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2019 DIGILAW 63 (KER)

Sandeep Pandey v. Union of India

2019-01-18

P.V.ASHA

body2019
JUDGMENT : The petitioner, who was retired under R.26 of the Border Security Force (BSF) Rules claims pension on par with those who retired from service in accordance with R.49(2) of Central Civil Service (Pension) Rules. 2. The petitioner joined the BSF on 27.12.2000. Ext.P2 notice was issued to him on 04.06.2012 proposing his retirement on the ground that he was awarded 8 punishments during the 13 years of his service between 2001 and 2011. He was informed that in view of his consistent poor performance he was unsuitable for further retention and therefore it was proposed to retire him from service under R.26 of BSF Rules, 1969. Petitioner was required to furnish objection if any against the proposal within 15 days. As his explanation was not found satisfactory, Ext.P3 order was issued directing him to retire from service from 10.09.2013. In this Writ Petition, the petitioner seeks for a direction to the respondents to grant pension in tune with R.49(2) of CCS (Pension) Rules, on the ground that he has completed qualifying service of more than 10 years as on the date of his retirement. 3. The respondents filed a statement on 11.8.2014, an additional statement on 5.9.2018 and thereafter a counter affidavit. Respondents stated that compensation pension at the rate of 2/3rd of pension was sanctioned to the petitioner under R.40(1) of CCS (Pension) Rules as per Ext.P7 order dated 07.08.2014 produced along with I.A.No.6630/2015. He was granted compensation pension at the rate of Rs.3,500/- per month; in addition to this he was paid retirement gratuity and arrears of pension on 21.3.2015. The pension commutation amount of a sum of Rs.1,64,482/- was also sanctioned to him. 4. The respondents stated that the petitioner was awarded 9 punishments under the BSF Act and Rules within a short span of 12 years. In addition to that, he had also overstayed from leave without prior permission of superiors. Despite the ample opportunities given to him to improve, there was no progress. On account of his consistently poor performance he was retired from service under R.26 of the BSF Rules after giving him a show cause notice. In addition to that, he had also overstayed from leave without prior permission of superiors. Despite the ample opportunities given to him to improve, there was no progress. On account of his consistently poor performance he was retired from service under R.26 of the BSF Rules after giving him a show cause notice. It is stated that CCS Pension Rules provides for pension to a Government servant only on completion of 20 years of qualifying service; since the petitioner had not completed 20 years of qualifying service his pension was liable to be computed only under R.40(1) of CCS Pension Rules. In the Ministry of Finance letter dated 3.6.1957 of the Government of India, the guiding principles in the matter of reduction of pensionary benefits are given. R.40 prescribes the limits of retirement benefits admissible to an officer on whom a penalty of compulsory retirement is imposed. This penalty is introduced in cases where continuance of Government Servant is considered to be undesirable. Such persons should ordinarily be granted the full compensation pension and retirement gratuity as on the date of the compulsory retirement. However, it also provided that the competent authority which imposes the penalty of compulsory retirement would be free to make such reductions in the pensionary benefits within the limits prescribed. Reduction may be made in the retirement gratuity or in the pension or in both. In the case of the petitioner, pension was computed and disbursed in accordance with the guiding R.40(1) of CCS Pension Rules read with the guiding principles under the Government of India letter and he was granted pension at the rate of 2/3rd under R.40(1) of CCS Pension Rules. 5. In the counter affidavit filed by respondents 1 to 4, they have explained the 11 punishments awarded to the petitioner during the period between 13.08.2001, the date of his joining the BSF and his retirement in 2013. Out of the eleven, two were subsequently regularised granting earned leave. All other seven out of 9 punishments were imprisonments for 28 days, 21 days, 15 days, 14 days etc., and in one case 7 days’ pack drill. Since there was no improvement in his discipline as expected from a member of uniform force, he was ordered to be retired from service. All other seven out of 9 punishments were imprisonments for 28 days, 21 days, 15 days, 14 days etc., and in one case 7 days’ pack drill. Since there was no improvement in his discipline as expected from a member of uniform force, he was ordered to be retired from service. A departmental screening committee was held at unit level which checked the service record and relevant documents and recommended his retirement on the ground of unsuitability, as per Ext.R1(c) and (d) proceedings. Based on those recommendations, show cause notice was issued followed by the order of retirement. It is stated that his qualifying service was 10 years 11 months and 20 days; whereas the qualifying service for pension is 20 years. As his termination was by compulsory retirement under R.26 of BSF Rules as a penalty the competent authority is free to fix the pension admissible to him. Even though the order of termination did not provide for pension, it was awarded as per order dated 7.8.2014 taking a sympathetic view with reference to his pay at the time of his retirement. After taking the decision to grant pension, provisions under CCS Pension Rules were applied for computation of the same as there is no separate rule for BSF personnel. It is stated that every termination of service which did not occur in due process did not fall in the category of retirement or voluntary retirement but it amounts to penalty. Therefore, the pension is to be computed only under R.40 of CCS (Pension) Rules and petitioner’s case was dealt with in accordance with R.40(1) of CCS (Pension) Rules which provide for pension at a rate not less than 2/3rd and not more than full compensation pension. It is stated that R.49 of Pension Rules is not applicable in the case of the petitioner. 6. Having heard the contentions advanced by the learned Counsel on both sides, it is found necessary to examine the provisions in BSF Rules relating to termination and the CCS( Pension) Rules. R.26 of the BSF Rules, 1969 read as follows: “26. It is stated that R.49 of Pension Rules is not applicable in the case of the petitioner. 6. Having heard the contentions advanced by the learned Counsel on both sides, it is found necessary to examine the provisions in BSF Rules relating to termination and the CCS( Pension) Rules. R.26 of the BSF Rules, 1969 read as follows: “26. Retirement of enrolled persons on grounds of unsuitability:-- Where a Commandant is satisfied that an enrolled person is unsuitable to be retained in the Force, the Commandant may, after giving such enrolled person an opportunity of showing cause (except where he consider it to be impracticable or inexpedient in the interest of security of the State to give such opportunity), retire such enrolled person from the Force.” Chapter IV of BSF Rules deals with termination of service on various grounds and under various terms. R.17 relates to termination of service for furnishing false and incorrect information at the time of appointment or enrollment. R.17A deals with discharge from service on unsatisfactory progress in basic training. R.18 relates to retirement on grounds of physical fitness. R.19 relates to resignation. R.20 relates to termination on account of misconduct. Sub-rule (5) thereof provides for removal or dismissal from service with or without pension or retirement or compulsory resignation or else compulsory retirement or removal with pension or gratuity. Sub-rule (5) of Rule 20 read as follows: “20. xxxxx xxxxx xxxxx xxxxxx xxxxx (5) The Central Government, after considering the reports and the officer’s defence, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Director-General, may remove or dismiss the officer with or without pension or retire or get his resignation from service, and on his refusing to do so, the officer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him.” Rule 21 deals with termination on grounds other than misconduct. R.22 relates to dismissal or removal from service of persons other than officer on account of misconduct. R.23 relates to dismissal or removal by Central Government. R.23A relates to termination of service on conviction on criminal charge. R.24 realtes to retirement of subordinate officers and enrolled persons. R.25 is related to retirement of subordinate officers on grounds of physical unfitness. R.26 relates to retirement on grounds of unsuitability. R.23 relates to dismissal or removal by Central Government. R.23A relates to termination of service on conviction on criminal charge. R.24 realtes to retirement of subordinate officers and enrolled persons. R.25 is related to retirement of subordinate officers on grounds of physical unfitness. R.26 relates to retirement on grounds of unsuitability. R.27 relates to retirement of subordinate officers on grounds of unsuitability. The procedure for imposing punishments is provided in Chapter VII which relates to investigation and summary disposal. Chapter IV of BSF Act deals with punishment. Under Section 48 the punishment which can be inflicted in respect of offences committed by persons subject to the Act and convicted by Security Force Courts are given; which includes death, imprisonment, dismissal from service, reduction in rank, forfeiture of seniority of rank, forfeiture of service, fine, reprimand, forfeiture of pay and allowances, arrears of pay stoppage of pay, etc. Section 53 provides for minor punishments. Retirement under R.26 does not provide whether the retirement is with or without pension. It does not also limit the pension which is payable to the officer on such retirement. However, a reading of Rules 20 and 25 and various provisions contained in Chapter IV would show that retirement from service is one of the punishments for misconduct under R.20. However, that retirement is different from the retirement in R.26 and it is on the basis of a finding under Section 10. Under sub-rule (5), removal, dismissal, compulsory retirement, compulsory resignation, etc., with or without pension are the punishments which can be awarded on the ground of misconduct. However, the retirement under R.26 is entirely different from that under R.20. The petitioner claims full pension considering his entire service. 7. An overall reading of the provisions would indicate that the retirement in R.26 is different from the compulsory retirement imposed as a penalty. 8. Retiring pension is admissible to a person retiring on completion of 30 years. A person, who is compulsorily retired on completion of 30 years or is compulsorily retired on completion of 30 years is entitled to retiring pension under R.48 of CCS (Pension) Rules, 1972. Under R.49(2), a person who retires in accordance with the provisions of the Pension Rules on completion of 10 years of service is entitled to pension equal to 50% of his emoluments. R.49(2) of CCS (Pension) Rules read as follows: “49. Under R.49(2), a person who retires in accordance with the provisions of the Pension Rules on completion of 10 years of service is entitled to pension equal to 50% of his emoluments. R.49(2) of CCS (Pension) Rules read as follows: “49. Amount of Pension: (1) xxx xxx xxxxx (2) In the case of a Government servant retiring in accordance with the provisions of these rules after completing the qualifying service of not less than ten years, the amount of pension shall be calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of three thousand and five hundred rupees per mensem and a maximum of forty-five thousand rupees per mensem. xxxx xxxx xxxxx” It is not correct to say that the retirement of the petitioner under R.26 was compulsory retirement, which is enumerated as a penalty. While the retirement under R.26 is ordered on account of unsuitability, which can be effected after issuing a show cause notice, the penalty of compulsory retirement is ordered on account of misconduct. Though R.20 refers to only termination of service under Section 10 and Section 10 provides only for dismissal or removal from service, sub-rule (4) and (5) of R.20, would show that compulsory retirement also is a penalty which can be imposed by the Central Government, like dismissal from service and removal from service. Sub-rule (4) and (5) of R.20 read follows: “20. xxxxx xxxxx xxxxx xxxxxx xxxxx (4) When submitting a case to Central Government under the provisions of sub-rule (2) or sub-rule (3), the Director-General, shall make his recommendation whether the officer’s service should be terminated, and if so, whether the officer should be-- (a) dismissed from the service; or (b) removed from the service; or (c) retired from the service; or (d) called upon to resign. (5) The Central Government, after considering the reports and the officer’s defence, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Director-General, may remove or dismiss the officer with or without pension or retire or get his resignation from service, and on his refusing to do so, the officer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him.” 9. It is an admitted fact that BSF Rules do not contain any rule relating to pension. It is an admitted fact that BSF Rules do not contain any rule relating to pension. Therefore, the provisions in CCS (Pension) Rules, 1972 would apply in respect of pension of BSF personnel in terms of Rule 182 of the BSF Rules. While the petitioner claims pension under Rule 49(2) of the CCS (Pension) Rules, the respondents limit it under Rule 40. 10. Chapter V of the CCS (Pension Rules) provides for different classes of pension and conditions governing the grant of the different classes of pension. Superannuation pension under Rule 35 to those who retire on superannuation; Retiring pension is provided under Rule 36 to those who retire or retired in advance of the age of compulsory retirement under Rule 48 or 48A of the Pension Rules or Rule 56 of Fundamental Rules. It provides for invalid pension under Rule 38 and compensation pension under Rule 39 to those who are selected for discharge from service on account of abolition of the post. At the same time, R.40 provides for compulsory retirement pension to those who were imposed the penalty of compulsory retirement, at not less than 2/3 of the compensation pension and not more than full compensation pension. R.41 provides for compassionate allowance in deserving cases of persons dismissed or removed from service. 11. Chapter V deals with regulation of amounts of pension. R.49 deals with the amount of pension. Sub-rule (2) thereof provides for the pension in the case of those retired in accordance with the Pension Rules, before completing not less than 10 years as 50% of their emoluments. 12. On a perusal of the various provisions it is seen that R.49(2), though relates to those who did not have the qualifying service of the requisite number of years before they attained the age of superannuation, as the retirement of the petitioner was due to inefficiency, and not on account of misconduct or penalty, it cannot be said that the petitioner is entitled to pension only as compensation pension. As long as the retirement of the petitioner was not by way of penalty, it cannot be said that R.40 will govern the petitioner. 13. Therefore, I find that the petitioner is entitled to pension in terms of R.49(2) of CCS (Pension) Rules. As long as the retirement of the petitioner was not by way of penalty, it cannot be said that R.40 will govern the petitioner. 13. Therefore, I find that the petitioner is entitled to pension in terms of R.49(2) of CCS (Pension) Rules. Hence there shall be a direction to the respondent to re-compute the pension due to the petitioner in accordance with R.49(2) of CCS (Pension) Rules and sanction and disburse the same within a period of three months from the date of receipt of a copy of this judgment. The Writ Petition is allowed accordingly.