Rajinder Singh vs Union Of India And Ors.
2002 Latest Caselaw 71 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule.

2. With consent of learned counsel for the parties, the petition was taken up for final disposal.

3. This writ petition was filed by the petitioner for declaration of the order of termination of petitioner from service without issuing show cause as void abinitio, reinstatement of the petitioner with consequential benefits and direction of payment of pro-rate pensionary benefits to the petitioner. Since the order is of 24.11.1988 after a lapse of 10 years relief in respect of year 1998 after a lapse of 10 years relief in respect of reinstatement and challenge to show cause notice is not pressed. Learned counsel however, contends that insofar as the grant of pensionary benefits is concerned, the petitioner cannot be non-suited on the grounds of delay and cannot be deprived of these pensionary benefits.

4. Learned counsel for the petitioner relied on the judgment in the case of Hazara Singh v. Chief of Air Staff (Delhi) 1982 (1) SLR 521 to contend that if the power is exercised under Section 18 of the Army act by the President of India, then exercise of such power cannot deny pensionary benefits to the petitioner. There is no dispute about the fact that the order dated 24.11.1988 has been passed in exercise of power under Section 18. The order is as under:

The President, in exercise of the powers conferred by Section 18 of the Army Act, 1950 and all other enabling provisions in this behalf, is pleased to order that the services of IC-3066L Maj. Rajinder Singh of 252 (I) AD Missible Bty. shall be terminate without terminal benefits with effect from the date on which he is relieved of his duties."

(emphasis supplied)

5. Thus learned counsel for the petitioner contends that the direction in the order that the petitioner will not be entitled to terminal benefits from the date on which he is relieved from duty, cannot be sustained in view of Hazara Singh's case (supra). The relevant para from this judgment is as under:

"10. Now it would be understandable if as a consequence of court martial or the enquiry under the Act and Rules a person is dismissed or cashiered, where he has had full opportunity to meet the charge and to prove his innocence, but has failed and thereafter an order forfeiting pension is made. In such a course the officer would know the reasons for proceeding against him and could in answer to proceedings under Regulation 16(a) show that no order of forfeiture or total forfeiture of pension should be made. But where, as in the present case dismissal is in exercise of Presidential pleasure under Article 310 of constitution read with Section 18 of the Act, it is apparent that no reasons will be told or known to the officer. In such a case if Regulation 16(a) could be invoked it would virtually amount to condemning and depriving a person of his pension without giving him an opportunity because in such a situation what could, an officer say, in his defense, when he does not know the reason why Presidential pleasure has been withdrawn from him. These considerations lead us irresistibly to the conclusion that resort could only be had to Regulation 16(a) if it had been preceded by an order of dismissal, or cashiering either in pursuance of a court martial trial or in pursuance of an action taken under Sections 19 and 20 of the Act and the rules. As admittedly none of the eventualities were present the condition precedent to taking action under Pension Regulation 16(a) were lacking. The respondents seek to justify the action under Regulation 16(a) on the sole ground of use of the word 'dismissed' even when the order of 21.2.1971 is passed under Section 18 of the Act. Though the pleasure doctrine is quite all embracing still we must not forget that our constitution adhors arbitrariness, and proclaims clearly that it is a government of laws and not of men that we are having, so that interpretation which permits an unfettered way of arbitrary action must necessarily receive short shift when interpretation of statute is given by the courts. We are of the view that the jurisdiction to take action under Pension Regulation 16(a) arises only when an officer has been dismissed or cashiered as a measure of punishment. Admittedly that is not the case in the present instance. Thus the President lacked the jurisdiction to proceed against the petitioner under Pension Regulation 16

(a). The impugned order of 4.6.1979 is, therefore, without authority of law and deserves to be quashed."

6. Ms. Pinki Anand, learned counsel for the respondent on the other hand relied upon the judgment in the case of Union of India v. P.D. Yadav, , to contend that such denial of pension is valid in law. However, the said judgment deals with a case where disciplinary proceedings have been initiated against the officer and in not a case where doctrine of pleasure has been exercised. The law in respect of a case where doctrine of pleasure has been invoked is crystalised by Division Bench in the case of Hazara Singh (Supra). In view thereof the latter portion of the order dated 24.11.1988 denying the termination benefits to the petitioner cannot be sustained.

7. Another issued which arises for consideration is the delay by the petitioner in approaching this Court. Learned counsel for the petitioner referred to the judgment of the Supreme Court in M.R. Gupta v. Union of India and Ors 1995 31 ATC 186 where the Supreme has held that denial of salary was a continuing wrong and so long as if person is in service a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to law. It was held that claim to be paid during the entire tenure of service can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules and the rule was found to be akin to the right of redemption which is an incident of subsisting mortgage and subsists so long as the mortgage subsists unless the equity of redemption is extinguished. Learned counsel for the petitioner submits that the same principal would apply in case of pensionary benefits. On the other hand Ms. Pinki Anand, learned counsel contends that M.R. Gupta's case (Supra) deals with a case of a salary and that to during the course of employment. Thus on the ground delay and latches the petitioner cannot claim the benefit of pension.

8. I have considered the rival contentions advanced by the learned counsel for the parties. Pensionary benefits accrues from month to month and is thus analogue to the concept of a salary which a person would be entitled during the course of his service. Thus the principal laid down in M.R. Gupta's case (supra), would apply to the case where the claim is of pension. Thus, if a person approaches the Court belatedly, the same cannot be held against him in denying the benefits of pension at least from the period he approached the Court. Therefore, I am of the considered view that since the petitioner approached this Court on 15th December, 1998, the petitioner would be entitled to the pensionary benefits for the period commencing from 15th December, 1995 i.e., from three years prior to approaching the Court.

9. In view of the aforesaid the petitioner would ben entitled to the pensionary benefits with effect from 15th December, 1995. I am also not agreeable to give the interest on the past amount to the petitioner, in view of petitioner having approached the Court so belatedly. The arrears of the pensionary benefits be paid to the petitioner by the respondents within a period of two months.

10. Petitioner stands allowed in the aforesaid terms. Parties are left to bear their own costs.