Research › Search › Judgment

J&K High Court · body

2007 DIGILAW 274 (JK)

Nischant Singh v. Union Of India

2007-12-12

NIRMAL SINGH

body2007
1. Petitioner through the medium of present writ petition is seeking a writ in the nature of mandamus commanding upon respondents to grant him pensionary benefits along with interest @ 18 percent on the arrears. 2. The facts in brief are as under: - Petitioner joined the Indian Army as a Rifleman in March, 1958. He continued to serve the Jammu and Kashmir Rifles uptil 1967 and thereafter on rendering 8 years and 345 days of colour service, he was put in the reserve in Feb67, and was allowed Reservist pension of Rs. 20/- per month. In the year 1968, the petitioner requested the army authorities by way of written representation that he wants to join the para-military force i.e. GREF as a driver. As the request of the petitioner was not being considered, he joined the GREF of his own as a driver. The said fact of joining the GREF by the petitioner was well in the notice of the army authorities as the monthly pension of the petitioner of Rs.20/- which was being paid to him by the army authorities was being sent to him at the address where the petitioner remained posted while serving in the GREF. 3. The further fact is that during Indo-Pak war of 1971, the petitioner along with his Company of GREF was posted at Daka. It was during the said period that the army authorities sent a letter to the GREF for relieving the petitioner of his duties as his services were required in the army. The concerned GREF authorities, however, declined the request of the army authorities with the plea that it is difficult for them to relieve the petitioner of his duties in the midst of war. The petitioner also made a request to the GREF authorities that he be relieved of his duties so that he is able to perform the duties with the army because he has been put in the reservist but the GREF authorities did not consider the said request of the petitioner and he continued to perform his duties at Daka during the said war. In the year 1975, when the petitioner was working with the GREF and was posted, at Rajouri, the army authorities initiated proceedings against the petitioner by sending a warrant of arrest against him on the basis that he has been declared as a deserter in the year 1971 due to his non joining the army during the period of war. The petitioner was arrested in Aug75 while he was serving in GREF and was posted in Rajouri and was sentenced to 28 days rigorous imprisonment. Thereafter, he was discharged from service on 29th of Sept75. 4. The grievance of the petitioner is that after he was put in the reserve in Feb67, he made a request to the army authorities that he wants to serve in the GREF. It is stated that the fact that the petitioner was serving in the GREF was well within the notice of the army authorities as they had been regularly sending his reservist pension at the address while he was with the GREF authorities. It is thus stated that the petitioner could not have been declared a deserter as he was performing his duties with the said para-military force and it was due to the reason that the said force in the midst of 1971 war, while the petitioner was posted at Daka did not relieve him of his duties when the army authorities had send an intimation in this regard to the GREF authorities, he could not report back to the concerned army authorities. It is stated that the petitioner was very much on active service during the aforesaid period, and therefore, the respondents should not have declined the pensionary benefits to the petitioner. 5. Respondent Union of India has filed counter stating therein that the petitioner was enrolled in the army on 12th of March58 with the terms of engagement of 7 years of colour and 8 years of reservist service. The petitioner was transferred to reserve establishment w.e.f. 19th of Feb67 on completion of colour service. It is stated that the petitioners total qualifying service is 13 years and 177 days and as he is not having 15 years of combined colour and reserve service, therefore, he is not entitled to pension. 6. Respondent GREF has also filed counter. It is admitted that the petitioner was appointed as Driver MT on 18th of Jan68. It is stated that the petitioners total qualifying service is 13 years and 177 days and as he is not having 15 years of combined colour and reserve service, therefore, he is not entitled to pension. 6. Respondent GREF has also filed counter. It is admitted that the petitioner was appointed as Driver MT on 18th of Jan68. So far as serving of the petitioner during Indo Pak war of 1971 with the concerned GREF authorities has not been denied. It is only stated that the relevant record is not available at this stage. So far as request of the army authorities to the GREF regarding relieving of the petitioner is concerned, the same too has not been denied and as indicated above, it is only stated that record is not available. It is stated that in terms of the Rules, the petitioner has to earn 20 years qualifying service for becoming eligible to get pensionary benefits, and as the said qualifying service is not being possessed by the petitioner, therefore, he is not entitled to pension from GREF. As per the said respondent, the total qualifying service rendered by the petitioner is 17 years, 9 months and 27 days. 7. Learned counsel for the petitioner submitted that the service rendered by the petitioner with the GREF cannot be treated as non qualifying service by the army authorities. It is stated that even as per the stand of respondent GREF, the petitioner has the qualifying service of 17 years, 9 months and 27 days i.e. more than 15 years of qualifying service as required under Army Act and Rules for becoming eligible for pension. It is thus stated that the petitioner cannot be denied the benefit of pension. 8. After hearing learned counsel for the parties and perusing the record, I am of the considered opinion that this petition has merit and deserves to succeed. 9. Respondent Union of India has taken a categoric stand that the qualifying service of 13 years and 177 days only whereas the qualifying service for the purpose of pension is 15 years. It is the case of respondents that the petitioner remained absent for 3 years and 260 days while he was on reservist strength and the said period of absence cannot be treated as a period towards qualifying service. This stand taken by the respondent Union of India is against the facts. It is the case of respondents that the petitioner remained absent for 3 years and 260 days while he was on reservist strength and the said period of absence cannot be treated as a period towards qualifying service. This stand taken by the respondent Union of India is against the facts. Petitioner, as noticed above, after referring 8 years and 345 days colour service was put in reserve in Feb67, and was allowed Reservist pension of Rs. 20/- per month. In the year 1968, petitioner joined the para-military force i.e. GREF as a driver. Before joining the said force, the petitioner had made a request to the army authorities for allowing him to join the said force but there was neither any acceptance nor objection conveyed by the army authorities to the petitioner in this regard. But from the facts of the case, it is revealed that the army authorities had given their consent to the petitioner for joining the GREF. This is because the petitioner had given his address where he was posted in GREF and on the said address of the petitioner, the army authorities were sending the reservist pension to the petitioner, which fact is not being denied by the respondent Union of India. The army authorities thereafter called the petitioner during 1971 Indo-Pak war regarding which the petitioner made a request to the GREF authorities for relieving him so that he could join the army but then the GREF authorities did not relieve him. The petitioner at that point of time was posted at Dhaka. This fact, too, is not denied by the respondent Union of India in their counter. Therefore, the petitioner cannot be put at fault and the period of absence mentioned by the army authorities cannot be attributed to the petitioner because it was beyond his control to leave the services of GREF in the midst of 1971 war and to join the army. 10. It be further seen that the petitioner as reservist was governed by the Indian Reserve Forces Act, 1888 (here-in-after called the Act). Under Section 6 of the Act, punishment of certain offences by persons belonging to Reserve forces can be awarded. This Section reads as under:- "Punishment of certain offences by persons belonging to Reserve Forces. 10. It be further seen that the petitioner as reservist was governed by the Indian Reserve Forces Act, 1888 (here-in-after called the Act). Under Section 6 of the Act, punishment of certain offences by persons belonging to Reserve forces can be awarded. This Section reads as under:- "Punishment of certain offences by persons belonging to Reserve Forces. - (1) If a person belonging to the Indian Reserve Forces- (a) When required by or in pursuance of any rule or order under this Act to attend at any place fails without reasonable excuse to attend in accordance with such requirement, or (b) fails without reasonable excuse to comply with any such rule or order, or (c) fraudulently obtains any pay or other sum contrary to any such rule or order he shall be liable- (i) on conviction by a Court-martial to such punishment other than death (imprisonment for life) or imprisonment for a term exceeding one year as such Court is by the Army Act 1950, empowered to award or (ii) on conviction by a Presidency Magistrate or a Magistrate of the first class, to imprisonment for a term which may extend, in the case of a first offence under this section, to six months, and, in the case of any subsequent offence thereunder, to one year. (2) Where a person belonging to the Indian Reserve Forces is required by or in pursuance of any rule or order under this Act to attend at anyplace, a certificate, purporting to be signed by an officer appointed by such a rule or order in this behalf, and stating that the person so required to attend failed to do so in accordance with such requirements, shall, without proof of the signature or appointment of such officer, be evidence of the matters stated therein. (3) Any person charged with an offence under this section may be taken into and kept in either military or civil custody, or partly into an in one description of custody and partly and in the other, or be transferred for one description of custody to the other." 11. (3) Any person charged with an offence under this section may be taken into and kept in either military or civil custody, or partly into an in one description of custody and partly and in the other, or be transferred for one description of custody to the other." 11. The army authorities, as noticed above, called the petitioner during 1971 war for resuming his duties but the petitioner who at that point of time was serving with GREF and was posted at Dhaka could not resume his duties with the army as he was not relieved by the GREF authorities, which fact, as indicated above, was well known to the army authorities as they were sending the reservist pension to the petitioner at his place of posting at Dhaka but despite that they declared him deserter without application of mind that he is working with another para military force and fighting for his country and arrested the petitioner in the year 1975 when he was working with the GREF and posted at Rajouri. The respondent GREF in para 13 of its counter has stated that "no fruitful result will yield through this fresh writ petition as minimum 20 years qualifying service is mandatory as per the rules to earn service pension which the petitioner does not have even if his both Army and GREF services are clubbed together." In the said para, the total service rendered by the petitioner in GREF as also in the army has been mentioned as under: - "Army service Years Month Days 12 March 58 to 19 Feb 67 08 years 11 months 11 days GREF Service Years Month Days 18 Jan 1968 to 03 Dec 76 08 years 10 months 16 days" 12. Therefore, when the stand taken by the GREF is that the petitioner has rendered the above service with them, then, the petitioner could not have been declared a deserter. As indicated above, it was not that the petitioner did join the army of his own but due to compelling circumstances that he was not relieved by the GREF authorities at that time, he was unable to do so. This is because had he left the services of GREF without intimating them, then the GREF authorities might have declared him deserter. 13. This is because had he left the services of GREF without intimating them, then the GREF authorities might have declared him deserter. 13. As noticed above, respondent Union of India in its counter has stated that the petitioners total qualifying service is 13 years and 177 days, therefore, from the facts pleaded by both the respondents, it is crystal clear that the petitioner has remained in Army service w.e.f. March 58 to Feb67 and in GREF w.e.f. Jan68 to Dec76. The army authorities have over looked this aspect of the matter that the petitioner was serving in GREF and at the relevant point of time was posted at Dhaka and declared the petitioner as a deserter which was illegal. 14. The other aspect of the matter is that the army authorities can discharge an army personnel who is governed by the Army Act under Rule 13(III)(i)(ii)(iii) and (iv). The said rule reads as under: - "13(111)(i) On fulfilling the conditions of his enrolment or having reached the stage at which discharge may be enforced. (ii) On completion of a period of Army service only, there being no vacancy in the Reserve. (iii) Having been found medically unfit for further service. (iv) At his own request before fulfilling the conditions of his enrolment..." 15. A perusal of the above provisions shows that a person enrolled under the Army Act can be discharged on fulfilling the conditions of his enrolment or on reaching the stage at which discharge may be enforced or on completion of a period of army service only if there is no vacancy in the Reserve or if the army personnel is found medically unfit for further service or at his own request before fulfilling the conditions of the enrolment. In the present case, the petitioner did not opt for discharge but the respondents illegally declaring the petitioner as a deserter formed an opinion at their own level that the petitioner has to be discharged. The respondents under such circumstances, should have taken into consideration as to whether the service rendered by the petitioner would enable him to get pension or not. It was thus for the respondents to determine the qualifying service of respondents for pension in terms of Rule 132 and 155 of Army Pension Regulations, 1961 (Part I). The respondents under such circumstances, should have taken into consideration as to whether the service rendered by the petitioner would enable him to get pension or not. It was thus for the respondents to determine the qualifying service of respondents for pension in terms of Rule 132 and 155 of Army Pension Regulations, 1961 (Part I). Regulations 132 and 155 are relevant and are being reproduced below: - "132: The minimum period of qualifying service (without weightage) actually rendered and required for earning service pension shall be 15 years." "155: Reservist Pension. An OR reservist is not in receipt of a. service pension may be granted, on completion of the prescribed combined colour and reserve qualifying service, of not less than 15 years, reservist pension equal to 2/3rd of the lowest pension admissible to a sepoy, but in no case less than Rs. 375/- p.m. on his transfer to pension establishment either on completion of his term of engagement or prematurely, irrespective of the period of colour service." 16. At this stage, it would be apt to notice Regulations 122, 123, 124 and 125 of the Army Pension Regulations. These read as under: - "122. Service Qualifying for pension and gratuity: (a) All service from the date of appointment or enrolment/transfer for mans service to the date of discharge shall qualify for pension or gratuity with the exception of: (i) Any period of service on a temporary establishment or for which a special rate of pay is granted on the understanding that no pension is admissible. (ii) Any period of service rendered before reaching the age of 17 years. (iii) Any period of unauthorized absence un less pay and allowances are admitted for the period of absence; (iv) Any period of absence without leave which is regularised as extraordinary leave without pay and allowances. (v) Any period intervening between the date of dismissal/discharge/release and that of its cancellation which is regularised as extraordinary leave without pay and allowances. (vi) Any period of absence as a prisoner of war, unless pay and allowances are admitted for the period of absence. (vii) Any period of detention in civil custody before being sentenced to imprisonment or fine, unless the President, in a special case, issues orders reducing the period that shall not count. (viii) Any period of imprisonment by sentence of a civil court or of a court martial. (vii) Any period of detention in civil custody before being sentenced to imprisonment or fine, unless the President, in a special case, issues orders reducing the period that shall not count. (viii) Any period of imprisonment by sentence of a civil court or of a court martial. (b) In cases of claims to disability pension all service from the date of appointment or enrolment to the date of discharge shall qualify for pension or gratuity subject to exceptions (i) and (iii) to (viii) Forfeiture of Service for certain offences and its restoration 123(a) A person who has been guilty of any of the following offences: (i) Desertions, vide Section 38 of the Army Act. (ii) Fraudulent enrolment, vide Section 34(a) of the Army Act, shall forfeit the whole of his prior service towards pension or gratuity upon being convicted by court martial of the offence. (c) A person who has forfeited service under the provisions of the preceding clause but has not been dismissed shall, on completion of any period of three years further service in the colours and/or service in the reserve with exemplary conduct and without any red ink entry, be eligible to reckon the forfeited service towards pension or gratuity. Condonation of an interruption of Service 12.4 Upon such conditions as it may think fit to impose, a competent authority may condone interruptions of service in the case of a person whose pension is sanctionable by an authority subordinate to the President as under: (a) When proposed pension exceeds Rs. 375 p.m. interruptions not exceeding a period of 12 months in all (b) When proposed pension is Rs. 375/- or less all interruptions whatever their duration. (2) In the absence of a specific indication to the contrary in the service records, an interruption between two spells of service rendered in civil or military capacity under Central Government shall be treated as automatically condoned and the pre-interrupted service treated as qualifying service for pension/gratuity. (3) Nothing in clause (2) shall apply to interruption caused by resignation, dismissal or removal from service or participation in strike. (4) The period of interruption referred to in clause (2) shall not count as qualifying service......... Condonation of deficiency in service for eligibility to service/reservist pension. 125. (3) Nothing in clause (2) shall apply to interruption caused by resignation, dismissal or removal from service or participation in strike. (4) The period of interruption referred to in clause (2) shall not count as qualifying service......... Condonation of deficiency in service for eligibility to service/reservist pension. 125. Except in the case of: (a) an individual who is discharge at his own request, or (b) an individual who is eligible for special pension or gratuity under Regulation 164, or (c) an individual who is invalided with less than 15 years service, deficiency in service for eligibility to service pension or reservist pension or gratuity in lieu may be condoned by a competent authority upto six months in each case." 17. As per Regulation 132, noticed above, the minimum period of qualifying service (without weightage) actually rendered and required for earning the service pension is 15 years. As per Regulation 155, service pension can be granted to an army personnel who has rendered colour service and reserve service. A cojoint reading of both these regulations makes it clear that the qualifying service is the one which is actually rendered and this period is 15, years. In terms of Regulations 122, all the service from the date of enrolment to the date of discharge is to be taken as a qualifying service for pension with the exceptions (i), (iii) and (viii) noticed above of Regulation 122. In terms of Regulation 123, a person who has been found guilty of any of the offences given above but not dismissed on completion of any period of three years further service in the colours and in reserve is within his rights to contend that his forfeited service be counted for the purpose of pension. In terms of Regulation 124, the competent authority can condone interruptions of service in the case of an army personnel whose pension is sanctioned by an authority subordinate to the President and under Regulation 125, an individual who is invalided out with less than 15 years of service, deficiency in service for the purpose of service pension or reservist pension or gratuity in lieu can be condoned by the competent authority upto six months in each case. 18. The afore-noticed regulations indicated that even in case where the service stood forfeited, there can be condonation by the competent authority for the purpose of service pension. 18. The afore-noticed regulations indicated that even in case where the service stood forfeited, there can be condonation by the competent authority for the purpose of service pension. In the present case, the petitioner was discharged from service under Rule 13(3)(III)(i). Under the said provision, a person enrolled under the Act can be discharged only on reaching a stage on which he can be discharged. The discharge in the present case was not at the request of the petitioner, therefore, as indicated above, the respondents before passing order of discharge should have taken into consideration as to whether the service rendered by the petitioner would enable him to get the service pension and whether the stage had reached at which the discharge could be enforced. 19. The other aspect of the matter is that the respondents have taken a categoric stand that the qualifying service of the petitioner is 13 years and 177 days only and the period of absence while on reservist i.e. 3 years and 260 days cannot be treated as qualifying service. This is the period as indicated above, during which the petitioner was working with the GREF and was posted at Dhaka. On the date, he was apprehended, he was performing the duties with the GREF at Rajouri. As indicated above, the respondent Union of India was well aware of the fact that the petitioner was working with the GREF as they were sending the reservist pension at the address given by the petitioner while he was posted at Dhaka, and therefore, he could not have been declared as a deserter. The respondent authorities while passing the order of discharge should have taken note of this fact that the petitioner was working with another para-military force and it was due to the reason that he was not relieved by the GREF that he could not join the army at the relevant time. Therefore, the reason given by the respondents in declaring the petitioner a deserter and in declining him the pensionary benefit cannot be sustained. Therefore, the reason given by the respondents in declaring the petitioner a deserter and in declining him the pensionary benefit cannot be sustained. Even otherwise, as noticed above, the stand taken by the GREF authorities is that the total active service rendered by the petitioner both in the army and in GREF is 17 years 9 months and 27 days, and therefore, taking into consideration this aspect of the matter, the petitioner who has rendered more than 15 years of qualifying service cannot be denied the benefit of pension. 20. For the reasons mentioned above, this petition is allowed. The period of 3 years and 260 days which has been treated as non qualifying by the-respondent Union of India shall be counted as a qualifying period for the purpose of pension. Let appropriate orders for releasing the pension in favour of the petitioner be passed within a period of two months from the date a copy of this order is made available to respondent Union of India by the petitioner. The petitioner is also held entitled to arrears of pension along with interest @9% three years prior to filing of the present writ petition. In case, the pension as indicated above, is not released in favour of the petitioner within the stipulated period, he shall be entitled to interest at the rate of 13% and this enhanced rate of interest shall be payable by the person on whose account the delay occurs. 21. Before parting with this judgment, one aspect which is required to be considered is that the respondent army authorities before declining the benefit in such like cases should examine the matter thoroughly and sympathetically so that the army personnel who have given the prime youth of their life for the nation are not made to suffer as has been done in the present case. The army authorities should also take into consideration those cases where the army personnel have become incapacitated or have died and see to it that their wards are not being put to starvation and dragged to unnecessary litigation. In case, the army authorities would have taken into consideration that the petitioner is serving with another para military force i.e. GREF and at the relevant time was posted at Dhaka, which fact was well within their knowledge, the circumstances would have been different and the petitioner may not have been forced to unnecessary litigation. In case, the army authorities would have taken into consideration that the petitioner is serving with another para military force i.e. GREF and at the relevant time was posted at Dhaka, which fact was well within their knowledge, the circumstances would have been different and the petitioner may not have been forced to unnecessary litigation. The situation as has arisen now could have been avoided if the respondent Union of India would have made a request at their own level to the GREF authorities for relieving the petitioner. Even though, the respondent Union of India was aware of the fact that petitioner is serving with the GREF, they declared him as a deserter and took him into custody while he was serving with the said para military force and was posted at Rajouri and detained him illegally. Thereafter, the petitioner was discharged denying him the benefit of pension and other retrial benefits which is unjustifiable. Similarly, this is not an isolated case where the army personnel has been dragged to unnecessary litigation and denied his due. It is hoped that the army authorities at the higher level would look into this aspect of the matter and would specially keep a vigil on the working of the Pension Sanctioning Authority, Allahabad. If it is found that the army personnel are being unnecessarily harassed and their cases are being delayed intentionally by the officers/officials posted in the office of the said Pension Sanctioning Authority, then disciplinary proceedings against them shall be initiated. Disposed of accordingly.