Mr. Ajit Singh vs Union Of India And Others
2001 Latest Caselaw 1239 Del

ORDER

Vikramajit Sen, J.

1. The question which falls for determination is whether the Petitioner is entitled to payment of pension even though he was not allowed to complete the qualifying service due to an erroneous decision taken by the Respondent to discharge him from service precipitately. The Petitioner was enrolled in the Army Medical Corps as "Boy Recruit" on 16.4.1048 when he was about sixteen years. Thereafter, he was re-mustered as a "Man Recruit" with effect from 1.1.1950. It is a common case of the parties that in terms of the Pension Regulations, the Petitioner was required to render a minimum service of fifteen years for becoming eligible for the grant of pensionary benefits. The Respondents have averred that the due to an oversight on their part, the Petitioner was inadvertently Discharged by the Army Authorities by counting his service as having commenced from 16.4.1948 instead of 1.1.1950. There is no explanation why the Respondents' had simultaneously also overlooked the alleged non-qualifying period of 380 days. It appears that the mistake was subsequently discovered and the said Discharge Order was cancelled by the Respondents. The Petitioner was re-transferred to the "Reserve" in terms of the Respondents' Letter No. 490006/RD dated 10.9.1963. By yet another oversight attributable to the Respondents the said instructions for re-transfer to "Reserve" were not complied with and the Petitioner was discharged from service with effect form 9.10.1963. It has been candidly admitted in the Counter as well as during the course of arguments that Realizing the error committed by the Respondents in the Discharge of the Petitioner by taking into account the period of service from 16.4.1948 instead of 1.1.1950, the case o the Petitioner was put up by the Army Authorities before the Government of India, Ministry of defense, seeking the condensation of the remaining service, so that the Petitioner could be paid pension. The Government, however, found the Petitioner to be ineligible for the grant of pension due to non-qualifying service of 380 days in his service record. It is in these circumstances, that the present Petition has been filed seeking the following prayers:-

"a) Issue writ of certiorari setting aside order dated 23.3.99 and all similar preceding orders deny service pension to the petitioner;

b) Issue writ of mandamus directing the respondents to pay service pension to the petitioner wef 8.10.63 with 12% interest.

c) issue writ of mandamus directing the respondents to pay salary for 9 years the period the petitioner was prematurely superannuated misreading the Rules; and

d) pass any other order or further orders deemed fit and proper in the interest of justice."

2. However, at the time of arguments prayer "C" was not pressed. Instead Mr. J.S. Manhas, Learned Counsel appearing for the Petitioner had submitted that the case is a fit one for the grant of exemplary compensation/damages.

3. The relevant provisions pertaining to the grant of pension are reproduced below:-

PR.122(a) All service from the date of appointment or enrolment or transfer for man's 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 (16 in the case of those enrolled prior to the 20th September 1945).

(iii) Any period of service rendered after the date on which the proceedings of the medical board which found the individual unfit for military service were countersigned by the A.D.M.S.

(iv) Any period of unauthorised absence unless pay and allowances are admitted for the period of absence, unauthorised absence which took place prior to 2nd June 1931 shall not be reckoned as service as pension or gratuity even though pay and allowances have been admitted for the period after the date.

(v) Any period of absence without leave which is regularised as extraordinary leave without pay and allowances.

(vi) Any period intervening between the date of dismissal/discharge/release and that of its cancellation which is regularised as extra ordinary leave without pay and allowances.

(vii) Any period of absence as a prisoner of war, unless pay and allowances are admitted for the period of absence.

(viii) 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.

(ix) Any period of imprisonment by sentence of a civil court of a court martial.

(b) In cases of the claims to disability pension all service from the date of appointment of enrolment to the date of discharge shall qualify for pension or gratuity subject to exception (i) and (iii) to (iv) above.

PR.132 Unless otherwise provided for, the minimum qualifying colour service for earning service pension is 15 years."

3. Mr. Andley, Learned Counsel appearing for the Respondents had strongly reiterated that even if the service rendered by the Petitioner as a "Boy Recruit" is taken into consideration because of the peculiar the circumstances of the present case, he would not still entitled to pension because of the non-qualifying service of 380 days which is detailed as below:-

......................................................................................................

Details of absence period                      Non-qualifying service
.......................................................................................................

a) Absent without leave                              313 days
from 28 Oct.52 to
05 Sep. 53.

b) Under military custody from                        39 days
06 Sep. 53 to 14 Oct. 53

c) 14 days rigourous imprisonment                     14 days
on 15 Oct. 53 awarded under
Section 39(a) of Appellate
Authority 1950.

d) 14 days rigourous imprisonment                     14 days
on 24 Oct. 1958 awarded under
Section 40 of Appellate
Authority, 1950.
.........................................................................................................
Total Non qualifying service                         380 days
.......................................................................................................... 

 

4. In my view the defense/reply set out by the Respondents is wholly without merit. At the fulcrum of the controversy is the fact that the Discharge Orders were passed not at the instance of the Petitioner, but by the Army Authorities of their own volition, purportedly acting under Rule 13 of the Army Rules. The Petitioner did not at any stage request for his Discharge. On the contrary it was argued on his behalf that the Rules prescribing fifteen years service are qualified by the word "minimum". The argument is not without merit. It clarifies that a person must serve in the Army for at least thirteen years plus two years as "Reserve" in order to claim pension. It, therefore, acts as a disincentive for a person seeking an earlier release from the Army. It also clarifies that a vested right is bestowed on a recruit to request for a discharge with entitlement to pension and other benefits, immediately on has having fulfillled the minimum years of service. No doubt, it is always open to the Army Authorities to decline the request. The corollary however, is that the Army Authorities have the untrammelled prerogative to continue a man in service even after this period, provided that he has not reached the maximum age. Personnel however do not have the corresponding right to insist on continuing in service till their attaining the maximum prescribed age. This age in the case of the Petitioner would have been forty years. The Petitioner has even aired the grievance that he should have been allowed to serve until he had reached the age of forty years. Thus, the initiative to Discharge any recruit is only with the Army Authorities.

5. On a perusal of the Petitioner's Certificate of Service, it is evident that he was Discharged by order of the Commandant AMC Centre, Lucknow, in consequence of his erroneous assumption of the Petitioner's "completion of the terms of engagement under Army Rule 13(iii)(i) after serving 12 years, 226 days with the Colours and 2 years and 315 days in the Reserve (non-qualifying service included)". His character is stated to be good. The Petitioner's services were neither terminated nor was he released on medical grounds. This responsibility and all ensuing repercussions of the mistake in the Discharge must be borne by the Respondents, since the Petitioner did not play any role in it. As far as he was concerned, he would have continued in service till he was forty years of age. It would be inequitable to hold otherwise since the Petitioner had admittedly given the best years of his life to the service of the Army Medical Corps. Having done so his legitimate exception, i.e. for receiving pension and other retrial benefits must be protected. This right which he has earned cannot be extinguished or diluted by stating that even if the time served by him as a "Boy Recruit" is taken into consideration, he would still not fulfill the minimum period of service requisite for grant of pension etc. It would also not make the slightest difference that during the period in which he was permitted to save in the Army Medical Corps, 380 days could not be taken into consideration for the non-qualifying service period. The simple answer is that the Petitioner would have willingly served if not till he had attained the age of forty years, but at least till he had served for the qualifying years, i.e., 15 years of service together with the 380 days which in his case are stated by the Respondent to be 'non-qualifying'. Had the Respondents not Discharged the Petitioner in the mistaken understanding of his having completed the terms of engagement, he could have challenged the Respondents' unilateral decision of Discharge as being contrary to any provision of the Army Act of Army Rules. As has already been mentioned above, his services were neither terminated nor was he discharged on medical ground. The Respondents' decision is clearly detrimental to his interests and punitive in character since he would stand to loss his right for receipt of pension. A punishment can be inflicted only in strict compliance of the statutory provisions.

6. Mr. Andley has raised on Objection that the Petition ought to be dismissed on the grounds of laches. It is his contention that there is no satisfactory explanation as to why the Writ Petition was filed in 1999 whereas the Petitioner was Discharged in the year 1963. In the Petition, it has been disclosed that the Petitioner had ben making Representations to the Respondents since 1.4.1989. The Writ Petition was filed after patiently waiting for one decade to receive justice at the hands of the Respondents. Similar objections on the grounds of laches were also raised in a Writ petition also concerning the non-payment of pension in the case entitled Smt. Ram Pyari vs. UOI and others, . The husband of the Petitioner had died in service in November, 1948 and the Writ Petition was filed by the widow in 1987. The Division Bench granted all the arrears of the wages even after the passage of forty years. In Smt. Bachan Kanwar vs. Union of India and Others, 1994 III AD Delhi 545, Anil Dev Singh, J. had summarily brushed aside an identical preliminary objection. My Learned Brother observed as follows, and I am in complete and respectful agreement with his views:

"Since the pension is not a bounty or gratuitous payment or a matter of grace depending upon the will and caprice of the employer but is a valuable right and property in the hands of the retires, the same can surely be claimed at any point of time subject to the rules governing them and also subject to the claim being restricted to three years from the date of the writ petition or demand for payment of the same in case of delay in asking for such payment. It is a continuous obligation of the employer to pay pension to the retiree or family pension to the family members to the deceased retiree in consonance with the rules. The plea of the laches normally in such matters cannot be entertained as the obligation of the employer to pay the pension continues till the death of the retiree. Similarly obligation of the employer to pay family pension to the family members of the deceased retiree in accordance with rules continues till the death of the family members entitled to family pension. Therefore if the right to family pension exists in favor of the petitioner such a right will ensure till her death."

My Learned Brother views are in full accord with the observations made to this effect by the Hon'ble Supreme Court in D.S. Nakara and others vs. Union of India., and Poonamal (Smt.) etc. etc. Vs. Union of India and others and Premilobia Vishnu Dixit vs. State of Maharashtra, 1985 (2) SLR 537 In Smt. Gurdei vs. Union of India and Others, 1993 (4) SLR 416 the Respondents were directed by a Division Bench of the Himachal Pradesh High Court "to pay family pension and Victoria Cross Allowance to the Petitioner from 1929 along with other allowances admissible on these amounts from time to time. Since great injustice has been done to the Petitioner, the Respondents would pay interest to the Petitioner on the arrears at the rate of six per cent per annum up to 1970, at the rate of 12 per cent per annum from 1985 till the date of payment." In State of Kerala vs. M. Padmanabhan Nair, the Apex Court after recognizing and reiterating that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement, but are valuable rights and property in their hands, ordered that any culpable delay in the settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.

7. Mr. Manhas, Learned Counsel for the Petitioner has submitted that in addition to the grant of pension and other terminal benefits, the Respondents should also be made to pay compensation/damages for the illegal order of discharge. Reliance is placed in T.C.Basappa vs. T. Nagappa, , in which it was observed that a writ of certiorari demolishes the order which it constrains to be without jurisdiction or palpably erroneous. He has cited the decision rendered in State of Orissa vs. Dr.(Miss) Binapani Dei & Others, . In this case the Respondent was compulsorily retired. The Court had, inter alia, observed that "Under Article 226 of the Constitution the High Court is not precluded from entering upon a decision on questions of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition, the High Court may in appropriate cases decline to enter upon the enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of the jurisdiction of the Court." It was also observed that the Respondent was entitled to an opportunity to be heard before a detrimental order was passed against her. Reliance was also placed by Shri Manhas on the following observations contained in Smt. S.R. Venkataraman vs. Union of India and another, where the premature retirement in public interest was set aside:-

"The principle which is applicable in such cases has thus been stated by Lord Esher M.R. in The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras, (1890) 24 QBO 371 at p. 375:-

If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion."

This view of has been followed in Sedler v. Sheffield Corporation, (1984) 1 Ch 483.

We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable and what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another."

Similar observations are also contained in Express Newspapers Pvt. Ltd and Others vs. Union of India and Others, and Badrinath vs. Government of Tamil Nadu and Others, (2000) 8 Supreme Court Cases 395. Reference was made to Lucknow Development Authority vs. M.K. Gupta, , for the proposition that when a public servant acts in a mala fide, oppressive and capricious manner in the performance of official duty and causes, injustice, harassment and agony to common man he renders the State or its instrumentality liable to pay damages to the person aggrieved from the public fund.

8. In the case at hand, no prayer for compensation and/or payment of damages had been made in the Writ Petition itself. It would be inappropriate for the Court to accede to and grant such a claim when it is raised only at the conclusion of the hearing. The Respondents must be given a fair and complete opportunity for producing its defense. I am, therefore, not inclined to entertain this prayer at this belated stage despite being of the view that the Respondents' decision not to grant pension to the Petitioner is totally indefensible.

9. The prayer for the release of pension and other retrial dues is, however, fully justified. The Respondents are directed to pay these dues to the Petitioner with effect from September 1, 1996, i.e. three years immediately prior to the filing of the present Writ Petition. Since the Petitioner had made representations for release of these payment commencing in 1989, and the stand adopted by the Respondents is not only meritless but also inequitable, the Petitioner of interest at the rate of 12% per annum on the dues which have accrued since 1st September, 1996. He shall also be entitled to the payment of costs, which are adjudged at Rs. 10,000/-. The dues should be paid by the Respondents within forty five days from today and future payment shall be made as per extant Rules and practice.

10. The Petition is allowed in the above terms.