BIRBAL Vs. UNION OF INDIA

JUDGEMENT

(1.) Doubting correctness of view expressed in Ex-Sepoy S.D.P. Yadav v. Union of India & Others C.W.P. No. 4156 of 1995 decided on 22nd August 1997 by a Division Bench reference has been made by the Division Bench to the Larger Bench. Present Civil Writ Petition under Article 226 of the Constitution of India, 1950 (in short the "Constitution") is filed by the petitioner for quashing the orders dated 7th March 1991 and 1st August 1997 of the respondents, by which he was refused pension under Pension Regulation for the Army, 1961 (Part-1)(hereinafter referred to as the "Regulation"). Refusal was on the ground that petitioner had not rendered the requisite period of qualifying service. Period of desertion was not reckoned to be a part of qualifying service. When the matter was placed before the learned Single Judge petitioner placed strong reliance on a decision of the Division Bench in S.D.P. Yadav's case (supra). Learned Single Judge felt that the judgment required reconsideration, as according to him, the correct position in law was not kept in view while deciding the case. When the matter was placed before the Division Bench it also differed from the views expressed in SDP Yadav's case (supra). Therefore a reference has been made to Larger Bench.

(2.) Learned counsel appearing for the petitioner stated that the views expressed in S.D.P. Yadav's case (supra) were in order and did not require any reconsideration. On the contrary the learned counsel appearing for the respondents submitted that true purport and ambit of Regulation 122 and 123 of the Regulations were not kept in view in S.D.P. Yadav's case (supra) and therefore the views ought not to be affirmed.

(3.) S.D.P. Yadav's case (supra) was also one of desertion from service.Considering Regulations 122 and 123, it was held that Clause (b) of Regulation 123 applied to case of desertion, and the period of desertion has to be reckoned while working out the period of service. As the controversy lies in a very narrow compass, the scope, ambit and parameters of Regulations 122 and 123 need to be quoted in full. The provisions read as follows: Service qualifying for pension and gratuity 122.(a) All service from the date of appointment or enrolment/ transfer for man's service to the date of discharge shall qualify for pension or gratuity with the exception of (i) Any period of service on a temporary establishment or for which a special rate of pay is granted on the understanding that no pension is admissible. (ii) Any period of service rendered before reaching the age of 17 years. (iii) Any period of unauthorized absence unless pay and allowances are admitted for the period of absence; (iv) Any period of absence without leave which is regularized as extraordinary leave without pay and allowances. (v) Any period intervening between the date of dismissal/discharge/release and that of its cancellation which is regularized as extraordinary leave without pay and allowances. (vi) Any period of absence as a prisoner of war, unless pay and allowances are admitted for the period of absence. (vii) Any period of detention in civil custody before being sentenced to imprisonment or fine, unless the President, in a special case, issues orders reducing the period that shall not count. (viii) Any period of imprisonment by sentence of a civil court or of a court martial. (b) In cases of claims to disability pension all service from the date of appointment or enrolment to the date of discharge shall qualify for pension or gratuity subject to exceptions (i) and (iii) to (viii) above. Forfeiture of service for certain offences and its restoration: 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 colours and/or service in the reserve with exemplary conduct without any red ink entry, be eligible to reckon the forfeited service towards pension or gratuity.