Ghan Shyam Singh vs Union of India and Another

Gita Mittal, J.—Issue notice to show cause to the respondents as to why rule nisi be not issued. Mr. Ankur Chhibber, Advocate accepts notice on behalf of the respondents. Learned counsel for the parties submit that the writ petition can be disposed of on the basis of available record. With the consent of both the parties, we have accordingly heard the writ petition.

The facts giving rise to the present writ petition are in narrow compass. The petitioner was tried and convicted by an order dated 12th September, 1991 of the Summary Court Martial which was assailed before us by way of WP (Crl.) No. 77/1993 (which was subsequently registered as WP (C) No. 5888/2001). On coming into force of the Armed Forces Tribunal Act, 2007, this writ petition was transferred for adjudication to the Armed Forces Tribunal, Principal Bench, New Delhi and it came to be registered as T.A. No. 39/2010.

The Armed Forces Tribunal heard the matter and allowed the petition vide its judgment dated 18th February, 2013 setting aside the conviction of the petitioner. So far as consequential relief is concerned, the Tribunal directed that the petitioner would be deemed to be in service till he attains minimum pensionable service of 15 years. The Tribunal thereafter applied the principle of "no work no pay" and held that he would not be entitled to any salary for this period, however, he would be entitled to pension and other such retiral benefits in accordance with rules with effect from the date of this order.

Aggrieved thereby, the petitioner first filed a review petition before the Tribunal. It was the petitioner''s contention that on account of passage of time, if he had been in service, he would have superannuated on 2nd August, 1995 and that therefore, there was no question of his being in service or discharging duties thereafter. The petitioner sought review of the directions made by the court that pension would be paid only with effect from 18th February, 2013 when the writ petition challenging the court martial was allowed.

This review petition came to be rejected by an order dated 16th April, 2013.

The petitioner has challenged the judgment dated 18th February, 2013 and 16th April, 2013 only to the extent that it denies him the pensionary benefits between 2nd August, 1995 till 18th February, 2013.

We have heard learned counsel for the parties.

The only reason for which the petitioner has been denied the consequential benefits is noted in the judgment dated 18th February, 2013. The Tribunal was of the view that the petitioner was disentitled to the financial benefits based on principle of "no work, no pay". It needs no elaboration that if the petitioner had continued in service in case the court martial had not intervened, petitioner would have superannuated and would not have been performing any duties after 2nd August, 1995.

Mr. J.S. Manhas, learned counsel appearing for the petitioner relies upon the decision of the Supreme Court reported at D.S. Nakara and Others Vs. Union of India (UOI), wherein it is held that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that pension is not an ex-gratia payment but it is a payment for the past service rendered. The relevant extract of the judgment is reproduced hereunder:-

What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.

The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad Vs. The State of Bihar and Others, wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one''s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Another Vs. Iqbal Singh, .

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From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in of exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.

It is, therefore, trite that pension is vested right and cannot be taken away arbitrarily.

In the instant case, there was no question of discharging any duties after 2nd August, 1995. No fault can be attributed to the petitioner for not performing his duties but for the court martial which interdicted the petitioner''s service. Thereafter, the matter has remained pending in court since 1993.

Before us, no prayer for grant of back wages from 18th September, 1991 (when the petitioner was convicted by the Summary Court Martial) to 2nd August, 1995 (when he would have superannuated) is pressed. In this background, the petitioner would be legally entitled to pension with effect from 2nd August, 1995.

We accordingly direct as follows:-

(i) the direction made by the Armed Forces Tribunal in the order dated 18th February, 2013 to the effect that the petitioner would be entitled to pension only with effect from the date of the order is contrary to law and is hereby set aside and quashed.

(ii) for the same reason, the order dated 16th April, 2013 is also set aside and quashed.

(iii) it is held that the petitioner would be entitled to computation of his pension and its payment with effect from 2nd August, 1995.

(iv) the respondents shall ensure that computation in terms of this direction is effected in accordance with applicable rules within four weeks from today and communicated to the petitioner.

(v) The payment shall be effected in terms of this order and released to the petitioner within a further period of four weeks thereafter.

This writ petition is allowed in the above terms.

Dasti to parties.