENT

The hon’ble court held that the punishments awardable by the Court Martial under Section 71 include cashiering in case of officers and forfeiture of service for the purpose of pension apart from the other penalties. The court observed that the punishment imposed on the Appellant is only cashiering from service and does not include forfeiting of pension, therefore there is merit in the submission of appellant that in the absence of an order passed under Section 71 (h), the pension of the Appellant cannot be forfeited.

The hon’ble court stated that the Respondents are at liberty to commence proceedings under the Pension Regulations for forfeiture of the pension of the Appellant, if they so desire.

It was also observed that the Tribunal converted the sentence of cashiering into a fine of Rs.50,000/- by holding that the Appellant has a blemishless record of service. The Tribunal also highlighted the delay in the complaint made against the Appellant and said that the punishment of cashiering from service shockingly disproportionate. The hon’ble court stated that they were not convinced with the reasons given by the Tribunal for converting the sentence from cashiering to imposition of fine of Rs.50,000/- therefore, the court restored the punishment of penalty of cashiering by taking into account “the reprehensible conduct of the Appellant abusing a position of trust being a Doctor which is not condonable.” However, the court also direct the Respondents to consider the entire record of service of the Appellant and his advanced age while taking a decision to initiate proceedings under the Army Pension Regulations. In the current case as the Respondents did not initiate the proceedings under Army Pension Regulations, therefore the Appellant shall be entitled for all pensionary benefits. The amount of Rs.50,000/- deposited by the Appellant shall be refunded to him with interest accrued therefrom.

[1]1995 Supp. (2) SCC 29