Major S.R. Kulkarni (Ex.) vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 820 Del

JUDGMENT

S.B. Sinha, C.J.

1. The petitioner is a retired Major of Indian Army. He was dismissed from services in a court martial proceedings in September 1963. He had not been given the pensionary benefits. Allegedly the petitioner during Chinese aggression was believed to be 'killed-in-action' in November 1962. He, however, came back alive. He on his way back found a radio set which he allegedly deposited with the Units' Quarter-Guard. He, admittedly, however had used the same. The petitioner contended that upon his return to his family at Tejpur, his wife had informed that the new Commander Lt. Col. Mathews instructed her to vacate the allotted quarter at Tejpur along with her minor children, whereupon the petitioner told the said Commander that his aforementioned action in such a situation militate against the esprit de corps so very essential for the morale of a fighting force. Thereafter a court martial proceeding had been initiated against him. The petitioner contends that he was forced to plead guilty as he was promised that he would be let off with a minor punishment. However a sentence of cashiering was imposed against him. The commanding authority at Delhi, however, reduced the sentence to dismissal simpliciter. No recommendation was made for with-holding of pension and gratuity. As he had not been paid his pension and gratuity he made an appeal before the President of India on 27th October 1963. The said petition was disposed of by the President by an order dated 2nd June 1964 stating:

"I am directed to refer to your petition dated the 27th October 1963, and subsequently reminder, dated the 26th February 1964, addressed to the President, on the above subject and to say that after careful consideration of the points brought out, it has been decided by the Government that the circumstances leading to your dismissal from service do not warrant the grant of a pension to you. As such, it is regretted that your request for the grant of a pension to you cannot be acceded to.

A separate communication will follow in regard to ICM allowance, Jangi Inam allowance and repayment of house building advance."

2. Despite the same the petitioner by a communication dated 24th July 1992 addressed to the Chief of the Army Staff stated:

"I shall be grateful if a copy of the S.G.C.M. is given to me at the earliest, since no such copy has been given to me till date. The details of the SGCM are given below:

Proceeding No.: 600158/932/JAG-DGAG No. 4 of 62-63

SGCM held at : No. 4 Infantry Division, 7th Brigade, Brigade HQ., Tejpur.

Punishment : Dismissal Awarded

Rank at that : Major Time

I.C. No. : 9635

I hereby authorise Shri Gulshan S. Bajwa whose specimen signatures are endorsed below to collect the said copy on my behalf.

An application dated 24.7.1992 for the grant of Benevolent Fund is also enclosed herewith. It is submitted that I am already in receipt of 'Jangi Inam'.

May I also draw your kind attention to my application dated 22.9.1987 about non-payment of pension etc.

Kindly refer Army Headquarter's letter No. B/41845/2/AG/PS4(c) dated 12.10.1987 addressed to CDA(P) Allahabad, and copy to me. My correct address is given below:

17, Sawali Society, Kothrud, Pune 411038."

3. By communication dated 3rd September 1992 he was informed:

"Reference your letter No. nil dated 24th July 1992 addressed to the COAS.

I have been directed to inform you that the SGCM proceedings have since been destroyed in 1979. As such we are unable to provide a copy of the same to you.

Your requests for grant of pension and Benevolent Fund has been referred to PS Dte and CW Dte of AG's Branch for their necessary action."

4. Records were purported to have been destroyed in terms of Rule 146 of the Army Rules 1954, which is in the following terms:

"146. Preservation of proceedings:-

(i) The proceedings of a Court Martial (other than Summary Court Martial) shall after promulgation be forwarded as circumstances required to the Officer of Judge Advocate General and there preserved for not less than in the case of general court martial, than seven years and in the case of any other court martial than three years.

(ii) The proceedings of a Summary Court Martial shall be preserved for not less than three years with the record of the corpos or department to which the accused belonged."

5. It appears that several representations made by the petitioner for grant of pension had been rejected by the Central Government in terms of their letters dated 30th May 1966, 16th January 1968, 13th May 1970, 13th June 1975, 26th July 1976 and finally in December 1992. This writ petition was thereafter filed.

6. Learned counsel appearing on behalf of the petitioner would submit that if legitimate demand of pension and gratuity, which is otherwise payable to an employee of the Union of India, is denied the same would amount to deprivation of property. Learned counsel would contend that a distinction exists between gratuity and pension in terms of the provisions of the extant regulations. In any event, contends the learned counsel, an order with-holding payment of gratuity and pension could have been passed only upon compliance of the principles of natural justice. Discretion of the President of India, learned counsel would contend, cannot be exercised arbitrarily and without assigning any reason. In support of the said contention, the learned counsel has placed reliance upon the following decisions:

(a) Smt. M. Nirmala and Ors. v. State of Andhra Pradesh and Ors. reported in 1986 (2) SCALE 214;

(b) Union of India and Anr. v. P.D. Yadav reported in 2001(7) SCALE 270;

(c) Union of India and Ors. v. Subedar Ram Narain and Ors. ;

(d) State of U.P. v. U.P. University Colleges Pensioners' Association ;

(e) JC-116244 Ex-Subedar Joginder Singh v. Union of India and Ors. ;

(f) Uttam Namdeo Mahale v. Vithal Deo and Ors. ;

(g) N. Balakrishnan v. M. Krishnamurthy and

7. Mr. Jayant Bhushan learned counsel appearing on behalf of the respondent, however, would submit that having regard to the fact that the petitioner herein filed a representation, which had been considered by the President of India, it cannot be said that the principles of natural justice have not been complied with. According to the learned counsel, having regard to the fact that the proceedings have been destroyed as far back as in the year 1979, and also on the ground of delay and laches on the part of the petitioner, this Court may not exercise its jurisdiction under Article 226 of the Constitution of India as thereby the respondent shall be gravely prejudiced. It was contended that there is no rule in terms whereof the Court Martial has to recommend withholding of the pensionary benefits.

8. Unfortunate although it may appear to be apparent, rightly or wrongly, the claim for payment of pension and gratuity had been rejected by the President of India as far back as in the year 1964, as noticed hereinbefore. Times without number representations by him or on his behalf had been filed but his representations had been rejected over and over again. He did not choose to move this Court at any point of time. Learned counsel for the petitioner would contend that the petitioner became a person of unsound mind and as such he could not come to this Court earlier. We do not intend to go into correctness or otherwise of the said contention inasmuch as from the orders communicated to the petitioner, as noticed hereinbefore, it would appear that the representation must have been filed by himself or on his behalf. it is not the case of the writ petitioner that at any point of time any contention had been raised before the President of India that the petitioner had suffered from insanity.

9. Be that as it may, keeping in view the fact that now the records of the proceedings have also been destroyed and the petitioner has approached this Court after 28 years, it may not be a fit case where this Court should exercise its discretionary jurisdiction in the matter. We are of the opinion that it is not necessary for this Court to go into the merit of the other contentions raised on behalf of the petitioner. We therefore are of the opinion that on the ground of delay and laches alone this Court should refuse to exercise its discretionary jurisdiction. Before parting with this case, however, we may note an unfortunate aspect. Judgment was reserved in this case after giving a full opportunity of hearing but the petitioner made an unfounded allegation that he was not heard. Therefore an application was filed purporting to be under Section 151 CPC read with Articles 14, 21, 38 and 39 of the Constitution of India seeking re-hearing of the above matter wherein not only certain disparaging remarks were made, some sort of veiled threat had also been given. The said application was listed on 15th March 2002. As on the first call nobody appeared, a suo motu pass over was given. Even on second call nobody appeared and as such the same was dismissed. Despite the said order the petitioner thereafter filed restoration application which was also dismissed by an order dated April 3, 2002.

10. Learned counsel for the petitioner was given a full-fledged hearing on that application but keeping in view the mode and manner in which the application was drafted this Court refused to exercise its jurisdiction.

Writ petition is accordingly dismissed. However, keeping in view the peculiar facts and circumstances of the case, it is desirable that the mater be considered afresh by the President of India.