Tara Singh vs Union of India & Ors.

T.S. Doabia, J.—Petitioner's services were brought to an end in terms of Army Rule 13(3) Item III (1). Petitioner claims pension. This is

being denied to him. This is on the ground that on the date of discharge he had rendered 14 years and 76 days qualifying service. What is sought to

be projected is that from 15.11.1971 to 1.3.1973 i.e. period of 483 days he was absent. This was to be treated as non qualifying service. It is

further stated that petitioner was called for colour service on 15.11.1971. He however, did not report. Therefore, his name was struck from the

strength of service. Further fact which is stated by the respondents is that petitioner was enrolled in the army on 15.3.1958. He had rendered 7

years colour service and 8 years reserve service. It is further stated that on 5.11.1971 he was called upon to serve the respondents. Petitioner,

however did not do so. He was declared as deserter. His act of absence from 5.11.71 to 24.3.1973 was found to be without sufficient cause.

Petitioner was accordingly awarded 28 days Rigorous imprisonment on 24.3.1973. Further fact is that after the aforementioned punishment was

inflicted petitioner was permitted to perform his duties and was ultimately discharged with effect from 25.9.1993. Rule 13(1)(3) be noted :

Authorities empowered to authorise discharge:

(1) Each of the authorities specified in column 3 of the Table below shall be competent authority to discharge from service person subject to the

Act specified in column 1 thereof on the grounds specified in column 2.

(3) In this table ""commanding officer"" means the officer commanding the corps or department to which the person to be discharged belongs except

that in the case of junior commissioned officers and warrant officers of the Special Medical Section of the Army Medical Corps the `commanding

officer' means the Director of the Medical Services Army and in the case of junior commissioned officer and warrant officers of Remounts,

Veterinary and Farms Corps, the `Commanding Officers' means the Directors Remounts Veterinary and Farms.

Person enrolled under the Act who have been attested. III(i) On fulfilling the conditions of his enrolment or having reached the stage at which

discharge may be enforced. ""Commanding Officer and in the case of a person of the rank of a Havildar (or equivalent rank) where such person is

to be discharged. Otherwise than at his own request and where the commanding officer below the rank of Lieutenant Colonel, the Brigade or Sub

Area Commander.)

(ii) On completion of a period of army service only, there being no vacancy in the Reserve. Commanding Officer (in the case of person unwilling

to extend their Army service) Applicable to person enrolled for both Army service and Reserve Service. (A person who has the right to extend his

Army service and wishes to exercise that right cannot be discharged under this head)

(iii) Having been found medically unfit for further service. Commanding Officer The Commanding Officer will exercise the power only when he is

satisfied as to the desirability of sanctioning the application and the strength of the unit will not thereby be unduly reduced.

(v) All other classes of discharge. Brigade/Sub Area Commander The Brigade or Sub Area Commander before ordering the discharge shall if the

circumstances of the case permit give to the person whose discharge is contemplated an opportunity to show cause against the contemplated

discharge.

A perusal of the above rule would indicate that person enrolled under the Army Act can be discharged on fulfilling conditions of enrolment and

also if he has reached at the stage where discharge can be enforced. It was not the case of the respondents that petitioner sought voluntarily

discharge. This was a case where the respondents at their own level formed an opinion that stage has come for the discharge of the petitioner. If

this be the position then it was for the respondents at that point of time to come to a conclusion whether service which has been rendered is such

which would unable him to get pension. If respondents were of the view that period of not qualifying is to be taken note of then it could not be said

that the petitioner had reached a stage on which he was supposed to be discharged. If this be the position and if service of enrolled person are

brought to an end in terms of rule quoted above it should be presumed he has requisite period of service which would have enabled him other

benefits also. It was for the respondents to determine qualifying service for pension in terms of Rules 132 and 155. These are being reproduced

below :

Minimum Qualifying Service for pension

The minimum period of qualifying service (without weightage) actually rendered and required for earning service pension shall be 15 years.

Reservist Pension

An OR reservist who is not in receipt of a service pension may be granted on completion of the prescribed combined colour and reserve qualifying

service of not less than 15 years a reservist pension equal to 2/3rd of the lowest pension admissible to a Sepoy but in no case less than Rs. 375/

PM on his transfer to pension establishment either on completion of his term of engagement or prematurely irrespective of the period of colour

service.

Regulations 123, 124 and 125 are also relevant. These are also being quoted below :

123(a) A person who has been guilty of any of the following offences :

(i) Desertion vide section 38 of the Army Act.

(ii) fraudulent enrolment vide section 34(a) of the Army Act, shall forfeit the whole of his prior service towards pension or gratuity upon being

convicted by court martial of the offence.

(b) A person who has forfeited service under the provisions of the preceding clause but has not been dismissed shall, on completion of any period

of three years further service in the colors and/or of any period of three years further service in the colors and/or service in the reserve with

exemplary conduct and without any red ink entry, be eligible to reckon the forfeited service towards pension or gratuity.

Upon such conditions as it may think fit to impose, a competent authority may condone interruptions of service in the case of a person whose

pension is sanctionable by an authority subordinate to the President as under :

(a) When proposed pension exceeds Rs. 375/ PM interruptions not exceeding a period of 12 months in all;

(b) When proposed pension is Rs. 375/ PM or less all interruptions whatever their duration.

(2) In the absence of a specific indication to the contrary in the service records, an interruption between to spells of service rendered in civil or

military capacity under Central Government shall be treated as automatically condoned and the preinterrupted service treated as qualifying service

for pension/gratuity.

(3) Nothing in clause (2) shall apply to interruption caused by resignation, dismissal or removal from service or participation in strike.

(4) The period of interruption referred to in Clause (2) shall not count as qualifying service.

Except in the case of

(a) an individual who is discharged at his own request, or

(b) an individual who is eligible for special pension or gratuity under Regulation 164, or

(c) an individual who is invalided with less than 15 years deficiency in service for eligibility to serve pension or reservist pension or gratuity in lieu

may be condoned by a competent authority upto six months in each case.

A perusal of Regulation 132 would show that the minimum period of qualifying service (without weightage) actually rendered and required for

earning service pension shall be 15 years. Regulation 155 gives advantage to a person, who has rendered colour service and reserve service. If by

computing the two, the total service becomes 15 years then pensionary benefits in terms of regulation 155 is required to be given. A combined

reading of Regulation 132 and Regulation 155 indicate that the qualifying service is the one actually rendered and this period of service is 15 years.

This is one aspect of the matter.

The other aspect of the matter is that under Rule 13 (III)(i) a person enrolled under the Act can be discharged only on reaching a stage on which

he can be discharged. This discharge he can enforce only in terms of the Act and the Rules. So far as Rule 13(III) (i) is concerned there is no

option with the person enrolled. SubClause (ii) of this Rule also talks of discharge on completion of period of Army service and a person who was

a right to extend the service and if he wishes to act, that right cannot be denied. SubRule (iii) deals with the situation where the person enrolled is

found to be medically unfit. Under SubRule (iv) request can be made before fulfilling the conditions of his enrollment. This prayer can be granted

only if the Commanding Officer is satisfied that by passing the order of discharge the strength of the unit is not reduced. In all other cases the

discharge is governed by subclause (v), but if the power is to be exercised then opportunity to show cause has to be given. Thus, under Rule 13(3)

(i) discharge can be ordered when it can be enforced by the person enrolled. Under Clause (ii) option is given to the person concerned whether he

wants to get discharge or not and whether he wants to continue in service. If these two subrules are taken into consideration then it can be said that

the respondent should have satisfied as to whether the petitioner has fulfilled the conditions of his enrolment or had reached the stage on which

discharge can be enforced by him. Petitioner never exercised this option. As a matter of fact the option was required to be given in terms of

subrule (ii). If option is given then a person has the right to get his army service extended. On a plain reading of the provisions quoted above, it

becomes apparent that the petitioner never expressed a desire to get discharge. It was for the respondents to go into this question and they should

have given option in terms of the Rule referred to above. Having not done so the petitioner cannot be put to a disadvantageous situation.

The other aspect of the matter depends upon the reading of Regulations 123, 124 and 125. Thus under Regulation 123 a service which stands

forfeited can be restored. Under Regulation 123 a person who has been found guilty but not dismissed on completion of any period of three years

further service in colour and in reserve is well within right to contend that his forfeited service be counted towards his pension. Under Regulation

124 a competent authority can condone interruptions of service in the case of a person whose pension is sanctionable by an authority subordinate

to the President. Under Regulation 125, an individual who is invalided with less than 15 years service, deficiency in service for eligibility to service

pension or reservist pension or gratuity in lieu can be condoned by a competent authority upto six months in each case.

These regulations indicate that even in a case where service stood forfeited there can be condonation. In the present case the absence from

5.11.1971 to 1.3.1973 has been treated as unqualifying service. Petitioner is said to have rendered 14 years and 76 days' qualifying service. This

is said to be less than 15 years.

It is further stated that nonqualifying service from 5.11.1971 to 1.3.1973 is not to be taken into consideration. This period is said to be 483

days. After taking note of this factor, the respondents have categorically stated that the qualifying service of the petitioner is short by 289 days.

This is definitely less than 12 months and the petitioner is entitled to the benefit of Regulation 124.

It is pertinent to mention here again that the conduct of the petitioner had all along been exemplary. This has been so stated in the certificate of

discharge. Therefore, on the basis of this exemplary character and there being no `red ink' entry even the forfeited service can be counted under

Regulation 123.

It is accordingly held

(i) that this is a case where the petitioner never made a prayer that he be discharged and therefore, his case never fell within clause (iii) (iv) or for

that matter under Clause (v) also;

(ii) the case of the petitioner is said to be covered by Army Rule 13(iii)(i). Under this Rule it was for the respondents to examine as to whether a

stage has come for enforcing stipulation regarding discharge and again option was required to be given to the petitioner in terms of Clause (ii) and

that is to the effect as to whether he wanted the service extended. This has not been done. Therefore, strictly speaking the discharge is not

according to the Rules;

(iii) that with a view to do justice to the petitioner, the respondents should have taken note of Regulations 123, 124 and 125. In any case the

Regulation 124 is specifically attracted as the lapse is of 289 days. This is less than 12 months and can be condoned under Regulation 124.

The writ petition is allowed. The respondents are directed to consider the case of the petitioner for condoning the nonqualifying service, which

is less than 12 months, otherwise the order of discharge is not sustainable because strictly speaking it does not fall within the parameters of subrule

(i) (ii) as the power under this could be exercised only on the basis that the person enrolled has completed his qualifying service and again he was

required to be given an option as to whether he wants to continue the service. This option has not been given to the petitioner.

This writ petition is disposed of in the manner indicated above.