Punjab-Haryana High Court

Hans Raj Singh vs Union Of India And Others on 3 September, 2013

Author:
S.S. Saron

Bench:
S.S.Saron

CWP No.10610 of 2012 (O & M) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CWP No.10610 of 2012 (O & M)
Date of decision: 03.09.2013

Hans Raj Singh .....Petitioner

versus
Union of India and others .... Respondents

CORAM : HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P. BANGARH.

Present: Mr. Arun Singla, Advocate for the petitioner.

Ms. Kamla Malik, Advocate for respondents No.1 to 3.

None for respondent No.4.

S.S. SARON, J.

CM No.12570-CWP of 2013

Copy of Government order dated 14.08.2001 (Annexure

A-1) attached with the civil miscellaneous application is taken on

record.

Another Government order dated 21.07.2004 submitted

by the learned counsel for the petitioner in Court is also taken on

record.

CM stands disposed of.

CWP No.10610 of 2012

The petitioner seeks quashing of the orders dated

03.11.2011 and 18.01.2012 whereby the application of the petitioner

on its transfer to the Armed Forces Tribunal, Regional Bench,

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CWP No.10610 of 2012 (O & M) -2-

Chandigarh ('Tribunal' - for short) (respondent No.4) and review

application filed by the petitioner have been dismissed. A further

prayer has been made by the petitioner for quashing the orders

dated 30.04.1996 (Annexure P-4) and dated 12.04.1998 (sic.

23.03.1989) (Annexure P-2) whereby the discharge of the petitioner

from Army service has been made with retrospective effect and for

directing respondents No.1 to 3 to grant service pension to the

petitioner with effect from 23.03.1989, that is, from the date of his

discharge.

In terms of the reply filed by the respondents, the

question of maintainability of the writ petition has also been raised.

Insofar as the question regarding the jurisdiction of this

Court is concerned, it may at the outset be noticed that a Division

Bench of this Court in the case 15165
Flight Lieutenant Onkar

Singh Bawa v. Union of India and others
, CWP No.6927 of 2011

decided on 25.1.2013 inter alia observed as follows:-

"We are conscious of the fact that the statutory

appeal against such an order is provided under
Section
of the Armed Forces Tribunal Act, 2007 (for short - 'the

Act'), however, having regard to the Constitution Bench

judgment of the Supreme Court in the case of "L.

Chandra Kumar etc. v. The Union of India and others"

AIR 1997 SC 1125 and also that of Delhi High Court in

CWP No.13360 of 2009 titled as "
Colonel A.D.

Nargolkar v. Union of India and Ors
" decided on

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CWP No.10610 of 2012 (O & M) -3-

26.4.2011, following the aforesaid judgments in the

context of this very Act, we are deciding this petition on

merits.

Accordingly, we have heard learned counsel for the

parties on merits of the writ petition."

In L. Chandra Kumar etc. v. The Union of India and

others, AIR 1997 SC 1125 it was held that power of judicial review is

a basic and essential feature of the Constitution. Broadly speaking, it

was held that judicial review in India comprises of three aspects; (i)

judicial review of legislative action, (ii) judicial review of judicial

decision and (iii) judicial review of administrative action. The Judges

of the Superior Courts have been entrusted with the task of

upholding the Constitution and to this end have been conferred the

power to interpret it. It is they who have to ensure the balance of

power envisaged by the Constitution is maintained and that the

legislature and the executive do not, in the discharge of their

functions, transgress constitutional limitations. Therefore, this Court

going by the decision in L. Chandra Kumar's case (Supra) has power

of judicial review in respect of the judicial decisions of the Tribunal in

terms of
Article 226
of the Constitution.

In view of the above, the writ petition is held to be

maintainable.

The petitioner initially rendered Army service of 8 years

and 332 days. Thereafter, he was enrolled in the Defence Security

Corps ('DSC' - for short) on 09.03.1983. The petitioner was served

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CWP No.10610 of 2012 (O & M) -4-

with a charge sheet (Annexure P-1) on account of an act prejudicial

to good order and military discipline. It was alleged that at Ambala

Cantt. between 22.00 hours and 22.30 hours on 02.03.1987 while at

post No.2, he improperly and without authority fired one round in the

air from his 7.62 mm bolt action rifle. In the order of the Tribunal, it is

recorded that the petitioner while on duty was forced to fire one

round in the air to save himself from the aggressor, who was another

sepoy of the platoon and was armed with a rifle. The petitioner was

tried by a Summary Court Martial and in terms of order passed on

12.04.1988, he was found guilty and dismissed from service. The

petitioner filed a writ petition (CWP No.5988 of 1989) in this Court for

supplying him proceedings of the Court Martial. The said writ petition

was allowed by this Court. The petitioner in the meantime filed a

petition under
Section 164 (2)
of the Army Act, 1950. The General

Officer Commanding in Chief vide order dated 23.03.1989 (Annexure

P-2) on the post confirmation petition dated 25.07.1988 submitted by

the petitioner against the award of the Summary Court Martial

partially agreed with the recommendations of the General Officer,

Commanding PH and HP Area. The sentence of dismissal awarded

to the petitioner was commuted to discharge; besides, it was directed

that the petitioner shall be deemed to have been discharged with

effect from the date of original sentence of dismissal became

operative.

The petitioner then filed a writ petition (CWP No.17050 of

1989) in this Court which was taken up for hearing on 11.01.1995.

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By this time, the petitioner was due for retirement on superannuation

from service. The writ petition was disposed of vide order dated

11.01.1995 (Annexure P-3). It was observed by the learned Single

Judge of this Court that even though the petitioner had raised several

grounds to challenge the impugned action of his discharge, his

learned counsel stated that he had remained unemployed since 1989

from the date of his discharge and was in a bad shape and he would

be satisfied if the authorities reconsider his claim for grant of pension

sympathetically. It was pointed out that the petitioner had rendered

more than 15 years of service by 23.03.1989 i.e. the date of his

discharge from service vide order Annexure P-2. It was also

submitted that the factors which weighed with the authorities while

commuting the punishment from dismissal to discharge were that the

petitioner would be able to earn his pension. The learned Senior

Standing counsel for the Union of India submitted that if the petitioner

makes a representation to the competent authority within one month

from 11.01.1995, it would be considered and decided

sympathetically. In view of the above, it seemed fair to this Court

that the petitioner should be allowed to make a representation to the

respondents for grant of pension. In case such a representation was

made within one month from 11.01.1995, the competent authority it

was directed shall consider it sympathetically and decide it as

expeditiously as possible. It was further observed that keeping in

view the fact that the petitioner had completed more than 14 years of

service as on the date of his dismissal from service and more than 15

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years on 23.03.1989, when he was ordered to be discharged from

service, it would be fair and proper if his claim was considered

sympathetically. In fact insofar as the petitioner was concerned, it

was observed that there would be no difference to him between

dismissal or discharge from service unless his claim was considered

for the grant of pension. In view of the totality of the circumstances,

the writ petition was disposed of with the direction that the petitioner

shall make a representation within one month from 11.01.1995 which

the respondents were to consider and decide. It was clarified that in

case the respondents consider his claim for grant of pension, he

shall not be entitled to claim any arrears of pension etc.

In consequence of the order dated 11.01.1995 (Annexure

P-3) passed by this Court, the petitioner submitted a representation

dated 10.02.1995. According to the petitioner his main submission

was that the order of his discharge from service was not liable to be

made with retrospective effect and it is to be prospective. The order

dated 23.03.1989 (Annexure P-2) commuting the sentence of

dismissal to discharge, it was submitted was made in a manner that it

brought in operation the discharge of the petitioner from service with

the retrospective date. It was also submitted by the petitioner that he

had rendered 5 years, 1 month and 3 days service in the DSC and

he had a continuous service of 9 years in the Army which was

required to be added to the present service for the purpose of

pension. He in fact had 14 years and 1 month of service to his credit.

Service of five months more would have been required so as to

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CWP No.10610 of 2012 (O & M) -7-

entitle the petitioner to earn his pension on commutation of his

sentence of dismissal to discharge. However, the petitioner had

more than 15 years of service to his credit on the date when his

sentence of dismissal was commuted to discharge i.e. On

23.03.1989 (Annexure P-2).

The representation of the petitioner was considered by

the Government of India, Ministry of Defence vide impugned order

dated 30.04.1996 (Annexure P-4). It was inter alia mentioned that

the representation of the petitioner dated 10.02.1995 had been

considered de novo in the Ministry of Defence in consultation with the

Army Headquarters. It was found that the petitioner had been

charged under
Section 63
of the Army Act, 1950 which relates to

violation of good order and discipline. He was tried by the Special

Court Martial on 12.04.1988 and he was awarded punishment of

'dismissal from service'. Accordingly, he was dismissed from service

with effect from 12.04.1988. Subsequently in pursuance of the post

confirmation petition dated 25.07.1988 submitted by the petitioner,

the General Officer Commanding in Chief, Western Command

commuted the sentence of 'dismissal' to 'discharge'. It was also

directed that the date of discharge of the petitioner from service

would be effective from the same date from which the original

sentence of dismissal became operative i.e. with effect from

12.04.1988. It was further observed that in view of the foregoing, it

was clear that there was no dispute regarding the date of discharge

of the petitioner from service, which was 12.04.1988. It was also

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observed that no retirement benefits as otherwise due on 12.04.1988

would have been admissible to the petitioner had he been dismissed

from service, however, the retriment benefits as per admissibility

were payable to him under the Army Pension Regulations. Thus by

commuting his sentence from 'dismissal' to 'discharge', he was held

entitled to receive retirement benefits as dismissal under Rules

depending on the length of service rendered by him upto 12.04.1988.

As per service record of the petitioner, the total qualifying service on

the day of his discharge from service i.e. on 12.04.1988 worked out

to 14 years and 1 day only, which included his earlier service of 8

years and 330 days. In this manner, there was a short fall of 11

months of service required for 15 years service for grant of pension.

Service pension was, therefore, not admissible to him in terms of

Regulation 132
of the Pension Regulations for the Army, 1961 (Part

I). Further, condonation of deficiency in service only upto 6 months

was permissible under the Pension Regulations. In case of the

petitioner, the deficiency in service was more than six months and

the same, it was observed, could not be condoned. The petitioner

was, however, held entitled to grant of Service Gratuity, Death cum

Retirement Gratuity amounting to Rs.22,325/- for 14 years of service

which had already been paid to him. The service gratuity otherwise

would not have been admissible to him had his punishment not been

commuted from 'dismissal' to 'discharge'. In view of the foregoing

position, it was held that no pension was payable to him under the

Rules. The petitioner now claims for the grant of pension.

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Notice of motion was issued to the respondents.

Reply has been filed on behalf of the respondents. It has

inter alia been submitted that the petitioner initially served with the

Sikh LI for the period from 23.07.1973 to 29.09.1982. He served with

the Sikh LI for more than 9 years. Thereafter he was enrolled in the

DSC on 09.03.1983. His qualifying service countable towards

pension/gratuity in DSC was only 8 years and 332 days after

deducting 102 days being non-qualifying service due to absence from

service of the petitioner for the periods from 13.08.1973 to

05.09.1973; 20.08.1977 to 17.09.1977 and from 02.08.1981 to

20.09.1981. Accordingly his formal service of 8 years and 332 days

was counted towards pension/gratuity in DSC by the PAO (OR) DSC.

The petitioner was posted in RR to 140 B DSC Platoon attached to

HQ 448 Coy ASE (Pet) Ambala Cantt. on 25.12.1986 and not during

1983 as mentioned in the writ petition. He was involved in

disciplinary proceedings while serving with 140 B DSC Platoon

attached with Head Quarters 448 Coy ASC (Pet) Ambala Cantt.

Learned counsel for the petitioner has contended that the

petitioner is entitled for the benefit of pension as he has rendered 15

years of service till the date of his discharge from service on

02.03.1989. In any case, it is submitted that even if it is taken that

the petitioner has rendered 14 years and 1 month of service, the

period of short fall of 11 months for qualifying service for grant of

pension is liable to be condoned in terms of Government of India

order dated 14.08.2001 (Annexure A-1) and Government of India

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order dated 21.07.2001 that have been filed. Therefore, the

petitioner is liable to be given the benefit of pension.

In response, learned counsel for the respondents has

placed strong reliance on Note 5 (a) of
Section 179
of the Army Act,

1950 which is placed on record as Annexure R-1. The same

envisages that a sentence of dismissal might be remitted on the

condition that the person sentenced shall not receive pay in respect

of or count service for any purpose during the period spent under

dismissal; besides, the conditions, if any must be clearly stated that

the written acceptance of the person obtained and that the mitigation

or commutation cannot be made conditional. Therefore, it is

submitted that the petitioner is not entitled for any benefit of pension.

We have given our thoughtful consideration to the matter.

The factual aspects are not much in dispute. The petitioner has

rendered initial service with the Sikh LI for the period from

23.07.1973 to 29.09.1982. The said service according to the Army

records works out to about 8 years and 332 days. Thereafter, the

petitioner was enrolled in the DSC on 09.03.1983 in which he

continued till the date of his dismissal from service on 12.04.1988.

This was subsequently vide order dated 23.03.1989 commuted to

discharge. It was directed that the petitioner shall be deemed to have

been discharged with effect from the date the original sentence of

dismissal became operative, that is, from 12.04.1988. In this manner

the petitioner had 14 years and 1 month of service. The qualifying

service for grant of pension is undisputedly 15 years. There is,

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therefore, a short fall of 11 months of service for entitlement for

pension. However, in case the service of the petitioner is to be taken

to have been dispensed with from 23.03.1989 when his sentence of

dismissal was commuted to that of discharge, he completes 15

years of service.

Two fold questions, therefore, would require consideration

as to whether the short fall of 11 months of service so as to have the

necessary qualifying service for entitlement for pension can be

condoned; and whether the order of commutation of dismissal from

service to that of discharge in respect of the petitioner becomes

effective from the date of the order of discharge, that is, from

23.03.1989.

The learned Armed Forces Tribunal in its impugned order

dated 03.11.2011 inter alia observed that a look at the order dated

30.04.1996 (Annexure P-4) by which the representation of the

petitioner was declined showed that it proceeded on the basis of the

provisions of
Regulation 132
of the Pension Regulations and the

reason given was that condonation in deficiency of service only up to

6 months was permissible, while in the case of the petitioner, it was

more than 6 months. Therefore, he was not held entitled to service

pension, besides, service gratuity had already been paid to him.

Regulation 132
of the Pension Regulations for the Army, 1961 Part I

relates to minimum qualifying service of pension, which reads as

under:-

"Minimum Qualifying Service for Pension

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132. The minimum period of qualifying service (without

weightage) actually rendered and required for earning

pension shall be 15 years"

The learned Tribunal, therefore, relying on the said

provision and the instructions applicable held that for condonation of

deficiency of service that was permissible was only up to six months

while in the case of the petitioner it was more than six months. As

such, he was not held entitled to service pension. The petitioner has,

however, placed on record Government of India order dated

14.08.2001 (Annexure A-1) according to which the shortfall in

qualifying service for grant of pension in respect of PBOR (personnel

below officers rank) can be beyond six months and upto 12 months.

The relevant extract of the said Government of India order dated

14.08.2001 (Annexure A-1) reads as under:-

"Sanction is hereby accorded in pursuance of MOD ID

No.34 (3)/2001/D (O& M) dated 3.08.2001 for delegation

of administrative powers with the approval of Raksha

Mantri to the Service HQrs in respect of the subject

indicated below:-

(a) (i) to (iv) xxxxx

(v) Condonation of shortfall in Qualifying

Service for grant of pension in respect of PBOR

(Personnel below officers rank) beyond six months

and upto 12 months.

(vi) to (xiv) xxxxx

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(b) xxxx

(c) xxxx

(d) xxxx

2 to 5. xxxxx

6. These orders will take effect from the date of issue.

7. xxxxx"

The above Governement order envisages that the

Government of India has with the approval of the Raksha Mantri

(Defence Minister) delegated administrative powers to Service Head

Quarters for condonation of short fall in qualifying the service for

grant of pension in respect of personnel below officers rank beyond

six months and upto twelve months. The order, however, takes

effect from the date of issue i.e. 14.08.2011. This has, however,

been further clarified by the Government vide order MOD ID No.12

(2)/04/Den/Sers dated 21.07.2004 which has been placed on record

and reads as under:-

"Ministry of Defence

Subject: Condonation of short fall in qualifying service for

grant of pensionary benefits in respect of personnel below

officer ranks beyond six months and upto twelve months-

clarification regarding.

Kindly refer to CGDA ID Note No. 5669/ ATP/

Contempt/R.H. Ghatak dated 16.07.2004 on the subject

cited above and to state that the matter has been

considered in consultation with IA (def) in the Ministry of

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Defence. It is clarified that the services Hqrs are

empowered to exercise the powers delegated to them

vide order No.4684/Dir(P)/2001 dated 14.08.2001 even to

the cases which were pending with prior to issue of the

orders. However, they are required to exercise the power

in the interest of justice, equity and fair play.

As discussed on telephone on 21.07.2004, CGDA/

PCDA (P), Allahabad is requested to take further

necessary action in the light of above clarification.

Harbans Singh
Dir (Pen)"

A perusal of the above shows that it has been clarified

that the services headquarters are empowered to exercise the

powers delegated to them vide order dated 14.08.2001 (Annexure

A-1) even to the cases which were pending with prior to issue of the

orders. However, they were required to exercise the power in the

interest of justice, equity and fair play. Therefore, even in respect of

pending cases the power can be exercised for condoning the short

fall or deficiency in qualifying service from six months to twelve

months. The said orders dated 14.08.2001 (Annexure A-1) and

21.07.2004 were not urged or brought to the notice of the learned

Tribunal. The learned Tribunal in its impugned order inter alia

observed that a period of short fall of six months only could be

condoned and not eleven months. The same, would not be

sustainable and in fact a period of up to twelve months can be

condoned. The petitioner has a short fall of eleven months which can

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be condoned and this in fact is the tenor, intent and spirit of the order

dated 11.01.1995 (Annexure P-3) passed by this Court in the writ

petition filed by the petitioner whereby he restricted his claim for the

grant of pension only which was to be considered sympathetically by

the Union of India in accordance with the stand taken on its behalf by

the learned Senior standing counsel appearing for it. Therefore, the

period of elven months was liable to be condoned.

As regards the other condition with regard to the effective

dates for discharge, the learned counsel for the respondents has

placed strong reliance on Note 5 (a) of
Section 179
of the Army Act,

1950. The said Note 5 (a) of
Section 179
of the Army Act, 1950

reads as under:-

"A sentence of dismissal might be remitted on the

conditions that the person sentenced shall not receive

pay in respect of or count service for any purpose during

the period spent under dismissal. The conditions, if any

must be clearly stated that the written acceptance of the

person obtained. Mitigation or commutation cannot be

made conditional."

In terms of the above note, sentence of dismissal might

be remitted on the condition that the person sentenced shall not

receive pay in respect of or count service for any purpose during the

period spent under dismissal and the conditions, if any, must be

clearly stated and that the written acceptance of the person obtained.

Besides, mitigation or commutation cannot be made conditional.

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However, the above is only a note under
Section 179
of the Army

Act, 1950 which relates to pardon and remission. The said note, even

otherwise relates to the period spent under dismissal. The same in

any case would not over ride the provisions of the
Army Act
1950,

the Army Rules 1954 or the Pension Regulations for the Army, 1961.

The claim of the petitioner if permissible under the relevant statutory

rules and regulations cannot be defeated by reference to a note. The

question, in fact that requires to be considered for the grant of

pensionary benefits is the date from which the order of discharge

becomes effective.
Section 22
of the Army Act, 1950 and Rule 18 of

the Army Rules, 1954 deal with this aspect. The same read as

under:-

"
Section 22
. Retirement, release or discharge.- Any

person subject to this Act may be retired, released or

discharged from the service by such authority and in such

manner as may be prescribed.

Rule 18. Date from which retirement, resignation,

removal, release, discharge or dismissal otherwise than

by sentence of court-martial takes effect:-

(1) The dismissal of an officer under
Section 19
or the

retirement, resignation, release or removal of such officer

shall take effect from the date specified in that behalf in

the notification of such dismissal, retirement or removal in

the Official Gazette.

(2) The dismissal of a person subject to the Act, other

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than an officer whose dismissal otherwise than by

sentence of a court-martial is duly authorised or the

discharge of a person so subject whose discharge, if duly

authorised,shall be carried out by the commanding officer

of such person with all convenient speed. The authority

competent to authorise such dismissal or discharge may,

when authorising the dismissal or discharge, specify any

future date from which it shall take effect.

Provided that if no such date is specified the

dismissal or discharge shall take effect from the date on

which it was duly authorised or from the date on which the

person dismissed or discharged, ceased to perform

military duty whichever is the later date.

(3)The retirement, removal, resignation release,

discharge or dismissal of a person subject to the Act

shall not be retrospective."

Section 22
of the Army Act provides that any person

subject to this Act may be retired, released or discharged from the

service by such authority and in such manner as may be prescribed.

'Prescibed' has been defined in
Section 3 (xix)
to mean prescribed by

rules made under the
Army Act
. Rule 18 inter alia relates to the date

from which dismissal or discharge is to take effect. In the present

case, as has already been noticed, the petitioner was tried by the

Summary Court Martial and in terms of order passed on 12.04.1988,

he was dismissed from service. Thereafter, the General Officer

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Commanding in Chief vide order dated 23.03.1989 (Annexure P-2)

on the post confirmation petition submitted by the petitioner

commuted the dismissal to discharge. It was, however, directed that

the petitioner shall be deemed to have been discharged with effect

from the date of original sentence of dismissal became operative.

However, the effective date of dismissal or discharge is to be

determined in accordance with the Rule 18 of the Army Rules, 1954.

It is well-known that if a procedure is prescribed by the Rules, then

that procedure alone is to be followed and all other procedures are

forbidden. Therefore, there being a provision in terms of Rule 18 of

the Army Rules, the effective date for determining the dismissal or

discharge, as the case may be, is Rule 18 of the Army Rules. Sub

Rule (1) of Rule 18 envisages the dismissal of an officer under

Section 19
(which provides that subject to the provision of the
Army

Act
and the rules and regulations made thereunder, the Central

Government may dismiss, or remove from the service any person

subject to the
Army Act
) or the retirement, resignation, release or

removal of such officer shall take effect from the date specified in

that behalf in the notification of such dismissal, retirement or removal

in the Official Gazette. There is no official gazette notification placed

on the record from which the petitioner can be said to have been

released and neither is the petitioner an officer. He in fact is a

personnel below officer rank (PBOR). Therefore, Sub Rule (1) of

Rule 18 is inapplicable. Sub Rule (2) of Rule 18 relates to dismissal

of a person subject to the
Army Act
, other than an officer whose

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dismissal otherwise than by sentence of court martial is duly

authorized or the discharge of a person so subject whose discharge,

if duly authorized, is to be carried out by the Commanding Officer of

such person with all convenient speed. It is further provided that the

authority competent to authorize such dismissal or discharge may,

when authorizing the dismissal or discharge, specify any future date

from which it shall take effect. In terms of the proviso, if no such date

is specified, the dismissal or discharge is to take effect from the date

on which it was duly authorized or from the date on which the person

dismissed or discharged ceased to perform military duty whichever is

the later date. In terms of Sub Rule (3) of Rule 18, the retirement,

removal, resignation, release, discharge or dismissal of a person

subject to the Act shall not be retrospective. In the present case the

initial dismissal by way of Court Martial was later on commuted to

discharge. The object of discharge was primarily to grant pensionary

and retiral benefits to the petitioner which he otherwise would not

have been entitled to in the case of dismissal; besides, Sub Rule (2)

provides for dismissal or discharge from a future date from which it

shall take effect and Sub Rule (3) provides that it shall not be

retrospective.
In
Inder Pal Singh v. Union of India and others
,

2003 (6) SLR 115, a Division Bench of this Court considered the

case of a Sepoy who injured another Sepoy negligently and was tried

by a Court Martial and dismissed from service. It was held that the

competent authority had the jurisdiction to modify the order of

dismissal to one of discharge; besides, after referring to Rule 18 of

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the Army Rules and particularly Sub Rule (3) held that the said Sub

Rule imposes a restriction that in no case the discharge could be

made with retrospective effect. It was further observed that a bare

reading of the entire Rule 18 makes it clear that the competent

authority may order the dismissal or discharge from a future date. In

no circumstances such order could be made from a retrospective

date. This Court in the said case was also of the opinion that

whether the discharge was made in the ordinary course or had been

made as a matter of punishment, in no case, the same could be

made with retrospective effect. It was also held that there was no

force in the contention of the respondents that the provisions of Rule

13 or 18 were not applicable in the case of the petitioner because he

had been punished for dismissal from service by the Summary Court

Martial and thereafter he ceased to be a member of the service and

the Army Rules were only applicable to the persons who were still in

service and subject to the
Army Act
. It was held that merely because

the petitioner was punished by the Court Martial, it could not be said

that the aforesaid rules were not applicable on him and the

punishment of discharge could be given to him with retrospective

effect. Consequently, the impugned order in the said case to the

extent vide which the petitioner was ordered to have been discharged

from service from the date his dismissal order became effective, was

set aside and the order of discharge of the petitioner, it was held,

would be effective from the date it was passed by the Vice Chief of

Army Staff. Applying the ratio of said judgment in the present case

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the discharge of the petitioner would be effective from the date it was

passed i.e. in terms of order dated 23.03.1989 (Annexure P-2).

The learned Tribunal referred to
the said judgment
in

Inder Pal Singh v. Union of India
(supra) and it was held that the

earlier petition (i.e. CWP No.17050 of 1989) was filed after the order

dated 23.03.1989 (Annexure P-2) was passed regarding discharge

being effective from the date of original sentence of dismissal

became operative and the said writ petition was to challenge the

entire action of dismissal or discharge taken against the petitioner. It

was found that from the order dated 11.01.1995 (Annexure P-3), the

order dated 23.03.1989 (Annexure P-2) had been taken into account

in that order. Obviously, therefore, the litigation, it was observed, had

already culminated in the order dated 11.01.1995, wherein the

contention regarding the impermissibility of discharge being effective

from the date, the original punishment order was operative was not

pressed into service. As such it could not be allowed to be raised.

Therefore, the learned Tribunal was of the view that since the

contention regarding the effective date of discharge was not pressed

while disposing of the writ petition (CWP No.17050 of 1989) vide

order dated 11.01.1995, the original punishment was operative and it

could not be allowed to be raised now. However, we are of the view

that since the claim of the petitioner is for grant of pension and the

question whether he has the requisite entitlement of service for grant

of pension is germane to the matter in issue, it can well be raised and

taken into account so as to consider his case for the requisite service

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CWP No.10610 of 2012 (O & M) -22-

rendered for the benefit of pension. In fact for the grant of pension

the rules can be read down so as to grant the same.

Therefore,

keeping in view the ratio of judgment in
Inder Pal Singh
's case

(supra), we are of the view that the order of discharge from service

became effective from the date of passing the order, that is, from

23.03.1989 (Annexure P-2) whereby the dismissal from service of the

petitioner was commuted to discharge. By the said date, that is

23.03.1989, the petitioner had the requisite 15 years of service. As

such, on both or any of the account, that were formulated, the

petitioner would be entitled to pension.

Consequently, the writ petition is liable to be allowed.

However, in the order dated 11.01.1995 passed in CWP No.17050 of

1989 it was clarified by this Court that in case the respondents

consider the case of the petitioner for the grant of pension, he would

not be entitled to claim any arrears of pension etc. The said

restriction was for the respondents. However, keeping in view the

spirit of the said order the arrears are liable to be restricted to a

period of three years earlier to the filing of CWP No.9915 of 1996 in

this Court, that is, from 08.07.1996.

Accordingly, the writ petition is allowed, the petitioner

would be entitled to pension for the service rendered by him for a

period of 15 years. However, the arrears shall be restricted to three

years earlier to the filing of CWP No.9915 of 1996 in this Court, that

is, from 08.07.1996 for which the pension be calculated and paid to

the petitioner. For the period the matter remained pending in this

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Court and in the Tribunal, the petitioner cannot be said to be at any

fault and he would be entitled to pension for the said period as well.

There shall, however, be no costs.

(S. S. Saron)
Judge

(S.P.Bangarh)
03.09.2013 Judge
A.Kaundal

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