IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 OP(AFT).No. 2447 of 2011(Z) --------------------------- TA.134/2010 of ARMED FORCES TRIBUNAL REGIONAL BENCH,KOCHI .................... PETITIONER --------------------- T. GOMATHY, W/O. LATE C.R. KUNJURAMAN, (SEP. 1706642 INDIAN ARMY), ROADVILA VEEDU, NADAKKAL, KALLUVATHUKKAL.P.P.O., KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENTS: --------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-110001. 2. THE CHIEF OF ARMY STAFF, ARMY HEAD QUARTERS, SENA BHAVAN, NEW DELHI-110001. 3. THE OFFICER I/C RECORDS, THE GRANADIERS POST BAG NO.17, JABALPUR, MADHYA PRADESH-482001. 4. THE ZILA SAINIK WELFARE OFFICER, ZILA SAINIK WELFARE OFFICE,CIVIL STATION, KOLLAM-13. 5. THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS,ALLAHABAD. ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA FOR R1-5 THIS OP (ARMED FORCES TRIBUNAL - Art.227) HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON 28.7.2011 PASSED THE FOLLOWING: O.P.(AFT) NO.2447/2011 APPENDIX EXT.P1: COPY OF THE WRIT PETITION AS W.P.(C) NO.25247/2008. EXT.P2: COPY OF THE COUNTER AFFIDAVIT HAS BEEN FILED ON BEHALF OF THE RESPONDENTS ON 25.11.2008. EXT.P3: COPY OF THE REPLY AFFIDAVIT ON 30.6.2010. EXT.P4: COPY OF THE AFFIDAVIT PRODUCING A CERTIFICATE FROM THE PRESIDENT, KALLUVATHUKKAL GRAMA PANCHAYAT FILED BY THE PETITIONER. EXT.P5: COPY OF THE ORDER DT.24.2.2011 IN T.A.NO.134/2010 IN W.P.(C) NO.25247/2008. //TRUE COPY// PS TO JUDGE C.N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = O.P. ( AFT) NO. 2447 OF 2011 = = = = = = = = = = = = DATED THIS, THE 12TH DAY OF AUGUST, 2011. J U D G M E N T P.S. Gopinathan, J. This original petition under Article 227 of the Constitution of India is filed against the order dated 24.2.2011 in T.A. 134 of 2010 on the file of the Armed Forces Tribunal, Regional Bench at Kochi. The petitioner herein was the petitioner before the Tribunal. She originally instituted a writ petition as W.P.(C) 25247/2008, copy of which is produced as Ext.P1 before this Court. Consequent to the establishment of the Armed Forces Tribunal, Regional Bench at Kochi, having found that the matter would come within the jurisdiction of that Tribunal, the writ petition was transferred to the Tribunal which numbered the same as T.A. 134 of 2010 and disposed of by the impugned order, copy of which is produced as Ext.P5. The petitioner contended that she is the widow of C.R. Kunjuraman who was working as a Sepoy-Barber attached to 13 Grenadiers O.P.(AFT) 2447/2011 2 under the third respondent. He, who was absorbed in service on 10.11.1951, was discharged with effect from 5.9.1968. Thereafter, Kunjuraman was residing with the petitioner for about one year and since 1969 he is missing. A complaint was filed before the Circle Inspector of Police, who by Ext.P1 dated nil produced in Ext. P1, reported that the husband of the petitioner was missing from her house seventeen years ago. Alleging that since the husband of the petitioner was not heard for long, the petitioner moved the third respondent seeking family pension which was rejected by the third respondent stating that Kunjuraman was not entitled to pension and therefore, his widow is not entitled to family pension. Assailing the order rejecting the claim for family pension, the petitioner filed Ext.P1. The Tribunal below, accepting the contention of the third respondent that Kunjuraman was a non-combatant enrolled (NCE) and he was discharged from service under Rule 13(3) III (v) of the Army Rules as he had contracted plural marriage and that therefore Kunjuraman was not entitled to pension and that he might have been residing somewhere else with his second wife and that the petitioner being the wife of Kunjuraman who was not entitled to get pension is not entitled to get family pension, dismissed the petition by Ext.P5 order. Now this original petition. O.P.(AFT) 2447/2011 3 2. We have heard Sri. M.V. Thampan, the learned counsel appearing for the petitioner as well as Sri. P. Parameswaran Nair, the Assistant Solicitor General who took notice for Respondents 1 to 3. 3. The fact that Kunjuraman was employed under the third respondent as a Sepoy-Barber is not disputed. So also, it is not disputed that Kunjuraman was discharged from service on finding that he had contracted plural marriage. As against the contention of respondents 1 to 3 that Kunjuraman was a non -combatant enrolled the petitioner would contend that he was a combatant enrolled. Regarding the plea of the petitioner no supporting document is produced by her. Having due regard to the fact that Kunjuraman was a Sepoy - Barber we are unable to accept the argument that he was a combatant enrolled. In the nature of the designation we find that the conclusion arrived at by the Tribunal basing upon the pleadings of respondents 1 to 3 that Kunjuraman was a non-combatant enrolled is in no way erroneous. 4. According to the learned counsel for the petitioner, even if Kunjuraman was a non - combatant enrolled, he had seventeen years and 268 days of service and therefore, he is entitled to pension since the Central Government had sanctioned pension to its employees having ten years O.P.(AFT) 2447/2011 4 service. We are unable to accept the argument because Rule 145 of the Pension Regulations of Army, 1961 would show that the minimum qualifying service for getting service pension to non-combatant enrolled is 20 years. Therefore, we find that the conclusion of the 'Tribunal that Kunjuraman was not entitled to get pension is fully based upon materials available. 5. Referring to the documents produced by respondents 1 to 3, it was submitted by the learned counsel for the petitioner that Kunjuraman was discharged from service under rule 13(3) (III) (iv) and therefore, it might necessarily be a discharge on the request of Kunjuraman. On the other hand, respondents 1 to 3 would contend that the discharge was under Rule 13(3) (III)(v) on the ground of contracting plural marriage. Rule 13(3)(III) (iv) relates to discharge on request. Rule 13(3)(III) (v) deals with all other classes of discharge. Petitioner has no case that Kunjuraman obtained discharge on request. Therefore, having due regard to the pleadings and counter pleadings with reference to the Rules, we find that Kunjuraman was discharged under rule 13(3)(III)(v) and not under rule 13(3)(III)(iv). It appears that rule was misquoted because in all the documents it is specifically mentioned that the discharge was on the ground that O.P.(AFT) 2447/2011 5 Kunjuraman contracted plural marriage. Therefore, there is little chance for discharge under Rule 13(3) (III)(iv). Misquoting a rule would not entitle a person to claim any title or right when the speaking order in unambiguous terms is beyond the purview of that particular Rule qoted, but falls under another rule. When there is disharmony between the rule quoted and the wordings in an order issued under a statute or rule that order is to be understood with reference to the wordings and not by the rule quoted. Adding to that, even if it is assumed that the discharge is under rule 13(3) (III) (iv), since Kunjuraman was having service only below 20 years, he is not entitled to pension. Therefore, the petitioner, claiming under Kunjuraman who is not entitled to get pension, is not entitled to get family pension. The order impugned before the Tribunal and the defence advanced is in tune with the existing rules. 6. Incidentally, we also notice inordinate delay clubbed with lack of bona fides. Even by the pleadings of the petitioner, Kunjuraman was missing since 1969. Ext.P1 dated nil produced along with the petition before the Tribunal would show that the petitioner approached the Circle Inspector of Police, Paravur only on 9.11.2007 with an allegation that Kunjuraman was missing. That being so, the petitioner remained silent for O.P.(AFT) 2447/2011 6 39 years regarding the missing of her husband. It appears that only to sustain a claim for family pension she approached the Circle Inspector and obtained Ext.P1. We can very well appreciate the agony of an ordinary Indian woman who misses the husband. In the pleadings that agony is conspicuously missing. In this context, the defence plea accepted by the Tribunal that Kunjuraman, who contracted plural marriage, might be residing somewhere else with his second wife assumes significance. It appears that, long before the discharge, Kunjuraman deserted the petitioner and contracted another marriage. It is thereupon, as the Tribunal inferred, Kunjuraman might have been discharged from service upon the complaint of the petitioner. There is little chance for he coming to the petitioner after discharge. In this view, the allegation that Kunjuraman was missing since 1969 while residing with the petitioner cannot be taken as gospel truth. It appears that having found that there is little chance for Kunjuraman turning back, the petitioner advances the plea that since Kunjuraman is not heard for long, he might have dead and therefore the petitioner is entitled to family pension. Other than the petitioner filing a petition before the Circle Inspector of Police to obtain Ext.P1 appended with the application before the Tribunal, petitioner had not made any enquiry about Kunjuraman. O.P.(AFT) 2447/2011 7 Therefore, the plea that as Kunjuraman is not heard for long, he might have dead and therefore, the petitioner is entitled to family pension cannot be treated as a bona fide one. We find that the Tribunal below had correctly dismissed the petition. The order impugned requires no interference. In the result, this petition is dismissed. No order as to costs. C.N. RAMACHANDRAN NAIR, (JUDGE). P.S. GOPINATHAN, (JUDGE) knc/-