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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. 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) APPLICANT: K.M.GEORGE, EX L-TEL NO.47813, AGED 73 YEARS, S/O.MATHAI, KARIMPANNUR HOUSE, PULLAD (PO), PATHANAMTHITTA DISTRICT, KERALA STATE, PIN – 689 548. BY ADVS.M/S.M.V.THAMBAN, R.REJI, THARA THAMBAN & B.BIPIN. Versus RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110 011. 2. THE CHIEF OF NAVAL STAFF, NAVAL HEADQUARTERS, NEW DELHI 110 011. 3. THE COMMODORE, BUREAU OF SAILORS, CHEETAH CAMP, MANKHURD, MUMBAI, PIN – 400 088. 4. THE SENIOR STAFF OFFICER (PENSION) NAVAL PENSION OFFICE, C/O. INS TANAJI, SION-TROMBAY ROAD, MANKHURD, MUMBAI – 400 088. 5. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS), DROUPATHI GHAT, ALLAHABAD, PIN - 211 014. BY ADV. SRI. TOJAN.J.VATHIKULAM, CENTRAL GOVT. COUNSEL. 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 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 OA No. 163 of 2014 : 4 : the Indian Fleet Reserves, 1940 had been framed under the Naval Reserve Force (Discipline) Act 1939. 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 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. 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 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 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 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 1976. 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.
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