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PETITIONER: UNION OF INDIAN & ORS.

       Vs.

RESPONDENT: LT. COL. P. S. BHARGAVA

DATE OF JUDGMENT:       10/01/1997

BENCH: J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      KIRPAL, J.      In this  appeal, from the judgment of the Guwahati High Court,  the  question  of  law  requiring  consideration  is whether an army officer, who has earned pensionary and other retirement benefits,  must forfeit the same on his resigning the job from the Army.      The respondent  joined the  Army Dental corps sometimes in the  year 1960.  He was  given grading  in Army  in 1962. Thereafter  he   served  in  different  capacities  and  was classified as a specialist and had been promoted to the rank of Lt.  Colonel. On  2.1.1984 the  respondent wrote a letter requesting for  permission to resign from the service w.e.f. 30.4.1984 or  from an  early date. The said letter contained the reasons  why he  wanted to  resign. The said resignation was accepted  by communication  dated 24.7.1984  in which it was stated  that the  respondent shall stand relieved of all army duties  as early  as  possible,  but  not  latter  than 24.8.1984. In  this  latter,  it  was  also  mentioned  that consequent upon  his resignation the respondent shall not be entitled to gratuity, pension, leave pending resignation and travel concession.      On the  receipt of the aforesaid letter, the respondent wrote a  letter dated  18.8.1984 stating  that  he  was  not interested in  leaving the  service. This was followed by an another letter dated 22.8.1984 wherein the respondent prayed for cancellation of permission to resign. It was also stated therein  that   if  it  was  not  possible  to  cancel  such permission, then his application may be treated as being one for  release/pre-mature   retirement.  These   letters  were presumably written  because the  respondent realised that he was  being   deprived  of   pension,  gratuity   etc.  as  a consequence of  his resignation.  The  respondent’s  letters dated 18.8.1984  and 22.8.1984  were not  accepted  and  the respondent was "struck off" the strength on 24.8.1984.      The respondent  soon  after  writing  of  letter  dated 22.8.1984, filed  a writ petition in the Guwahati High Court being Civil  Rule No.  570 of  1984. The  relief  which  was sought in  that Civil Rule related only to the acceptance of his resignation.  Two contentions were urged before the High

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Court which were (1) the resignation was not accepted by the competent  authority   and  as   such  the   acceptance   of resignation could  not be  given effect  to  and:  (ii)  the letter of  withdrawal should  have been  considered  by  the authority and  the petitioner  ought to have been allowed to withdraw the  letter seeking the permission for resignation. This writ petition was, however, rejected.      The respondent  then filed  a fresh writ petition being Civil Rule  No. 1994  of 1986 in which it was contended that he should  not be deprived of pension and other benefits. It was contended that the pension was not a matter of grace and as he  had completed the qualifying service, he was entitled to the pensionary and other benefits.      The appellants,  in its  reply before  the High  Court, relief upon a letter dated 25.4.1981 of the Army Headquarter in which  it was,  inter alia. stated that if an officer was permitted to  resign his  commission, then  he would  not be entitled to  any terminal benefits such as pension, gratuity and leave pending resignation.      The  Guwahati   High  Court  vide  its  judgment  dated 25.4.1987 came to the conclusion that it was unreasonable to deny terminal  benefits like pension in cases of resignation where prior  permission was  necessary  to  resign.  Without striking down  the contents  of the  aforesaid letter  dated 25.4.1981 it  came to the conclusion that the conduct of the respondent showed that he did not intend to lose his pension and other terminal benefits. It held that the aforesaid Army Headquarter’s letter,  containing the provision of automatic forfeiture of  pensionary and  other  benefits  in  case  of resignation, did  not appear to be reasonable and could not, therefore, be  given  effect  to.  In  this  connection,  it observed that  "as validity  of this  provision has not been challenged in  the present  proceeding, we  are leaving  the matter  only  by  saying  that  we  are  not  enforcing  the provision". The  High Court,  accordingly, allowed  the writ petition  and   directed  the   appellants  herein  to  make available to  the respondent  all  the  admissible  terminal benefits.      On the  day the  judgment was pronounced, a request was made for  a certificate  to leave to this Court. This prayer was rejected.  Thereafter the  High Court  suo moto by order dated 30.4.1987 issued a certificate under Article 134 A (a) of the  Constitution observing  that this was a fit case for appeal  to   this  Court   under  Article   133(1)  of   the Constitution. Hence, this appeal.      It has  been first  sought to be contended on behalf of the appellant  that the second writ petition should not have been entertained  by the  Guwahati High  Court  because  the respondent had earlier filed a writ petition challenging the acceptance of his resignation but had not claimed any relief with regard  to the terminal benefits. It is fairly conceded by Mr.  Goswami, the learned counsel for the appellant, that this contention was not raised before the High Court and, in our opinion,  it will  not be proper, at this late stage, to allow the  Union of  India to  raise the  contention in this appeal for the first time.      It was  then submitted  on behalf of the appellant that according to the aforesaid letter dated 25.4.1981, there was an automatic  forfeiture of  the terminal  benefits  on  the resignation of  the respondent  having been accepted and the High Court erred in granting relief to the respondent.      It will  be appropriate, at this stage, to refer to the provisions regarding the grant of terminal benefits to which our attention  has been invited. The grant of pension to the army personnel  is governed  by "Pension Regulations for the

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Army"   (hereinafter    referred   to   as   "the   Pensions Regulations"). These  Regulations have been issued under the authority of  the Government of Indian and they apply to the personnel of  Regular Army,  the Defence  Security Corps and the Territorial Army.      Regulation 22 of the Pension Regulations relates to the grant of pension and is as under:      "An  officer  permitted  to  retire      from  service   may  be  granted  a      retiring  pension  or  gratuity  in      accordance with  the regulations in      this  chapter,   provided  that   a      retiring gratuity may be granted at      the  discretion  of  the  President      only in  an exceptional  case to an      officer who  is permitted to retire      or  whose   service  are  otherwise      terminated  after   completing  the      minimum qualifying service".      Regulation 25  provides for  the qualifying service and is in the following terms:      "25(a)  The   minimum   period   of      qualifying service  required for  a      retiring pension  is 20  years  (15      years in the case of a late entrant      see regulation  15). Only completed      years of  qualifying service  shall      count.      (b)   The    minimum   period    of      qualifying service  for a  retiring      gratuity shall be 10 years.      The service which qualifies for pension is provided for in  Regulations 26. Regulation 38 provides that "All service which qualifies  in full for retiring pension also qualifies for gratuity and on the same conditions      It would  appear from the aforesaid Regulations that on the completion  of the  qualifying service, an officer, like the  respondent,  would  be  entitled  to  get  pension  and gratuity.  The   Regulations,   however,   contained   three provisions which  specifically provide  for situations where full amount  of pensionary benefits need not be given. These are Regulations 3.4 and 16 which read as under:      (3) The  full rate  of  pension  or      gratuity  provided   for  in  these      Regulations shall  not  be  granted      unless  the  service  rendered  has      been satisfactory.  If the  service      has  not   been  satisfactory,  the      competent authority  may make  such      reduction in  the amount of pension      or gratuity as it thinks proper.      (4) Future  good conduct shall bean      implied condition of every grant of      a pension or allowance.      (16)(a) When  an officer who has to      his credit  the minimum  period  of      qualifying service required to earn      a   pension,    is   cashiered   or      dismissed  or   removed  from   the      service, his/her  pension  may,  at      the discretion of the President, be      either forfeited or be granted at a      rate not  exceeding that  for which      he/she   would    have    otherwise      qualified, had  he/she  retired  on

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    the same date.      (b) When  an  officer  who  has  to      his/her credit  the minimum  period      of qualifying  service required  to      earn a  pension is  called upon  to      retire or to resign or in the event      of his/her  refusing to  do  so  is      retired from or gazetted out of the      service,   he/she    may   at   the      discretion  of   the  President  be      granted a  pension at  a  rate  not      exceeding  that  for  which  he/she      would have otherwise qualified, had      he/she retired  on the same date in      the normal manner."      The  mere  perusal  of  Regulation  3  shows  that  the competent authority  may make  a reduction  in the amount of pension  or   gratuity  if   the  service   has   not   been satisfactory. The  reading of  this Regulation clearly shows that normally  full rate  of pension  of gratuity  is to  be granted  unless   the  service  which  is  rendered  is  not satisfactory. It  is not  the case of the appellant that the respondent’s service  was not  satisfactory.  Therefore,  no reduction of  pension or  gratuity under  Regulation 3 could have been ordered.      Regulation 4  makes it  a condition  for the  grant  of pension or allowance that the conduct of the officer must be good. There  is  no  suggestion  that  the  conduct  of  the respondent was  such as  to  deprive  him  of  the  terminal benefits under Regulation 4.      Regulation 16(a)  gives the  President the power either to forfeit  or to reduce the rate of pension in the event of an officer  being cashiered,  dismissed or  removed from the service. Under  sub-regulation (b)  of Regulation  16, if an officer is  called upon  to retire  on resign, he may at the discretion of  the President  be granted a pension at a rate not  exceeding  what  he  would  have  otherwise  qualified. Regulation to  gives the power to the President to reduce or forfeit the  pension of an officer who has to his credit the minimum period  of qualifying  service only  in the event of his being  cashiered, dismissed or removed from the service. Even  in   such  a   circumstance,  there  is  no  automatic forfeiture of  pension or gratuity. An officer whose service is terminated by reason of his being cashiered, dismissed or removed from  the service  would normally be entitled to get his pension  though the  President has a right to forfeit or reduce the pension.      Regulation 16  does  not  cover  a  case  of  voluntary resignation. Regulation  16(b) does refer to a case where an officer  who  has  to  his  credit  the  minimum  period  of qualifying service being called upon to resign whose pension can be reduced. Had the Regulation intended to take away the right of  a person to the terminal benefits on his voluntary resigning, then  a specific  provision similar to Regulation 16(b) would  have been  incorporated in  the Regulations but this has not bee done. Once an officer has to his credit the minimum period  of qualifying  service, he  earns a right to get pension  and as the Regulations stand, that right can be taken away  only if an order is passed under Regulation 3 or 16. The  cases of  voluntary resignations  of officers,  who have to  their  credit  the  minimum  period  of  qualifying service are  not  covered  by  these  two  Regulations  and, therefore, such  officers, who  voluntary resign,  cannot be automatically deprived of the terminal benefits.

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    The letter  of 25.4.1981 issued by the Army Headquarter does state  that pensionary  benefits will  be  lost  if  an officer resign from service, but it has not been shown to us that this  latter, in  any way,  supersedes or  purports  to amend or  modify the  aforesaid Regulations.  In view of the specific right  of pensionary benefits having granted by the said Regulations no effect need be given to the letter dated 25.4.1981.      In our  opinion, the  decision of  the High Court under appeal, whereby  the writ  petition filed  by the respondent had been  allowed, calls for no interference. The appeal is, accordingly, dismissed  with costs.  Counsel for Rs. 5,000/- (Rupees Five Thousand only).