TARA SINGH Vs. UNION OF INDIA & ORS

JUDGEMENT

(1.) 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 :

(2.) 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 :

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