Kerala High Court
Union Of India vs Sandeep Pandey on 3 February, 2020
Author: K.Vinod Chandran
Bench: K.Vinod Chandran, V.G.Arun
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941
WA.No.938 OF 2019
APPELLANT/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME
AFFAIRS, (POLICE-II DIVISION) NORTH BLOCK, CENTRAL
SECRETARIAT, NEW DELHI-110001
2 THE SECRETARY
DEPARTMENT OF PENSIONS AND PENSIONERS' WELFARE,
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND
PENSION, NORTH BLOCK, NEW DELHI-110 001.
3 THE DIRECTOR GENERAL
BOARDER SECURITY FORCE, BLOCK-10, CGO COMPLEX,
LODHI ROAD, NEW DELHI-110 001.
4 THE COMMANDANT
148 BN BSF, RANINAGAR, FATAKATA P.O., JAIPAIGURI,
WEST BENGAL-735 101.
BY ADV. SRI.T.V.VINU
RESPONDENT/S:
SANDEEP PANDEY
CONSTABLE(RETD.) NO.001148574, HA 148 BN BSF
RESIDING AT FLAT NO.58, UTTHAN NAGAR, GOWADAWADA
ROAD, BEHIND WATER FILTER, SHASHIKANTH SOCIETY,
NAGPUR, MAHARASHTRA-440013.
R1 BY ADV. SRI.V.K.SATHYANATHAN
R1 BY ADV. SRI.JOHN T.PAUL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.02.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No.938 of 2019
-2-
"CR"
JUDGMENT
Dated this the 3rd day of February, 2020 K.VINOD CHANDRAN, J.
The Central Government is before us challenging the judgment of the learned Single Judge granting pension to the writ petitioner under Rule 49 (2) of the Central Civil Service (Pension) Rules, 1972 (for short 'the Pension Rules').
2. On facts, it has to be noticed that the petitioner was retired under Rule 26 of the Border Security Force (BSF) Rules, 1969. The writ petition was filed claiming pension under the Pension Rules. While that was pending on 07.08.2014, by Ext.P7 order, the petitioner was granted pension under Rule 40(1) of the Pension Rules.
3. Sri.T.V.Vinu, learned Central Government Standing Counsel argues that on compulsory retirement, pension has W.A. No.938 of 2019 -3- to be calculated under Rule 40 and not under Rule 49 of the Pension Rules. It is also argued that the petitioner had filed the writ petition without specifying the Rule under which he claimed pension. When the writ petition was pending, the petitioner was granted pension as per Ext.P7, which is not challenged in the writ petition. In any event, it is contended that the BSF Rules does not provide for pension and Rule 49 of the Pension Rules provide only pension for persons who retired in accordance with the Pension Rules. The retirement of the respondent was a compulsory retirement and hence, pension can only be sanctioned under Rule 40; which rule does not specify the grant to be only in cases where the retirement is under the Pension Rules. It is also urged that the transitory provision at Rule 182 clearly indicates the overriding effect of the BSF Rules. The retirement being in accordance with the BSF Rules, W.A. No.938 of 2019 -4- specifically Rule 26, the same is deemed to be a compulsory retirement.
4. The learned Counsel appearing for the writ petitioner/respondent would argue that Rule 26 of the BSF Rules is only a measure of cutting off dead wood, which necessarily is not a penalty. As found by the learned Single Judge, there are other provisions wherein penalty could be imposed and in such circumstances, the authority ought to have granted the pension under Rule 49(2), which he is entitled to for reason of minimum qualifying service.
5. We do not think there is any vagueness insofar as the relief sought for in the writ petition. It is specifically pleaded in Ground (A) that the petitioner's claim is under Rule 49(2) of the Pension Rules. We also do not think that there need be any challenge raised to Ext.P7 which is a grant of pension under Rule 40 which in any event the petitioner W.A. No.938 of 2019 -5- was found eligible by the Government. There is no reason why Ext.P7 should be challenged when what the petitioner seeks is something more than that granted by Ext.P7.
6. The question to be now considered is whether retirement under Rule 26 is a penalty, or atleast a compulsory retirement as understood by Rule 40 and whether it dis-entitles the retiree from pension under Rule 49(2). Before that, we look at the contention raised based on Rule 49(2) of the Pension Rules that only a person retired in accordance with the Rules, can claim pension under the Pension Rules. We are unable to accept such contention, especially, since, it is admitted that there is no provision for pension under the BSF Rules and every person employed in the BSF on retirement is entitled to pension under the Pension Rules. Retirement under the Pension rules has to be understood as distinguished from a punitive cessation of W.A. No.938 of 2019 -6- service. We agree that Rule 40, of the Pension Rules does not use the words 'in accordance with the Pension Rules', but then it speaks of a government servant compulsorily retired from service as a 'penalty'. Rule 26 of the BSF Rules does not contemplate a retirement as a penalty especially when there exist other provisions of the BSF Rules enabling a compulsory retirement, that too as a punishment for misconduct.
7. We see that the learned Single Judge has comprehensively dealt with the provisions of the BSF Rules in Chapter IV. We take note of the contention of the learned CGC that certain provisions deal with officers and others with subordinate personnel and enrolled persons. Rule 20 as noticed by the learned Single Judge specifically deals with the termination of service of an officer. Even if the said rule is not looked into, Rule 22 applies in the case of termination W.A. No.938 of 2019 -7- of service of a person subject to the Act, other than an officer. Rule 22 is to be invoked in cases of misconduct but does not speak of compulsory retirement. Sub-rule (3) of Rule 22 speaks of dismissal or removal from service with or without pension; which if ordered with pension is akin to compulsory retirement, which also is in the nature of a penalty.
8. Rules 25, 26 and 27 stand apart, insofar as they being provisions enabling the authorities to retire subordinate officers and enrolled persons either on grounds of physical unfitness or on the ground of unsuitability. This does not contemplate an enquiry and it is purely the discretion of the authority, who considers the service of the employee. In the present case, Rule 26 was invoked insofar as the writ petitioner being retired on grounds of unsuitability. The ground of unsuitability has not been W.A. No.938 of 2019 -8- challenged and just for the sake of completeness, we record that he had 9 cases of misconduct alleged against him. Eight of which were considered for the purpose of retirement on grounds of unsuitability. It is also very evident from the records that the writ petitioner was a habitual absentee, that too without authorisation, for reason of which the earlier penalty was imposed. The writ petitioner has a contention that it was due to his mental instability that such absence occurred; which in the context of the controversy arising in this case is not a relevant aspect. We cannot but observe that unauthorised absence is a misconduct, as evident from the action of the authorities in having proceeded with, on numerous occasions, in the case of the petitioner himself. The authorities did not impose a harsh punishment of retirement, with or without pension on the petitioner and invoked Rule 26 which is not punitive in nature or character. W.A. No.938 of 2019 -9-
9. In such circumstances, when retirement is made as per Rule 26, the retiree would be entitled to pension in accordance with the Pension Rules, for reason of the retirement being one in accordance with the Rules, as distinguished from a punitive cessation of service with full and part pension, which is contemplated under Rule 40. We uphold the judgment of the learned Single Judge, finding the writ petitioner to be entitled to minimum pension under Rule 49(2) of the Pension Rules.
10. It is further directed that the entire arrears of pension shall be paid within a period of three months from today. It is also pointed out by the writ petitioner that though in the appeal there was a specific order that 'the payment of pension on the basis of the judgment impugned shall be subject to the result of the writ appeal', no pension has been paid till date. If the entire pension arrears is not W.A. No.938 of 2019 -10- paid within six months, the pension dues of each prior month shall carry interest at the rate of 7% from the date it was due till payment, which shall be paid by the Government, but recovered from such officer who commits default of payment in accordance with our direction.
The appeal stands dismissed without any order on costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE Scl/03. 01.2020 xx