ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O.A.No. 134 of 2012

TUESDAY, THE 3RD DAY OF JANUARY, 2017/13TH POUSHA, 1938

CORAM:

HON'BLE MR. JUSTICE S.S. SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

APPLICANTS:

RAVINDRAN.P. (ARMY NO.1367405 M-RANK-HAV/CLK), AGED 57 YEARS, SHIVA THIRTHAM, ELAYAVOOR VILLAGE, MUNDAYAD PO., KANNUR DISTRICT, PIN – 670 590.

BY ADV. SRI. B.HARISH KUMAR.

Versus RESPONDENTS:

1. UNION OF , MINISTRY OF DEFENCE, REPRESENTED BY ITS SECRETARY, SECRETARIAT, NEW DELHI – 110 011.

2. THE SENIOR RECORD OFFICER, DEFENCE SECURITY , DSC CENTRE, MILL ROAD, KANNUR, – 670 013.

3. CENTRE COMMANDANT, COMMANDING OFFICER, DSC CENTRE, BERNASSERY, KANNUR – 670 013.

4. THE ADJUTANT , ARMY HEADQUARTERS, SOUTH BLOCK, NEW DELHI, PIN – 110 011.

BY ADV.SRI.M.RAJENDRAKUMAR, SENIOR PANEL COUNSEL O.A.No. 134 of 2012 -: 2 :-

ORDER

Satheesachandran, Member (J):

The applicant, Shri. Ravindran P, an Ex-serviceman, has filed the above application for issue of directions to the respondents to grant him service pension after condoning the short fall in his service in the Defence Security Corps (for short

'the DSC').

2. The applicant after his military service in the Madras

Engineering Group and Centre, Bangalore for a total period of 18 years, 3 months and 18 days was released/discharged with service pension. Thereafter he got enrolled in the DSC on

23.1.1998 and was discharged from that service on 30.4.2012 on attaining the age of superannuation. He had 14 years, 3 months and 9 days of service in the DSC. He applied for grant of service pension for his DSC service seeking condonation of deficiency in the qualifying service thereof. But it was turned down by the Senior Record Officer opining that such condonation O.A.No. 134 of 2012 -: 3 :- is not permissible for getting second service pension. He has filed the above O.A. for granting him second service pension for his service in the DSC condoning the deficiency in the qualifying service to get such pension.

3. Previously the application was dismissed as withdrawn.

Later the applicant moved a Review Petition for setting aside the order of dismissal stating that the O.A. had been dismissed on the representation of his counsel seeking its withdrawal which was without his instruction. Review Petition was allowed and the O.A. was thereupon restored to file setting aside the order of dismissal.

4. The respondents have filed a reply statement contending that condonation of deficiency in qualifying service is not allowable for claiming second service pension.

5. We heard learned counsel for the applicant

Shri.B.Harish Kumar and also the Senior Panel Counsel O.A.No. 134 of 2012 -: 4 :-

Shri.M.Rajendrakumar, who appeared for the respondents.

6. We find that the request of the applicant for condonation of short fall in his qualifying service had been turned down by the Senior Record Officer under Annexure A3 relying on a Ministry of Defence Letter (Government of India), opining that no condonation shall be allowed for grant of second service pension. Regulation 44 of the Pension Regulations for the Army,

2008 deals with condonation of deficiency of service upto a period of twelve months to obtain pension/gratuity specifying that such condonation is not applicable in cases where an individual is discharged at his own request or invalided out with less than 15 years of service or is eligible for special pension or gratuity under the Regulation. The case of the applicant does not fall under any of the excluded categories. Further more,

Regulation 44 also spells out that a decision over condonation has to be taken by the 'competent authority'. We find Annexure

A3 order turning down the request of the applicant for condonation had been by the Senior Record Officer. There is O.A.No. 134 of 2012 -: 5 :- nothing on record to show that the request of the applicant for condonation had been placed before the competent authority for its consideration and, then, found to be not allowable. Nothing has been brought to our notice to hold that the Senior Record

Officer falls under the 'competent authority' covered by

Regulation 44 to take a decision over condonation of deficiency of service applied for by the applicant. When a request for condonation is moved and where the period of such condonation is below 12 months with the case of such applicant not falling under any of the excluded category under Regulation 44, the

Senior Record Officer ought to have forwarded such request for decision by the 'competent authority'. That has not been done in the present case.

7. We, at this stage, where competent authority has not considered the request of the applicant for condonation, does not wish to make any observation over the request made by the applicant. However, reference to the observations made by this

Tribunal in an identical case, O.A.No. 70 of 2015 by Order dated O.A.No. 134 of 2012 -: 6 :-

30th November, 2015 may be advantageous and more so for guidance for disposal of the request for condonation of deficiency of service in DSC by the applicant by the competent authority. Observations made in the above O.A. read thus:

“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 O.A.No. 134 of 2012 -: 7 :-

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 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 O.A.No. 134 of 2012 -: 8 :-

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.

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 are of the view that the competent authority has to consider the request of the applicant for condonation of O.A.No. 134 of 2012 -: 9 :-

deficiency in service in the DSC in accordance with the

statutory provisions applicable, and also taking note of the

observations made above. Setting aside Annexure A3 we direct

the Senior Record Officer to forward the request of the applicant

for his second pension seeking condonation of qualifying service

thereof for his service in DSC, to the competent authority, within

a period of one month from the date of receipt of a copy of this

Order, and, such competent authority thereupon shall decide the

request in accordance with the statutory provisions taking note of

the observations made in this Order within a further period of

three months, communicating such order to the applicant.

9. The Original Application is partly allowed as above.

10. There will be no order as to costs.

11. Issue free copy of this order to both sides.

Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN, MEMBER (A) MEMBER (J) tm. /True Copy/

Prl. Private Secretary