KULWANT SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner seeks quashing of the order dated 18.05.2011 passed by the learned Armed Forces Tribunal-respondent No. 5 ('Tribunal' - for short), whereby, his petition seeking grant of service pension and other consequential benefits has been dismissed. The petitioner was enrolled in the Army Service as a Sepoy on 26.11.1971 in the recruiting office and he was serving in 166 Mountain Regiment. During his service, after operation Blue Star at Golden Temple, Amritsar on 10.06.1984, he along with others left the unit lines without permission. The Commanding Officer of the unit along with some officers followed those who had left and deserted the unit to the New Jalpaiguri Railway Station and persuaded them to return to the unit lines. The Commanding Officer of the military police along with his force came to the unit lines and arrested the petitioner and other desertees. For this act of desertion, the petitioner and six others including one Ex. Naik Piara Singh were charge-sheeted on 11.11.1985. Copy of the charge-sheet has been placed on record as Annexure A-2. The complete copy of the same is with the petitioner and a photocopy of the same has been filed in Court. The respondents have also filed a photocopy of the same, which is also taken on record. The petitioner was tried by the General Court Martial and on 14.12.1985, he was awarded sentence of two months rigorous imprisonment to be carried out in military custody. The petitioner retained his rank during military custody in Military Reformatory at Golconda. He was paid his full pay and allowances. There was no break in his service. He carried out military routine training and other duties as usual. The petitioner then returned to his unit and worked under his superiors till 01.03.1987 when on the order of the Commanding Officer on fulfilling the condition of his terms of enrolment, he was discharged from the army on 01.03.1987 under Item III (i) of the table annexed to Rule 13 of the Army Rules, 1954. He was transferred to pension establishment after serving for more than 15 years and 3 months. The petitioner received his Pension Payment Order from Principal Controller Defence Accounts (Pension), Allahabad ('PCDA (P) Allahabad' -for short) (respondent No. 3) and he was granted service pension from 01.03.1987 payable at DDPO Shastri Nagar, Jammu (Samba). The said Pension Payment Order was later withdrawn. The petitioner represented against the withdrawal of the Pension Payment Order. The representation of the petitioner was declined by order dated 19.02.1988 (Annexure A-4). It was conveyed that under the provisions of Regulations 123(a)(i) Pension Regulations for the Army 1961 (Part-I) ('Pension Regulations'-for short), which relates to Forfeiture of Service for certain offences and its restoration, a person who has been tried by a Court Martial and held guilty under Section 38(1) of the Army Act, 1950 is to forfeit the whole of his prior service towards pension or gratuity and is not entitled to receive any pensionary benefits until the forfeited service is restored by serving continously for three years in an exemplary manner. The petitioner had been discharged from service on fulfilling the conditions of enrolment under Item III (i) of the table annexed to Rule 13(3) of the Army Rules, 1954 with effect from 28.02.1987 (afternoon) and hence he was not eligible to receive service pension.

(2.) Learned counsel for the petitioner has submitted that about 170 other ranks from the unit of the petitioner had left the unit lines on account of emotional stress and had resorted to leaving the unit lines to be with their families in the State to see for themselves the fate of their families due to Operation Blue Star. However, they had voluntarily surrendered after a few hours of absence from the unit lines at New Jalpaiguri Railway Station. For this alleged act of misdemeanour, a joint trial was conducted against all other similarly situated army officials, which is not permissible in view of Note (8) to Section 38 of the Army Act, 1950. Besides, there was an infraction of Rule 180 of the Army Rules, 1954. It is submitted that similar orders in respect of similarly situated army officials have been quashed by this Court. A reference has been made to the cases of Ajaib Singh v. Union of India, 1992 1 SCT 693 and Ex. Naik Piara Singh v. Union of India, 2004 4 RSJ 341 . In the latter case, it is submitted that the petitioner therein namely Ex. Naik Piara Singh had been charged along with the petitioner in the present case vide same charge sheet dated 11.11.1985 and he was granted relief by this Court and the General Court Martial proceedings against him were quashed.

(3.) In response, learned counsel for the respondents has submitted that the petition is in fact barred by laches. The petitioner approached the learned Armed Forces Tribunal on 10.11.2010 i.e. after a delay of almost 25 years since he was charge-sheeted on 11.11.1985 and awarded two months rigorous imprisonment on 14.12.1985. Besides, all records of the case have been destroyed. The proceedings of the General Court Martial have also been destroyed. A reference has been made to the letter from Officiating OIC Legal Cell, which was taken on record on 09.10.2013. Therefore, it is submitted that the petitioner is not entitled to any relief.