V.K. Sharma vs Union Of India (Uoi)
2005 Latest Caselaw 1408 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule has already been issued in this writ petition on 19th May, 1998. With the consent of the counsel for the parties, the writ petition is taken up for final hearing.

2. This writ petition under Article 226 of the Constitution of India challenges the Order dated 16th September, 1995 passed by the respondent.

3. The facts of this are not in dispute. In November, 1964 the petitioner was appointed as `Emergency Commissioned Officer' in 5th Battalion Jammu and Kashmir Rifles. In 1968 he was posted at Secunderabad as Officer Commanding, Andhra Pradesh. While undergoing training at Intelligence School, Pune, the petitioner used the unit's vehicle to return to Sholapur as his scooter broke down. On 8th June, 1970 the petitioner was dismissed from service inter alia on the ground of use of unit's vehicle without permission and due to dishonour of cheques. The petitioner stand was that he was traveling to report for duty to Secundrabad on account of his scooter having broken down and he took a lift in an Army Vehicle and the cheque which was dishonoured was mess bill for Rs. 150/- which was immediately paid. Consequently on 7th December, 1977 the order of his dismissal from service has been converted into a discharge from service. Pursuant to the discharge from service and in accordance with the instructions issued by the Army Headquarters on 9/12/ September, 1968, the petitioner raised the claim for terminal benefits. Reliance has been placed on Para 2 of the said instructions:-

"2. The claims will be initiated as soon as possible after the date of release of the petitioner and not earlier. Particular attention is invited to para 2 of A1 6/S/65 according to which Gratuity should be calculated at Rs. 1000/- for each completed year of service plus Rs. 500/- for broken period of six months (180 days) or more. The following certificates are required to be attracted with the Contingent bill claims by the Unit/Officer as the case may be while forwarding the claim to this HQ, MS Branch/MS7, DHQ, PO New Delhi-11.

i) Final No Demand Certificate (IAFA-450)

ii) Casualty Return notifying the date of Release of the officer.

iii) Satisfactory Service Certificate as per Apex to AQ 475/67.

iv) Certificate "A" as per Appx II to AO 394/66.

v) Certificate vide para 1(a) Appx 1 to AI 6/S/65."

4. The petitioner's case is that his claim had been endorsed and affirmed by the Military Secretary by issuing two letters dated 21st June, 1973 and 24th December, 1974.

5. Mr. Anil Nag, the learned counsel for the respondents has submitted that the petitioner's case was denied on account of the forfeiture order passed on 16th September, 1995 by which the entire gratuity payable to the petitioner has been forfeited. This order has been challenged in the present writ petition. The learned counsel for the respondents has further submitted that the relevant instructions provide as follows:-

"3. Terminal gratuity under this Instruction will be admitted, subject to an officer's service for which the gratuity is payable, being declared satisfactory in accordance with the procedure laid down in Annexure I to this Instruction. The amount of gratuity if any, to be admitted in cases of doubt and to an officer whose Emergency Commissioned service is terminated on disciplinary grounds, will be decided at the discretion of the President on the merits of each individual case."

6. The learned counsel for the respondents submits that in order to avail of the benefit of gratuity, the service of the petitioner was required to be declared satisfactory in accordance with the procedure laid down in Annexure I of these instructions. He has further submitted that the counter-affidavit states that the terminal gratuity is payable only when the service is declared satisfactory in accordance with the procedure laid down in Annexure-I to the said counter-affidavit. The said annexure-I has not been annexed to the counter-affidavit nor has it been stated that in respect of a claim recommended by the Military Secretary as far back as in 1973 why an action for forfeiture was only taken in the year 1995. It has also not been stated that at the appropriate time the petitioner was declared unfit as per the procedure prescribed in Annexure-I and the instructions dated 29th April, 1965. This Court also noticed that the Military Secretary in his letters of 21st June, 1973 and 24th December, 1974 stated as follows:-

Letter dt. 21st June, 1973

"2. You are requested to forward the terminal gratuity claim interest of Ex.-Capt. VK Sharma (EC-59402) immediately to this HQ MS Branch (MS-7) in accordance with this HQ letter No. 88156/MS-7 dated 9/12 Sep CS.(Copy attached for ready reference)...."

Letter dt. 24th December, 1974

"2. Please confirm that the terminal gratuity claim in respect of the above named officer has been passed and account remitted to his bankers. It now, an early action in the matter is requested as the officer concerned is pressing hard for payment."

7. The aforesaid letters clearly shows that as far back as in 1973 the claim of the petitioner was found payable as per the Military Secretary, Army Headquarters and it appears that the belated action has been taken on 16th September, 1995 forfeiting the petitioner's gratuity. It is not possible to uphold the validity of such an action which does not show what instructions in the Annexure I were issued or whether such a procedure prescribed in and for Annex. `I' was followed and impugned order dated 16th September, 1995 baldly states that there is a forfeiture of the entire gratuity payable to the petitioner. It has also not been stated that whether any notice of any kind was issued to the petitioner before forfeiting the gratuity as payable to him. Thus it is clear that impugned order dated 16th September, 1995 even if otherwise justified, depriving petitioner of his terminal gratuity as found payable as far back as 21st June, 1973 and 24th December, 1974 by the Military Secretary even without a semblance of show cause notice, clearly violates the principles of natural justice. Accordingly the order of 16th September, 1995 passed by the Government of India deserved to be set aside. The writ petition is allowed and the order dated 16th September, 1995 is set aside. The petitioner shall be entitled to gratuity with effect from the date from which his claim for gratuity became due i.e. with effect from 8th June, 1994 with interest @ 8% per annum. Since the principal amount is Rs. 5,500/- the amount of interest comes to Rs. 15,400/- up to date the total is Rs. 20,900/- we are also of the view that the petitioner should be paid costs of Rs. 5,000/-. Thus we are of the view that the petitioner should be paid a lumpsum amount of Rs. 25,000/- inclusive of principal amount, interest and costs. The payment is required to be made on or before 30th November, 2005. In case the amount is not paid within the period stipulated above, the entire amount will carry 12% future interest.

8. The writ petition stands disposed of accordingly.