Kerala High Court
Sandeep Pandey vs Union Of India on 18 January, 2019
Author: P.V.Asha
Bench: P.V.Asha
W.P(C).No.16200/2014 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940
WP(C).No. 16200 of 2014
PETITIONER/S:
SANDEEP PANDEY
CONST (RETD)/ NO 001148574
HQ 148 BN BSF, BSF CAMP KAINOOR, MULAYAM P.O,
THRISSUR, KERALA 680751,
RESIDING AT FLAT NO 58, UTTHAN NAGAR, GOWADAWADA
ROAD, BEHING WATER FILTER, SASIHIKANT SOCIETY,
NAGPUR, MAHARASTRA 440013.
BY ADVS.
SRI.V.K.SATHYANATHAN
SRI.JOHN T.PAUL
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME
AFFAIRS, NORTH BLOCK, NEW DELHI 110001.
2 THE SECRETARY,
DEPT. OF PENSIONS AND PENSIONER'S WELFATE, MINISTY
OF PERSONNEL,PUBLIC GRIEVANCES AND PENSIONS, NORTH
BLOCK, NEW DELHI 110001.
3 THE DIRECTOR GENERAL OF BSF
BSF HEAD QUARTERS, BLOCK 10. CGO COMPLEX, LODHI
ROAD, NEW DELHI 110003.
4 THE COMMANDANT,
148 BN BSF, BSF CAMP KAINOOR, MULAYAM P.O,
THRISSUR, KERALA 680751.
BY ADVS.
SRI.T.V.VINU, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.01.2019, THE COURT ON 18.01.2019 DELIVERED THE FOLLOWING:
W.P(C).No.16200/2014 2
P.V.ASHA, J.
--------------------------
W.P(c).No.16200 of 2014-Y
-------------------------------------------
Dated this the 18th day of January, 2019
JUDGMENT
The petitioner, who was retired under Rule 26 of the Border Security Force (BSF) Rules claims pension on par with those who retired from service in accordance with Rule 49(2) of Central Civil Service (Pension) Rules.
2. The petitioner joined the BSF on 27.12.2000. Ext.P2 notice was issued to him on 04.06.2012 proposing his retirement on the ground that he was awarded 8 punishments during the 13 years of his service between 2001 and 2011. He was informed that in view of his consistent poor performance he was unsuitable for further retention and therefore it was proposed to retire him from service under Rule 26 of BSF Rules, 1969. Petitioner was required to furnish objection if any against the proposal within 15 days. As his explanation was not found satisfactory, Ext.P3 order was issued directing him to retire from service from 10.09.2013. In this Writ Petition, the petitioner seeks for a direction to the respondents to grant pension in tune with Rule 49 (2) of CCS (Pension) Rules, on the ground that he has completed qualifying service of more than 10 years as on the date of his retirement.
3. The respondents filed a statement on 11.8.2014, an additional statement on 5.9.2018 and thereafter a counter affidavit. Respondents stated that W.P(C).No.16200/2014 3 compensation pension at the rate of 2/3 rd of pension was sanctioned to the petitioner under Rule 40(1) of CCS (Pension) Rules as per Ext.P7 order dated 07.08.2014 produced along with I.A.No.6630/2015. He was granted compensation pension at the rate of Rs.3,500/- per month; in addition to this he was paid retirement gratuity and arrears of pension on 21.3.2015. The pension commutation amount of a sum of Rs.1,64,482/- was also sanctioned to him.
4. The respondents stated that the petitioner was awarded 9 punishments under the BSF Act and Rules within a short span of 12 years. In addition to that, he had also overstayed from leave without prior permission of superiors. Despite the ample opportunities given to him to improve, there was no progress. On account of his consistently poor performance he was retired from service under Rule 26 of the BSF Rules after giving him a show cause notice. It is stated that CCS Pension Rules provides for pension to a Government servant only on completion of 20 years of qualifying service; since the petitioner had not completed 20 years of qualifying service his pension was liable to be computed only under Rule 40(1) of CCS Pension Rules. In the Ministry of Finance letter dated 3.6.1957 of the Government of India, the guiding principles in the matter of reduction of pensionary benefits are given. Rule 40 prescribes the limits of retirement benefits admissible to an officer on whom a penalty of compulsory retirement is imposed. This penalty is introduced in cases where continuance of Government Servant is considered to be undesirable. Such persons should ordinarily be granted the full compensation pension and retirement gratuity as on the date of the compulsory W.P(C).No.16200/2014 4 retirement. However, it also provided that the competent authority which imposes the penalty of compulsory retirement would be free to make such reductions in the pensionary benefits within the limits prescribed. Reduction may be made in the retirement gratuity or in the pension or in both. In the case of the petitioner, pension was computed and disbursed in accordance with the guiding rule 40(1) of CCS Pension Rules read with the guiding principles under the Government of India letter and he was granted pension at the rate of 2/3 rd under Rule 40 (1) of CCS Pension Rules.
5. In the counter affidaivt filed by respondents 1 to 4, they have explained the 11 punishments awarded to the petitioner during the period between 13.08.2001, the date of his joining the BSF and his retirement in 2013. Out of the eleven, two were subsequently regularised granting earned leave. All other seven out of 9 punishments were imprisonments for 28 days, 21 days, 15 days, 14 days etc. and in one case 7 days' packdrill. Since there was no improvement in his discipline as expected from a member of uniform force, he was ordered to be retired from service. A departmental screening committee was held at unit level which checked the service record and relevant documents and recommended his retirement on the ground of unsuitability, as per Ext.R1(c) and (d) proceedings. Based on those recommendations, show cause notice was issued followed by the order of retirement. It is stated that his qualifying service was 10 years 11 months and 20 days; whereas the qualfying service for pension is 20 years. As his termination was by compulsory retirement under Rule 26 of BSF Rules as a W.P(C).No.16200/2014 5 penalty the competent authority is free to fix the pension admissible to him. Even though the order of termination did not provide for pension, it was awarded as per order dated 7.8.2014 taking a sympathetic view with reference to his pay at the time of his retirement. After taking the decision to grant pension, provisions under CCS Pension Rules were applied for computation of the same as there is no separate rule for BSF personnel. It is stated that every termination of service which did not occur in due process did not fall in the category of retirement or voluntary retirment but it amounts to penalty. Therefore, the pension is to be computed only under Rule 40 of CCS (Pension) Rules and petitioner's case was dealt with in accordance with Rule 40(1) of CCS (Pension) Rules which provide for pension at a rate not less than 2/3rd and not more than full compenstion pension. It is stated that Rule 49 of Pension Rules is not applicable in the case of the petitioner.
6. Having heard the contentions advanced by the learned Counsel on both sides, it is found necessary to examine the provisions in BSF Rules relating to termination and the CCS( Pension) Rules. Rule 26 of the BSF Rules, 1969 read as follows:
"26. Retirement of enrolled persons on grounds of unsuitability:-- Where a Commandant is satisfied that an enrolled person is unsuitable to be retained in the Force, the Commandant may, after giving such enrolled person an opportunity of showing cause (except where he consider it to be impracticable or inexpedient in the interest of security of the State to give such opportunity), retire such enrolled person from the Force."
Chapter IV of BSF Rules deals with termination of service on various grounds and under various terms. Rule 17 relates to termination of service for furnishing false and incorrect information at the time of appointment or enrollment. Rule 17A W.P(C).No.16200/2014 6 deals with discharge from service on unsatisfactory progress in basic training. Rule 18 relates to retirement on grounds of physical fitness. Rule 19 relates to resignation. Rule 20 relates to termination on account of misconduct. Sub rule 5 thereof provides for removal or dismissal from service with or without pension or retirement or compulsory resignation or else compulsory retirement or removal with pension or gratuity. Sub rule v of Rule 20 read as follows:
"20. xxxxx xxxxx xxxxx xxxxxx xxxxx (5) The Central Government, after considering the reports and the officer's defence, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Director-General, may remove or dismiss the officer with or without pension or retire or get his resignation from service, and on his refusing to do so, the officer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him."
Rule 21 deals with termination on grounds other than misconduct. Rule 22 relates to dismissal or removal from service of persons other than officer on account of misconduct. Rule 23 relates to dismissal or removal by Central Government. Rule 23A relates to termination of service on conviction on criminal charge. Rule 24 realtes to retirement of subordinate officers and enrolled persons. Rule 25 is related to retirement of subordinate officers on grounds of physical unfitness. Rule 26 relates to retirement on grounds of unsuitability. Rule 27 relates to retirement of subordinate officers on grounds of unsuitability. The procedure for imposing punishments is provided in Chapter VII which relates to investigation and summary disposal. Chapter IV of BSF Act deals with punishment. Under Section 48 the punishment which can be inflicted in respct of offences committed by persons subject to the Act and convicted by Security Force Courts are given; which W.P(C).No.16200/2014 7 includes death, imprisonment, dismissal from service, reduction in rank, forfeiture of seniority of rank, forfeiture of service, fine, reprimand, forfeiture of pay and allowances, arrears of pay stoppage of pay, etc. Section 53 provides for minor punishments. Retirement under Rule 26 does not provide whether the retirement is with or without pension. It does not also limit the pension which is payable to the officer on such retirement. However, a reading of Rules 20 and 25 and various provisions contained in Chapter IV would show that retirement from service is one of the punishments for misconduct under Rule 20. However, that retirement is different from the retirement in Rule 26 and it is on the basis of a finding under Section 10. Under sub rule 5, removal, dismissal, compulsory retirement, compulsory resignation, etc. with or without pension are the punishments which can be awarded on the ground of misconduct. However, the retirement under Rule 26 is entirely different from that under Rule 20. The petitioner claims full pension considering his entire service.
7. An overall reading of the provisions would indicate that the retirement in Rule 26 is different from the compulsory retirement imposed as a penalty.
8. Retiring pension is admissible to a person retiring on completion of 30 years. A person, who is compulsorily retired on completion of 30 years or is compulsorily retired on completion of 30 years is entitled to retiring pension under Rule 48 of CCS (Pension) Rules, 1972. Under Rule 49 (2), a person who retires in accordance with the provisions of the Pension Rules on completion of 10 years of service is entitled to pension equal to 50% of his emoluments. Rule 49(2) of W.P(C).No.16200/2014 8 CCS (Pension) Rules read as follows:
"49. Amount of Pension : (1) xxx xxx xxxxx (2) In the case of a Government servant retiring in accordance with the provisions of these rules after completing the qualifying service of not less than ten years, the amount of pension shall be calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of three thousand and five hundred rupees per mensem and a maximum of forty-five thousand rupees per mensem.
xxxx xxxx xxxxx"
It is not correct to say that the retirement of the petitioner under Rule 26 was compulsory retirement, which is enumerated as a penalty. While the retirement under Rule 26 is ordered on account of unsuitability, which can be effected after issuing a show cause notice, the penalty of compulsory retirement is ordered on account of misconduct. Though Rule 20 refers to only termination of service under Section 10 and Section 10 provides only for dismissal or removal from service, subrule 4 and 5 of Rule 20, would show that compulsory retirement also is a penalty which can be imposed by the Central Government, like dismissal from service and removal from service.
Sub Rule (4) and (5) of Rule 20 read follows:
"20. xxxxx xxxxx xxxxx xxxxxx xxxxx (4) When submitting a case to Central Government under the provisions of sub-
rule (2) or sub-rule (3), the Director-General, shall make his recommendation whether the officer's service should be terminated, and if so, whether the officer should be--
(a) dismissed from the service; or
(b) removed from the service; or
(c) retired from the service; or
(d) called upon to resign.
(5) The Central Government, after considering the reports and the officer's defence, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Director-General, may remove or dismiss the officer with or without pension or retire or get his resignation from service, and on his refusing to do so, the officer may be compulsorily retired or removed from the service with pension or gratuity, if any, admissible to him."
9. It is an admitted fact that BSF Rules do not contain any rule relating W.P(C).No.16200/2014 9 to pension. Therefore, the provisions in CCS(Pension ) Rules, 1972 would apply in respect of pension of BSF personnel in terms of Rule 182 of the BSF Rules. While the petitioner claims pension under Rule 49(2) of the CCS(Pension) Rules, the respondents limit it under Rule 40.
10. Chapter V of the CCS(Pension Rules) provides for different classes of pension and conditions governing the grant of the different classes of pension. Superannuation pension under Rule 35 to those who retire on superannuation; Retiring pension is provided under Rule 36 to those who retire or retired in advance of the age of compulsory retirement under Rule 48 or 48A of the Pension Rules or Rule 56 of Fundamental Rules. It provides for invalid pension under Rule 38 and compensation pension under Rule 39 to those who are selected for discharge from service on account of abolition of the post. At the same time, Rule 40 provides for compulsory retirement pension to those who were imposed the penalty of compulsory retirement, at not less than 2/3 of the compensation pension and not more than full compensation pension. Rule 41 provides for compassionate allowance in deserving cases of persons dismissed or removed from service.
11. Chapter V deals with regulation of amounts of pension. Rule 49 deals with the amount of pension. Sub Rule (2) thereof provides for the pension in the case of those retired in accordance with the Pension Rules, before completing not less than 10 years as 50% of their emoluments.
12. On a perusal of the various provisions it is seen that Rule 49(2), W.P(C).No.16200/2014 10 though relates to those who did not have the qualifying service of the requisite number of years before they attained the age of superannuation, as the retirement of the petitioner was due to inefficiency, and not on account of misconduct or penalty, it cannot be said that the petitioner is entitled to pension only as compensation pension. As long as the retirement of the petitioner was not by way of penalty, it cannot be said that Rule 40 will govern the petitioner.
13. Therefore, I find that the petitioner is entitled to pension in terms of Rule 49 (2) of CCS (Pension) Rules. Hence there shall be a direction to the respondent to re-compute the pension due to the petitioner in accordance with Rule 49(2) of CCS (Pension) Rules and sanction and disburse the same within a period of three months from the date of receipt of a copy of this judgment.
The Writ Petition is allowed accordingly.
Sd/-
(P.V.ASHA, JUDGE) rtr/rkc W.P(C).No.16200/2014 11 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 EXHIBIT P1 TRUE COPY OF THE IDENTITY CARD
ISSUED TO THE PETITIONER NO 313735 DATED
03-09-2003.
EXHIBIT P2 EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE
NOTICE ISSUED TO THE PETITIONER NO.
ESTT/258/2012/13485 DATED 04-06-2012.
EXHIBIT P3 EXHIBIT P3 TRUE COPY OF THE FINAL ORDER NO
ESTT/ RULE 26/2013/17632-37 DATED 10-09-13.
EXHIBIT P4 EXHIBIT P4 TRUE COPY OF THE RULES 49 OF CCS
PENSION RULES.
EXHIBIT P5 EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED
15-12-2012 IN WP NO 11343 OF 2011 BEFORE
THE HON'BLE HIGH COURT OF KARNATAKA
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P6 EXHIBIT P6 TRUE COPY OF THE UNREPORTED
JUDGMENT IN WP(MD) NO 5745/2006 PASSED BY
THE MADURAI BENCH OF THE BON'BLE MADRAS
HIGH COURT FROM THE WEBSITE.
EXHIBIT P7 COPY OF THE NO.ESTT/196/2014/18250-56 DATED 7TH AUGUST
2014.
RESPONDENTS' EXHIBITS
EXT.R1(a) TRUE COPY OF THE WARNING.
EXT.R1(b) TRUE COPY OF THE ADVISE DATED 2.8.2012 WITH ENGLISH
TRANSLATION.
EXT.R1(c) TRUE COPY OF THE DG BSF LETTER DATED 2.3.2017.
EXT.R1(d) TRUE COPY OF THE DSC PROCEEDINGS.
EXT.R1(e) TRUE COPYOF THE CALCULATION SHEET PENSION UNDER
RULE 40(1) OF CCS (PENSION) RULES-1972.
EXT.R1(f) TRUE COPY OF THE PPO NO.240551501379 DATED 21.3.2015.
EXT.R1(g) TRUE COPY OF THE L/NO.29-54279 DATED 23.3.2015.