HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 227 (SS) of 2003 Kashmir Singh. ...Petitioner. Versus Union of India and six others. …Respondents Mr. K.S. Bhaskar, Advocate for the petitioner, Mrs. Beena Pandey, Standing Counsel for Union of India/respondent nos. 1 to 4, 6 & 7. Dated: October 20, 2009 Hon’ble V.K. Bist, J. Heard learned counsel for the parties. 2. Present petition has been filed by the petitioner for the following reliefs:- I. Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to pay pension to the petitioner and also to pay the cheque amount and other arrears as per Annexure-I and Annexure-II; IA. Issue a writ, order or direction in the nature of certiorari to set aside an order of respondent no.3 to set-aside the impugned order 14244498/ SP/ NER/ T-2- dated 14th August,2003 (Annexure V); II. Issue a writ, order or direction in the nature which this Hon’ble Court may deem fit and proper in the circumstances of the case. III. Award the cost of petition. 3. Brief facts, as emerge out from the petition, are that the petitioner was enrolled in the Indian Army (Corps of Signals) on 19th March, 1982 and discharged from service on 1st February, 2003 after having rendered 20 years 10 months and 24 days of service under Army Rule 13 (3) item III (i) on completion of service limit. Though the petitioner had completed his terms of engagement of his Rank on 31st March, 2002 but due to operational commitment (OPERATION PRAKARAM), he was compulsorily retained in the service under provisions of 2 Rule 146 of Regulations for the Army 1987 (Revised Edition) with effect from 1st April, 2002 to 30th September, 2002 and further from 1st October, 2002 to 31st January, 2003 vide Army Head Quarter Sig no. 3518840/PS-2(c) dated 28th December, 2001 and 3511860/AG/PS-2(c) dated 11 June, 2002. During his service, the petitioner overstayed leave; had not rejoined duty within a considerable period of 30 days and, as such, he was declared deserter under Section 106 of the Army Act. The petitioner rejoined Unit on 25th March, 2002 and subsequently tried by Summary Court Martial for an offence under Section 38 (1) of the Army Act and was awarded three months Rigorous Imprisonment in Military custody on 1st April, 2000. According to the Regulation 123 (a) (i) of Pension Regulations for the Army 1961 (part-I), the persons who are convicted by the Court Martial under Army Act, their entire former service is forfeited for the purpose of pension and gratuity. However, the forfeited service can be restored if the individual completes period of three years after rejoining from desertion with exemplary conduct and without any red ink entry. In the case of petitioner, the petitioner was discharged from service under Army Rule 13 (3) item III (i) on fulfilling his terms of service condition w.e.f. 1st February, 2003 and, as such, he could not complete the requisite period of three years service and he has a shortfall of 59 days exemplary service. But the Principal Controller of Defence Accounts (Pension) Allahabad, U.P. vide its PPO No. S/ 050835/ 2003 dated 17th January, 2003 issued pension payment order in favour of the petitioner. Thereafter, statement of case alongwith all connected documents were submitted to PAO (OR) Corps of Signals for their audit report and onward transmission 3 to Army HQ (Sigs 4 (b) vide letter no. 14244498/SP/NER/T-2 dated 8th September, 2003 for obtaining necessary sanction for restoration of petitioner’s forfeited service from Govt. of India, Ministry of Defence as a special case, but no decision on the said recommendation was taken. 4. In the meantime when the respondents came to know that petitioner was not entitled for pensionary benefits in terms of paragraph 123 (a) (i) of Pension Regulations for the Army, 1961 (Part-I), the Principal Controller of Defence Accounts (Pension) Allahabad, instructed Banker’s of the petitioner i.e. SBI, Kashipur Branch to stop payment of pensionary awards to the petitioner through telegram no. 21 (bearing file No. EDP/Corr/19/57/Signals dated 23rd April, 2003) and letter no. EDP/Corr/19/57/ Signals dated 2nd January, 2003. The petitioner was also communicated about the fact by Signals record letter no. 14244498/SP/NER/T-2 dated 21st July, 2003 and no. 14244498/SP/NER/T-2 dated 14th August, 2003. 5. Learned counsel for the petitioner submitted that since the petitioner was granted pension vide pension payment order PPO No. S/ 050835/ 2003 dated 17th January, 2003 issued by the Principal Controller of Defence Accounts (Pension) Allahabad, U.P. and the payment of pension order was never cancelled by the respondents, the petitioner is entitled for pension. He further submitted that the pension payment order was rightly issued in favour of the petitioner as the petitioner had in fact completed 20 years’ qualifying service in the year 2002 and was discharged from service on 1st 4 February, 2003 after rendering 20 years 10 months and 24 days service. 6. Mr. Beena Pandey, learned Standing Counsel for respondents/ Union of India on the other hand has argued that the pension payment order was erroneously issued by the Principal Controller of Defence Accounts (Pension) Allahabad, U.P. as petitioner was not entitled for pensionary benefits in terms of paragraph 123 (a) (i) of Pension Regulations for the Army Act, 1961. She submitted that order dated 14th August, 2003 was rightly passed by which the State Bank of India, Kashipur Branch was asked to stop payment to the petitioner and to return original copy of PCDA (P), Allahabad. She further submitted that in terms of paragraph 123 (a) (i) of the Pension Regulations for the Army 1961 (Part-I) the pension payment order was issued erroneously whereby the petitioner was granted service pension as he was tried by the Summary Court Martial under Section 38 (1) of the Army Act and he was awarded three months rigorous imprisonment, hence his entire former service was forfeited for the purpose of pension and gratuity. She also submitted that the petitioner could not complete his requisite period of three years and had a shortfall of 59 days exemplary service to get the service pension. 7. After hearing learned counsel for the parties, and perusing the entire material available on record this Court nowhere find that pension payment order dated 17th January, 2003 issued by the Principal Controller of Defence Accounts (Pension) Allahabad, U.P. was ever cancelled, but the same is in existence today. At the time of his discharge from service on 1st February, 2003 the 5 petitioner had already completed 20 years of qualifying service. But his past service could not be counted for pensionary benefit as petitioner was awarded punishment of three months Rigorous imprisonment. The petitioner served the Army till 1st February, 2003 but could not complete the requisite period of three years service as he had shortfall of 59 days exemplary service. The petitioner could not complete his period of exemplary service as he was discharged from Army on completion of his service period. Had he been given chance to serve Indian Army for more period, he would have completed remaining three years exemplary service. There is nothing on record to show that petitioner was habitual offender and absented from duties on various occasions. From the record it appears that it was first occasion when petitioner overstayed leave for which he was punished. It appears that seeing the genuineness of the case of petitioner, the matter was referred to Army Headquarter for restoration of his forfeited service for grant of service benefit, but unfortunately for last more than six years his case has not been considered. 8. It is a fact that petitioner was awarded three months Rigorous imprisonment and in view of Regulation 123 (a) (i) of Pension Regulations for the Army, 1961, the petitioner cannot be granted pension unless his forfeited service is restored. Therefore, no direction can be issued for making payment of pension to the petitioner. But after considering the submissions of the learned counsel for the parties and on due assessment of the material available on record and on the peculiar facts and circumstances of the case this Court finds that the case of the petitioner is a genuine case for restoration of his forfeited service for 6 grant of pension etc. Therefore, the respondents are directed to consider the case of the petitioner sympathetically for restoration of his forfeited service for grant of service pension to the petitioner at the earliest. 9. With these directions, the writ petition is finally disposed of. No order as to costs. (V.K. Bist, J.) 20.10.2009 NCM: