Grant of pension by Armed Forces Tribunal to widow of court martialed officer who died during pendency of appeal

The Principal Bench of the Armed Forces Tribunal (AFT) has granted pension to the widow of an officer who had been cashiered from service after a court martial and who died during the pendency of his appeal against the verdict of the said court martial.

Lt Col SK Malhotra was cashiered for the offence of abetment of theft of two barrels of petrol. He had challenged the verdict in the Delhi High Court and the petition was transferred to the AFT on its inception in 2009. The officer however died before the conclusion of the challenge.

The widow of the officer had, after the officer’s death, submitted a mercy petition to the Government for grant of pension since it is permissible under the rules for the Government to grant pension (at its discretion) even to officers dismissed from service if they had minimum length of qualifying service for pension at the time of dismissal. The mercy petition however was rejected by the Government through a non-speaking order.

The AFT, while disposing the pending appeal, had directed the Government to reconsider the mercy petition  of the widow for pension by way of a reasoned order since the officer had died before his guilt or otherwise could be established in the appellate process.

The Government however again rejected the prayer of the widow primarily on the pretext that she was not facing extreme hardship since her children were “married and settled”. The said rejection was challenged by the widow through a fresh petition before the AFT.

Allowing the petition, the AFT has directed the Government to release the family pension to the widow by holding the grounds professed by the Respondents to be unreasonable.  The tribunal has ruled that marriage of children does not imply that the widow does not require financial support for sustenance or that the children must necessarily be taking care of her financial needs. The tribunal has also found fault in the rejection order of the Government since in its earlier order the tribunal had observed that her claim for pension was an ‘independent right’, an observation that had not been challenged in any higher forum. The tribunal, based on equities, has granted pension to the widow from the date of the order (without past arrears), and has also held that the order would not be cited as a precedent.

Though the tribunal has appreciably granted pension to the wife of the late officer, still the entire saga reflects poorly upon the system on many accounts. Firstly, the non-culmination of a process set in motion in 1997 for such a long time. Secondly, the Government’s rejection of the petition in the first instance without assigning any reasons. Thirdly, the Government’s rejection of the petition for the second time by assigning flimsy reasons only in order to circumvent the order of the AFT, showing in the bargain that the rejection was more out of prestige than proper application of mind. Fourthly, the AFT terming its own order non-precedential would lead to the proposition of law still remaining grey for future cases with no judicial guidance to both sides as to how to settle such matters if they so arise in the future.

Perhaps we would have the benefit of a Constitutional Court decision on the issue in the future.