IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WP(C).No. 1301 of 2007(E) -------------------------------------- PETITIONER(S): ----------------------- RUDOLPH ANTONY T.A., X/1152 (OLD NO.X/967), MULLAVALAPPU, FORT COCHIN, COCHIN-1. BY ADV.MR.M.P.ASHOK KUMAR RESPONDENT(S): --------------------------- 1. THE CONTROLLER OF DEFENSE ACCOUNTS (P), ALLAHABAD. 2. THE DEFENSE PENSION DISBURSING OFFICER (DPDO), THEVARA, ERNAKULAM. 3. THE DEFENSE PENSION DISBURSING OFFICER (DPDO), THRISSUR-1. 4. THE OFFICER COMMANDING, AIR FORCE RECORD OFFICE, NEW DELHI-110 010. 5. THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, COCHIN-2. R1 TO R4 BY MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL R5 BY MR.M.PATHROSE MATTHAI, SENIOR ADVOCATE, MR.SAJI VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.1301/2007 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1; COPY OF THE RELEVANT PAGES OF THE DISCHARGE CERTIFICATE OF THE PETITIONER. EXT.P2: COPY OF THE LETTER DTD. 22/02/75. EXT.P3: COPY OF THE LETTER DTD. 19/07/1975. EXT.P4: COPY OF THE LETTER DTD. 30/06/1976 ISSUED TO THE PETITIONER. EXT.P5: COPY OF THE LETTER DTD. 18/11/1976. EXT.P6: COPY OF THE LETTER DTD. 18/08/1980. EXT.P7: COPY OF THE LETTER DTD. 08/09/1980 SENT BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT. EXT.P8: COPY OF THE LETTER DTD. 09/03/1981 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. EXT.P9: COPY OF THE LETTER NO.NRE/1/4873 DTD. 13/03/1981. EXT.P10: COPY OF THE LETTER/REMINDER SENT BY THE PETITIONER. RESPONDENT'S EXHIBITS: EXT.R4(A): COPY OF THE RELEVANT PAGE OF THE RECORD OF SERVICE – COMBATANTS/NON-COMBATANTS (ENROLLED). EXT.R4(B): COPY OF THE LETTER NO.RO/2801/CORR/C3-PW(SP) DTD. 24/08/2005. /TRUE COPY/ P.A.TO JUDGE Kss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.1301/2007-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of March, 2009 J U D G M E N T The petitioner is a pensioner retired from Indian Air Force after long years of service on 31/01/1975. Ext.P1 is the copy of the discharge certificate. Ext.P2 is the proceedings by which D.C.R.G and service pension have been sanctioned to him. Ext.P3 will show that the pension and D.C.R.G were revised as per the new pension code. The petitioner was drawing pension through the third respondent's office. During this time, he had to go abroad and therefore, he requested the pension sanctioning authority to disburse the pension through a Bank. By Ext.P4, he was directed to open a non-resident account in a nationalised bank and submit a power of attorney in triplicate through the Bank for onward transmission to the first respondent. Ext.P5 is the letter by which the petitioner was directed to forward other required documents also. The petitioner forwarded the power of attorney in triplicate and his pension book along with Ext.P6 covering letter to the fifth respondent Bank. These were transmitted to the third respondent by the fifth respondent. It is evident from Ext.P7 issued by the Bank that the above documents were forwarded to the Pension Pay Master, Thrissur. By Ext.P8 the third respondent directed the Bank to fulfil W.P.(C) No.1301/2007 -:2:- certain other requirements also. According to the petitioner all such directions have been complied with by him and the bank had also fulfilled their part and they had also been communicating the matter to the third respondent. 2. But from March, 1976 onwards the petitioner's pension has not been released. On an enquiry with the third respondent, it was informed that the documents/records were transferred to the office of the second respondent consequent on the bifurcation of the office of the DPDO. The petitioner continued to send repeated reminders to the respondents soliciting interference in the matter. Ext.P10 is the last reminder sent to the fourth respondent in the aforesaid matter. Since he was not getting any relief, he approached this Court by filing this writ petition with the main prayer to direct the first respondent to release the arrears of pension due to the petitioner through his Non-Resident A/c.No.4351 maintained with the fifth respondent Bank. 3. The respondents have filed two counter affidavits in the matter. It is averred in the counter affidavit that the original documents in respect of the petitioner have been destroyed after 25 years. It is admitted that the petitioner has been granted pension for the rank of Sgt.at the rate of Rs.71/- vide P.P.O No.S/1043/75. It is also admitted that from March 1976 onwards his pension was stopped. Ext.R4(a) is a true copy of the record of W.P.(C) No.1301/2007 -:3:- service-combatants/non combatants maintained by the respondents which shows that the pension was sanctioned to him. In the counter affidavit filed on behalf of respondents 1 to 4 dated 16/04/2007, it is pointed out in paragraph (7) that the burden of production of Life Certificate every year is a must for claiming pension and no pension document pertaining to the petitioner is held in the concerned office at present. It is contended that neither the petitioner nor the power of attorney holding Bank had taken proper follow up action for a period of more than 20 years for claiming the pension. In the absence of documentary proof which the petitioner has failed to submit in this regard, it can be concluded that his claim would have been struck of from the pension rolls. At this distant juncture, the prescribed retention period of records pertaining to the re-transmission of his PPO to the Pension Sanctioning Authority, viz. PCDA (P), Allahabhad is already over. It is further stated that if the petitioner produces his discharge certificate, etc. in original along with the declaration regarding cancellation of Power of Attorney, either the Pension Payment Order (PPO No.S/1043/1975) or duplicate certified copy thereof can be called from the first respondent and thereafter arrangements could be made for drawal of pension to the petitioner subject to proof of identification. It is also stated that the case file and all other connected records were transferred to DPDO, Ernakulam in September, 1981 consequent upon bifurcation of work W.P.(C) No.1301/2007 -:4:- between DPDO, Thrissur and DPDO, Ernakulam. 4. Thus, the question is whether the request made by the petitioner for continued payment of pension along with arrears could be granted. This is a case where after the pension was sanctioned as per valid proceedings, the petitioner went abroad. As requested for by him, his pension was authorised to be disbursed through the Bank. The petitioner has got a case that in compliance with the directions issued to him, all the documents have been forwarded through the fifth respondent. It is therefore contended that as the Bank has forwarded all the documents and papers relating to the pension of the petitioner to the third respondent, it was their responsibility to forward the same to the first respondent for appropriate action. 5. Learned counsel for the petitioner invited my attention to Ext.P7 letter dated 8.9.1980 sent through registered post to the Pension Pay Master, Thrissur by the Bank. The letter shows that apart from the power of attorney, the pension pass book was also enclosed. It is therefore contended that all the formalities have been complied with by the petitioner through the Bank. The stand taken by the respondents is that such documents are not seen received at the appropriate time. 6. The well settled legal position is that the pension sanctioned to a pensioner is property in his hands. The entitlement to receive the same cannot be denied. Here is a case where the petitioner had bonafide taken W.P.(C) No.1301/2007 -:5:- steps to get the pension disbursed through the Bank and the Bank has already fulfilled their obligation in the matter. Therefore, a way out has to be found out to have a just decision in the matter. 7. What is required now is to restructure the documents and the files relating to the petitioner. It appears that the requirements made by the respondents is regarding the production of discharge certificate as well as other related documents. Ext.P1 produced in this writ petition is a copy of the discharge certificate. Ext.P2 shows that pension has been sanctioned to him with effect from 1.2.1975. Later, by Ext.P3 he was informed that the pension and gratuity have been revised also. There is no dispute that the petitioner has been drawing pension with effect from 1.2.1975 through the office of the third respondent. The veracity of these documents have not been disputed by the respondents in the counter affidavit. In the counter affidavit filed on behalf of the respondents, they have produced Ext.R4(a) record of service -Combatants/Non-Combatants (Enrolled). This document is also thus available. Going by the counter affidavit filed on behalf of respondents 1 to 4 dated 16.4.2007, what is required is the production of discharge certificate in original along with the declaration regarding cancellation of Power of Attorney, either the Pension Payment Order or duplicate certified copy thereof. Since the veracity of Ext.P1 discharge certificate is not disputed and since it is admitted that the original W.P.(C) No.1301/2007 -:6:- documents stand destroyed, Ext.P1 could be accepted by the respondents as a proper copy of the discharge certificate for the purpose of continued payment of pension. 8. What remains therefore is to produce proof of identity of the petitioner before the concerned Officer at Ernakulam. As suggested at the Bar, the petitioner will present himself before the said Officer along with a copy of this judgment and the relevant documents to prove his identity. The files in respect of him will be restructured by accepting Exts.P1, P2 and Ext.R4(a), etc. If a fresh power of attorney is to be executed, that also will be done by the petitioner. Since the petitioner has rendered yeomen service to the Indian Air Force from 1959 to 1975, the issue has to be considered in the right perspective and keeping in mind that a pensioner who had rendered valuable service to the country by serving the Indian Air Force, should be given due respect and recognition and what is due to him towards pension shall not be withheld also. 9. Therefore, the writ petition is disposed of with the following directions: The petitioner will present himself before the DPDO, Ernakulam along with a copy of this judgment and other documents as referred to above, on such date as is convenient to him. The DPDO will accept the documents as proof for granting arrears of pension and for the continued W.P.(C) No.1301/2007 -:7:- payment of pension. All steps will be taken to release arrears of pension due to the petitioner as revised from time to time and if the petitioner seeks to disburse the same through the fifth respondent Bank, then that facility will also be allowed. Appropriate action shall be finalised within a period of one month from the date of receipt of a copy of this judgment and the arrears also will be disbursed accordingly. No costs. (T.R. Ramachandran Nair, Judge.) ms