AI Structured Summary
Not yet generated for this judgment
Judgment
Gita Mittal, J.—The respondents have filed this review petition seeking a review of a judgment dated 27th May, 2005 whereby it was held that the petitioner, who is the widow of late Narender Singh was entitled to the grant of ordinary family pension from the respondents and they were directed to pass appropriate orders in the case of the petitioner, in accordance with law within a period of eight weeks. The respondents were further directed to effect the computation and make payment within a period of eight weeks from the date of the judgment.
The writ petition had been filed by the petitioner pointing out that her husband late Narender Singh was enrolled on 24th March, 1987 as a Sepoy in the Army Supply Cops. He was granted one month''s leave with effect from 6th October to 5th November, 1987. On returning to duty, he was arrested in connection with a criminal case, being FIR No. 203/1984 on 15th November, 1987 and was released on bail on 25th May, 1988.
The petitioner''s husband was thereafter kept attached with headquarters 16, BN, NCC, Narnol and not permitted to resume the training which he was undergoing.
By a judgment dated 23rd April, 1991, Shri Narender Singh was convicted by the court of the learned Sessions Judge, Narnaul. On 25th April, 1991, he was discharged from the army under Rule 13(3)IV of the Army Rule, 1954.
However the appeal of the petitioner''s husband assailing this conviction was allowed on 20th January, 1993 by the High court of Punjab & Haryana. The petitioner made repeated representations against his illegal discharge pointing out that the petitioner stood acquitted long before the date of his discharge from service. Other material facts were also placed before the respondents.
Unfortunately the soldier expired on the 2nd September, 1994 while the representation was pending consideration. In this background, Smt. Sumitra Devi, his widow has filed the writ petition assailing the show cause notice dated 2nd February, 1991 and the order of discharge dated 25th April, 1991 as well as the order dated 28th March, 1995 passed by the respondents rejecting her petition inter alia on the ground that the same were illegal in violation of principles of natural justice and consequently required to be quashed. As a consequence, the petitioner prayed that the husband of the petitioner would be deemed to have died in harness and consequently the petitioner was entitled to family pension with effect from 3rd September, 1994 with other service benefits which were admissible to his widow.
The writ petition was came to be heard with a batch of other writ petitions and was disposed of by us by the judgment dated 27th May, 2005. In the writ petition the writ petitioner placed reliance on several pronouncements of the Apex Court including a pronouncement which was reported at Commissioner of Wealth Tax, Madras Vs. K.S.N. Bhatt, wherein the Apex Court was of the view that the pendency of the criminal case against the appellant and the possibility of his being convicted had greatly weighed with the authority and had influenced the decision in directing the discharge of the appellant. In this background, upon acquittal of the appellant, it was noted that if such order had been pronounced before the date of order of his discharge, the authority concerned would have allowed the application for extension of the term of service of the appellant. The writ petitioner had placed reliance on the provisions of note (ii) under Rule 13(3) of the Army Rules, 1954 which mandate that when compulsory discharge of a JCO or WO or OR is sought on grounds of misconduct, the authority competent to sanction the same should satisfy itself that trial by court martial of such person is inexpedient or impracticable for reasons other than probable failure to establish the charge and that further retention in service of the individual is undesirable. The respondent''s action has been assailed in the writ petition on the ground that the impugned notice to show cause did not bear out compliance of note (ii) under Rule 13(3) and consequently a mandatory legal requirement had not been complied.
A material factor which was placed before this Court was that late Shri Narender Singh was discharged from the army on 25th April, 1991 on the alleged reason that he was absent from training which was not correct inasmuch as the petitioners husband remained posted/attached with No. 16 NCC Unit, Narnaul and received all pay and allowances up to 25th April, 1991 till which date he served the respondents. Late Sh. Narender Singh was not permitted to complete his training on account of such attachment and consequently the impugned order was assailed as being without jurisdiction. The writ petition was filed as back as on 29th May, 1995 as the respondents failed to consider the representations made by Late Shri Narender Singh and the petitioner.
In this background it was held by us that the petitioner''s services were liable to be restored upon his acquittal in the criminal case and that he would be entitled to pension as claimed. Upon his death, the petitioner was found entitled to the grant of family pension upon his death. By this review petition, the respondents assailed the entitlement of the petitioner to the family pension on several factual and other grounds.
We find from the material placed before us that late Sh. Narender Singh had left two daughters and a son in tender ages. This writ petition has remained pending since 1995. After we pronounced our judgment on 27th May, 2005, the respondents have opted to file this highly belated review petition on 15th November, 2006.
By way of CM No. 14243/2006 the applicant has sought condonation of delay of 315 days in filing the review application. We have considered the averments of the applicant in this application which really sets out no sufficient cause for condonation of delay. Other than stating that the respondents were indulging in file pushing, that too without giving any details or particulars, several delays including a delay of almost nine months remains completely unexplained.
On the aforenoticed considerations, by the order dated 15th December, 2006, the respondents were directed to pay family pension to the widow till the month of December, 2006. The respondents have proceeded in the matter and are stated to have effected the payments in terms thereof.
The respondents have set up a plea that even assuming that the order of discharge dated 25th April, 1991 was to be set aside, the petitioner''s husband having unfortunately expired on 2nd September, 1994 would be disentitled to ordinary family pension as he had not completed 15 years of service. For this reason, we hereby condone the delay in filing RP No. 403/2006, CM No. 14242/2006 shall stand allowed subject to compensatory costs.
However, it is noteworthy that we found substance in the petitioner''s contention that her husband had been wrongly discharged and had consequently allowed the writ petition. In this background the petitioner would have been entitled to restoration of his service and all consequential benefits which would have flown therefrom, in any case till the date of his death. The amount which is payable by the respondents towards ordinary family pension, certainly would not be commensurate with the financial benefits which would have enured to the petitioner''s husband had he continued in service.
The respondents have acted casually in the matter and have filed a review petition which is highly belated. The petitioner, in this view would deserve to be compensated for the harassment which has enured by such delayed action. In this background, we hold that the petitioner would be disentitled to family pension. RP No. 403/2006 is accordingly allowed. However it is directed that in the interest of justice, the petitioner shall be entitled to compensatory costs for the reasons noted above which shall be equivalent to the amount which has been paid by the respondents and such amount of the family pension which would have been admissible to her if she was entitled to the same, till the date of attaining majority by her three children.
CM No. 14242/2006
In view of the orders passed on RP No. 403/2006 this application does not survive for adjudication and is dismissed.