Shish Ram vs Union Of India And Ors

Shish Ram ... Appellant

Versus

Union of India & Ors. ... Respondents

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article 136 of

the Constitution against the judgment dated 22.11.2004 of the

Delhi High Court in Writ Petition (Civil) No.5580 of 2000 (for

short `the impugned judgment').

2. The facts very briefly are that the appellant was

enrolled in the Army on 28.01.1963. As per the terms

of his enrolment, he was to put in not less than ten

years in Army Service and if required, a further period

in Reserve Service which would be sufficient to

complete a total period of twenty years of service. After

he completed more than ten years of Army Service, he

was transferred to the reserve establishment with effect

from 24.07.1974. While in the reserve establishment,

he was required to attend reservist training held from

time to time. He attended the biennial reservist

training for the year 1976. An intimation dated

20.01.1978 was sent to him to attend the biennial

reservist training from 05.06.1978 to 02.07.1978 but

he failed to attend the reservist training. He was given

another chance and was advised to attend the reservist

training with the next batch from 19.06.1978 by an

intimation dated 16.05.1978 and yet he did not attend

the reservist training. On coming to learn that the

appellant was employed as a driver in the Delhi

Transport Corporation, letters were sent to the

appellant as well as the Depot Manager of the Delhi

Transport Corporation for furnishing the required

exemption certificate exempting him from the training

during 1978, but there was no response to the letters.

Consequently, the appellant was declared as a deserter

with effect from 19.06.1978 and was eventually

dismissed from service with effect from 20.10.1981.

3. The appellant filed Writ Petition (C) 1294 of 1997 which

was disposed of by the High Court with a direction to

the authorities to consider the representation of the

appellant with liberty to the appellant to file a fresh writ

petition in case he is aggrieved. After the

representation of the appellant was rejected, the

appellant filed Writ Petition (C) No.2728 of 1997 which

was also disposed of by the High Court on 28.04.2000

granting permission to the appellant to withdraw the

writ petition and to challenge the order of dismissal.

Thereafter, the appellant filed Writ Petition (C) No.5580

of 2000 challenging the order of dismissal and claiming

pension and by the impugned judgment the High Court

has dismissed the writ petition.

4. Mr. S. M. Hooda, learned counsel for the appellant,

submitted that the appellant has been dismissed from

service by the brigade commander who had no

authority to dismiss the appellant from service.

According to him, the authority who could dismiss the

appellant was the officer-in-charge of the reservists. In

support of this submission, he relied on Regulation 206

of the Defence Services Regulations, 1961. Mr. Hooda

next submitted that in any case since the appellant had

put in service during the period from 21.01.1963 to

27.01.1978, he was entitled to pension and gratuity but

pension and gratuity had been denied to the appellant.

5. Mr. R. Balasubramaniam, learned counsel for the

respondents, on the other hand, submitted that the

authority to dismiss the appellant from service is the

brigade commander and this should be clear from

Section 20(3) of the Army Act, 1950. He submitted that

the appellant has in fact been dismissed by the brigade

commander. Regarding pension, he submitted that

Regulation 113(a) of the Pension Regulations, 1961

clearly provided that an individual, who is dismissed

under the provisions of the Army Act, is ineligible for

pension and gratuity in respect of all previous service.

He submitted that as the appellant has been dismissed

under the provisions of the Army Act, he was ineligible

for pension and gratuity in respect of his previous

service.

6. Sub-section (3) of Section 20 of the Army Act, 1950

and Regulation 206 of the Defence Services

Regulations, 1961 are quoted hereinbelow:

"Section 20 - Dismissal, removal or reduction

by the Chief of the Army Staff and by other

officers-

(3).An officer having power not less than a

brigade or equivalent commander or any

prescribed officer may dismiss or remove from

the service any person serving under his

command other than an officer or a junior

commissioned officer."

"Regulation 206. Responsibility for effecting

transfer to the reserve-OsC reservists are

responsible for maintaining the establishment

of reservists in accordance with the quota laid

down by Army headquarters. Transfers to the

reserve will be effected by OsC units in

consultation with OsC reservists or Officer-in-

Charge records. Once a man has been

transferred to the reserve, he comes under the

administration and disciplinary orders of the

OC reservists."

7. A reading of Regulation 206 of the Defence Services

Regulations, 1961, on which the learned counsel for the

appellant has relied upon, would show that a man, who

has been transferred to the reserve, comes under the

administration and disciplinary orders of the Officer-in-

Charge reservists. There is no mention in Regulation

206 that the Officer-in-Charge reservists has the power

to either remove or dismiss a reservist from service. A

plain reading of sub-section (3) of Section 20 of the

Army Act quoted above, on the other hand, would show

that an officer having power not less than a brigade or

equivalent commander or any prescribed officer may

dismiss or remove from the service any person serving

under his command other than an officer or a junior

commissioned officer. Regulation 206 cannot take

away the power vested under the Army Act in the

brigade commander to dismiss or remove any person

working under him. We, therefore, hold that the High

Court rightly held in the impugned judgment that the

brigade commander had the power to dismiss the

appellant from service.

8. Regarding pension and gratuity claimed by the

appellant, Regulation 113 (a) of the Pension

Regulations, 1961 is quoted hereinbelow:

"An individual, who is dismissed under the

provisions of the Army Act, is ineligible for

pension or gratuity in respect of all previous

service. In exceptional cases, however, he may,

at the discretion of the President be granted

service pension or gratuity at a rate not

exceeding that for which he would have

otherwise qualified had be been discharged on

the same date."

Regulation 113(a) is clear that an individual, who is

dismissed under the provisions of the Army Act, is

ineligible for pension or gratuity in respect of all previous

service. As the appellant had been dismissed from the

service under the provisions of the Army Act, he was not

eligible for pension and gratuity and the High Court was

right in rejecting the claim of the appellant for pension in

the impugned judgment.

9. We, therefore, do not find any merit in this appeal and

we, accordingly, dismiss the same with no order as to

costs.

.............................J.

(P.

Sathasivam)

.............................J.

(A. K.

Patnaik)

New Delhi,

November 23, 2011.