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T.J. 3085 Ex-Sub (Hony. Capt.) Sohan Sin v. Union of India & Ors - CWP-2667-2003  RD-P&H 7519 (21 September 2006)
CWP No. 2667 of 2003
Date of decision: 21.9.2006
T.J. 3085 Ex-Sub (Hony. Capt.) Sohan Singh ...Petitioner
Union of India and others
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
PRESENT: Mr. B.S. Sehgal,, Advocate,
for the petitioner.
Mr. Anil Rathee, Advocate,
for the respondents.
M.M. KUMAR, J.
The prayer made in this petition filed under Article 226 of the Constitution is for declaring recovery of Rs.3,93,418/- (inclusive of interest amounting to Rs. 2,08,049/-) on the overdrawn pension of Rs. 1,85,369/- as CWP No. 2667 of 2003
illegal, null and void, and contrary to the principles of natural justice. A further prayer has been made for issuance of direction to the respondents to pay back the interest amount of Rs.2,08,049/- as the same is without any lawful justification. A direction has also been sought against the respondents to grant interest @ 12 percent p.a. on the arrears of pension w.e.f. 1.1.1998 when it became due till its actual payment on 30.6.2002 as compensation for delay in payment and also to grant interest on the death cum retirement gratuity and other retiral benefits. It has still been prayed that a direction be issued to the respondents to fix the pension of the petitioner @ Rs. 5425/- p.m. as admissible to the rank of Honorary Capt. in pursuance to the recommendations made by the 5th Central Pay Commission
instead of paying a sum of Rs. 4686/- which has been granted to the petitioner.
Brief facts of the case which are necessary for deciding the issue raised in the instant petition are that the petitioner joined the Indian Army on 5.12.1963. He was discharged on 27.9.1981 after rendering 17 years 297 days of service. At the time of his discharge he was holding the rank of Naib Subedar. He was granted service pension @ Rs.219/- p.m.
w.e.f. 1.10.1981. After more than 5 years he was re-employed in the territorial army on 8.5.1987. The petitioner submitted entire documentary proof to the authorities of the territorial army showing that he has served earlier in the Indian Army from 5.12.1963 to 27.9.1981. On 20.6.1987 he filled up option certificate and opted for clause (ii) of the certificate which postulates that from the date of exercise of option he was to refund the service pension already drawn during the period he had served in the territorial army alongwith gratuity amount including death cum retirement CWP No. 2667 of 2003
gratuity, if any, already drawn by him in the previous military service. A provision has also been made in clause (ii) that the personnel of the territorial army who had already retired were not to refund such like benefits and those were to be adjusted from the pension admissible under the order.
The petitioner was granted the rank of Honorary Captain for having rendered exemplary service in the territorial army from 8.5.1987 . He retired from the territorial army on 31.1.1997. The total service rendered by the petitioner in the territorial army comes to 10 years and 238 days as well as 53 days of embodied service. The respondents did not release the service pension to the petitioner, gratuity or commutation of pension on the ground that overdrawn pension of Rs. 1,85,369/- was not refunded as the petitioner continues to draw pension @ Rs. 219/- p.m. in lieu of the service rendered in the Indian Army. The afore-mentioned amount has grown to Rs.
3,93,418/- in 1999.
The petitioner submitted representation and on account of apathy of the respondents, he filed CWP No. 14361 of 1999 in this Court seeking the relief of adjustment/ set off from the concerned department.
This Court on 8.10.1999 recorded that liability to refund the amount of Rs.
3,93,418/- had remained undisputed as per the orders dated 12.7.1999 and 28.7.1999 passed by the respondents. However, the Division Bench noticed that the petitioner has sought the relief of adjustment/ set off of the afore- mentioned amount and payment of pension on the basis of the balance amount due. Accordingly, the petitioner was permitted to withdraw the writ petition by giving liberty to the petitioner to seek appropriate relief of adjustment/ set off from the respondents. The petitioner was also given liberty to file a fresh petition, if necessary. Thereafter, the petitioner served CWP No. 2667 of 2003
a legal notice on 9.2.2000 ( Annexure P.7) claiming interest on the amount of pension withheld by the respondents which was payable w.e.f. 1.1.1998.
When no decision was taken on the afore-mentioned legal notice, the petitioner again filed CWP No. 11079 of 2000 wherein directions were issued for deciding the legal notice within a period of four months by passing a speaking order. The order passed by the Division Bench on 24.8.2000 has been placed on record as Annexure P.8. Eventually the matter was decided by an order dated 27.6.2001 and the respondents still insisted for refund of Rs. 3,93,418/- by stating that the amount includes the total pension drawn by the petitioner from 8.5.1987 to 31.4.1998 plus 12 percent interest p.a. The amount was required to be deposited by means of bank draft in favour of D.P.DO. Jagraon. On the deposit of the afore-mentioned amount the question of grant of pension to the petitioner was to be considered in consultation with the competent authority. This lead to the filing of COCP No. 430 of 2001 which was disposed of on 24.9.2002 as the learned counsel for the petitioner had accepted that some payments have been received and the amount paid to the petitioner was not according to his entitlement. He withdrew the contempt petition with liberty to challenge the order dated 27.7.2001. On 1.5.2002, the petitioner again issued a notice ( Annexure P.12) claiming the afore-mentioned benefit. On 27.5.2002, the respondents released pension payment order No. S/910/2002 alongwith IAFA 369 (Descriptive Roll) in favour of the petitioner. Accordingly he started receiving pension w.e.f. 29.6.2002 and from an amount of Rs.
5,18,591/- which includes pension from 1.1.1998 to 30.6.2002 recovery of Rs. 4,76,638/- was made. Accordingly the balance amount of Rs. 41,953/- CWP No. 2667 of 2003
was paid. The dispute did not end there as the petitioner still raised the demand of erroneous fixation of his pension as he claimed that he was entitled to Rs. 5425/- p.m. as against the pension sanctioned at Rs. 4683/-.
To that effect a representation was made on 20.12.2002.
The afore-mentioned sequence of facts would show that an amount of Rs.3,93,418/- which was sought to be set off by virtue of order dated 12.7.1999 includes interest @ 12 per cent p.m. upto 30.4.1998. This fact is clear from the perusal of order Annexure P.9 dated 7.11.2000. In other words, the interest due which was set off on 30.6.2002 continued to grow and accordingly an amount of Rs. 4,36,638/- was actually deducted from the total amount of Rs. 5,18,591/-. In this view of the matter the set off has been correctly made and no dispute on that issue survives for consideration of this Court.
Mr. B.S.Sehgal, learned counsel for the petitioner, has however pointed out that two issues still survives for the consideration of this Court.
(A) According to him interest @ 12 percent has been charged by the respondents on the over drawn payment of pension by the petitioner and, therefore, interest is also payable to the petitioner on the delayed payment of pension which became due on 1.1.1998 but was actually paid to him on 29.6.2002. Learned counsel has argued that the principle of mutuality has to be accepted by imposing the same rate of interest on the respondents which is being charged from the petitioner and (B) that by virtue of Regulation 121 read with Regulation 126 alongwith table/ appendix an Honorary Captain has to get pension @ Rs. 5425/- p.m. after rendering 28 years of service. According to the learned counsel the petitioner has rendered service from 5.12.1963 to 27.9.1981 in the Indian Army and w.e.f. 20.6.1987 to CWP No. 2667 of 2003
31.12.1997 in the territorial army. The petitioner retired as Naib Subedar from the Army whereas in the territorial army he rose to the rank of Honorary Captain. Referring to the appendix attached with the instructions dated 3.2.1998 (Annexure R/6), learned counsel has argued that after rendering 28 years of service if an officer has risen to the rank of Honorary Captain then he becomes entitled to pension @ Rs. 5425/- . Learned counsel has also submitted that according to Note below Clause B of para 6.2 of the instructions, the petitioner is entitled to higher rate of pension.
Mr. Anil Rathee, learned counsel for the respondents has, however, submitted that the petitioner has illegally withheld the amount of pension and continues to avail the pension despite exercising option to the contrary vide his option letter dated 22.6.1987 ( Annexure P.1). According to the learned counsel such a conduct adopted by the petitioner is violative of para 5 of the Army Regulations, 1961. He has maintained that in such an eventuality the department has charged interest @ 12 percent and has rightly withheld the pension of the petitioner till it was refunded or set off.
Learned counsel has then argued that the petitioner is not entitled to any higher rate of pension because the appendix to which reference has been made has not been correctly understood by the petitioner. Referring to the averments made in para 16 of the reply, learned counsel has submitted that period of 28 years as mentioned in the appendix infact has been worked out after adding the period of weightage of five years which would make it 33.
According to the formula adopted the pension for the period of 5 years has to be proportionately reduced from the amount of Rs. 5425/.
Having heard learned counsel for the parties, I am of the considered view that the first contention raised by the learned counsel for CWP No. 2667 of 2003
the petitioner is meritorious and deserves to be accepted. It is trite to observe that the same standard of conduct as practiced by a party towards another is expected to be practiced by such a party in the same facts and circumstances. On the principle of mutuality the rate of 12 percent interest as charged by the respondents from the petitioner on account of over payment is also payable by the respondents for the delay in making payment which fell due on 1.1.1998 and actually paid on 29.6.2002. Therefore, the petitioner is held entitled to the payment of interest @ 12 percent with effect from 1.1.1998 to 29.6.2002.
The other contention raised by the learned counsel cannot be accepted on account of the fact that period of 28 years as depicted in the appendix has been explained in detail in para 16 of the reply. According to the reply, instructions dated 3.2.1998 (R-6) postulates five years weightage and total qualifying service by adding the weightage has to be 33 years and the same is represented by the figure 28 years. The petitioner is not entitled to the weightage being a person in territorial army as is provided by Note 2 of para 5(b) of the instructions under the heading 'qualifying service'. The relevant extracts from Note (2) are as under: "5. Qualifying Service:
(a) The term "Qualifying Service (QS) will mean:- xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx
(b) Weightage for the purpose of calculation of pension will be as given below:-
xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx
CWP No. 2667 of 2003
Notes: (1) There will be weightage for officers and PBOR who retire prematurely for prematurely for permanent absorption in public sector undertakings and autonomous bodies.
(2) There will be no weightage for officers and PBOR of the Territorial Army:"
According to the note no weightage for persons below the officers rank (PBOR) or officers belonging to the territorial army is to be granted. In other words, weightage of five years is to be deducted from the service of 33 years which is represented by the figure 28 years. The aforementioned interpretation of Note (2) of para 5(b) of the instructions is also supported by the language used in para 6.2(c) and the same reads as under:-
"(c) Based on sub paras (a) and (b) above, tables of rates of service pension for various ranks groups of PBOR and Hony.
Commissioned Officers of the three services who have opted for the revised scales of pay w.e.f. 01.01.1996 and 10.10.1997 are given in Annexure A & B respectively attached to this letter. The rates of service pension have been arrived at by adding a weightage of 5 years to the qualifying service actually rendered. Service pension in the case of TA personnel will be determined by the CDA(P) by taking into account the reckonable emoluments and qualifying aggregate embodied service as defined in paras 3 and 5 above." It is clearly made out from the later part of the para that the rates of service pension have been calculated by adding a weightage of five CWP No. 2667 of 2003
years to the qualifying service actually rendered. It further postulate that the service pension in respect of all the personnel belonging to territorial army is to be determined by the CDA (P) by taking into account the reckonable emoluments and qualifying aggregate embodied service as per the provision made in paras 3 and 5. Accordingly, the second contention raised on behalf of the petitioner is hereby rejected.
The argument raised by Mr. Sehgal, learned counsel for the petitioner that para 6.2(b) fully supports his contention merits rejection. A perusal of sub-para (b) of para 6.2, in fact, is contrary to the argument raised by the learned counsel. It postulate counting of qualifying service for 33 years at 50% of the emoluments reckonable for pension and for any period less than 33 years of qualifying service it has to be reduced proportionately.
The service pension finally arrived at was to be subject to the minimum of Rs. 1,275/- per month. The Note appended to sub-para 6.2 also fails to advance the case of the petitioner. Para (b) along with the Note is reproduced hereunder for facility of reference: "(b) Service pension in respect of the PBOR of the three services (including those of the DSC and TA) for 33 years of qualifying service will be calculated at 50% of the emoluments reckonable for pension as defined in para 3 above. For lesser period of qualifying service (as defined in para 5 above) it will be reduced proportionately. The amount of service pension finally arrived at will be subject to a minimum of Rs. 1275/- per month.
Note: The existing provisions of assessing the service pension CWP No. 2667 of 2003
of the rank/pay group on the basis of rank actually held continuously at least for 10 months at the time of discharge, shall continue to be applicable. This is also applicable in the case of Honorary Commissioned Officers. However, this condition will not be required to be fulfilled in the case of JCOs and equivalents who are granted Honorary Commission and who retire on completion of their tenure of appointment or are discharged on account of causes beyond their control." A perusal of the above Note shows that the provisions which were existing for assessing the service pension of the rank/pay group on the basis of rank actually held continuously for 10 months before discharge were to continue to be applicable which would include even the Honorary Commissioner Officer. However, the condition of 10 months at the time of discharge was not required to be fulfilled in the case of, inter alia, Honorary Commission. By no stretch of imagination it could be concluded that the Note means that the principle formulated in para (b) is wiped out, namely, that the emoluments reckonable for pension has to be worked out by reducing the period of qualifying service to the extent it is lesser than 33 years. Therefore, there is no substance in the argument raised and the same is hereby rejected.
In view of the above discussion, the writ petition is partially allowed. The petitioner is held entitled to payment of interest at the rate of 12% with effect from 1.1.1998 to 29.6.2002. The aforementioned amount shall be calculated by the respondents within a period of two months from the date a certified copy of this judgment is received by them and the same CWP No. 2667 of 2003
be paid to the petitioner. The petition with regard to other claims is hereby dismissed.
FIT FOR INDEXING
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