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2002 DIGILAW 451 (RAJ)

Balu Singh v. The Union of India

2002-02-20

K.S.RATHORE, M.R.CALLA

body2002
JUDGMENT 1. - This special appeal is directed against the judgment and order dated 21.12.1995 passed by the learned Single Judge in S.B. Civil Writ Petition No. 147/1994 whereby the writ petition was dismissed. 2. The appellant came with the case that he was initially enrolled in the Rajputana Rifles i.e. Infantry Regiment of the Indian Army on 23.11.1942 and was allotted Regimental No. 35083. After completion of training of recritees he was attested in accordance with Section 11 of the Army Act 1911 which is (now Section 16 of the Army Act 1950) designated as Rifleman and attached to 3/6 Unit of Rajputana Rifles. During the course of second World War while undergoing the training of use of gas masks due to defective mask, the gas leaked out and the petitioner's right eye was damaged. Thereafter, he was transferred to the Army Ordinance Corp (Watch and Ward Wing) as Sepoy to guard the ammunition depot. According to relevant provisions under the Army Act prevailing at that time any person enrolled into one Corp or Department could be transferred from that corp/department to another corp/department without his consent. And accordingly the petitioner was also transferred to Watch and Ward Wing as Sepoy. The petitioner claims that he has to his credit one 'War Medal' and one Indian Independence Medal. In the Army Ordinance Crop (Watch and Ward Wing) he was allotted new number 213302 and continued to be governed by the Army Act. Vide discharge certificate dated 29.3.1957 the petitioner was discharged from the service w.e.f. 30.4.1957 on completion' of 14 years 5 months and 8 days service. The petitioner also has to his credit Higher Military Education Certificate in R.T. Exam (Military). The terms and conditions of his service even after his transfer to Watch and Ward Wing remained the same as they were in the Infantry Regiment of Rajputana rifles as would appear from the document Annexure R 2 i.e. a letter dated 18.1.1945 addressed to the Adjutant General in India by the Government of India War Department (Army Branch) New Delhi. As per item 4 i.e. terms and conditions of service under this letter dated 18.1.1945 clause 10 thereunder i.e. other concessions provides that whilst on field service and in threatened areas, they will receive concessions as admissible to combatant personnel of the regular army. As per item 4 i.e. terms and conditions of service under this letter dated 18.1.1945 clause 10 thereunder i.e. other concessions provides that whilst on field service and in threatened areas, they will receive concessions as admissible to combatant personnel of the regular army. It is the petitioner's case that throughout his service from 23.11.1942 to 30.4.1957 he served the army for 14 years 5 months and 8 days to be counted as 14 and half years as per note below part 5 of the Ministry of Defence letter dated 30.10.1987. The deficiency in 6 months so as to complete the 15 years service was not condoned in the case of the petitioner and therefore the petitioner claimed that he was entitled to grant of special pension under Rule 164 of the pension regulations for the Army part 1 because he was discharged due to disbendment of his unit/formation. It is the case the petitioner that he was representing the authorities for grant of pension from time to time but he was informed that since he had been enrolled in the army on 23.11.1942 and discharged w.e.f. 1.5.1957 due to disbendment of Watch and War Wing on deferred volunteer terms and he was not paid any special/service gratuity as per the letter dated 26.9.1987, the copy of which has been enclosed as Annexure 3 with the petition. Same reply was given vide letters dated 27.4.1988, 3.6.1988 and 30.3.1989. On 2.5.1989 the petitioner requested that his case be put up before higher authorities and he also moved an application dated 14.12.1989 to the Prime Minister. The Government of Rajasthan (Rajya Sainik Board) also took up his case for condonation of deficiency in service and grant of pension vide letter dated 10.4.1990. He was then informed by the Army Headquarter vide letter dated 12.8.1991 that the case is proposed to be taken with the Government for grant of service pension and the Government reply be awaited. A letter dated 28.8.1991 was also written by Lt. General Kundan Singh PVSM (Rtd.) recommending the petitioner's case. The petitioner then gave a legal notice dated 16.10.1993 which was served upon B.C. Joshi Chief of the Army Staff bringing on that the individual was actually enrolled in the Rajputana Rifles as a combatant soldier. The aforesaid legal notice dated 16.10.1993 was served by registered post. The notice was received by the respondent on 16.12.1993. The petitioner then gave a legal notice dated 16.10.1993 which was served upon B.C. Joshi Chief of the Army Staff bringing on that the individual was actually enrolled in the Rajputana Rifles as a combatant soldier. The aforesaid legal notice dated 16.10.1993 was served by registered post. The notice was received by the respondent on 16.12.1993. The petitioner then preferred the writ petition No. 147/94 on 7.1.94 with the prayers as under : (i) Issue an appropriate writ, order or directions thereby declaring the action of the non- petitioners in not sanctioning pension to the petitioner to be wholly illegal, arbitrary and unconstitutional; (ii) Issue an appropriate writ, order or directions thereby directing the non-petitioners to sanction pension to the petitioner w.e.f. 1.5.1957 with all consequential benefits; (iii) Issue an appropriate writ, order or directions thereby directing the non-petitioners to pay interest on the arrears of pension w.e.f. 1.5.1997 @ Rs. 24% PA.; (iv) Issue an appropriate writ, order or directions thereby directing the non-petitioners to pay Rs. 25,000/- to the petitioner as an exemplary cost for the delay, in paying pension to the petitioner for his no fault and for causing huge financial hardship and mental agony to him; (v) Issue an appropriate writ, order or directions as may be deemed just and proper by this Hon'ble court; (vi) Cost of the writ petition be awarded to the humble petitioner; 3. This petition No. 147/94 was summarily dismissed on 26.5.94 on the ground that no cause of action had arisen in the jurisdiction of this Court. 4. A special appeal was directed against the judgment and order dated 26.5.1994 passed by the learned Single Judge, and this appeal was allowed and the decision of the learned Single Judge was set aside in D.B. Civil Special Appeal (Writ) No. 565/1994 on 22.8.1995 and the petitioner was sent back to the learned Single Judge for further proceedings in accordance with law. Thereafter, the learned Single Judge decided the petition by his judgment and order dated 21.12.1995 whereby the petition was dismissed and it is this judgment and order dated 21.12.1995 which has been made the subject matter of challenge in this appeal. So far as the pleadings are concerned apart from the writ petition and the documents therewith there is a common reply to the writ petition filed on behalf of the respondents. So far as the pleadings are concerned apart from the writ petition and the documents therewith there is a common reply to the writ petition filed on behalf of the respondents. On the basis of the pleadings as above and the grounds as have been raised in the body of the petition we are required to consider as to whether the relief with regard to the special pension is to be granted to the petitioner or not? 5. Before we proceed to consider the merits of the case it is pointed out that we may take notice of the objection as has been raised by Mr. Vijay Singh appearing for the respondents, that this petition is highly belated in as much as he had been given the discharge certificate in the year 1957 and by that time he had served for a period of 14 years 5 months and 8 days. In Watch and Ward Wing without the completion of 15 years of service according to the respondents the appellant has no case for grant of any type of pension. 6. Before us the learned counsel for the appellant has assailed the order as has been passed by the learned Single Judge and it has been submitted that there is no question of delay in such matters. He had been representing his cause and ultimately preferred the writ petition after giving notice for demand of justice. The question of delay in such matters has been considered in detail by a Division Bench of this Court to which one of us was a party i.e. in D.B. Civil Special Appeal (Writ) No. 1251/1996 and decided on 25.1.2002 Sultan Singh v. U.O.I. & Ors. in which after considering several cases it has been held that in the cases relating to pension the ground of delay is not fatal and, therefore, this objection is hereby rejected. Coming to the merit of the case we find from the reading of the rules that there are equal alternative options i.e. either special pension or gratuity. Even if the petitioner has not completed 15 years of service so as to qualify for pension he is certainly entitled to the special pension on the strength of the provisions contained in Rule 164 and 167 as discussed in detail in Sultan Singh's case (Supra). Even if the petitioner has not completed 15 years of service so as to qualify for pension he is certainly entitled to the special pension on the strength of the provisions contained in Rule 164 and 167 as discussed in detail in Sultan Singh's case (Supra). Rule 164 provides that the special pension or gratuity may be granted on the discretion of President to individuals who are not transferred to the reserve and are discharged in large number in pursuance of the Government's policy, either of reducing the strength of establishment of the army or of re-organisation, which results in disbendment of any units/formations. Under Rule 167 the scale of special pension of gratuity has been prescribed for the qualifying service of 10 years or more but less than 15 years, the pension proportionate to the minimum service pension, under Regulation 136. Thus the gratuity is to be paid in case where the service is of 5 years or more but less than 10 years or it is even less than 5 years. In other case when the service rendered is for 10 years or more the special pension has to be paid. 7. Learned counsel for the respondents Mr. Vijay Sigh tried to put up the contest by saying that the petitioner was in the category of non-combatant and in that category the pension is not available in case the service is short of 15 years and in such cases only special pension is payable and such amount of gratuity for the period of service rendered by him has already been given. In this context we called upon the learned counsel for the parties so as to make us understand as to what is the classification of combatant and non-combatant. Mr. Shyam Singh submitted that those persons who are designated in the army after attestation after taking oath are combatant and they continue to be combatant even after their transfer to the Army Ordinance Core (Watch and Ward Wing) and once the attestation is given the status of combatant is retained. Those who work as Sweepers, Masalchi etc. fall in the category of non-combatant and those who are attested getting the status of combatant under Chapter 2 of the Enrolment and Attestation i.e. as per Encl. Those who work as Sweepers, Masalchi etc. fall in the category of non-combatant and those who are attested getting the status of combatant under Chapter 2 of the Enrolment and Attestation i.e. as per Encl. 3 of the petition wherein at item No. 8 it has been provided that all combatants, and other enrolled persons who may be selected to hold non-commissioned or acting non- commissioned rank shall, when reported fit for duty, are required to be attested in the manner provided in section 17. Section 9 provided for the oath and affirmation to be taken on attestation. In the light of the provisions as aforesaid it is very clear that the petitioner was in the category of a combatant officer and he could not be said to be a non-combatant officer and he was certainly entitled to the special pension under Regulation 164 read with 167 for the period of service i.e. 14 years 5 months and 8 days admittedly rendered by him. And there is no question of denying the same to the petitioner by telling him that he was only entitled to gratuity and the amount of Rs. 328/- against his gratuity had already been paid. This question was also considered in the Division Bench judgment while passing the order dated 25.1.2002 wherein this question has been considered in detail on the question of delay as well as entitlement under regulation 164 and 167 i.e. in the case of Sultan Singh v. U.O.I. & Ors. in D.B. Civil Special Appeal No. 1251/1996 and it appears that the matter was not placed before the learned Single Judge in the correct perspective. The order as has been passed by the learned Single Judge denying the claim of special pension cannot be sustained and the same is hereby set aside. 8. A grievance has also been raised on behalf of the petitioner that the petitioner is not being paid the disability pension in accordance with the rules. 9. Learned counsel for the appellant has submitted that the respondents had never disclosed the petitioner's status with regard to the injury as had been sustained by him in respect of the medical category and no documents are being supplied to him and his case for disability has not been considered at all. Whereas he is entitled to the same besides the claim for special pension in accordance with rules. Whereas he is entitled to the same besides the claim for special pension in accordance with rules. It has also been pointed out before us with the support of decision rendered by this Court in the case of Lal Singh v. Union of India & Ors. reported in RLR 1999(1) 114 that it is the Record Officer's duty to take up the case for pension. The Record Officer should have taken into consideration as to what was the claim of the petitioner and therefore, even if it is assumed that claim was firmly raised by the petitioner at initial stage, the same is of no consequence and the Record Officer of his own ought to have taken up the issue with regard to the special pension as also the disability pension in the facts of the given case. 10. Mr. Singh has pointed out that in such cases the persons who are retired and discharged are handicapped. They are not possess of any document nor they know the provisions in this regard. And only for this reason the duty has been entrusted to the Record Officer to take such cases so that the retiral dues the form of pension or gratuity whether it is a special pension or the amount of gratuity which the duly entitled person may fetch on time. He also submits that by this time the petitioner is 85 years old man. He himself is handicapped and his wife is blind. He has no mean to live. These facts are being mentioned only to show the plight of such persons who are facing the great hardship in want of the payment of the dues under the law and which have remained unpaid so far and not on account of any misplaced sympathy for them. Mr. Singh has submitted with reference to the cases decided in this regard that the petitioner is also entitled to interest for the delay in payment. 11. We have given out thoughtful consideration even to the claim with regard to the interest in the light of the decisions which have been cited before us including the cases of Municipal Corporation Kota v. Judge Industrial Tribunal & Anr. (DB) reported in 2001 WLC (Raj.) UC 607 , B.L. Agrawal v. State of Rajasthan reported in 2002 WLC (Raj.) UC 1 , Lal Singh v. Union of India & Ors. (DB) reported in 2001 WLC (Raj.) UC 607 , B.L. Agrawal v. State of Rajasthan reported in 2002 WLC (Raj.) UC 1 , Lal Singh v. Union of India & Ors. reported in RLR 1999(1) 114 , A.S. Randhawa v. State of Punjab & Ors. reported in 1997(4) SLR 617 , Surendra Mohan Saxena v. State of Raj. & Ors. reported in 2000(3) WLC (Raj.) 174 , Smt. Rukma v. State of Raj. & Ors. reported in 2000(3) WLC (Raj.) 102 , R.P. Kapur v. Union of India & Ors. reported in JT 1999(5) SC 400 , and find that the petitioner has been denied his claim contrary to the rules and since there has been a violation of rules he is also entitled to the interest and therefore, we set aside the impugned order dated 21.12.95 passed by the learned Single Judge, and allow this appeal and the writ petition with the order : (i) The petitioner is entitled to special pension. (ii) That the petitioner shall be entitled to interest @12% per annum from the date of the filing of this petition before this Court alongwith the entire arrears amount against the special pension and would continue to pay the same in future in accordance with law. (iii) The payment of the special pension with arrears and interest shall be made good within a period of two months from the date the certified copy of this order is served upon the respondents. The amount of gratuity which was paid to the petitioner with interest as was prevailing from time to time shall be adjusted out of the amount of the arrears. (iv) The respondents are also directed to decide the petitioner's claim with regard to the disability pension in accordance with the rules within a period of two months from the date the certified copy of this order is served upon the respondents. (v) Parties shall bear their own costs. (vi) In the facts and circumstances the Registry is directed to send a copy of this order to the respondents. 12. Before parting with the order we may place on record out appreciation for the able assistance given by Mr. Shyam Singh Adv. who himself is a retired naval officer and who has been rendering service to the retired persons who have been left uncared for by those who were their own one time colleagues. 12. Before parting with the order we may place on record out appreciation for the able assistance given by Mr. Shyam Singh Adv. who himself is a retired naval officer and who has been rendering service to the retired persons who have been left uncared for by those who were their own one time colleagues. But for the pains taken by Mr. Shyam Singh it would not have been possible to scrutinies the real grievance in this type of more than one cases.Writ Petition Allowed. *******