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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI
O.A.No.35 of 2014
Wednesday, the 29th day of April 2015
THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH
(MEMBER - JUDICIAL)
AND
THE HONOURABLE LT GEN K. SURENDRA NATH
(MEMBER – ADMINISTRATIVE)
Rank Ex Sep J.Nagabhushanam Raju
Service No.13830783
S/o Late Venkatamuni Raju
aged about 66 years
House No.19-4-1/5, S.T.V. Nagar Road
Tirupathi, District-Chittoor
Andhra Pradesh, Pin-517 501.
By Legal Practitioners:
M/s. Sikdar & S. Biju
vs.
1. Union of India, represented by
The Secretary, Government of India
Ministry of Defence
New Delhi-110 011.
2. The DAAG
HQ KK & G Sub Area
Cubban Road, Bangalore-560 001.
3. The Officer-in-Charge
ASC Records, South (M.T)
Bangalore-560 007.
.. Applicant
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4. The PCDA (P)
G-3 Section, Draupathi Ghat
Allahabad (UP), Pin-211 014.
…. Respondents
By Mr.M.Dhamodharan, SCGPC
ORDER
[(Order of the Tribunal made by
Hon’ble Justice V. Periya Karuppiah, Member (Judicial)]
1.
The applicant has filed this application for calling upon the
respondents to produce the records in respect of the impugned order
No.13830783/Corr/SP)(T-IV), dated 16.09.2013 passed by the 3rd
respondent and quash the same and also to direct the respondents to
consider the applicant’s colour service of 15 years and 15 days as per
Discharge Certificate or the applicant be deemed to be in service till his
15 years of qualifying service and to grant service pension or to
consider the applicant be deemed in service till his 14 years of
qualifying service and condone the shortfall of service of 12 months as
per the existing rules and grant service pension or to consider reserve
period and grant reservist pension to the applicant.
2.
The factual matrix of the applicant’s case would be as follows:
The applicant was enrolled in the Indian Army on 16.07.1968 as
Sepoy (Driver) in ASC and after serving 15 years and 16 days, he was
discharged from service on 31.07.1983 under Rule 13 (3) (III)(i) with
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reserve
liability.
The
applicant
submits
that
his
service
pension/reservist pension was not granted on the ground of shortfall of
pensionable service.
Though he expressed his willingness to serve
further in the Army, his service was not extended and he was
discharged from service on 31.07.1983 and was informed by the
respondents that he would be getting service pension after condoning
the shortfall of pensionable service.
When he was discharged, he was
having three minor children and faced hardship without employment.
He thereafter made representation to the respondents vide letters
dated 25.03.1994, 02.04.1994, 10.08.1994 and September 1996, but
the respondents denied to grant service pension vide letter dated
15.10.1996 stating that there is no provision to waive the condonation
of deficiency in service beyond 180 days. The applicant submits that in
the Discharge Certificate issued by the respondents, it is mentioned as,
“Date of Enrolment-16th July 1968, Date of Discharge-31st July 1983,
Non-qualifying service-Nil and Colour Service-15 years and 15 days”
and therefore, the applicant was under the belief that he would be
granted service pension on his discharge, but the same was denied.
Therefore, the applicant at this old age is finding it difficult to meet
both ends meet and also to bear the medical expenses.
The
respondents may condone the shortfall of pensionable service upto 12
months vide GO MOD dated 21.07.2004 which stipulates that the
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condonation of shortfall in qualifying service for the grant of pensionary
benefits in respect of PBORs beyond six months and upto twelve
months.
He submits that his Appeal dated 07.09.2013 was also not
considered and the 3rd respondent passed the impugned order dated
16.09.2013 stating that the applicant served only for 13 years and 337
days with a shortfall of 398 days of service and there is no provision to
condone the shortfall of service as per the extant rules.
The applicant
also requested the respondents to condone the delay in approaching
them and the delay was condoned by the respondents but, finally the
impugned order was passed. The action of the respondents is biased,
arbitrary and unlawful.
Therefore, the applicant requests that the
application may be allowed.
3. The respondents filed reply statement which in brief would be as
follows:
The applicant was enrolled in the Army on 16.07.1968 with the
terms of engagement of 10 years of colour service and 5 years of
reserve service.
Since he did not opt for modified terms of
engagement, he was discharged from service on completion of 15 years
with effect from 31.07.1983 under Item III (i) of the Table appended to
Army Rule 13(3).
During his service, he was absent without leave and
overstayed leave which was granted on various occasions.
The
respondents have also given the relevant page of the Sheet Roll (Pages
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3 and 4) (Annexure R-1) to show the non-qualifying service of the
applicant.
Ser
AA
Section
which tried
(a)
39 (b) (OSL)
(b)
39 (a) (AWL)
(c)
39 (a) (AWL)
Total
under Period
Absence
21
10
24
08
04
10
of No. of Non- Punishment
Qualifying
Awarded
Service
Oct 72 to 51 days
28 days RI
Dec 72
Aug 74 to 46 days
14 days RI
Oct 74
Jul 75 to 316 days
28 days RI
May 76
409 days
Thus, the applicant was having a total of 409 days of non-qualifying
service during his entire service.
The applicant is aware of his non-
qualifying service since he had signed in the Discharge Roll. In spite of
being clarified the factual position to the applicant a number of times,
he has filed this application by wasting the precious time of this
Tribunal.
During 1996, the provision for condoning the deficiency in
service was upto 180 days only and accordingly, the applicant was
replied.
Now it has been modified as one year, i.e., 365 days.
But in
the present case, the applicant has a total non-qualifying service of 409
days during his entire service for the offences as shown in the above
Table. Under the provisions of Para 132 of Pension Regulations for the
Army 1961, Part-I, service pension is granted to those persons who
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have completed a minimum 15 years of qualifying service.
In the
instant case, the applicant had only 13 years and 337 days qualifying
service and therefore, he is not eligible for service pension and
accordingly, service gratuity was granted to the applicant.
As per the
extant rules, there is no provision to condone the deficiency of service
beyond 365 days.
Therefore, the respondents request that this
application may be dismissed.
4.
On the above pleadings, the following points were framed for
consideration:
(1)Whether the impugned order No.13830783/Corr/SP)(TIV), dated 16.09.2013 is liable to be quashed and set aside?
(2) Whether the applicant be deemed to be in service for
14 years of qualifying service and the shortfall of 12 months in
service have to be condoned as per the existing rules for the
grant of service pension?
(3) Whether the applicant is entitled for reservist pension
as sought for?
(4)
To what reliefs the applicant is entitled for?
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5.
Point Nos.1 to 3:
The facts that the applicant was enrolled in
the Army on 16.07.1968, that the term of service of the applicant was
10 years in colour and 5 years in reserve
and the applicant had not
opted for modified terms of engagement and therefore, he was
discharged from service on completion of 15 years of service with effect
from 31.07.1983 under Army Rule 13(3) Item III (i) and that the
applicant was having only 13 years 337 days of qualifying service after
deducting non-qualifying service of 409 days from the total service are
not disputed.
6.
The applicant claimed for grant of service pension after condoning
the shortfall in service of 12 months by deeming that the applicant had
served for 14 years was not accepted by the respondents and
therefore, the impugned order has been passed denying his claim.
Furthermore, the applicant was not transferred to reserve and he was
also discharged from service after completion of the entire 15 years
period of service as regular service.
However, the applicant has also
asked for grant of reservist pension.
7.
The learned counsel for the applicant would submit in his argument
that the applicant had 13 years 337 days of qualifying service which
ought to have been considered as 14 years of qualifying service and the
remaining 12 months of service could have been condoned and the
applicant be granted service pension.
He would cite a judgment of
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Hon’ble AFT Principal Bench, New Delhi made in O.A.No.401 of 2013
dated 19.11.2013 between Surender Singh Parmer and UOI &
others. Relying upon the said judgment, he would argue that Note 5
of the Government of India Instructions Order of 1987, dated
30.10.1987 would empower the competent authority to consider that
the fraction of a year equal to three months and above, but less than
six months be treated as a completed one half year and be reckoned as
qualifying service towards the length of qualifying service.
He would
also seek to apply the principle laid down therein in this case since the
applicant had completed 13 years and 337 days of qualifying service
and the second half of the 14th year which is more than three months
but less than six months be considered as one half of the year and thus
the 13 years 337 days period could be deemed as 14 years of
qualifying service as per the Government of India letter dated
30.10.1987, towards consideration of condonation of deficiency in
service as per rules.
He would further submit that the impugned order
dated 16.09.2013 would refer that the shortfall of 398 days cannot be
condoned for the grant of service pension without referring to the
instructions given by the Government of India dated 30.10.1987 and
therefore, it has to be set aside.
He would also rely upon a judgment
of Hon’ble Apex Court made in Civil Appeal No. 9389 of 2014
(20.01.2015) between Union of India & Another and Surender
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Singh Parmar in which the above-mentioned judgment of Hon’ble AFT
Principal Bench was confirmed and the substantial finding of the said
Bench was accepted by the Hon’ble Apex Court of India.
However, the
argument of the learned counsel for the applicant was refuted by the
respondents in the written arguments that in calculating the length of
qualifying service for the purpose of pensionary benefits, fraction of a
year equal to 3 months and above shall be treated as completed one
half year period and be reckoned as qualifying service for determining
the Havildar pension and service DCR gratuity.
He would therefore
argue while calculating the qualifying service of the applicant, he has
put in only 13 years 337 days service and such service cannot be
treated as 14 years for condoning the shortfall of service.
He would
also argue that the respondents cannot condone the shortfall of
pensionable service beyond 12 months and the applicant’s qualifying
service was below 14 years of qualifying service and therefore, the
same cannot be condoned.
8.
However, the respondents have produced a Circular issued by
PCDA dated 19.12.1984 in which we find the answer.
According to the
said letter, the qualifying service of 9 months or more but less than a
year would be treated as a complete 1 year for the purposes of
pension.
The said rule was given effect from 28.06.1983 onwards.
Admittedly, the applicant had completed 13 years 11 months and 2
10
days of qualifying service.
The applicant was discharged from service
with effect from 31.07.1983 which is subsequent to 28.06.1983, the
date of implementation of the rule in the letter dated 19.12.1984.
Therefore, the qualifying service of the applicant for a period of 13
years 11 months 2 days (13 years 337 days) should have been deemed
as 14 years of qualifying service in the light of the Circular of PCDA
dated 19.12.1984 complied with the letter of Government of India,
dated 30.10.1987.
The said rules introduced
by the Government of
India were considered and applied to the facts of the case by the
Hon’ble AFT Principal Bench in the judgment cited supra which was also
confirmed by the Hon’ble Apex Court.
Therefore, the order passed by
the 3rd respondent that the applicant did not complete 14 years of
qualifying service in order to enable the respondents to consider
condonation of deficiency of 12 months’ in service for the grant of
service pension is not in consonance with the rules framed by the
Government itself.
9.
The only reason stated by the respondents for not condoning the
deficiency of service is that it is beyond 12 months’ period.
No other
reasons have been stated for the refusal of condonation of deficiency in
pensionable service.
We have discussed and found that the applicant’s
13 years 337 days qualifying service should have been deemed as 14
years of qualifying service as per rules.
In such circumstances, the
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respondents ought to have condoned the deficiency in service for a
period of 12 months as per the extant rules, viz., rule 125 (a)(v) of the
Pension Regulations for the Army, 1961 (Part-I) when no other reasons
were stated for refusal of condonation.
Since the 3rd respondent has
not considered the rules laid down by the Government in its own letter
dated 30.10.1987 and the Circular of PCDA dated 19.12.1984, the
refusal to condone the deficiency of 12 months towards the grant of
service pension has no legs to stand and is liable to be quashed.
Consequently, the applicant is found to be entitled for consideration for
condonation of 12 months’ deficiency in service, thereby enabling him
to qualify for grant of service pension.
10.
The applicant has also asked for reservist pension along with
service pension. Even though the engagement of service was admitted
to be 10 years colour service and 5 years of reserve service, the
applicant was not transferred to reserve service to continue for a period
of 15 years which includes non-qualifying service for a period of 409
days.
It is also mentioned in the discharge book that the applicant
served only in regular service for 15 years.
Therefore, it is crystal
clear that the applicant was not transferred to reserve service as he did
not opt for modified terms of engagement.
Therefore, the applicant
cannot maintain the claim of reservist pension.
Furthermore, he
cannot claim for both service and reservist pension.
In the said
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circumstances, he is not entitled for grant of any reservist pension as
asked for by him.
11.
Point No.4:
All the points are decided accordingly.
In view of our findings reached in the previous
points, the applicant is found entitled for the grant of service pension
after condoning the deficiency for service for 12 months. We are
inclined to condone the said deficiency in service for grant of service
pension.
Accordingly, the application filed by the applicant for the
grant of service pension is allowed.
Even though the applicant has
asked for service pension from the date of claim for pension through
his letter dated 10.08.1994,
the respondents are obliged to apply the
rules issued by the Government of India dated 30.10.1987 and the
Circular of PCDA dated 19.12.1984 and the date when the period of
condonation of deficiency of service was enhanced from 6 months to 12
months’ period in GOI letter dated 21.07.2004.
However, the
impugned order dated 16.09.2013 has been passed by the respondents
on the petition of the applicant dated 07.09.2013 seeking for service
pension after condonation of deficiency in service.
Therefore, we feel
that it is just and necessary to order the grant of service pension in
favour of the applicant three years prior to the date of his claim in the
letter dated 07.09.2013 (i.e.07.09.2010) till this date as per the extant
pension rules and also to issue PPO accordingly.
Time for paying such
arrears of pension and issuance of PPO is three months from today.
In
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default, the respondents are liable to pay interest at 9% per annum
from the date of default till the date of entire payment of arrears.
12.
In fine, the application is allowed with the observations and
directions as indicated above.
In other respects, the application is
dismissed. No order as to costs.
Sd/
Sd/
LT GEN K. SURENDRA NATH
MEMBER (ADMINISTRATIVE)
JUSTICE V.PERIYA KARUPPIAH
MEMBER (JUDICIAL)
29.04.2015
(True copy)
Member (J) – Index : Yes/No
Member (A) – Index : Yes/No
VS
Internet : Yes/No
Internet : Yes/No
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To:
1. The Secretary
Government of India
Ministry of Defence
New Delhi-110 011.
2. The DAAG
HQ KK & G Sub Area
Cubban Road, Bangalore-560 001.
3. The Officer-in-Charge
ASC Records, South (M.T)
Bangalore-560 007.
4. The PCDA (P)
G-3 Section, Draupathi Ghat
Allahabad (UP), Pin-211 014.
5. M/s. M.K. Sikdar & S.Biju
For applicant.
6. Mr. M. Dhamodharan, SCGPC
For respondents.
7. OIC, Legal Cell,
ATNK & K Area, Chennai.
8. Library, AFT, Chennai.
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HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH
MEMBER (JUDICIAL)
AND
HON’BLE LT GEN K. SURENDRA NATH
MEMBER (ADMINISTRATIVE)
O.A.No.58 of 2014
Dt:29.04.2015