ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI. O.A. No.23 of 2014

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1 1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI O.A. No.23 of 2014 Friday, the 18 th day of July 2014 The Honourable Justice V. Periya Karuppiah (Member-Judicial) and The Honourable Lt Gen K Surendra Nath (Member-Administrative) Ex-Cpl T.V.Kothandaraman Service No Son of Late T.R.Venkateshwara Iyer, aged about 84 years Flat No.8, Amravathy Apartments No.37, 4 th Main Road, Gandhi Nagar, Adyar Chennai By Legal Practitioner Mr.M.K.Sikdar Applicant Vs. 1. Union of India Represented by The Secretary Government of India, Ministry of Defence New Delhi The Director Directorate of Air Veterans Subroto Park, New Delhi The Air Officer Commanding Air Force Record Office, Subroto Park New Delhi Respondents JWO M Tiwari Legal Cell, Air Force, Chennai

2 2 ORDER [Order of the Tribunal made by Lt Gen K Surendra Nath, Member (Administrative)] This application has been filed by the applicant for grant of Reservist Pension and the benefits due to him after setting aside the impugned order No.Air HQ/99798/205060/08/63/SP/DAV dated 11 February 2013 and 26 July 2013 and direct the respondents to provide Reservist Pension for life and other reliefs. 2. The submission of the applicant is that he was enrolled in the Indian Air Force as an Airman on 23 August 1949 for a term of engagement of 9 years Regular Service and 6 years in the Reserve Service ( = 15 years). He submits that he was promoted to the rank of Corporal and was discharged from service on 23 August 1958 and transferred to Reserve Service for 6 years. The applicant submits that he was recalled by the IAF for active service on 03 December 1962 and finally released from IAF on 18 August 1963 under the clause Service No Longer Required and, subsequently the applicant was denied the Reservist Pension stating that he did not complete 15 years of qualifying service for Reservist Pension. The applicant submits that he represented before the respondents for Reservist Pension since he was denied the same even though he had a legitimate claim. The applicant submits that the principle of equitable promissory estoppels bind the respondents to stand their promise and not to be unfair and act to the disadvantage of the applicant. In

3 3 2004, he had represented before the 3 rd respondent to consider and grant Reservist Pension and ex gratia payments which was rejected vide their letter dated 11 June 2004 stating that he had only a total service of 13 years and 360 days including Reserve Service period; and that the ex gratia payment is authorized only to those Reservists who had rendered minimum combined qualifying service required for grant of pension, i.e., 15 years. The applicant again represented before the Hon ble President of India on 16 May 2005 to reconsider and grant Reservist Pension to him. However, it was again rejected by 3 rd respondent on 13 September 2005 stating that the total service rendered by him was 13 years and 361 days including Reservist Service. It was further intimated that there was no provision in the Pension Regulations for the Air Force for grant of pension to the PBOR discharged after 10 years of service. The applicant again represented on 23 May 2007 for condonation of the shortfall of service if any and for grant of pension as his failing health was a concern and to avail the ECHS facility. This claim too was rejected by the 3 rd respondent stating that it was not feasible. Based on a decision of Hon ble AFT Principal Bench, New Delhi, on grant of Reservist Pension in the case of Sh. Sadashiv Haribabu Nargund vs UOI & others, he had again applied in 2012 and 2013 to the Government to grant him Reservist Pension. However, his case was rejected. The 3 rd respondent stated that the Reservist Pension is sanctioned by the Government of India to those individuals only who have been awarded favourable judgments by various Courts of Law. The applicant submits that as per Regulation 136 of Pension Regulations for the Air Force 1961 (Part I) and

4 4 existing GOI Orders, an individual on completion of 15 years of qualifying service is eligible for Reservist Pension and if any deficiency / shortfall, can be condoned by 12 months. In the instant case, the applicant submits that he falls short of the requirement by only 12 months and 04 days and his plea also should be seen favourably in the light of the fact that he had never opted for discharge from service. The respondents had arbitrarily discharged him just a few days before he could complete 14 years of service which would have made him eligible for grant of Reservist Pension after condoning the shortfall of 12 months. Therefore, the applicant is aggrieved and that, in the interest of justice, he should be considered to be deemed to be in service till he attained minimum qualifying service to earn the Reservist Pension. The applicant would further submit that the impugned orders made by the 3 rd respondent be set aside as biased, arbitrary, unlawful, passed with mala fide intentions and violates Regulation 136 of Pension Regulations for The Air Force 1961 (Part I). He would plead that he may be granted Reservist Pension. The applicant would rely on the judgment of the Hon ble AFT Principal Bench Order reported in 2011 (1) AFTLJ 174 (Sh. Sadashiv Haribabu Nargund vs UOI & others) and similar judgments of Hon ble Chennai Bench of the AFT. 3. The respondents in their reply statement would submit that the Record Copy of Sheet Roll in respect of the applicant has been destroyed after its stipulated period of 25 years of retention and only limited information is available in a single sheet in the form of a Long Roll. The applicant was enrolled in the IAF on 23 August 1949 for a term of engagement of 9 years Regular Service and 6

5 5 years in the Reserve Service. On completion of 9 years of regular service, he was discharged and transferred to the Regular Air Force Reserve with effect from 23 August He was called up for active service on 03 December 1962 and was finally discharged from the reserve service on 18 August 1963 under the clause Service No Longer Required. Thus, he had a combined Colour and Reserve Service of 13 years and 361 days. They would further argue that in accordance with Regulation 121 of the Pension Regulations for the Air Force, 1961 (Part I), the minimum combined qualifying service for Reservist Pension is 15 years. Since the applicant had a total service of 13 years and 361 days only, the grant of pension to him is not in conformity with Pension Regulations for the Air Force 1961(Part I). Hence, his plea for grant of Reservist Pension is devoid of any merit and should be dismissed. 4. Provision for grant of Pension by condonation of shortfall in qualifying service has been allowed in Regulation 114 of the Pension Regulations for the Air Force 1961 (Pt-I). As per the said regulation, condonation of shortfall in qualifying service upto a maximum period of six months can only be exercised by the Service HQs to make an individual eligible to earn the pension. The Regulation 114 of the Pension Regulations for the Air Force 1961 (Part-I) has been amended later vide GOI MOD letter No. 4684/Dir(Pens)/2001 dated 14 August 01. As per the GOI letter, condonation of shortfall in qualifying service for a period upto 12 months can be condoned by the competent authority for grant of Service/Reservist Pension in respect of all personnel discharged from service.

6 6 Since the applicant has more than 12 months of shortfall in qualifying service, these provisions are not applicable to him. 5. The respondents have further admitted that the order passed by Hon ble AFT (PB), New Delhi in TA No.564/10 (Sadashiv Haribabu Nargund & Others vs UOI) has already been implemented. The Order passed by Hon ble AFT (RB) Chennai in TA No.09/12 (N.T.Panicker vs UOI & Others) and OA No.17/13 (R.Vasudevan vs UOI & Others) also has been implemented conditionally. 6. In view of the foregoing, the respondents have prayed that the Hon ble Tribunal may be pleased to dismiss the subject OA as being devoid of merit and thus render justice to the respondents. 7. We have heard the arguments of Mr.M.K.Sikdar, learned counsel for the applicant and Mr.B.Shantha Kumar, Learned Senior Panel Counsel as well as by JWO M.Tiwari, Legal Cell, Air Force and also perused all the documents that were made available. 8. It is an admitted fact that the individual was enrolled in the Air Force on the terms of engagement of 9 years regular service and 6 years in the reserve service. He was enrolled on 23 August 1949 and on completion of 9 years of regular service, he was transferred to the Regular Air Force Reserve on 23 August 1958 in accordance with the Air Force Reserve Act of It is also an admitted fact that during the period of his reservist service, he was called for active service during the emergency in the wake of India-China war of 1962 with effect from 03 December 1962 till 18 August 1963, when he was discharged from

7 7 reserve service on grounds of Service No Longer Required, after completion of 4 years and 361 days in Reserves. It is also an admitted fact that while he was in the Regular Air Force Reserve and when called up for active service, he duly reported for duty and participated in war like situation, thereby fulfilling his contractual obligations of terms of engagement, as well as Air Force Reserve Act, The 3 rd respondent did not assign any specific reason as to why his Service (was) No Longer Required, while terminating his Reservist Service. At the time of discharge from Reserve Service, the applicant had completed 13 years and 361 days of combined Colour and Reserve service. On discharge, he was neither granted Reservist Pension, nor granted ex gratia payment. However, he was paid service gratuity amounting to Rs.1196/- at the time of his discharge from service. 9. A similar case has been dealt with in great detail in the judgment of the Hon ble AFT Principal Bench (T.A. No.564/10) reported in 2011(1) AFTLJ 174 in the case of Shri Sadashiv Haribabu Nargund & Others vs UOI. Relevant extracts from the judgment reads as below:. 6. It is admitted position that petitioner when recruited in Indian Army, he was under an obligation to serve 9 years as regular service and 6 years as reserve service and that has to be counted for making 15 years for the purposes of qualifying service. The qualifying service for PBOR is 15 years. A similar matter when approached before Hon ble Kerala High Court, Hon ble Kerala High Court took a view that the respondent Union of India is bound to take into consideration the reservist service for grant of pension. Against this order an appeal was filed before the Division Bench which was dismissed as is clear from the judgment dated 31 May 2006 in W.P.(C) No of In that judgment it has been mentioned that a similar order has been passed in earlier writ petitions also. In this connection, our attention was invited to the detailed

8 8 judgments delivered by the Chennai Bench and the Kolkata Bench which have taken a view relying on the decision given by the Hon ble Kerala High Court and the two decisions of the Division Bench of the same Court held that reserve period is also liable to be counted for the purpose of pension. As a matter of fact, in the initial appointment given to the petitioner it was clearly mentioned that petitioner will have to serve 9 years as regular service and 6 years as reserve service. Subsequently, the respondents cannot reverse the situation that since the appointment has been terminated, therefore, they are not entitled to count 6 years reserve service. The respondents are bound by principle of promissory estoppels, that once they made a representation and asked the other party to act on it and petitioner has served for 9 years as regular service and kept him in reserve service for 6 years, they cannot wriggle out this on the moral ground that subsequently after China War their services were terminated also. This is clear breach of terms and conditions of appointment. Once respondents availed the services of petitioners for 9 years as active service and kept them on reserved service for 6 years they cannot go back. During the reserve period, the petitioners were called in 1962 emergency i.e., at the time of China War and all the petitioners alleged to have offered their services at the disposal of the respondents. Therefore, the respondents have fully utilized all the service of these petitioners i.e., 9 years regular service and summoned them during the 1962 China War also. Now it does not lie in the mouth of the respondents to turn back and say that since they have been terminated they are not entitled to get the benefit of reserved service. This is immoral and unjustified view and against the canons of principles of natural justice. We fail to appreciate that once the appointment has been given and petitioners have as per the terms of the appointment given their services to the respondents how can now they back and say that since we have terminated the services of the petitioners, we will not give them benefit of reserved service. This cannot be accepted and respondents cannot be permitted to take this plea. 7. The Principle of Promissory Estoppel which has been evolved by Indian Courts in passage of time have been crystalised in various decisions of the Supreme Court. The first case in line is that of Union of India V.Anglo (Indo)-Afghan Agencies Ltd. (AIR 1968 SC 718). Subsequently the various decisions have come, but there is another landmark decision in the case of Motilal Padampat Sugar Mills V. State of Uttar Pradesh (AIR 1979 SC 621). The Lordship Bhagwati J. has summed up the principle which reads as under: where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to rise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to do back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place

9 9 between the parties, and this would be so irrespective whether there is any preexisting relationship between the parties or not. The Lordship has further observed that: It is elementary that in a republic governed by the rule of law, no one, howsoever high or low, is above the law. Every one is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual insofar as the obligation of the law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppels? Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by considerations of honesty and good faith?. Why should the Government not be held to a high standard of rectilinear rectitude while dealing with its citizen. 8. Therefore, the principle of equitable promissory estoppels binds the government to stand by their promise and not to be unfair and act in the disadvantage of other party. 10. Accordingly, the Hon ble AFT (Principal Bench) upheld the case in favour of the applicants. The operative paragraph of the judgment is extracted below: 15. We allow this petition and direct that all the petitioners pension may be worked out taking into consideration their reserve liability and if it is short by period of one year that may be condoned. However, if any gratuity is given to them, then that amount of gratuity may be adjusted against their pension. Petitioners will not be entitled to get entire arrears except last three years preceding to date of filing of the petition i.e., The pension of all the petitioners may be worked out within the period of three months as most of the petitioners are aged more than 75 and above and they are in the evening of their life. Therefore, the authorities are directed to work out the pension as early as possible so that before they go to heavenly abode, they may get at least something to survive. 11. The judgment of the Hon ble AFT Principal Bench, fits in all four corners of the extant case, save that the applicant s service falls short by four days to complete 14 years of service. Considering the long length of combined service and the apparent arbitrary nature of the applicant s discharge from service by the

10 10 3 rd respondent, we find this shortfall to be very minor and negligible and is liable to be condoned. Accordingly, the shortfall of 4 days in service to complete 14 years service is condoned. The applicant is deemed to have completed 14 years of combined Colour and Reserve service. Further, the judgment of AFT Principal Bench (Supra), condoning the shortfall of one year of qualifying service for Reservist Pension applies mutatis mutandis to the applicant. Accordingly, it is allowed. 12. In fine, the application is allowed. The applicant is eligible for grant of Reservist Pension in terms of Para 136 of Pension Regulations for the Air Force, 1961 (Part I) and other entitlements as applicable, if otherwise eligible, subject to the condition that this will be restricted to a period of 3 years prior to the date of filing of this application, i.e., 01 October However, gratuity paid to the applicant at the time of his discharge, shall be adjusted against the pension payable to him. This order shall be complied with, within three months from the date of receipt of this Order. In default, an interest of 9% per annum is payable from that date. No costs. Sd/- Lt Gen K Surendra Nath Member (Administrative) Sd/- Justice V. Periya Karuppiah Member (Judicial) [True copy] Member (J) Index : Yes/No Member (A) Index : Yes/No Internet : Yes/No Internet : Yes/No ap

11 11 To 1. The Secretary, Government of India, Ministry of Defence New Delhi The Director Directorate of Air Veterans Subroto Park, New Delhi The Air Officer Commanding Air Force Record Office, Subroto Park New Delhi Mr.M.K.Sikdar Counsel for applicant. 5. JWO M Tiwari Legal Cell, Air Force, Chennai 6. OIC, Legal Cell Air Force, Chennai 7. Library, AFT,RBC.

12 12 Hon ble Justice V. Periya Karuppiah (Member-Judicial) and Hon ble Lt Gen K Surendra Nath (Member-Administrative) O.A.No.23 of