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Gauhati High Court · body

2008 DIGILAW 359 (GAU)

Union of India v. IPE Thomas

2008-05-19

ANIMA HAZARIKA, J.CHELAMESWAR

body2008
JUDGMENT Jasti Chelameswar, J. 1. Aggrieved by the Judgment dated 2.4.2007 passed in WP(C) No. 2029/2003, the respondents herein preferred the present appeal. The 19 respondents herein are the writ petitioner in WP(C) No. 2029/2003 The respondents were appointed as Rifleman under the Assam Rifles Act, 1941 and had been working for a period of more than 15 years by the date of filing of the writ petition. 2. On completion of 15 years of service, the respondents applied for discharge with pension from the service. It appears that, the application-were recommended by the Officer-in-Charge, i.e., Commandant Thereafter, the Director General of Assam Rifles issued discharge order in favour of each of the respondents herein calling for the respondents to furnish all necessary information in order to process their pension papers. Information was duly submitted by the respondents herein. In the meantime, by proceeding dated 28.2.2003 the then Col (Records) Admn. III, Shri Jaswant Singh issued orders cancelling the earlier orders to each of the respondents on the ground that none of the respondents had completed 20 years of qualifying service and, therefore, they are not entitled to be discharged with pension. Challenging the said proceeding the incumbents filed the writ petition, from which the present appeal arises, with the prayer as follows: ...to show cause as to why a writ in the nature of certiorari or Mandamus should not be issued directing/commanding the respondents authority to quash and set aside the impugned order vide signal No. A 5402 dated 28.2.2003 issued by the respondent No. (Annexure-G) allowing the petitioners to go on compulsory discharge from service with pension benefits w.e.f. the date of petitioners release order and further directed the respondents authority to take necessary action for discharging the petitioners from service with pension benefits as per the date of petitioners release order and for all other benefits as accrued thereupon.... The respondents contested the writ petition and by the judgment and order under appeal the writ petition was allowed quashing the impugned order dated 28.2.2003. Hence, the appeal. 3. The respondents contested the writ petition and by the judgment and order under appeal the writ petition was allowed quashing the impugned order dated 28.2.2003. Hence, the appeal. 3. The case of the respondents which eventually found favour of the learned Single Judge is that under instruction known as "Record Office Instruction No. 4/1999 ('ROI No. 4/1999'), the petitioners/respondents have a right under paragraph 3 of the said instruction to seek discharge with pension on completion of 15 years of the service and each one of the respondents had in fact completed 15 years of service. 4. On the other hand the case of the appellants in substance is that the above mentioned ROI No. 4/1999 are non-statutory instructions. The right of the respondents herein to seek discharge with pension arises only on completion of 20 years qualifying service as stipulated under Rule 48(A) of Central Civil Services (Pension) Rules 1972. In view of the fact that the instructions contained in ROI No. 4/1999 are non-statutory in nature, in case of conflict of such non-statutory instructions with statutory rules, statutory rules prevail over the non-statutory instructions. It is the further case of the appellants that discharge orders were issued on an erroneous view of the interpretation of the above mentioned CCS (Pension) Rules and ROI No. 4/1999. But coming to realize the same the appellants, sought to remedy the situation by cancelling the orders of discharge of each of the respondents herein. In substance, the case of the appellants is that the discharge orders issued in favour of each of the respondents herein are not only unsupported by law but contrary to the statutory prescription. Therefore, they are nonest in law and do not create any enforceable right in favour of the Respondents. 5. By the Judgment under appeal the issue as mentioned above has not in fact, been considered by the learned Judge. By the Judgment under appeal, the learned Judge placed reliance on paragraph 3 of the ROI No. 4/1999 and allowed the writ petition. 6. To appreciate the issue involved, an examination of the Scheme of the Assam Rifles Act, 1941, CCS (Pension) Rules, 1972 along with ROI No. 4/1999 is necessary. 7. The Assam Rifles Act, 1941 is an imperial enactment which continues to be in force under Article372 of the Constitution of India. 6. To appreciate the issue involved, an examination of the Scheme of the Assam Rifles Act, 1941, CCS (Pension) Rules, 1972 along with ROI No. 4/1999 is necessary. 7. The Assam Rifles Act, 1941 is an imperial enactment which continues to be in force under Article372 of the Constitution of India. The Body called Assam Rifles existed prior to the enactment of the Assam Rifles Act, 1941 and it may not be necessary for the present controversy to examine the history of the Body. By virtue of the Act, 1941 the general superintendence and control of the Assam Rifles is required to be exercised by such person or authority as the Central Government may appoint from time to time. As per Section 3 of the said Act, such authority is required to function and discharge its obligation of superintendence and control of the Assam Rifles in accordance with such rules and orders as the central Government may make for that purpose. 8. Under Section 5 of the said Act, 1941 various classes of Riflemen are specified. Those Clauses are broadly divided into two groups, namely Combatant Rifleman and Non-Combatant Rifleman. All of them are collectively called Rifleman. As' per Section 4 of the Act, 1941 the power of appointment of all the Rifleman vests in the Commandant. By virtue of Sub-section (2) of Section 2 of the Act, persons are appointed by the Central Government to be the Commandant or an Assistant Commandant of the Assam Rifles. By virtue of the power conferred by Sections 3 and 12 of the Assam Rifles Act, 1941, the Union of India made rules from time to time and current rules in force were made on 17th October, 1985, called Assam Rifles Rules, 1985. 9. Necessarily, the question arises as to the nature of employment of members of the Assam Rifles and the legal relationship between them and the Union of India, more specifically, in the context of applicability of the Central Civil Services (Pension) Rules, 1972. 10. Rule 2 of the Central Civil Services (Pension) Rules reads as follows: 2. 9. Necessarily, the question arises as to the nature of employment of members of the Assam Rifles and the legal relationship between them and the Union of India, more specifically, in the context of applicability of the Central Civil Services (Pension) Rules, 1972. 10. Rule 2 of the Central Civil Services (Pension) Rules reads as follows: 2. Application Save as otherwise provided in these rules, these rules shall apply to Government Servants including civilian Government Servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on personable establishments, but shall not apply to- (a) railway servants; (b) persons in casual and daily rated employment; (c) persons paid from contingencies; (d) persons entitled to the benefit of a Contributory Provident Fund; (e) members of All India Services; (f) persons locally recruited for service in diplomatic, consular or other Indian establishments in foreign countries; (g) persons employed on contract except when the contract provides otherwise; and (h) persons whose terms and conditions, of service are regulated by or under the provisions of the Constitution or any other law for the time being in force. 11. It can be seen from the above Rules that pension rules are applicable to members of the various services including certain classes of persons working in defence services such as civilian Government servants of defence services. We are of the opinion that the language of Rule 2 of the CCS (Pension) Rules is sufficiently broad to cover the case of the members of the Assam Rifles. At any rate, it is the specific case of the appellants that these rules are applicable to the members of the Assam Rifles. The CCS(P) rules are framed by the Government of India in exercise of its power under Article 309 of the Constitution of India. Rule 5 of the said Rules states that any claim to pension, or family pension shall be regulated by the provisions of the Rules in force at the time when a Government servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be. 12. Rule 5 of the said Rules states that any claim to pension, or family pension shall be regulated by the provisions of the Rules in force at the time when a Government servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be. 12. It is worthwhile to mention here that nothing is mentioned in the Assam Rifles Act, 1941 or the rules made thereunder which provide either pension or family pension to members of the Assam Rifles on their retirement or discharge or in any other contingency by which the relationship between employer and employee is severed. We, therefore, proceed on the basis that the members of the Assam Rifles can claim pension only in view of the right created under CCS (Pension) Rules. Rule 48A of the rules, insofar as it relates to our purpose, is extracted below: 48A. Retirement on completion of 20 years' qualifying service.- (1) At any time after a Government servant has completed twenty years' qualifying service, the may, by giving notice of not less than three months in writing to the appointing authority, retire from service. 13. It can be seen from the above that a Government Servant who completes 20 years of qualifying service is entitled to give notice of his intention to retire from service not earlier than 3 months from the date of notice. Normally, such notice is required to be accepted (Sub-rule 2) except in contingencies specified further in the rules with which we are not concerned at present. 14. In the background of the aforesaid Rules we have to examine the tenability of the claim of the respondents based on the IROI No. 4/1999. 15. Admittedly, these instructions are issued by the Director General of the Assam Rifles and admittedly they are not statutory in nature. It is pertinent, at this stage, to take note of two rules of the Assam Rifles Rules, 1985 i.e., Rules 15 and 17 of the rules, which read as follows: 15. 15. Admittedly, these instructions are issued by the Director General of the Assam Rifles and admittedly they are not statutory in nature. It is pertinent, at this stage, to take note of two rules of the Assam Rifles Rules, 1985 i.e., Rules 15 and 17 of the rules, which read as follows: 15. Discharge- Subject to the provisions contained in the statement of schedule annexed to the Act, a rifleman may claim his discharge from the Force by applying to his Commandant though proper channel: Provided that a rifleman shall not be entitled to claim his discharge; (a) If any disciplinary proceedings are pending or contemplated against him; or (b) Owing to the exigencies of service. 17. Other conditions of service - The conditions of service of rifleman in respect of matters for which no provision is made in these rules shall be the same as are for the time being applicable to other employees of the Central Government of corresponding grade. 16. Rule 15 entitles a Rifleman to claim his discharge from the Force by application to Commandant but such right of Rifleman is made expressly subject to provisions contained in the Schedule annexed to the Act. It is obvious from the language of the Rule 17 that the conditions of service of Rifleman/Member of the Assam Rifles shall be the same as are for the time being applicable to other employees of the Central Government of corresponding grade, whenever the rules are silent on any aspect of the service condition. 17. We have already taken note of the fact that neither the Assam Rifles Act, 1941 nor rules framed thereunder make I any specific provisions for payment of pension to the members of Assam Rifles on cessation of such person as member of the Assam Rifles. 18. Coming to the right conferred under Rule 15 of the Assam Rifle Rules, 1985 extracted above, firstly, the rule is expressly subject to the provisions contained in the statement of Schedule annexed to the Act. Apart from that such a right is created by a statutory Rule, a piece of subordinate legislation, which has statutory support. It is the settled position of law that rules made by the President of India under Article 309 of the Constitution, such as the CCS (Pension) Rules, have the efficacy of a statute. Apart from that such a right is created by a statutory Rule, a piece of subordinate legislation, which has statutory support. It is the settled position of law that rules made by the President of India under Article 309 of the Constitution, such as the CCS (Pension) Rules, have the efficacy of a statute. Therefore, they prevail over subordinate legislation, such as Rule 15 referred to above. 19. Paragraph 3 of the ROI No. 4/1999 reads as follows: 3. Compulsory Discharge on Pension other than Medical Grounds under Special rules for Assam Rifles. (a) Under the Special Rules for Assam Rifles, only DGAR is empowered to accord sanction proceeding on pension in respect of Assam personnel having completed the following minimum period of qualifying pensionable service: (1) JCOs - 21 years (2) Hav - 18 years (3) Rfn. - 15 years (4) …………… (b) Cases of individuals who are not covered by invalidment on medical grounds can be recommended under these rules for discharge and submitted to this Directorate for sanction. (c) The cases of personnel having former Army service will be recommended for compulsory discharge on pension only after their former service is counted towards Assam Rifles service. (d) No person(s) will be SOS by the Battalion without receiving the formal discharge order from this Directorate. (e) Compulsory discharge on pension under the Special rules for Assam Rifles, can only be initiated by the Bn./Unit Commandant considering the genuineness of the cases as per above rules and forwarded through their Range Hq. where applicable. (No person can himself apply to proceed on compulsory discharge on pension under these rules.) 20. In our opinion the scheme of these instructions and the language of the instructions should be examined in the light of the statement annexed in the Assam Rifles Act, 1941. The Assam Rifles Act, 1941 is obviously a pre-constitutional enactment but continue to be in force by virtue of Article 372, while Article 311 recognizes two modes of severance of relationship of employment under the Government - Central or State, by way of dismissal or removal from service. The expression "discharge" in the context of employment of the State is not to be found in the Constitution. However, the expression is very frequently used in various laws dealing with employment, either under the Government or under the private bodies. The expression "discharge" in the context of employment of the State is not to be found in the Constitution. However, the expression is very frequently used in various laws dealing with employment, either under the Government or under the private bodies. The meaning of the expression "discharge" is therefore, required to be gathered from the context in which it appears One thing is certain that discharge brings About severance of legal relationship between employer and employee. The Constitution maker employed the expression "removal or dismissal" in the context of the authority of the State to terminate the master-servant relationship unilaterally by the State, subject of course to the safeguards provided under Article 311 of the Constitution. A right to terminate legal relationship of master and servant is available to both the parties, i.e., master and servant. As in the ultimate analysis employment is a legal relationship created by contract, therefore, either of the parties to the" contract can terminate relationship subject of course to the provisions of any law which regulates such relationship/contract. 21. It is in this background that the Clause of the Assam Rifles Act, 1941 is required to be scrutinized. Section 4, Sub-section (3) of the Act specifically deals with discharge of a Rifleman, which reads as follows: 4(3). A Rifleman shall not be entitled to be discharged except in accordance with the terms of the statement which he has signed under this Act or under the Assam Rifles Act, 1920. 22. In substance, this section indicates that a member of the Assam Rifles is not entitled to be discharged except in accordance with the terms of the statement, which is to be found in the schedule annexed to the Act. Therefore, it becomes necessary to examine the purport of the statement and its legal implications. The statement reads as follows: 1. In substance, this section indicates that a member of the Assam Rifles is not entitled to be discharged except in accordance with the terms of the statement, which is to be found in the schedule annexed to the Act. Therefore, it becomes necessary to examine the purport of the statement and its legal implications. The statement reads as follows: 1. After you have served for four years in the first instance in the Assam Rifles you have the option of extending the term of your service in the Assam Rifles indefinitely, so long as the Commandant is satisfied with your services or of claiming your discharge at any time, making your application through the Officer to whom you may be subordinate to a Commandant of the Assam Rifles or to the Magistrate of the District in which you may be serving and you will be granted your discharge after two months from the date of your application unless you are on active service or unless your discharge would cause the vacancies in the Assam Rifles to exceed one tenth of the sanctioned strength. In either of the above cases you must continue to serve in the Assam Rifles until the objection is waived by competent authority or removed. 2. On your enlistment, appointment or training as a musician (piper, drummer or bandsman), bugler, signaler, writer, soldier, clerk, havildar compounder or as an artificer (armourer, mochi, carpenter, stone mason, or motor driver) (or as a hospital attendant, cook, water carrier, cart man, range warder, barber, washer man or sweeper) you must in spite of the provisions of paragraph 1 above serve in the Assam Rifles for eight years from the date of your enlistment or the completion of your training, as the case may be. 23. 23. A reading of paragraphs 1 and 2 above, makes it clear that once a person is enrolled as a Rifleman in any one of the categories specified in paragraph 2, such person is under an obligation to serve a minimum 8 years from the date of enlistment, while paragraph-1 gives the option to a Rifleman to the effect that once he served Assam Rifles for 4 years he can make a choice either to continue in the service of Assam Rifles for an indefinite period (subject to satisfaction of Commandant with the services of the Rifleman), or in the alternative has an option of claiming discharge at any time from service, insofar as the employee is concerned the service can be terminated in accordance with the law dealing with the service conditions of the employee of the Union of India. By virtue of Rule 17, extracted earlier, such a law is the law dealing with the age of superannuation or dismissal from service on account of misconduct of the employees of the Union of India. The right of discharge conferred on the employee/Rifleman does not automatically carry with it any right to get pension except in accordance with the provisions of some law dealing with the situation. 24. It is in the background of this, the Clause contained in paragraph- 3 of the ROI No. 4/1999 is required to be examined. It speaks of discharge with pension after a Rifleman rendered a specified minimum length of service, in the context of the respondents herein it is minimum 15 years. Obviously, the regulation is intended to empower the employer to discharge a Rifleman with pension after a Rifleman has rendered a minimum qualifying service. In substance, a Rifleman is entitled to continue in service unless he desires the retirement voluntarily with pension under Rule 48A of the CCS (Pension) Rules. ROI No. 4/1999 authorizes the Union of India to terminate employment of a Rifleman after the Rifleman rendered a minimum length of service though he has not either reached the age of superannuation or sought retirement voluntarily. Under Rule 48A of the CCS (Pension) rules such a process, though certainly amounts to dismissal or removal from service within the meaning of Article 311 of the Constitution, has come to be known as compulsory retirement in service jurisprudence. Under Rule 48A of the CCS (Pension) rules such a process, though certainly amounts to dismissal or removal from service within the meaning of Article 311 of the Constitution, has come to be known as compulsory retirement in service jurisprudence. As a matter of practice, such a system of compulsory retirement is in force in this country for long period and generally such compulsory retirement does not attach any stigma to the Officer so compulsorily retired or in any way affect the benefits which an employee is otherwise entitled to under the relevant law applicable to him, if he wants to retire on reaching the age of superannuation. Clause (e) paragraph-3 makes an express declaration that no person can himself apply to proceed on compulsory discharge on pension under these rules. The said declaration leaves no doubt in our mind regarding the scope and ambit of the ROI No. 4/1999. Obviously, the instruction only authorizes the Commandant to discharge a Rifleman, after he rendered a minimum number of years of service, with pension. This is perhaps to cover such cases where the employer does not wish to continue relationship in view of the reduced utility of the service of the employee, though the employee does not deserve to be dismissed from the service. 25. In our view that is the true purport of the instructions contained in ROI No. 4/1999. In fact, from the language of the instructions extracted hereinabove, it is clear that it does not create any right in favour of the Rifleman to apply to proceed on compulsory discharge on pension under the Rules. 26. We are, therefore, of the opinion that there is no conflict between CCS (Pension) Rules, 1972 and the instructions issued by the Director General of the Assam Rifles. 27. We are informed that pursuant to the impugned order dated 28.2.2003 except three of the respondents herein, others reported to their duties and continued in service and eventually discharged on completion of 20 years of qualifying service during the pendency of the present litigation. Therefore, insofar as those Respondents, who reported to their duties are concerned, no cause of action survives for adjudication in the present appeal. 28. We are only left with three of the respondents, i.e., respondent Nos. 1, 9 and 12 who did not report to duties pursuant to the impugned order dated 28.2.2003. Though they are. Therefore, insofar as those Respondents, who reported to their duties are concerned, no cause of action survives for adjudication in the present appeal. 28. We are only left with three of the respondents, i.e., respondent Nos. 1, 9 and 12 who did not report to duties pursuant to the impugned order dated 28.2.2003. Though they are. not strictly entitled to claim discharge on pension on completion of 15 years of qualifying service, in view of our discussions above the fact remains that they did claim such discharge and on an erroneous interpretation of law on the part of the appellants heroin, they were in fact purported to have been discharged. 29. In the circumstances, we are of the opinion that the ends of justice will be met by directing the appellants herein that the above mentioned respondents be deemed to have save duly discharged from service but are entitled to only the proportionate pension on such discharge taking into account the actual length of service rendered by them as Rifleman under the Assam Rifles. 30. The appeal is accordingly disposed of but under the circumstance without any costs.