Ex. Sqn. Ldr. Anil Gupta vs Union Of India And Anr.
2000 Latest Caselaw 74 Del

ORDER

Anil Dev Singh, J.

1. Admit.

Since this appeal involves a short point, we proceed to dispose of the same today itself.

2. This appeal is directed against the judgment of the learned Single Judge dated 21st July, 1998. The facts giving rise to this Letters Patent Appeal are as follows :-

3. The appellant was commissioned in the Indian Air Force as General Duty Pilot on 15th January, 1980. The appellant logged about 1000 accident free flying hours. Sometime in the year 1989, the petitioner applied to the respondents for being given a ground job as his widowed mother and wife had developed anxiety syndrome after the death of his father. Pursuant to the application of the appellant he was posted on a ground job and was given training in Pachoras.

4. In February, 1992, the appellant made an application to the authorities for being posted to flying duty. However, the Air Headquarters on 12th February, 1983 issued a show cause notice under Section 19 of the Air Force Act, 1950 read with Rule 17 of the Air Force Rules, 1969 terming the appellant's application of the year 1989 as indication of this 'loss of confidence in flying'. The appellant submitted his reply in March, 1993 to the show cause notice issued by the Air Headquarters. Ultimately on 18th July, 1994, the appellant was removed from the services of the Air Force. Thereupon, the appellant submitted representation seeking payment of gratuity for a period of 13-1/2 years of service and payment of leave encashment.

5. It appears that in February, 1996 a notice was issued on behalf of the Chief of the Air Staff calling upon the appellant to show cause, why the entire retiring gratuity be not forfeited. Pursuant thereto appellant submitted a reply to the show cause notice. The Central Government on 17th February, 1998 released 75% of the gratuity to the appellant. However, the remaining 25 % was withheld. As regards the entitlement of the appellant for leave encashment, no order was passed. The appellant feeling aggrieved of the order of the Central Government filed a writ petition in this Court. The writ petition, however, came to be dismissed by the learned Single Judge on 21st July, 1998. The appellant, not being satisfied with the order of the Single Judge has filed the instant Letters Patent Appeal.

6. We have heard learned counsel for the parties. It appears that the learned Single Judge rejected the claim of the appellant with regard to leave encashment on the basis of Rule 17 of the Air Force Rules, 1969 (hereinafter referred to as the 'Rules') as also on the basis of the letter of the Central Government dated 14th March, 1994. We have gone through the said Rule and the letter of 14th March, 1994. It appears that Rule 17 deals with removal of officers from service on grounds other than misconduct. Though the removal of the appellant has been effected under Rule 17, it does not authorise the respondent to deprive him of his retiral benefits. Rule 17 of the Rules reads as follows :-

Removal from service of officers on grounds other than misconduct:-

(1) When the Chief of the Air Staff is satisfied that an officer is unfit to be retained in service due to inefficiency, physical disability or other ground other than misconduct, the officer -

(a) shall be so informed;

(b) shall be furnished with the particulars of all matters adverse to him; and

(c) shall be called upon the submit in writing, within a reasonable period, any reasons he may wish to urge for not being removed from the service;

Provided that all or any of Clauses (a), (b) and (c) shall not apply if the Central Government is satisfied that for reasons, to be recorded by it in writing, it is not expedient or reasonably practicable to comply with the provisions thereof;

Provided further that the Chief of the Air Staff may withhold from disclosure the particulars of any matter adverse to the officer, or any portion thereof, if in his opinion its disclosure is not in the interests of the security of the State.

(2) If not reply is received from the officer within the specified period, or the reasons submitted by him are considered not satisfactory by the Chief of the Air Staff, the matter shall be submitted to the Central Government for orders, together within the explanation of the officer, if any, and the recommendation of the Chief of the Air Staff for the removal of the officer from the service.

(3) The Central Government may, after considering the explanation, if any, of the officer and the recommendations of the Chief of the Air Staff, and after satisfying itself that the failure, where applicable, to disclose matters adverse to the officer was in the interests of the security of the State, may remove or compulsorily retire the officer from the service.

7. Thus a reading of the above Rule clearly shows that if does not deal with pension, leave encashment, gratuity etc. of an officer. Insofar as the letter of the Government dated 14th March, 1994 is concerned, it has no application to the case of the appellant as this letter would apply only where an employee is compulsorily retired/discharged from service on disciplinary grounds. Therefore, the learned Single Judge was not right in disallowing the claim of the appellant for encashment of his accumulated leave on the basis of letter dated 14th March, 1994.

8. Insofar as, the question of payment of gratuity to the appellant is concerned, the learned Single Judge did not deal with the same. Since the appellant has been fighting for payment of gratuity for a long time we do not intend to remand the case to the learned Single Judge for a fresh consideration. We asked the learned senior Counsel for the respondent to show any Rule whereby the gratuity of an officer, in whose case an order of removal is passed before he completes the qualifying service could be denied to him. Learned Senior counsel was not able to show any such Rule. He, however, relied upon Regulation 24 of Pension Regulations for the Air Force, Part I (1961). Regulation 24 reads as under :

24. An officer permitted to retire from service may be granted a retiring pension or gratuity in accordance with the regulations in this Chapter, provided that a retiring gratuity may be granted at the discretion of the President only in an exceptional case to an officer, who is permitted to retire or whose services are otherwise terminated after completing the minimum qualifying service.

9. The proviso to the regulation does not have any application to the case of the appellant. The proviso could apply where an officer is permitted to retire from service or his services are terminated after completing the minimum qualifying service. In such a case, the payment of gratuity is at the discretion of the President. Even if it be assumed that the proviso applies to an officer who has been removed from service, it will only apply if an officer has completed the minimum qualifying service. It is an admitted case that the appellant had not completed the minimum qualifying service for the purpose of pension when he was removed from service on 18th July, 1984. Logic for non-application of the proviso to an officer who has not completed the qualifying service appears to be that such an officer who is deprived of his pension for not completing the qualifying service should at least be able to get his gratuity. It will cause grave hardship to an officer who neither gets pension nor gratuity even after serving the Air Force for more than a decade. He should at least get one of the two.

10. For the foregoing reasons, the appeal succeeds. The order of the Learned Single Judge is set aside. It is directed that the appellant shall be permitted to encash the accumulated leave as per rules and he shall also be paid 25 % of his gratuity within a period of four weeks from the receipt of this order by the concerned authority.