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Armed Forces Tribunal Regional Bench, Kochi

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Armed Forces Tribunal Regional Bench, Kochi ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 197 of 2016 WEDNESDAY, THE 01ST DAY OF MARCH, 2017/10TH PHALGUNA, 1938 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) APPLICANT: VIJAYAN UNNITHAN (EX -NK-13678462 W) AGED 57 YEARS, S/O MADHAVA KAIMAL, “MANGALATH”, TC 8/350(5), ALAPPURAM ROAD, THIRUMALA PO, THIRUVANANTHAPURAM – 695 010. BY ADV. SRI. B.HARISH KUMAR. Versus RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT (DEFENCE) MINISTRY OF DEFENCE, NEW DELHI – 110 011. 2. THE DEPUTY DIRECTOR GENERAL DIRECTOR GENERAL DSC, GENERAL STAFF BRANCH INTEGRATED HQ OF MOD (ARMY), WEST BOCK-III, R K PURAM, NEW DELHI – 110 066. 3. THE CHIEF RECORD OFFICER, DSC RECORDS, MILL ROAD, KANNUR, KERALA – 670 013. BY ADV.SRI.SAJEEV.V.P. CENTRAL GOVERNMENT COUNSEL OA No .197 of 2016 : 2 : O R D E R VAdm.M.P.Muralidharan, Member (A): 1. The Original Application has been filed by Vijayan Unnithan, Ex Naik, No.13678462W for setting aside Annexure A3 order and for issue of direction to the respondents to grant him second service pension for the services rendered in the Defence Security Corps (DSC) condoning the short fall of 07 months and 02 days in reckoning the qualifying service for pension. 2. The applicant was enrolled in the Army as a Sepoy on 28 February 1979 and was discharged from service on 31 August 2001 after rendering 22 years, 06 months and 03 days of qualifying service. He was granted service pension. Thereafter he was enrolled in the DSC as a Sepoy on 02 January 2002 and was discharged from service on 31 May OA No .197 of 2016 : 3 : 2016 on attaining the age of superannuation, after completing 14 years, 04 months and 28 days of service (Annexure A1) which was short of 07 months and 02 days to complete the qualifying service for getting service pension. The representation submitted by the applicant to Respondent No.3 (DSC Records) for condonation of the above short fall in his service (Annexure A2) was turned down holding that such condonation is granted only for enabling a person to claim at least one pension and not for second pension (Annexure A3). 3. Sri B.Harish Kumar, learned counsel for the applicant submitted that as per Reg 44 of the Pension Regulations for the Army, 2008 the applicant is eligible for service pension after condoning the deficiency of 07 months and 02 days in service. The learned counsel further submitted that this Bench in OA.No.70 of 2015, Ex Nk N.Kuppa vs. The Deputy Director General, DSC, had OA No .197 of 2016 : 4 : granted second service pension to the applicant therein for the services rendered in DSC condoning shortfall of 08 months and 26 days. The learned counsel therefore prayed that the same benefit cannot be denied to the applicant and that the applicant may also be granted second service pension after condoning the shortfall of 07 months and 02 days. 4. The respondents in their reply statement have submitted that Reg 44 on which the applicant has placed reliance is against Reg 47 of Pension Regulations for the Army 2008 which specifies that minimum qualifying service for earning a service pension is 15 years and since the applicant had not completed 15 years of service in DSC, he is ineligible to claim second service pension. 5. The further contention of the respondents is that condonation of short fall in service is available only for OA No .197 of 2016 : 5 : claiming at least one pension and as per Government of India, Ministry of Defence Letter dated 23 April 2012, (Annexure R2), the intention behind grant of condonation of short fall in service to claim service pension is that the individual must not be left high and dry but should be made eligible for at least one pension and no dual benefit to claim a second service pension could be allowed condoning the short fall in the second service. 6. Heard rival submissions and perused records. 7. The question as to whether a person can claim second service pension condoning the short fall in his second service even when he is in enjoyment of pension for his previous service is no more res intergra as this Tribunal in Ex Nk Kuppa (supra) had held, considering the various aspects involved in the issue, that condonation of short fall in service under Regulation 44 of the Pension OA No .197 of 2016 : 6 : Regulations is available to claim second service pension as well. In that case the Tribunal had held as follows: “6. Chapter VIII of the Pension Regulations for the Army Part I, 2008 deals with the grant of pensionary awards to personnel of the DSC. Regulation 173 under the said Chapter states thus: “The grant of pensionary awards to personnel of the Defence Security Corps shall be governed by the same Regulations as are applicable to Personnel Below Officer Rank of the Army, except where they are inconsistent with the provisions of the Regulations in this chapter”. So much so, it is crystal clear that if there is no provision in the chapter which is inconsistent with the Regulations applicable to PBOR of the Army, the service personnel in the DSC for the grant of pensionary awards to them will be governed by the same provisions applicable to the PBORs of the Army. We notice that in Chapter VII there is no regulation for condonation of deficiency in service. Undoubtedly the Regulation applicable to PBOR of the Army over condonation of deficiency in service covered under Regulation 44 (previous Regulations 2008) has to be followed in the case of OA No .197 of 2016 : 7 : service personnel of DSC. Regulation 44 reads thus: “44. The deficiency in service for eligibility to pension/gratuity may be condoned upto 12 months in each case by competent authority except in the case of :- (i) an individual who is discharged at his own request; (ii) an individual who is invalided with less than 15 years of service. (iii) Who is eligible for special pension or gratuity under these Regulations”. 7. In the regulations applicable to service personnel of DSC or those applicable to PBOR of the Army in the Pension Regulations 2008 there is no prohibition, even impliedly, barring condonation of short fall in deficiency of service to claim second service pension. So, where service personnel of DSC can legitimately seek eligibility to pension/gratuity condonation of short fall upto a period of 12 months in the qualifying service, in the absence of a statutory prohibition the application of Regulation 44 cannot be denied to them on the ground that it applies only for first service pension and not to second service pension. OA No .197 of 2016 : 8 : 8. Service personnel of DSC are essentially drawn from persons who had rendered previous service in the Armed Forces. In Chapter VII some Regulations are engrafted enabling them to exercise the option to continue drawing of military pension or otherwise, do not in any way infringe their valuable right to seek condonation of short fall in service upto the period of 12 months as covered under Regulation 44, to claim second service pension. Where option had been exercised by a service personnel of the DSC to draw his previous service pension, no doubt, the question of second service pension would not arise for consideration. Where no such option is exercised, he was in receipt of pension for the previous service rendered, in the absence of a statutory bar, cannot be pressed into service as a disqualification to seek for condonation of deficiency in short fall of service in DSC upto the period of 12 months.” 8. We do not find any merit in the contention of the respondents that Reg 47 mandates minimum qualifying service of 15 years to earn service pension. Specific provision for condonation of short fall in qualifying service upto 12 months is provided under Reg 47. Categories in OA No .197 of 2016 : 9 : which condonation of short fall in qualifying service are inapplicable are specified in Reg 44. Claim of the applicant for condonation of short fall in his DSC service does not come under the excluded categories. He would have been eligible for claiming second service pension irrespective of the fact that he is enjoying the benefit of pension for his previous service, if he had completed 15 years of service in DSC. We are, therefore, of the view that the short fall of 07 months and 02 days in the qualifying service of the applicant in the DSC service to earn pension deserves to be condoned making him eligible for second service pension. We had held a similar view in OA.No.10 of 2016. 9. It is however observed that Reg 26 of the Pension Regulations for the Army 2008 provides for competent authorities to sanction various kinds of pensionary awards and they have been indicated at Appendix III to the Regulations. It is observed that in respect of condonation OA No .197 of 2016 : 10 : of shortfall in service beyond six months in case of Personnel Below Officer Rank, under Reg 44, the competent authority is the AG's Branch of Integrated Headquarters, Ministry of Defence, Army. In the instant case the short fall of 07 months and 02 days, in accordance with the Regulations, can only be condoned by the AG's Branch. While that be so, it is seen from Annexure A3 that request for condonation of deficiency in qualifying service of the applicant has been disposed of at the level of the Senior Record Officer of DSC Records (Respondent No.3) without referring the issue to the competent authority viz., AG's Branch.
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