Punjab-Haryana High Court
Ex. Rfn. Hoshiar Singh vs Union Of India (Uoi) And Ors. on 18 April, 2006
Equivalent citations: (2006)144PLR97
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
JUDGMENT M.M. Kumar, J.
1. This petition filed under Article 226 of the Constitution prays for quashing orders dated 29.4.1974 (P-6), 5.8.1975 (P-13), 7.3.1986 (P-22), 22.5.1990 (P-25), 5.3.1992 (P-26), 8.9.1992 (P-27) and 10.12.2004 (P-33). The aforementioned orders in nutshell have denied the petitioner service element of pension on the ground that he has rendered service for a period of 9 years 263 days, which fell short of 10 years required by the Pension Regulations for the Army, 1961, and therefore, he was not entitled to the grant of service element of disability pension. Accordingly a prayer has been made for release of service element of disability pension from 22.03.1964 to 03.01.1974, It has still further been prayed that the direction be issued for release of disability pension/service element of pension from 3.1.1974 onwards or from any other suitable date along with interest @ 18% p.a. and all other consequential benefits.
2. Brief facts of the case necessary for disposal of the controversy raised in the petition are that the petitioner was enrolled in the Indian Army on 28.12.1953. He developed the disease of Neurotic Depressive Reaction, which is attributable to military service. On account of the aforementioned disease, he was forced to remain absent without leave for 13 days from 17.9.1963 to 29.9.1963. From 30.9.1963 to 31.3.1964, the petitioner remained admitted in the Military Hospital, Delhi Cantt. He was boarded out of service as his disability was assessed to the extent of 60% after having been placed in lower medical category 'EEE' permanent. He was issued a Certificate of Service on 6.3.1964, which shows the date of his discharge as 21.3.1964. In clause 4 of the certificate, it has been clarified that the petitioner was discharged on the order of the Commandant, the Rajputana Rifles Regiment Centre, on medical grounds after serving for 10 years 0 months 85 days. The certificate further shows that he has been awarded Sainya Seva Medal with clasp J&K as he has rendered War service showing theatres of operations in J&K from 10.3.1955 to 24.8.1956 and 10.8.1959 to 25.1.1963. A number of other achievements have also been mentioned in the certificate. He was awarded disability pension with effect from 22.3.1964 to 3.1.1974. But service element of disability pension was not given to him by the respondent authorities for which he made representations on 20.2.1967 (P-2) and 28.1.1970 (P-3).
3. The disability pension granted to the petitioner was discontinued on 4.1.1974 as the disability is stated to have reduced to less than 20%. In that regard, a reference has been made to the discharge slip dated 3.1.1974 (P-5) issued by the Military Hospital, Delhi Cantt., where the petitioner remained admitted for about one week. It is pertinent to note that even in the discharge slip it is indicated at Serial No. 5 that the petitioner has rendered 10 years service. On 29.4.1974, another certificate was issued to the petitioner (P-6) stating that he was not entitled to any disability pension with effect from 3.1.1974 as his invalidated disease has been assessed at less than 20%. The petitioner has sought the quashing of the aforementioned orders. He has made numerous representations including the ones made on 5.10.1974 (P-7) and 28.1.1974 (P-8). As a consequence his case was examined for grant of service element of pension, as is evident from the letter dated 10.10.1974 (P-9). In that letter also it has been categorically recorded that the petitioner rendered 10 years 85 days servics and, therefore, his case was recommended for grant of service element of pension from 3.1.1974 for life by referring to Regulation 186/167 of the Pension Regulation for the Army, 1961, Part-II. The papers were sent to Defence Pension Disbursing Officer-respondent No. 2. The petitioner was intimated on 31.10.1974 that the matter was pending before respondent No. 2 i.e., Controller Defence Accounts (Pension) and the decision was to be conveyed as and when arrived at (P-10). The Record Officer-respondent No. 3 again sent a reminder to respondent No. 2 on 13.2.1975. However, respondent No. 2 on 23.4.1975, intimated to the petitioner that his papers were not received and a copy was asked for processing. However, on 5.8.1975 (P-13), the petitioner was informed that the service element of pension was not admissible to him under the rules as his qualifying service was calculated to be 9 years 263 days. The aforementioned decision was taken on the basis of forfeiture of pay and allowances for the period from 17.9.1963 to 21.3.1964. It was considered as non-qualifying service. The petitioner again made numerous representations in the form of An-nexures P-14, P-15, P-16 and P-17. On 7.12.1979, the petitioner was informed that the appeal filed by him was transferred to Ministry of Defence/Pension-A (P-18 and P-19). He was informed on 2.6.1983 (P-20) that his qualifying service has been counted from 28.12.1953 to 16.9.1963, which came to 9 years 263 days. In other words, the period from 17.9.1963 to 21.3.1964 has been excluded. However, a comprehensive decision was forwarded to the petitioner on 7.3.1986 (P-22) which repeat the same facts. The order dated 22.5.1990 (P-25), 5.3.1992 (P-26), 8.9.1992 (P-27) and 10.12.2004 (P-33) repeat the same reason for rejecting the claim of the petitioner for grant of service element of pension. Eventually, the petitioner sent a legal notice through his counsel on 22.11.2004 (P-32) and has relied upon various judgment/Army Regulations 178 to 187 and 196 to 200.
4. The stand of the respondent No. 3 in the preliminary submissions made in the written statement is that as per Rule 51 of the Pay and Allowance Regulation Rules, 1955, the petitioner has forfeited his pay and allowance of the duration of his absence without leave followed by his hospitalisation from 17.9.1963 to 21.3.1964 and the same has been treated as non-qualifying service for the purpose of grant of service element of disability pension. In para 13 of the reply it has been asserted by imputing the statement to the petitioner that he had gone home on annual leave from his unit NEFA on 23.8.1963 because his second brother, with whom he was closely attached, was ill and was admitted in a hospital about 50 miles away from his home. He reported back to his Unit on 14.9.1963 and two days later on 16.9.1963 he received a telegram that his brother was seriously ill. He was not granted casual leave. He went to the hospital and came to know that his brother had died and had been cremated. He felt extremely dejected and came to Delhi on 30.9.1963 and purchased rat poison and swallowed the same to commit suicide. He become unconscious and brought by the police to Red Fort Section Hospital and later he was transferred to Military Hospital, Delhi Cantt. On 1.10.1963. It has been asserted that if the aforementioned period is excluded then his service works out to 9 years 263 days which is less than 10 years and does not qualify for grant of service element of pension in terms of para 186 of Pension Regulation Act, 1961 (Part-1). Another objection raised by the respondent is that there is huge delay in claiming the service element of pension. The aforementioned assertion is based on document dated 10.5.1975 (R-l) showing that the petitioner was intimated with regard to exclusion of period from 9/63 to 3/64 for the purposes of pension. Even his appeal was rejected on 13.5.1975 (R-2) and 26.11.1977 (R-3). Therefore, it has been claimed that the claim suffers from delay of about 30 days.
5. Mr. R.S. Panghal, learned Counsel for the petitioner has argued on the basis of numerous documents that the respondents have accepted the service of the petitioner to be 10 years 85 days as is evident from the certificate of service (P-l). He has then referred to the discharge slip dated 3.1.1974 (P-5) showing that even in the year 1974, his service was shown to be 10 years. According to learned Counsel, the respondent has taken a complete summersault by excluding the period of 17.9.1963 to 21.3.1964. He has placed reliance on Regulation 186 and 189 and argued that after having fulfilled the conditions of 10 years service, the petitioner cannot be deprived of the service element of disability pension, particularly when his disability pension has also been discontinued after resurvey Medical Board where his disability has been assessed to be less than 20%. With regard to delay, learned Counsel has placed reliance on a judgment of the Hon'ble Supreme Court in the case of Savitri Devi Mehta v. Union of India 2005 10 S.C.C. 325, and argued that withholding of pension give rise to a cause of action every day. Once the petitioner has been found to be entitled to the grant of service pension than the relief can be accordingly modified by confining the arrears to any reasonable period. Learned Counsel has emphasized that the petitioner has been subjected to harassment and being a disciplined soldier, he did not think it proper to drag the respondents to a Court of law. Therefore, it is sought to be submitted that the meritorious cause of the petitioner should not be permitted to be defeated on the preposterous ground of delay and latches.
6. Ms. Daya Chaudhary, learned Assistant Solicitor General of India has vehemently opposed the claim of the petitioner by arguing that the pay and allowances of the petitioner have been rightly forfeited for the period from 17.9.1963 to 21.3,1964 as per Regulation 51 of the Pay and Allowances Regulations, 1955. According to the learned Counsel, once the aforementioned period is not included in qualifying service for the purpose of pension then the period of service assessed is less than 10 years and it is not adequate service for grant of service element of pension. It is sought to be submitted that the Regulations 186 to 167 would not be attracted as has been sought to be projected by the counsel for the petitioner. According to her even otherwise the claim of the petitioner is liable to be rejected on the ground that it suffers from inordinate delay of 30 years. In support of her submissions, she has placed reliance on two judgments of this Court in the case of Lt. Col. Balwant Singh v. Union of India and Ors. 2003(3) S.L.R. 627 and Gurdeep Singh v. Union of India and Ors. 2003(1) R.S.J. 530. Learned Counsel has further submitted that this Court lacks territorial jurisdiction as well because no part of the cause of action has arisen within the territorial jurisdiction of this Court. For the aforementioned proposition learned Counsel has placed reliance on a Full Bench judgment of the Allahabad High Court in the case of Rajender Kumar Mishra v. Union of India and Ors. 2005(3) R.S.J. 777.
7. We have thoughtfully considered the submissions made by the learned Counsel for the parties and are of the view that the petition deserves to be allowed. It is undisputed that under the Pension Regulations for the Army, 1961, a period of 10 years is a minimum period of qualifying service for the purposes of invalid pension as well as service element of the invalid pension. It is admitted position between the parties that the certificate of service issued by the respondents (P-l) on 6.3.1964 clearly certifies that the petitioner had rendered 10 years 0 month and 85 days service. The same fact has been repeated in the discharge slip dated 3.1.1974 (P-5). We find that these documents have described the service rendered by the petitioner correctly. However, on 5.8.1975 an order was passed by the respondents (Annexure P-13) at the back of the petitioner to the effect that from 17.9.1963 to 21.3.1964 the petitioner had forfeited his pay and allowances for the duration of his. absence without leave followed by hospitalisation in accordance with Regulation 51 of the Pay and Allowances Regulations, 1955. This order is extracted hereunder for facility of reference:
Reference your petition dated 16 April, 1975 received under Army HQ letter N.89559/Raj Rif/Org 1 (Pers) (c) of 11 Jul 75.
2. You have already been informed under this office letter No. RNE/DP/ 2842453/131 dated 10 May 75 that your disability pension has been discontinued with effect from 3 Jan 74 as the invaliding disability was reassessed at less than 20% final from the date. A special gratuity to the extent of Rs. 855.00 has also been paid to you by money order. The service elements are not admissible to under the rules as your qualifying service comes to 9 years and 263 days because of forfeiture of pay and allowances for the period from 17 Sep. 63 to 21 Mar 64 which has been considered as non-qualifying service.
8. According to Regulations 51 of the Defence Services Regulations, on which reliance has been placed by the learned Counsel for the respondents, a provision has been made that a person is to forfeit his pay and allowances for every day if he remains, inter alia, absent from duty without leave. Regulation 123 further postulates forfeiture of service for certain offences and its restoration. Both the Regulations are extracted below the facility of reference:
Regulation 51:
FORFEITURE OF PAY AND ALLOWANCES
51. A person, subject to the Army Act, 1950 will forfeit his pay and allowances (including expatriation allowance) for every day (as defined in Section 92 of that Act) of:
a)desertion;
b) absence without leave;
c) absence as a prisoner of war;
d) the period between recovery from the enemy and dismissal from the service in the case of a recovered prisoner of war in respect of whom a Court of Inquiry convened under rules 178 and 179 of the Army Rules, 1954, has recommended and convening officer has decided that the provision of this sub-clause shall be applied;
e) Imprisonment awarded by a criminal court, or imprisonment or field punishment awarded by a court martial, or an officer exerting authority Under Section 80 of the Army Act, 1950;
NOTE: In case the sentence of imprisonment or punishment is suspended, the individual will be entitled to draw full pay and allowances from the date of such suspension.
f) Confinement on a charge for an offence of which he is afterwards convicted by a criminal court or court martial, or on a charge of absence without leave for which he is afterwards awarded imprisonment or field punishment by an officer exercising authority Under Section 80 of the Army Act, 1950;
NOTE: JCOs and NCOs under "close arrest", but not in confinement, will incur no forfeiture of pay and allowances. For persons below NCO rank "close arrest' is the same thing as "confinement" and they will forfeit pay and allowances for every day of "close arrest".
(g) the period between dismissal, removal, discharge, release or retirement carried out in the prescribed manner by the competent authority and reinstatement on its being cancelled by the competent authority; and
(h) sickness in hospital certified by the medical officer attending on him to have been caused by an offence under the Army Act, 1950, committed by him.
Forfeiture of service for certain offences and its restoration
123. (a) A person who has been guilty of any of the following offences:
i) Desertion, vide Section 38 of the Army Act.
ii) fraudulent enrollment, vide Section 34(a) of the Army Act, shall forfeit the whole of his prior service towards pension or gratuity upon being convicted by court martial of the offence.
(b) A person who has forfeited service under the provisions of the preceding clause but has not been dismissed shall, on completion of any period of three years further service in the colours and/or service in the reserve with exemplary conduct and without any red ink entry, be eligible to reckon the forfeited service towards pension or gratuity.
9. A perusal of the aforementioned provisions shows that a person who is subject to the Army Act, 1950, is to forfeit his pay and allowances for every day of desertion and absence without leave etc. etc. Regulation 123 deals with the forfeiture of service for certain offences and its restoration when a person is not dismissed from service. Moreover, the Regulations necessarily implied that there has to be an order of forfeiture. It appears that the forfeiture is postulated by Regulation 123 in cases where a person has been boarded out of service. In any case such an order of forfeiture cannot be passed by the authorities without associating the petitioner because it is likely to adversely affect his interests. The respondents have failed to explain as to how the service of the petitioner was firstly certified to be 10 years 85 days and then in his Service Book a period of 15 days was shown to be non-qualifying service. At the time of invalidating the petitioner out of service there was no such order and the total period of non-qualifying service was only 15 days. In para 1 of the replication, the petitioner has clarified the aforementioned factual position and, therefore, the service of the petitioner has to be held to be 10 years and 70 days by excluding a period of 15 days. Any order passed after boarding out the petitioner from service, which has resulted into forfeiture of his service, cannot be sustained in the eyes of law and would be void abinitio. It is appropriate to mention that the petitioner developed the disease of Neurotic Depressive Reaction. He was eventually admitted to Military Hospital, Delhi Cantt. and remained admitted from 30.9.1963 to 31.3.1964. It was thereafter that the petitioner was boarded out of service on 31.3.1964. From a perusal of the reply it becomes evident that the petitioner has been treated absent from duty from 17.9.1963 to 21.3.1964, which constitute a period of 186 days. The respondents have taken the same stand in the order dated 22.5.1990 (P-25), order dated 7.3.1986 (P-22), order dated 5.3.1992 (P-26), 8.9.1992 (P-27) and the order dated 10.12.2004 (P-33).
10. There is another aspect of the matter. Absence from duty without sanctioned leave is regarded as a misconduct and Under Section 39 of the Army Act, 1950, it is considered to be an offence. Under Section 91(a), deduction has been authorised for all pay and allowances for every day in respect of inter alia, absence without leave. Once absence from duty without leave is considered to be an offence then it is not possible to hold that the army authorities could take a decision and conclude that a person was absent without leave intentionally and without any sufficient cause without holding a court of enquiry associating the petitioner of his guardian. In the present case, no decision has been taken after following the principles of natural justice and then concluding that the petitioner was intentionally absent from duty without leave. Even otherwise, we are satisfied that the petitioner was in Military Hospital, Delhi Cantt. and his record and verifiable. The aforementioned fact has been admitted that the petitioner was hospitalised for the period for which he has been treated as absent from duty. Such an order would flagrantly violate Section 39 of the Army Act, 1950, Therefore, we do not find any justification for the respondents to conclude that merely because the petitioner was not paid the salary under Regulation 51 for the period of his absence, it would also amount to forfeiture of his qualifying service. Hence, we hold that forfeiting the service of the petitioner for the period of his illness from 17.9.1963 to 21.3.1964 is an illegal act and goes against the fundamental law of the land. In support of the aforementioned proposition reliance could be placed on a judgment of the Constitution Bench of the Hon'ble Supreme Court in the case of Jai Shanker v. State of Rajasthan as well as in the cases of Shiv Shanker v. Union of India and Dyal Saran v. Union of India . In Dyal Saran's case no disciplinary action was taken against the officer who was serving in Military Engineering Service for his absence from duty without sanctioned leave. It was held by the Hon'ble Supreme Court that forfeiture of service is against the principles of natural justice and proceeded to observe as under:
In our view neither the loss of lien contemplated by Article 189 nor the for feiture of past service contemplated by Article 420 has anything to do with the withholding of pension and gratuity. We do not want to express any opinion on the question whether Article 189 of the Civil Services Regulations is inconsistent with the provisions of Article 311(2) of the Constitution. For the purposes of the present case it is sufficient to say that it has no relevance on the question of grant or withholding of pension. Again we think that whatever relevance forfeiture of past service under Article 420 of the Civil Services Regulations may have in connection with matters relating to advancement in service etc. it has no bearing on the question of the grant or the withholding of pension. We do not also think that an order of forfeiture of past service can be made without observing the principles of natural justice. Admittedly, disciplinary action was not taken against the appellant in connection with his absence from duty without leave. Nor was any notice given to the appellant that his past service was proposed to be forfeited under Article 420 of the Civil Services Regulations, and his explanation sought. We may mention here that there was no reference to Article 420 either in the letters dated January 29, 1966, May 30, 1966, and November 22, 1966 or in the written statement filed in the High Court. Reliance was placed in these documents entirely upon Article 189 and as we have said it has no bearing on the question for grant or withholding of pension. We consider that the respondents were not entitled to withhold the pension of the appellant unless the facts fell within the provisions of Articles 352 and 353 of the Civil Services Regulations. It was not suggested by the learned Counsel for the respondents that the case fell within either of these articles. The appellant was holding the post of Superintendent substantively and Article 352 had no application what scver nor was the appellant dismissed or removed for misconduct, insolvency or inefficiency so as to attract Article 352. We, therefore, hold that the appellant was entitled to be paid his pension and gratuity on the basis of his service up to February 12, 1965. Let a direction issue accordingly. The appeal is allowed with costs in these terms.
(Emphasis added)
11. The aforementioned observations of the Hon'ble Supreme Court squarely apply to the facts of the present case because the order(s) declaring the period from 17.09.1963 to 31.03.1964 as non-qualifying service are bad in the eyes of law as no opportunity of hearing was afforded to the petitioner.
12. The argument of Mrs. Daya Chaudhary, learned Assistant Solicitor General of India, with regard to delay and latches has failed to impress us because the petitioner was firstly granted disability pension, which he had enjoyed from 22.3.1964 to 3.1.1974. At the time of boarding out the petitioner from service no order with regard to forfeiture of his service was passed in respect of service element of pension and the order subsequently passed are without complying with the principles of natural justice. Moreover, we find that the respondents have taken a thoroughly unwarranted and in-humanistic stand by treating the period from 17.9.1963 to 21.3.1964 as absence without leave when the authorities are fully aware that the petitioner was seriously ill and remained admitted to Military Hospital, Delhi Cantt. In para 13 of the reply it has been asserted by imputing the statement to the petitioner that he had gone home on annual leave from his unit NEFA on 23.8.1963 because his second brother, with whom he was closely attached, was ill and was admitted in a hospital about 50 miles away from his home. He reported back to his Unit on 14.9.1963 and two days later on 16.9.1963 he received a telegram that his brother was seriously ill. He was not granted causal leave. He went to the hospital and came to know that his brother had died and had been cremated. He felt extremely dejected and came to Delhi on 30.9.1963 and purchased rat poison and swallowed the same to commit suicide. He become unconscious and brought by the police to Red Fort Section Hospital and later he was transferred to Military Hospital, Delhi Cantt. on 1.10.1963. That appears to constitute the basis for recording the absence of the petitioner from service without leave. However, the same was required to be put to the petitioner in a show cause notice and then any decision with regard to forfeiture of service could have been taken. Moreover, we find that the delay and latches is not a rule of law but it is a rule of prudent which may not be used to defeat the cases like payment of pension, especially to army personnel. For this view we draw support from the judgment of the Hon'ble Supreme Court in the cases of Savitri Devi Mehta v. Union of India 2005 10 S.C.C. 325 and S.K. Mastan v. General Manager . We are further of the view that non-payment of pension give rise to a cause of action every day and, therefore, the argument is liable to be rejected. However, we do not find any legal infirmity in the order discontinuing the disability pension of the petitioner as the petitioner has been assessed to have disability which is less than 20% According to Regulation 173 of the Regulations such a person is not entitled to disability pension. Therefore, order dated 29.04.1974 (P-6) is liable to be upheld. There is no subsistence in the argument concerning territorial jurisdiction of this Court as part of cause of action has arisen within the jurisdiction of this Court.
13. For the reasons aforementioned, this petition succeeds. The orders dated 5.8.1975 (P-13) (to the extent it denies service element of pension to the petitioner), 7.3.1986 (P- 22), 22.5.1990 (P-25), 5.3.1992 (P-26), 8.9.1992 (P-27) and 10.12.2004 (P-33) are hereby quashed. Consequently, the respondents are directed to fix the service element of the pension of the petitioner by proceeding on the assumption that he has rendered more than 10 years of service. The arrears shall be paid within a period of four months from the date of certified copy of this order is received by the respondents. The petitioner shall be paid service element of pension regularly in accordance with law. The petitioner shall be entitled to his costs, which we determine at Rs. 10,000/-.