Ex.-Major Gautam Sanyal vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1474 Del

JUDGMENT

Swatanter Kumar, J.

1. In this petition under Article 226 of the Constitution of India, the petitioner prays for issuance of an appropriate writ and order or direction to the respondents directing them to grant 50% pension and pensionary benefits to him for qualifying service of 29 and a half years w.e.f 1.11.87 Along with interest @ 18% from the date the pension and pensionary benefits are due to the petitioner. Further, he prays for issuance of writ of certiorari to quash the letters dated 28.9.01 and letter dated 3.8.95 being arbitrary and contrary to rules. The letter dated 28.9.01 reads as under:

Your case has been re-examined at length in the light of rules on the subject and it is seen that the total qualifying service viz 19 years and 114 days arrived at by deducting 1 year imprisonment period and 363 days suspension period from 4.11.87 to 31.10.88 from the total service of 21 years 112 days is correct and hence no further revision is involved in your case. In this connection it is stated that in reply to our letter dated 2/3/95 AG's Branchy of Army Headquarter has forwarded the clarification that as per foot note 2 of para 4 of Min of defense letter No. 1(5)/87/D (Pension/Sers) dated 30.10.87 if during the last 10 months of service an officer has been absent from duty or had been under suspension the period where of does not count as service and the aforesaid period of absence from duty or suspension shall be disregarded in the calculation of the average emoluments and equal period before the 10 months shall be included. As regards admissibility of weightage it may again be clarified that the same is admissible only when the actual qualifying service works out to be 20 years or more. Since your actual qualifying service is less than 20 years weightage is not admissible to you.

2. In order to examine the challenge made by the petitioner to the said letters, it will be necessary to refer to the basic facts of the case. The petitioner was commissioned as Short Service Commission Officer in Indian Army in the rank of Second Lt. w.e.f 12.7.1967. Later in the year 1969, he was granted Regular Commission. The petitioner was tried by a general Court Martial on 28.8.86 and was convicted and sentenced to suffer cashiering from service and RI of one year. The petitioner challenged the irregularities and illegalities committed in the GCM by filing a writ petition being CWP No. 1490/1987 which was ultimately disposed of by the Court vide its order dated 17.7.89 with liberty to the petitioner to file a fresh writ petition after post confirmation petition has been disposed of by the Central Government. It may be noticed that during the pendency of the petition the petitioner had undergone the sentence as well as sentence promulgated and executed. The petitioner again approached the Court by filing another writ petition being CWP No. 1652/1990 against the findings of the GCM. The petitioner was informed by the respondents vide letter dated 20.1.1993 that the sanction of 50% of the pensionary benefits was allowed to the petitioner by the President but vide letter dated 19.2.1993, the petitioner was intimated that he did not complete the qualifying service and he would not be entitled to get the pension and the pensionary benefits. According to the respondents, the petitioner should have completed 20 years of service.... The petitioner informed the respondents vide his letter dated 19.3.1995 that the petitioner does not have to his credit the qualifying service of 20 years including the period of punishment which he had undergone as well as the period of suspension which had been wrongly excluded from the service of the petitioner. The petitioner had been approaching CCDA(P), Allahabad from time to time and he lastly wrote to them on 7.7.01 to make the payment of pension and pensionary benefits to the petitioner in accordance with law but the same was not granted resulting in filing of the present writ petition.

3. The respondents filed a counter affidavit. The facts are hardly in dispute except to the extent that the petitioner does not have to his credit the qualifying service for grant of pension and pensionary benefits. According to the respondents, the petitioner was cashiered from service on 31.10.1988. He was awarded one year rigorous imprisonment in Civil Prison on 28.10.86. The one year RI of the petitioner ended on 27.10.87. He was placed under suspension w.e.f 4.11.87 to 31.10.88 and as such the petitioner had rendered full pay commissioned service from 12.7.67 to 27.10.86 and this period was without unauthorized absence/leave. The net qualifying service of the petitioner thus worked out to only 19 years and 114 days and the petitioner needs minimum 20 years of service as required for earning pension and as the petitioner does not satisfy the said criteria, he was informed that he is not entitled to any pensionary benefits.

4. On the above premise, it is contended on behalf of the petitioner that there is no specific rule or legal authority vested in the respondents to exclude the period of imprisonment as well as the period of suspension from the qualifying service. Once the benefit was granted by the order of the President to the petitioner, no authority lower than him could deny the said relief to the petitioner and the action of the respondents is ex-facie arbitrary. On the other hand, the contention of the respondents is that the petitioner is not entitled to receive pension or pensionary benefits despite the order of the President primarily for the reason that petitioner does not have to his credit the prescribed qualifying service.

5. At this stage, it will be appropriate to refer to the order of the President vide which the petitioner has been granted relief which is as under:

I am directed to refer to letter No. G/M/55717 dated 23rd April, 1990 from the Office of the Chief Controller of defense Accounts (Pensions) Allahabad, addressed to AG's Branch, Army Hqrs and to state that after considering the reply given by Maj Gautam Sanyal (IC 23618) vide his Advocate's letter No. BRP/90/4 dt. 10th October, 1992 and the submissions made by him on 7th January, 1993 before Deputy Secretary (Pensions), Ministry of defense and having regard to the circumstances of the case leading to the cashiering of the officer from service, the President, in exercise of powers conferred by Regulation-16 of the Pension Regulations for the Army (part-I) 1961, is pleased to sanction 50% (Fifty percent) of the Pensionary benefits to Maj Gautam Sanyal (IC 23618) to which he would have been entitled had he retired in the normal manner on the date he was cashiered from service.

This issued with the concurrence of Finance Division of this Ministry vide their UO No. 125/Pen/93 dated 20.1.93. (For and in the name of the President)

6. It is obvious from the bare reading of the said letter that petitioner was granted 50% of pensionary benefits which he would have been entitled, had he retired in normal manner from the date he was cashiered from service. The petitioner was admittedly cashiered from service on 31.10.88 while his sentence of rigorous imprisonment had ended admittedly on 27.10.87 and the respondents had placed him under suspension from 4.11.87 to 31.10.88. Suspension of an employee in fact and in law does not put an end to the contract of service of a person who is subject to Army law. It continues to be contract of service, it subsists during the period of suspension for all purposes and intents and such person continues to be under the disciplinary, financial benefits of service under the control and supervision of the Army authorities. There is no suspension of contract of service. It is also not disputed before us that for all this period he had been paid suspension allowance like other regular persons of the Army although he was under suspension. There is no reason why the period of suspension could not be treated as a part of the qualifying service. The learned Counsel appearing for the respondent could not bring to our notice any provision which excluded such period from the zone of computation. In the counter affidavit also nothing has been stated which can persuade the Court to exclude the period of suspension.

7. Regulation 26 as provided in Section II of Pension Regulations for the Army, 1961 Part-I stipulates the periods of service qualify for pension in regard to a commissioned officer. The service as a permanent Regular Commissioned Officer and if it is preceded without a break previous service as commissioned officer in the Indian Army, Navy and Air Force, irrespective of the type of commission, jointly or serverally, subject to the refund in the prescribed manner of the Government, of the gratuity, if any, other than war gratuity, received in respect of such service. Under proviso to the said rule, any service which was forfeited by special orders and any period of unauthorised absence unless pay and allowances are not admitted for the period of absence, shall not be regarded as qualifying service. The intent of the rule is obvious and it specifically provides what could be excluded from the qualifying service. Once exclusion clause is part of the provision then it must be construed directly that there is no need to read into such a provision language which would tantamount to adding words or sentences in that provision. Such interpretation is not permissible under the well accepted principles of service jurisprudence. The period of suspension is to be considered as part of the qualifying service and would entitle the employee to claim such benefit, unless contrary is specifically provided. In the present case, petitioner was placed under suspension as per the direction of the respondents for completing the formalities over a period of time and the petitioner was not to be blamed for the same. The petitioner had already undergone the sentence awarded to him and had suffered the entire punishment awarded to him by Court Martial including the Cashiering. The choice was with the respondents to release the petitioner forthwith but they opted to place him under suspension and took nearly a year before he could be cashiered from service i.e. on 31.10.88.

8. This period, in our opinion, cannot be excluded from the qualifying service for pension rendered by the petitioner and more so in view of the order of the President dated 20.1.93. Even according to the respondents, the petitioner has already rendered qualifying service of 19 years and 114 days and in view of the fact that the service from 4.11.87 to 31.10.88 has been wrongly excluded by the respondents, the petitioner would have obviously put in 20 years and 6 days service as on the date of his cashiering. In this view of the matter, we do not find it necessary to deal with the question whether the period of sentence undergone by the petitioner is liable to be counted towards qualifying service or not.

9. In view of the above reasons, we partially allow this writ petition and direct the respondents to consider the case of the petitioner and give him pension and pensionary benefits in terms of the order of the President dated 20.1.93 while at least counting the qualifying service of the petitioner to be 20 years and 6 days. However, in the facts and circumstances of the case, the parties are left to bear their own costs.