Lt. Col. Manbir Singh Chaudhary vs Union of India

R.L. Anand, J,

Lt. Col. Manbir Singh Chaudhary, who retired from the Army service, has filed the present writ petition, under Article 226 of the Constitution of India and has prayed that a writ in the nature of man- damus be issued against the respondents directing them to release him the benefits of pension, gratuity, provident fund and army gratuity insurance fund etc.

The case set up by the petitioner is that he was commissioned in the Army on 11.6.1977. On 31.12.1996 he made a request for premature retirement on compassionate grounds. The same was recommended by the Commanding Officer on 1.1.1997. On 27.1.1997 the Army Headquarters directed him to obtain confirmation certificate from CDA, Pune whether he has completed pensionable service. On 9.4.1997 CDA, Pune issued a certificate to the petitioner that he will complete pensionable service of 20 years on 10.7.1997. His case was sent to the Army Headquarters with complete record to take decision for premature retirement on 15.4.1997 and on 14.7.1997 he was allowed premature retirement and was directed to relinquish the charge as early as possible but not later than 11.10.1997 and on this date he was relieved from service. The retiral benefits were sent to the bank but the same were stopped on 21.10.1997. Further, the case of the petitioner is that he had completed 20 years service in the Army and he applied for premature retirement being a superseded officer as well as on the ground of extreme hardship because of the illness of his father in the family. With open eyes the respondent-authorities had allowed the petitioner to proceed for premature retirement. So much so, at one point of time, CDA, Pune issued a certificate that the petitioner will complete 20 years of service on 10.6.1997 as required, therefore, now it does not lie in the mouth,of the respondents to say that the petitioner had not completed 20 years of services as required under the law. It is also the case of the petitioner that he made several representations to the respondents for the release of pensionary benefits, but to no effect. Hence this writ petition.

Notice of the writ petition was given to the respondents, who filed the reply and denied the allegations. The stand of the respondents is depicted in para No. 14 of the written statement, which is reproduced as follows:-

"That the contents of this para are wrong and denied. It is respectfully submitted here that as per the details indicated by him, the officer had completed the obligatory period of service on account of study leave on 6.6.97. Accordingly keeping in view, the recommendations of AHQ, premature retirement of the officer was approved duly considering the fact that the officer had been superseded twice for promotion. Subsequently in accordance with the orders issued by the Army Hqs the officer was SOS from the Army on 11.10.97. However, it was revealed later that the information supplied by the officer regarding period of study leave was incorrect and the officer was under obligation to serve the Army upto 6.6.98 and not 6.6.97. After considering the representation of the officer dated 27.10.97, the case of the officer was taken up with the Army HQs and it was decided to agree to officer''s request to refund the proportionate cost of study leave including pay and allowances. It was intimated by the Army HQs that in either case, i.e. whether the officer is made to refund the proportionate cost or the full cost of study leave, the officer will not be eligible for grant of pension as after the refund of the cost of study leave (either proportionate or full) the relevant period will not qualify towards pensionable service, leaving the officer''s pensionable service short of minimum 20 years."

Some documents were also filed by the respective parties and I will deal with those documents in the subsequent portion of this judgment.

I have heard Mr. R.K. Malik, Advocate on behalf of the petitioner, Mr. Kamal Sehgal, Advocate on behalf of the respondents and with their assistance have gone through the records of the case.

Before the start of arguments the learned counsel For the respondents submitted that he had received the instructions from the Government of India that the case of the petitioner for pension can be considered provided he withdraws the writ petition and also give an undertaking for the refund of pay and allowances, cost of training, travelling expenses etc. The contents of the instructions received by Mr. Sehgal can be quoted in the following manner :-

"CWP NO. 9426/99 FILED BY LT COL MANBIR SINGH CHOUDHARY V. UOI AND OTHERS. REF YOUR SIG A 2544 DT 18 NOV 2000. FIRSTLY NO DECISION COULD BE TAKEN IN VIEW OF WP FILED BY OFFER. SECONDLY, MIN OF DEF HAS INTIMATED THAT IF THE OFFER IS PREPARED TO WITHDRAW HIS WP AND ALSO GIVES AN UNDERTAKING FOR REFUND OF PAY AND ALLOWANCES COMMA COST OF TRG COMMA TRAVELLING EXPENSES ETC COMMA HIS CASE FOR GRANT OF PENSIONARY BENEFITS CAN BE EXAMINED IN CONSULTATION WITH CGDA/PCDA (P) AND DEF (FIN). ACK"

Mr. Malik, the learned counsel appearing on be-half of the petitioner submits that this offer given by the learned counsel for the respondents is not acceptable to his client.

The controversy in this case is very short. It is the common case of the parties that the petitioner was commissioned in the Indian Army on 11.6.1977 and he was relieved from the service on 11.10.1997. It is also the common case, of the parties that the petitioner proceeded on study leave for a period of two years starting from 7.6.2993 to 6.6.1995. Also it is not disputed at the Bar by the learned counsel for the parties that at one point of time CDA, Pune issued certificate on 9.4.1997 and a green signal was given for the petitioner to the effect that he had completed pensionable service as on 10.6.1997.

Now I would like to refer to the rules and few documents in order to decide the controversy in this case. As per the rules if an officer proceeds on study leave, he is supposed to give an undertaking in writing that he will not normally seek permission to retire or resign the commission exception grounds of ill health and other compassionate grounds within a period of 3 years after return to duty. The Rule is 42(2)(h) and precisely can be quoted as follows :-"Prior to the grant of study leave under this A1, the officer will give an undertaking in writing that he will not normally seek permission to retire or resign the commission exception grounds of ill health and other compassionate grounds within a period of 3 years after return to duty." The reading of the above would show that normally an officer who proceeds on study leave is supposed to serve the Army for a period of 3 years, but this condition of 3 years can be relaxed under the rules itself on the ground of ill health and other compassionate grounds. The compassionate grounds have not been defined in the Rules and it will be a question of fact depending upon the facts of each case.

The learned counsel for the petitioner submitted that when his client submitted the application seeking premature retirement, he clearly indicated the reasons'' and did not hide anything from the respondent-authorities. Mr. Malik referred to the letter the officer dated 31.12.1996 which runs as follows:-

"I am finally superseded officer with presently 18 years and 6 months of service.

I do not wish to continue in the service after 15 June 1997 due to compelling reasons as mentioned below :-

This application for premature retirement from service comes in succession to my application for posting on extreme compassionate grounds submitted in 1995 (Application copy attached at appendix ''A'').

Forced by circumstances I find it difficult to continue in service because my father Sh. Dalip Singh is a patient of Blood Cancer. The investigations carried out at TATA MEMORIAL HOSPITAL, BOMBAY and further treatment reveal this. (Investigation and Medical report attached at appendix "B"). Being a patient of LEUKEMIA one has to make frequent trips to Bombay for periodic redium therapy Sessions.

The parents being dependent upon me, require constant and regular medical treatment. At this stage of his life, it would leave me totally shattered if God forbid something happens to him due to my absence and callousness. My younger brother has separated from the family by taking his share of property and also putting in a forge claim for my share of ancestral landed property. His deliberate efforts to malign and choal the parents and self have added to the worries of my old parents and mine too. There is no one else except me to look after my father''s medical care.

Lastly, I pray that my request be considered sympathetically for granting me premature retirement from 15 June 1997."

The reading of the above would depict that the petitioner had not tried to hide anything muchless any material fact from the respondents. He clearly stated that he is a superseded officer and presently he has served 19 years and 6 months when he made the application on 31.12.1996. It will further be clear from the reading of this letter when the petitioner stated that his father Dalip Singh was a patient of blood cancer and the investigations were carried upon him at Tata Memorial Hospital, Bombay. He was a patient of Leukaemia (blood cancer) and the petitioner had to make frequent trips to Bombay for periodic check up and therapy of his father. His parents were dependent upon him. It was further been averred by the petitioner in his request dated 31.12.1996 that his younger brother had separated from the family and the miseries of the family had multiplied and, therefore, he may be given the premature retirement. The learned counsel for the petitioner also invited my attention to another letter dated 8.7.1998 written by the office of CDA, Pune to the office of C.G.D.A., New Delhi in which there is a clear indication that the Government was aware and it permitted the petitioner to retire prematurely vide order dated 11.10.1997. Later on the mistake was detected in the records of the respondents that the petitioner had not completed 20 years of service because he remained on study leave for a period of 2 years from 7.6.1993 to 6.6.1995 and thereafter the petitioner had not served for a period of 3 years as required under the rules which I have already quoted above. With this background now I have to see who is to suffer. When an employee makes a request to the Government for his premature retirement by alleging certain facts and when such employee wants to bring his case under the rules or exceptions, some corresponding duty is always there upon the Government to verify the contents of the request and if they have not verified the contents of the prayer of the employee, such government/employer must suffer, who have allowed the petitioner to retire prematurely from the service. While dealing a case of similar nature reported as Nishan Singh v. Transport Commissioner, Haryana, Chandigarh and another 1993 (1) RSJ 5I9 : 1993(1) SCT 244 (P&H) Hon''ble Mr. Justice Jawahar Lal Gupta was pleased to hold that once the department was satisfied that the petitioner had completed 20 years qualifying service, consequently the department is estopped from claiming that the petitioner had not completed the requisite period of service so as to entitle him to claim pension. Similar view was also taken in Manorama Rani v. The Secretary to Govt. Punjab, Education Department and others 2000(3) RSJ 89: 2000(3) SCT 100 (P&H).

Faced with this difficulty, the learned counsel appearing on behalf of the respondents invited my attention to paras 9 and 18 of the written statement and stated that the petitioner gave the wrong dates in the application form seeking premature retirement and, therefore, the respondents have been misled on the written representation made by the petitioner. It was also submitted by Mr. Sehgal that while granting premature retirement to the petitioner the Government took into consideration that the petitioner is a superseded officer and he may not get a chance for further promotion.

In my opinion, the submissions raised by the learned counsel for the respondents go against the Government, Mr. Sehgal wanted to convey as if the Government had no responsibility to discharge and everything had to be done by the petitioner. I have already stated above that some corresponding duties are always upon the respondents to verity the contents of the application, otherwise there will a chaos in the working of the Government. Supposing a person completes 10 years of service as against the required service of 20 years and makes a false application seeking premature retirement, would the Government remain silent and not try to verify the contents of the application. The answer of this Court is in negative. The Government must work with the responsibility. It cannot remain a silent spectator. The entire service record of the petitioner was with the respondents and the petitioner could legitimately take into his head that since he has concealed the true facts, therefore, the Government might have invoked that power before passing the order of premature retirement.

In this view of the matter, I allow this writ petition and give the directions to the respondents to release the pension, gratuity, provident fund and Army gratuity insurance fund to the petitioner within three months from the receipt of the copy of the judgment, failing which the petitioner shall be entitled to interest @ 12% per annum. There shall be no order as to costs.

Petition allowed