ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

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1 ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 163 of 2014 THURSDAY, THE 10TH DAY OF DECEMBER 2015/19TH AGRAHAYANA, 1937 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) K.M.GEORGE, EX L-TEL NO.47813, AGED 73 YEARS, S/O.MATHAI, KARIMPANNUR HOUSE, PULLAD (PO), PATHANAMTHITTA DISTRICT, KERALA STATE, PIN APPLICANT: BY ADVS.M/S.M.V.THAMBAN, R.REJI, THARA THAMBAN & B.BIPIN. Versus 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI RESPONDENTS: 2. THE CHIEF OF NAVAL STAFF, NAVAL HEADQUARTERS, NEW DELHI THE COMMODORE, BUREAU OF SAILORS, CHEETAH CAMP, MANKHURD, MUMBAI, PIN THE SENIOR STAFF OFFICER (PENSION) NAVAL PENSION OFFICE, C/O. INS TANAJI, SION-TROMBAY ROAD, MANKHURD, MUMBAI PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS), DROUPATHI GHAT, ALLAHABAD, PIN BY ADV. SRI. TOJAN.J.VATHIKULAM, CENTRAL GOVT. COUNSEL.

2 OA No. 163 of 2014 : 2 : O R D E R VAdm.M.P.Muralidharan, Member (A): 1. The Original Application has been filed by K.M.George, Ex L-Tel of the Navy seeking reservist pension. This is the second round of litigation by the applicant, who had earlier filed O.A.No.35 of 2014 before this Tribunal. That O.A was disposed of directing the respondents to give due consideration to any representation moved by the applicant and pass appropriate orders. Accordingly an appeal was preferred by the applicant for reservist pension which was rejected by the respondents and hence this OA. 2. Sri M.V.Thamban, the learned counsel for the applicant submitted that the applicant who was enrolled as a boy in the Indian Navy on 29 February 1956, had served in active service in the Navy till 06 June 1967 and was discharged with a reserve liability of 10 years with effect from 07 June 1957 (Annexure A1). While in the Reserves, the applicant was issued a letter in September 1977 from the Registrar of Reserves stating that he had left India prior

3 OA No. 163 of 2014 : 3 : to the date of expiry of his term of engagement from Fleet Reserve, as a money order addressed to him had been returned with remark Payee left. The applicant was informed that he was liable for discharge from reserve for contravening Article 10 of Regulations for Indian Fleet Reserves without any terminal benefits and was asked to intimate the date on which he left India (Annexure A2). Subsequently, in October 1977 he received a letter from Commodore Naval Barracks discharging him from Fleet Reserve with effect from 19 June 1976 without any terminal benefits (Annexure A3). 3. The learned counsel further submitted that Government of India had discontinued the Fleet Reserve System vide Letter No.AD/5374/2/76/2214/S/D(N.II) dated 03 July 1976 (Annexure A4). The learned counsel also submitted that in accordance with the Government letter, existing Fleet Reservists were not required to undergo refresher training, but would be paid retaining fee till they are wasted out. He further submitted that Regulations for

4 OA No. 163 of 2014 : 4 : the Indian Fleet Reserves, 1940 had been framed under the Naval Reserve Force (Discipline) Act However after the enactment of the Indian Navy Act 1957, as per Section 186 of the said Act, the Indian Naval Reserve Forces (Discipline) Act had been repealed. Therefore the action of the respondents to deny the applicant the provisions of Regulations of Indian Fleet Reserves was illegal. He further submitted that even under the Regulations of Fleet Reserves, 1940 in accordance with Article 10(b), a reservist is permitted to seek temporary civil employment out of India with the permission of the Registrar of Reserves and a certificate in the I.N.F.7 was to be given to the reservist for submission to his civil employer. The applicant had been issued such a certificate on 03 April 1967 (Annexure A5). Since he had been given such a certificate, the respondents cannot contend that the applicant had not obtained permission from the Registrar. Learned counsel also submitted that the applicant had not failed to attend the training, nor had he been absent on mobilisation or at any other point of time when summoned to do so. It is

5 OA No. 163 of 2014 : 5 : only on failure to attend such summons that disciplinary action was contemplated against reservists as per Regulations for Indian Fleet Reserves. Further, the Government in accordance with the policy at Annexure A4 had also decided to do away with refresher training for reservists. The learned counsel also submitted that in accordance with Regulation 69(2) of Pension Regulations for the Navy, a Sailor who was discharged, unless otherwise expressly provided, remains eligible for pension. Therefore the applicant was eligible to receive pension under Regulation 92 of the Pension Regulations for the Navy. He further submitted that while a Sailor with 10 years each of prescribed Naval and Reserve service was eligible for reservist pension, a Sailor with lesser period of engagement but not less than 15 years was eligible for reduced rate of pension. Therefore the applicant who had 11 years and 98 days of active service including boys service of one year and 98 days and 09 years and 12 days of service in Fleet Reserve was eligible for reservist pension under Regulation 92.

6 OA No. 163 of 2014 : 6 : 4. The learned counsel further submitted that the applicant in his earlier Original Application, viz., O.A.No.35 of 2014, had challenged Annexures A2 and A3 which was disposed of by the Tribunal directing the applicant to move a representation to the respondents and directing the respondents to pass appropriate orders on such representation in accordance with law (Annexure A6). While he was waiting for the reply to his representation he received a letter from the Naval Pension Office rejecting his claim for pension as he had not completed reserve tenure and he was discharged from Fleet Reserve prematurely for contravening Article 10 of Regulations for Indian Fleet Reserve (Annexure A8). Subsequently he received another letter from the Naval Pension office enclosing speaking order issued by Naval Headquarters (Annexures A9 and A10) rejecting his request for reservist pension on the ground that he had left for Saudi Arabia without permission. The learned counsel submitted that the stand taken by the respondents rejecting his request was arbitrary and prayed that the applicant be granted reservist pension under Regulation 92

7 OA No. 163 of 2014 : 7 : of the Pension Regulations for the Navy. 5. Mr.Tojan J Vathikulam the learned counsel for the respondents submitted that the applicant had been drafted into Fleet Reserve with effect from 07 June 1967 for a period of 10 years on expiry of his engagement in the Navy. While serving in the Fleet Reserve, as a money order forwarding his retaining fees was returned undelivered by the Postal authorities with the remarks payee left, whereabouts of the applicant was sought from the Zilla Sainik Board, Alleppey who confirmed in September 1977 that the applicant had left India and was serving abroad. (Annexure R1). The applicant was therefore discharged from the Fleet Reserve prematurely with effect from 19 June 1976 without any terminal benefits under Articles 9 and 10 of the Regulations for Fleet Reserves (Annexure A3) for leaving India without prior permission. Since the applicant had not completed the specified qualifying service of 15 years active service he could not be granted regular service pension. As he had also not completed 10 years

8 OA No. 163 of 2014 : 8 : reservist service following his active service, he was not granted reservist pension. The learned counsel further submitted that based on the directives of this Tribunal in O.A.No.35 of 2014 a speaking order had been issued to the applicant (Annexure R2). 6. Learned counsel further submitted that at the time of being drafted into Fleet Reserve, all reservists were given detailed instructions of their liability, terms and conditions and benefits. It was clearly indicated that they would not be eligible for reservist pension if they did not complete their reserve tenure. The applicant had also been given such instructions and has affixed signature acknowledging the same. It had also been instructed that he should not leave India without permission of the Registrar of Reserves and if he did so, he was liable to be prosecuted under the Navy Act. Learned counsel further submitted that while the applicant had rendered 11 years 98 days in active Naval service including boys service and subsequently 09 years and 12 days in Fleet Reserve, there was no provision for

9 OA No. 163 of 2014 : 9 : counting of boys period together with deficient reserve period for grant of reservist pension. 7. Learned counsel also submitted that the change of policy regarding Fleet Reserve was with effect from 03 July However the applicant had been discharged with effect from 19 June 1976 when the policy was still in force. Further, even though the applicant claims that the Fleet Reserves Act had been repealed, Regulation 269 for the Navy 1964 states that continuous service Sailors of all branches shall be liable, if required, for a further 10 years service in the Indian Fleet Reserve, subject to the provisions of the Regulations for the Indian Fleet Reserve. Therefore Regulation for Indian Fleet Reserves had not been repealed. The certificate in the form of I.N.F.7 is issued to reservists for submission to a civil employer whenever a Sailor seeks civil employment while serving in Fleet Reserve. The certificate only indicates his liability as a Fleet Reservist to the employer and is not a specific permission to leave India and the applicant had departed India without seeking

10 OA No. 163 of 2014 : 10 : permission from the appropriate authorities. While the applicant was not dismissed from service, since he had not completed the mandatory 10 years of reserve service in addition to 10 years in regular Naval service, he was not eligible for reservist pension. 8. Heard rival submissions and perused records. 9. The undisputed facts of the case are that the applicant was enrolled in the Navy as a boy entry on 27 February 1956 and was discharged from service on 06 June 1967 on expiry of term of engagement and was drafted into Fleet Reserve with effect from 07 June 1967 for a period of 10 years. As the applicant had left India without due permission, he was discharged from Fleet Reserve with effect from 19 June 1976 and hence did not have 10 years Reservist service. 10. The issue for consideration before us is whether the applicant is entitled to reservist pension. The applicant

11 OA No. 163 of 2014 : 11 : has contended that even without completing 10 years in Reserves, he was eligible for reservist pension at reduced rates in accordance with Regulations, as he was only discharged and not dismissed from reserves. The respondents on the other hand have contended that since the applicant did not have 10 years of reserve service he was not eligible for reservist pension. 11. It is also not disputed that the applicant did not have sufficient service in the Navy to earn regular service pension. Therefore he was only eligible for reservist pension and Regulations 69 and 92 of the Pension Regulations for the Navy being relevant are re-produced below: 69. Sailors dismissed or discharged (1) A sailor, who is dismissed under the Act, is ineligible for pension or gratuity in respect of the service rendered by him before his dismissal. (2) Save as otherwise expressly provided, a sailor who is discharged under the Act and the regulations made there under remains eligible for pension or gratuity under these regulations. 92. Reservist pension and gratuity (1) A reservist who is not in receipt of a service pension may be granted, on completion of the prescribed naval and reserve qualifying

12 OA No. 163 of 2014 : 12 : service of ten years each, a reservist pension of rupees eleven per mensem or a gratuity of rupees nine hundred in lieu of pension. (2) A reservist who is not in receipt of a service pension and whose qualifying service is less than the period of engagement but not less than fifteen years may, on completion of the period of engagement or on earlier discharge from the reserve otherwise than at his own request, be granted a reservist pension at rupees ten per mensem or a gratuity of rupees seven hundred and fifty in lieu of pension. (3) Where a reservist elects to receive a gratuity in lieu of pension under this regulation, the amount of gratuity shall, in no case, be less than the service gratuity that would have accrued to him under regulation 89 based on the qualifying service in the Indian Navy, has he been discharged from the active list. Explanation The option to draw a gratuity in lieu of pension shall be exercised on discharge from the reserve, and the opinion once exercised shall be final; no pension or gratuity shall be paid until the opinion has been exercised. 12. As observed from records and also admitted by the respondents, the applicant was not dismissed from service but was only discharged. Therefore under Reg 69(2), the applicant remains eligible for pension provided he meets the other requisite conditions. Reservist Pension and gratuity are governed by Reg 92, and sub-reg 92(1) provides for reservist pension when a Sailor has 10 years

13 OA No. 163 of 2014 : 13 : each of naval and reservist service. Reg 92(2) further provides that a reservist who is not in receipt of service pension and whose qualifying service is less than the period of engagement but not less than 15 years may be granted reservist pension but at a lesser rate than for those under Reg 92(1). There is nothing in the Regulations to deny reservist pension to a person who was discharged from reserve service prior to completion of original period of engagement. 13. Since the applicant was discharged from Fleet Reserve after 09 years and 12 days of service, his case would fall under Reg 92(2). The applicant has however claimed counting of boys service to enhance his total service to over 20 years so as to enable him to be granted full reservist pension. While post the decision of the Hon'ble Apex Court in Anuj Kumar Dey & anr. vs. Union of India & Ors, (1997) 1 SCC 366, and the subsequent changes in Government policy enables counting of service before attaining 17 years for pension, the provision is only

14 OA No. 163 of 2014 : 14 : for regular pension. It is observed that Reg 92, which governs reservist pension, mandates 10 years of reserve qualifying service for full reservist pension. Therefore we are of the view that the applicant is eligible for reservist pension under Reg 92(2) from the date of his discharge from the Fleet Reserve. However the arrears would be restricted to a period of three years prior to the date of filing of this Original Application in accordance with the principles laid down by the Hon'ble Apex Court in Union of India and Others v. Tarsem Singh ((2008) 8 SCC 648). 14. In view of the foregoing, the Original Application is partly allowed. The respondents are directed to sanction and pay reservist pension to the applicant in accordance with Reg 92(2) of Pension Regulations for the Navy, from the date of his discharge from Fleet Reserve with all consequential benefits, restricting arrears to a period of three years prior to filing of this Original Application within a period of four months from the date of receipt of a copy of this order, failing which the unpaid amount will carry a

15 OA No. 163 of 2014 : 15 : simple interest at the rate of 8% per annum. 15. There will be no order as to costs. 16. Issue free copy to the parties. Sd/- sd/- VICE ADMIRAL M.P. MURALIDHARAN, MEMBER (A) JUSTICE S.S.SATHEESACHANDRAN MEMBER (J) 17. After pronouncement of the order, learned counsel for the respondents requested for leave to appeal to the Supreme Court. In our opinion, no question of law of general public importance is involved in the matter. Hence leave requested for is refused. Sd/- sd/- VICE ADMIRAL M.P. MURALIDHARAN, MEMBER (A) (true copy) JUSTICE S.S.SATHEESACHANDRAN MEMBER (J) Prl.Pvt.Secretary

APPLICANT: RESIDING AT: E-517 SENA VIHAR, KAMMANAHALLI, KALYAN NAGAR.P.O., BANGALORE BY ADV.SRI.RAMESH.C.R. Versus RESPONDENTS:

APPLICANT: RESIDING AT: E-517 SENA VIHAR, KAMMANAHALLI, KALYAN NAGAR.P.O., BANGALORE BY ADV.SRI.RAMESH.C.R. Versus RESPONDENTS: ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 43 OF 2015 WEDNESDAY, THE 5TH DAY OF AUGUST, 2015/14TH SRAVANA, 1937 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL