OA 83 of 2012 decision of AFT Chennai in Non-Pensioner Case

The Indian Navy has filed an Appeal before the Supreme Court to deny pension to those sailors who joined the Indian Navy at young age, got well trained and then fought 1971 war.

Wah, what a attitude of Indian Navy towards those who fought wars. Wah India ? Wah ?

Click Here to read PDF file >>>>>01- OA-83of12_3_2_2

IN Ships

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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI
O.A.No.83 of 2012
Monday, the 22nd day of April, 2013
THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH
(MEMBER – JUDICIAL)
AND
THE HONOURABLE LT GEN (RETD) ANAND MOHAN VERMA
(MEMBER – ADMINISTRATIVE)
1. Soundirarajan Ramadas, aged 61 years *
(Ex L/TEL. No.93168 of Indian Navy),
S/o. Soundira Rajan,
No.34, Main Road, Deva Nagar,
Reddiyar Palayam,
Pondicherry-605 010.
2. Perianan Chandra Vasantha Singh, aged 61 years
(Ex L/TE, No 93195 of Indian Navy),
S/o. Late. M. Perianannan,
No.27, J.K. Tower, 3rd Floor,
77/27, 7th Avenue, Ashok Nagar,
Chennai-600 083.
3. Srinivasan Ananthakrishnan, aged 61 years
(Ex L/TEL, No.93199 of Indian Navy)
No.1, Kamarajar Street (Near Theruveethi Amman Koil St),
Vanchuvancheri, Padappai Post,
Chennai-601 301.
… Applicants
(*Corrected as per order of this Hon’ble Tribunal dated 12.4.2013 made in
M.A.No.36 of 2013)
By Legal Practitioner:
Mr. V.K. Sathyanathan
Vs.
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1. Union of India,
Represented by its Secretary,
Ministry of Defence,
South Block,
New Delhi-110011.
2. The Chief of the Naval Staff,
Integrated Head Quarters,
Ministry of Defence (Navy),
New Delhi-110 011.
3. The Commodore,
Bureau of Sailors,
Cheetah Camp, Mankhurd,
Mumbai-400 088.
4. The Principal Controller of Defence Accounts (Navy),
Pension Cell,
Mumbai.
… Respondents
By Mr.B.Shanthakumar, SPC
ORDER
(Order of the Tribunal made by
Hon’ble Justice V.Periya Karuppiah, Member-Judicial)
1. This application has been filed by the applicants jointly for the reliefs
that Annexures A7 to A9 relating to the applicants respectively are liable to
be quashed and to issue a declaration that the applicants are entitled to
reservist pension or special pension and to sanction the eligible pension to
the applicants and to direct the respondents to pay the same with arrears
from the date it has become due with interest @ 18% p.a. and for costs.
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2. The case of the applicants as stated in the application would be as
follows :-
Applicants are Ex-Servicemen discharged from Indian Navy. They
were enrolled in the Indian Navy for an initial engagement of 10 years in
regular service and 10 years in fleet reserve. As per the conditions of the
enrollment, the applicants were to be in reserve for 10 years after their
discharge from active service. The 1st applicant joined on 16.6.1967; the 2nd
applicant joined on 18.6.1967, and the 3rd applicant joined on 18.6.1967 in
the boy service, and for all the applicants the engagement counted from
9.11.1968 for 10 years of active service, and from 9.11.1978 to 8.11.1988
towards fleet reserve service. The applicants bravely participated in the war
during 1971 and they were discharged from regular service on 30.11.1978
as per their engagement. The Certificate of service of the applicants have
been produced as Annexures A1 to A3 respectively. According to Regulation
92 of Pension Regulations for the Navy, 1964, a sailor who has 10 years of
active service and 10 years of fleet service is entitled to reservist pension.
However the applicants were not granted reservist pension. Identically
situated defence personnel have received the reservist pension after filing
petition before Hon’bleDefence Minister as per the direction of Hon’ble High
Courts and Tribunals, but the requests of the applicants were not considered
for the grant of reservist pension. The representation of the 1st applicant
dated 19.5.2012 (Annexure A4), the representation of the 2nd applicant
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dated 18.5.2012 (Annexure A5) and the representation of the 3rd applicant
dated Nil April, 2012 (Annexure A6) were submitted to the Defence Minister
endorsing copies to the 2nd and 3rd respondents. To their dismay, the
applicants received orders from the 3rd respondent rejecting their request for
reservist pension which are produced as Annexures A7 to A9. In the said
orders, it has been mentioned that the applicants were not drafted to fleet
reserve service as per the policy of the Government and, therefore, they
were not found entitled to reservist pension. The said reason given by the
Government of India is not sustainable in view of the doctrine of promissory
estoppel. The Government having engaged the services of the applicants,
10 years for active service and 10 years for fleet service, it cannot go back
and unilaterally change the conditions of service to the detriment of the
applicants’ interest. The law is well settled by the Hon’ble Supreme Court of
India and the Principal Bench of Armed Forces Tribunal, New Delhi, that the
respondents are promissorily estopped from withdrawing the benefits
entered at the time of engagement of service.
3. Even otherwise, the applicants are entitled to special pension as per
Regulation-95 of Pension Regulations for the Navy, 1964, since the
Government had failed to transfer or draft the applicants to the reserve fleet
service due to Government policy and in such circumstance, the applicants
are entitled to special pension as per Regulation-95 of Pension Regulations
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for the Navy, 1964. The applicants are entitled to reservist pension and in
case, no reservist pension is payable to them since the applicants were not
transferred to fleet reserve as per Government policy, they would be entitled
to special pension. Therefore, the rejection orders passed by the
respondents against the claim of the applicants in Annexures A7 to A9 may
be quashed and the applicants may be declared entitled to reservist pension
or special pension as the case may be with a direction to the respondents to
pay the arrears within time with interest @ 18% p.a. and costs.
4. The case of the respondents as stated in the Affidavit in lieu of Reply
Statement, would be as follows :-
The application filed by the applicants is neither maintainable on facts
nor on law, especially under Section-21 of the Armed Forces Tribunal Act, as
the applicants have not availed the remedies under the Indian Navy Act.
They ought to have resorted to the remedies under Section-162 of the Navy
Act, 1967, and thereafter to approach this Tribunal. The applicants 1 and 2
had joined the Navy respectively on 16.6.1967 and 18.6.1967 in boy service
and were discharged on 30.11.1978 on expiry of engagement on completion
of 11 years 168 days of service. Similarly, the 3rd applicant joined naval
service on 18.6.1967 and was discharged on 30.11.1978, after completion of
11 years 166 days of service. The applicants were not drafted to fleet
reserve service, since drafting to fleets reserve was discontinued with effect
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from 3.7.1976 vide G.O.I. letter AD/5374/2/78/2214/S/D/N-II) dated
3.7.1976. According to the said letter, drafting to fleet reserve service was
dropped and there was no such policy in vogue in 1978. When the
applicants were not drafted to reserve fleet service, they would not be
considered in fleet reserve and, therefore, they would not get any
pensionary benefit as the qualifying service period would not enure them to
15 years’ service. The applicants were paid terminal benefits, namely DCRG
and Service Gratuity as per their entitlement at that time. The applicants
were discharged on expiry of initial engagement period of 10 years in 1978
without drafting them to fleet reserve and, therefore, they were not eligible
for reservist pension. When the applicants were not drafted to fleet reserve,
they cannot claim the reservist pension since no man can claim joining the
fleet reserve as of right. The Regional Bench of Armed Forces Tribunal,
Kochi, in O.A.No.84/2010 dated 16.5.2011 laid down a principle that a
sailor, after his active service, should be drafted to fleet service and it is not
an automatic re-enrolment into the service and the drafting of any sailor
ought to have been done as per the policy of Government.
5. Similarly the grant of special pension is at the discretion of the Central
Government where the discharge of the sailors is in large numbers in
pursuance of the Government’s policy of reducing the strength. In the
absence of showing that the applicants were discharged in large numbers in
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pursuance of Government’s policy of reducing strength, the special pension
cannot be granted. The applicants had completed the initial engagement of
10 years and, therefore, they will not fall under the category described in
Regulation-95 of Pension Regulations for the Navy, 1964. The applicants did
not complete 15 years of active service and, therefore, they are not eligible
for the grant of service pension in accordance with Regulation-78 of the
Pension Regulations for the Navy, 1964. Therefore, the applicants are not
entitled to any relief sought for by them and the application may be
dismissed.
6. On the above pleadings, the following points are found emerged for
consideration :-
1) Whether the orders of rejection dated 27.6.2012 and 6.7.2012,
made in Annexures A7 to A9 respectively against the applicants
1 to 3, are liable to be set aside ?
2) Whether the applicants are each entitled to the payment of
reservist pension under Regulation-92 of the Pension Regulations
for the Navy, 1964 ?
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3) Whether the applicants 1 to 3 are each entitled to special
pension under Regulation-95 of Pension Regulations for the
Navy, 1964 ?
4) To what relief the applicants are entitled for ?
7. Heard Mr. V.K. Sathyanathan, the Learned Counsel for the applicants
and Mr. B. Shanthakumar, the Learned Senior Panel Counsel, assisted by Mr.
Vaibhav Kumar, JAG Officer, appearing for the respondents.
8. The Learned Counsel for the applicants would submit in his argument
that the case of the applicants are similar and, therefore, they have opted to
file a joint petition on the separate causes of action of the applicants. He
would also submit that this Hon’ble Tribunal had permitted to join the causes
of action and to file a single application. He would also submit that all the
three applicants were enrolled in Indian Navy in boy service on 16.6.1967
and 18.6.1967 respectively and were engaged for 10 years active service
commencing from 9.11.1968 and 10 years fleet reserve service commencing
from 9.11.1978 and the Certificate of service of the applicants produced in
Annexures A1 to A3 would establish the same and the respondents cannot
unilaterally leave the applicants without drafting them to fleet reserve
service as they are promissorily estopped by their original act. He would
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further submit that the Policy of the Government in its letter dated 3.7.1976
that the sailors in active service shall not herein after be drafted to fleet
reserve service would not bind the applicants as per the doctrine of
“promissory estoppel”. He would draw our attention to a Judgement of
Armed Forces Tribunal, Principal Bench, New Delhi, in T.A.No.564/2010 for
the applicability of the principle of promissory estoppel. He would also draw
the attention of this Tribunal to another Judgement of Regional Bench,
Kochi, made in T.A.No.166/2010 for the similar principle. Relying upon
those decisions, he would insist in his arguments that the respondents
cannot act in pursuance of any policy letter de-limiting the contract of
engagement of service of the applicants entered with the Government at the
time of their enrolment in the Indian Navy Service. He would rely upon the
Certificate of service of the applicants produced at Annexures A1 to A3 in
which the period of engagement has been clearly admitted by the
respondents as 10 years for colour service and 10 years for reserve service.
Therefore, the letter dated 3.7.1976 limiting the applicants fleet reserve
service is not valid in law. He would also submit that the said letter dated
3.7.1976 quoting the policy of the Government to limit the fleet reserve
service of the sailors, has not been produced by the respondents. He would
also submit that the applicants are entitled to the benefit of reserve service
even though they were not drafted by the Government to fleet reserve
service. Therefore, he would argue that the provisions of Regulation-92 of
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Pension Regulations for the Navy, 1964, would apply to the applicants, being
sailors, enabling them to get reservist pension. The claim of the applicants
for payment of reservist pension were wrongly rejected by the respondents
in Annexures A7 to A9 and the reasons mentioned in those orders are not
sustainable in law and the applicants may, therefore, be granted with
reservist pension.
9. He would also submit that even if the policy of the Government to
withdraw the drafting of the sailors to fleet reserve as per the letter dated
3.7.1976 is correct, the applicants should have been deemed as not
transferred to fleet reserve and are discharged in large numbers in
pursuance of the Government policy reducing the strength of establishment
of the Indian Navy or towards its re-organisation. He would submit that the
applicants would, therefore, be entitled to a special pension as contemplated
under Regulation-95 of Pension Regulations for the Navy, 1964. In any way,
the applicants are entitled to either reservist pension or special pension
payable by the respondents for the service rendered by the applicants to the
Indian Navy and the appropriate pension may be ordered to the applicants
from the date of entitlement with 18% interest and costs.
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10. The Learned Senior Panel Counsel would submit in his argument that
the application filed by the applicants is not maintainable since they did not
exhaust the remedy available under Section-162 of the Navy Act and,
therefore, the present application is not maintainable. He would also submit
that even if the application is maintainable, the applicants are not entitled to
reservist pension since they were not drafted to fleet reserve while they
were discharged from active service as per the Policy letter of the
Government dated 3.7.1976. It is the dictum of Kochi Regional Bench that a
sailor ought to have been drafted to the fleet reserve while he was
discharged from active service in order to count the service in reserve fleet.
Therefore, he would submit that the applicants cannot be considered as
continuing the fleet reserve service automatically without any drafting to the
said service. He would also submit that Regulation-92 of Pension
Regulations for the Navy, 1964 is, therefore, not applicable to the applicants
and they are not eligible for the reservist pension. As far as the special
pension under Regulation-95 of the Pension Regulations for the Navy, 1964
is concerned, he would argue that the applicants would not be attracted by
Regulation-95 since the policy of the Government should have been made
for discharge of sailors in order to reduce the strength of sailors or the
reduction should have been for the purpose of re-organisaton of the fleet.
He would, therefore, submit that the applicants are not entitled to special
pension on the basis of their non-drafting into fleet reserve only, which was
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done in pursuance of 3.7.1976 policy letter. He would also submit that the
said Policy letter was not intended to reduce the strength of the fleet nor to
re-organise the fleet. Therefore, the applicants are not entitled to special
pension also. He would also submit that the applicants have come forward
with the present case after a long delay. The delay and laches on the part of
the applicants would also disentitle them from the payment of any pension,
even if they are deserved.
11. We have given anxious thoughts to the arguments advanced on either
side.
12. Points No.1 & 2: The indisputable facts are that the applicants 1 to 3
were enrolled in Indian Navy on 16.6.1967, 18.6.1967 and 18.6.1967 in boy
service and were discharged on 30.11.1978 on the expiry of engagement
after completion of 11 years 168 days for applicants 1 and 2, and 11 years
166 days for the 3rd applicant. They were admittedly not drafted to fleet
reserve as seen from the Certificate of service of the applicants. They were
admittedly enrolled for 10 years from 9.11.1968 in active service and 10
years from 9.11.1978 in fleet reserve service. Annexures A1 to A3 produced
in respect of the applicants 1 to 3 respectively would categorically go to
show that the original engagement of service would contain 10 years active
service and 10 years fleet reserve for all the three applicants. The only point
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raised by the respondents is that the applicants were not drafted to fleet
reserve a per the Policy letter of the Government dated 3.7.1976. The
rejection orders passed by the respondents in Annexures A7 to A9 would
also quote that the applicants were not drafted to fleet reserve as no such
claim existed at the time of their discharge. The respondents have now
come forward with the support of a Judgement of Regional Bench, Kochi, for
the principle that a person ought to have been drafted to fleet reserve
service for the purpose of getting the benefit of reservist pension. However,
it was argued by the Learned Counsel for the applicants that the
respondents are promissorily estopped from raising such plea of not drafting
to fleet reserve and from discharging the applicants from the service. While
considering the submission of the Learned Counsel for the applicants, we
could see from the Certificate of service of the applicants that the active
service and fleet service were entered for 10 years each. Whether the said
period of engagement can be curtailed by the respondents? Or, are the
respondents estopped from doing so as contended.
The Judgement of Armed Forces Tribunal, Principal Bench, New Delhi,
made in T.A.No.564/2010 would lay down the following principle :-
“The Principle of Promissory Estoppel which has been
evolved by Indian Courts in passage of time have been
crystalised in various decisions of the Supreme Court. The first
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case in line is that of Union of India V. Anglo (Indo) –
Afghan Agencies Ltd. (AIR 1968 SC 178). Subsuequently
the various decisions have come, but there is another landmark
decision in the case of Motilal Padampat Sugar Mills V. State
of Uttar Pradesh (AIR 1979 SC 621). The Lordship
Bhagwati J. has summed up the principle which reads as
under:
“….where one party has by his words or conduct made to
the other a clear and unequivocal promise which is
intended to create legal relations or affect a legal
relationship to rise in the future, knowing or intending that
it would be acted upon by the other party to whom the
promise is made and it is in fact so acted upon by the
other party, the promise would be binding on the party
making it and he would not be entitled to do back upon it,
if it would be inequitable to allow him to do so having
reagard to the dealings which have taken place between
the parties, and this would be so irrespective whether
there is any pre-existing relationship between the parties
or not.”
The Lordship has further observed that :
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“It is elementary that in a republic governed by the
rule of law, no one, howsoever high or low, is above the
law. Everyone is subject to the law as fully and completely
as any other and the Government is no exception. It is
indeed the pride of constitutional democracy and rule of
law that the Government stands on the same footing as a
private individual insofar as the obligation of the law is
concerned: the former is equally bound as the latter. It is
indeed difficult to see on what principle can a Government,
committed to the rule of law, claim immunity from the
doctrine of promissory estoppels? Can the Government
say that it is under no obligation to act in a manner that is
fair and just or that it is not bound by considerations of
“honesty and good faith?”. Why should the Government
not be held to a high “standard of rectilinear rectitude
while dealing with its citizen?”
Therefore, the principle of equitable promissory estoppel
binds the government to stand by their promise and not to be
unfair and act in the disadvantage of other party.
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13. In the aforesaid Judgement, the Principal Bench of New Delhi, had
considered several land mark Judgements of Hon’ble Apex Court and had
come to the conclusion that the principle of equitable promissory estoppel
binds the Government to stand by their original promise and not to be unfair
and act in the disadvantage of other party.
The said Judgement of Principal Bench was followed by Regional Bench
of Kochi in O.A.No.71/2011 dated 17.1.2013, which runs as follows :-
“Had the discharge been due to any fault of the applicant,
or any charge or misconduct levelled against him, he could not
claim any type of pension including Reservist Pension. But, no
such condition existed, therefore, according to the promises
made by the respondents at the time of engagement, the
applicant was made to understand that he was to serve the
Army for 15 years in the aforesaid manner. Therefore, he cannot
be denied the benefit of 15 years after a gap of more than 9
years on the ground that there was no vacancy in the reserve. In
our considered view, the doctrine of promissory estoppel is fully
attracted in the present matter.
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14. Yet another Judgement of Regional Bench, Kochi, made in
T.A.No.166/2010 was relied upon by the applicants. The relevant passage
would runs thus :-
“Under such circumstances, the discharge of the applicant
after he had completed the colour service of 10 years, 3 months
and 20 days and after entering into a contract of engagement
(Ext.R1) with the applicant for both 10 years colour service and
5 years reserve service does not open to the respondent to go
back from its promise under Ext.R1 and that the discharge of the
applicant on the ground that there is no vacancy in the reserve
service cannot be a ground to deny reservist pension as laid
down under Rule 155 of the Pension Regulation for the Army,
1961 (Part I). So, under such circumstances, we are of the
considered view that the impugned order denying reservist
pension is liable to be set aside and the same is hereby set aside
and that the applicant is consequently held entitled to the
reservist pension. The point is answered accordinglyl.”
15. The aforesaid Judgements would categorically lay down that the
Government cannot go back on its words or conduct so as to withdraw from
its original promise, where such words conduct of the Government and the
original promise give rise to or create legal relations. In this case, the
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applicants, in their original engagement of service, were enrolled as sailors
10 years active service and 10 years fleet reserve service. After completion
of the active service, the Government cannot withdraw its promise for the
applicants continuing in fleet reserve service, to the detriment and interests
of the applicants in the original engagement. The letter dated 3.7.1976,
under which the Government had come to the conclusion of not extending
the fleet reserve of the sailors would tantamount to withdrawing the promise
of the original engagement of service and the Government is, therefore,
equitably and promissorily estopped from doing so, as it would, of permitted,
violate the promise of the engagement of service entered with applicants.
The said letter dated 3.7.1976, has not been produced by the respondents.
Even the contents of the letter as stated by the respondents are taken to be
true, such a letter curtailing the right created under the engagement of
service in favour of the applicants cannot be taken back by the Government.
Therefore, the Judgement of Kochi Regional Bench as quoted by the
respondents, which has not been either produced or given particulars,
cannot be helpful to the respondents. Therefore, we are of the considered
view that the applicants, whose engagement of service were clearly referring
to 10 years active service from 9.11.1968 and 10 years fleet service from
9.11.1978, cannot be taken away by the respondents since they were
equitably and promissorily estopped from doing so. The applicants’ fleet
reserve service is deemed to be continuing for the reserve liability and they
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are entitled to count the service for getting the reservist pension. It was
faintly argued by the Learned Senior Panel Counsel that the impugned
orders would say that the applicants had received the DCRG and Service
Gratuity and they had elected to receive the same and, therefore, they
would not be entitled to reservist pension. It is no doubt true that the
applicants were not offered the payment of reservist pension at the time of
the grant of gratuity. The applicants were not given an option either to
receive the reservist pension or to receive the gratuity as contended by the
respondents. There was no occasion for the applicants to elect to receive
the gratuity and, therefore, the argument of the Learned Senior Panel
Counsel that the applicants since received gratuity are not entitled to
reservist pension, cannot be sustained. The applicants are thus found
entitled to reservist pension.
16. In view of our finding that the applicants are entitled for reservist
pension, the orders passed by the respondents denying the reservist pension
in Annexures A7 to A9 are liable to be set aside. The reasons stated in the
said orders were found not acceptable and, therefore, we do not hesitate to
set aside the said orders as not sustainable. For the foregoing discussions,
Points No.1 and 2 are decided in favour of the applicants.
17. Point No.3: The applicants have come forward with an alternative
prayer for payment of special pension, as the applicants were discharged by
virtue of a Policy letter dated 3.7.1976 and, therefore, the provisions of
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Regulation-95 of the Pension Regulations for the Navy, 1964, would be
squarely attracted. For the purpose of appreciating the contentions of the
applicants, Regulation-95 has to be extracted as below :-
“95. Special pension and gratuity to sailors – when
admissible
– A special pension or gratuity may be granted, at the discretion
of the Central Government, to sailors who are not transferred to
the reserve and are discharged in large numbers in pursuance of
Government’s policy –
(i) of reducing the strength of establishment of the Indian
Navy; or
(ii) of re-organisation, which results in paying off of any ships
or establishments.”
18. According to the said Regulation, a special pension can be granted at
the discretion of the Central Government to the sailors, who are not
transferred to the fleet reserve and are discharged in large numbers in
pursuance of Government’s policy of reducing the strength of establishment
or re-organising any ships or establishments which results in paying off.
Whether the letter dated 3.7.1976 would act as a mass reduction of strength
in the establishment or a ship or in the case of re-organising for want of
necessity is the question. The respondents did not produce the letter dated
3.7.1976 for the purpose of appreciating this point. Therefore, we have to
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presume that the said Policy letter dated 3.7.1976, was for the purpose of
reducing the strength of fleet reserve. When the non-drafting of the
applicants to the fleet reserve is deemed or found to be valid and the
applicants were not found entitled to the reservist pension, the claim that
they are entitled to special pension cannot be considered. The admission of
the respondents in their Affidavit that the applicants were not drafted to fleet
reserve would go to show that the letter dated 3.7.1976 is squarely
attracted under Regulation-95. Since the applicants were not admittededly
drafted despite their original engagement of service for active service for 10
years and fleet reserve for 10 years, the applicants will be entitled to the
grant of special pension as per Regulation-95 of Pension Regulations for the
Navy, 1964. Accordingly, we are inclined to decide this point in favour of
the applicants.
19. Point No.4: In points 1 and 2, we find that the applicants are entitled
to reservist pension. In Point No.3, the applicants are also found entitled to
special pension under Regulation-95 of Pension Regulations for the Navy,
1964. However, the applicants are entitled to any one of the pensions since
the grant of both the pensions are prohibited. The applicants have originally
asked for the reservist pension or in the alternative, for special pension
under Regulation-95. In the said circumstances, we are inclined to grant the
reservist pension in favour of the applicants.
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20. The argument advanced by the Learned Senior Panel Counsel for the
respondents would go to show that the applicants had not come to Court
after exhausting all the remedies under Section-21 of the Armed Forces
Tribunal, 2007. His argument would further go to show that the applicants
ought to have approached the competent authorities under Section-162 of
the Navy Act, 1967, to exhaust the remedies and thereafter to approach this
Tribunal. Per contra, the Learned Counsel for the applicants would submit
that there is no necessity for the applicants to approach the competent
authority under Section-162 of the Indian Navy Act, since the said provisions
are meant for the Court-martial proceedings. Section-162 runs thus :-
“162. Petitions to the Central Government or Chief of
the Naval Staff against findings of sentences.–Any person
subject to naval law who considers himself aggrieved by finding
or sentence of any court-martial may present a petition to the
Central Government or to the Chief of the Naval Staff, and the
Central Government or the Chief of the Naval Staff, as the case
may be, may pass such order thereon as may be thought fit.”
21. On a careful scrutiny of the said provision, we would find that the
argument of the Learned Counsel for the applicants to approach the
competent authority under Section-162 of Indian Navy Act, is not necessary
since the said provision is pertinent to the Court-martial proceedings.
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22. The further argument of the Learned Senior Panel Counsel is that the
application filed by the applicants is affected by delay and laches and the
claim would therefore be barred by the law of limitation. The said argument
of Learned Senior Panel Counsel cannot be sustained in view of the
principles laid down by the Judgement of Hon’ble Apex Court reported in
(2008) 8 SCC 648 between Union of India and others Vs. Tarsem
Singh. It has been laid down as follows :-
“To summarise, normally, a belated service related claim
will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation (where
remedy is sought by an application to the Administrative
Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service related claim is
based on a continuing wrong, relief can be granted even if there
is a long delay in seeking remedy, with reference to the date on
which the continuing wrong commenced, if such continuing
wrong creates a continuing source of injury. But there is an
exception to the exception. If the grievance is in respect of any
order or administrative decision which related to or affected
several others also, and if the re-opening of the issue would
affect the settled rights of third parties, then the claim will not
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be entertained. For example, if the issue relates to payment or
re-fixation of pay or pension, relief may be granted in spite of
delay as it does not affect the rights of third parties. But if the
claim involved issues relating to seniority or promotion etc.,
affecting others, delay would render the claim stale and doctrine
of laches/limitation will be applied. In so far as the
consequential relief of recovery of arrears for a past period, the
principles relating to recurring/successive wrongs will apply. As
a consequence, High Courts will restrict the consequential relief
relating to arrears normally to a period of three years prior to
the date of filing of the writ petition.”
23. According to the principle laid down by the Hon’ble Apex Court, the
claim for any pension has a recurring cause of action and, therefore, there
could not be any delay or laches or any bar over such claim owing to law of
limitation. The relief of entitlement to any pension is liable to be restricted
only to a period of three years prior to the date of filing of such claim. When
we apply the principle laid down by the Hon’ble Apex Court to the present
case, we could see that the applicants are entitled to the reservist pension
as sought for by them under the provisions of Regulation-92 of Pension
Regulations for the Navy, 1964, from three years prior to the filing of the
present application on 29.10.2012. Therefore, the applicants are entitled to
the reservist pension on and from 29.10.2009.
25
24. For the discussion held above, we are of the considered view that the
applicants are each entitled to the grant of reservist pension payable for a
period of three years prior to the filing of this application i.e. from
29.10.2009. The Service Gratuity and DCRG already paid to the applicants
are liable to be adjusted from the arrears.
25. Accordingly, the application is allowed in respect of reservist pension
as observed earlier. Time for preparation of Pension Payment Orders to the
applicants and the payment of arrears is three months from this date.
Failure to comply with the said order, the applicants are entitled to 9%
interest p.a. on the arrears till the date of its payment. However, there is no
order as to costs.
Sd/- Sd/-
JUSTICE V.PERIYA KARUPPIAH LT GEN (Retd) ANAND MOHAN VERMA
MEMBER (J) MEMBER (A)
22.4.2013
(True Copy)
Member (J) – Index : Yes / No Internet : Yes / No
Member (A) – Index : Yes / No Internet : Yes / No
NCS
26
To,
1. Union of India,
Represented by its Secretary,
Ministry of Defence,
South Block,
New Delhi-110011.
2. The Chief of the Naval Staff,
Integrated Head Quarters,
Ministry of Defence (Navy),
New Delhi-110 011.
3. The Commodore,
Bureau of Sailors,
Cheetah Camp, Mankhurd,
Mumbai-400 088.
4. The Principal Controller of Defence Accounts (Navy),
Pension Cell,
Mumbai.
5. Mr. V.K. Sathyanathan,
Counsel for applicant.
6. Mr.B.Shanthakumar,
Senior Panel Counsel
7. The Commanding Officer
(Liaison Officer for AFT),
INS Adayar, C/o. Navy Office,
Port Complex, Rajaji Salai,
Chennai-600 009.
8. Library, AFT, Chennai.
27
HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH
MEMBER (JUDICIAL)
AND
HON’BLE LT GEN (RETD) ANAND MOHAN VERMA
MEMBER (ADMINISTRATIVE)
O.A.No.83 of 2012
22.04.2013

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10 Comments

  • lingamlcl says:

    As Three of my batchmates received pension Indian navy can grant pension to similar cases quoting their Orders.It is all that is ”SABASH CIRCAR KA AUR MOTH SEPOY KA”.

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  • Dear all , Let me put a light on this Implementation of reservist pension issue. Scenario 1. Indian Navy. Scenario 2. Indian Airforce.
    Let us take Indian Navy first. Role player for Indian Navy : 1.Reservist Applicant 2.AFT 3.Indian Navy 4.Supreme Court. AFT chennai enforced immediate Award of reservist Pension to 3 respective applicant and Indian Navy agreed on conditional and Indian Navy appeal before Supreme Court to deny pension and avail such a long time to disprove claim.Indian Navy happy with that, and for the other applicant give reasons of excuses 1.Appeal awaited in Supreme Court and what ever the outcome shall be applicable for the similar applicants 2. All AFT with deferences and to whom Indian Navy will follow. This is what the super master mind game played by Indian Naval authorities. Please read the Airforce method on reservist pension.AIr Force on reservist pension do not challenge AFT, Do not challenge Supreme Court Orders on Award of pension to reservist , and do not step out for any appeal on Supreme Court on reservist pension and go for any dis-approval claim.Thorough Gentleman and Surrender.Only problem is that, all similar should come through AFT – Civil Court-Supreme Court and Applicant not entertained directly. Indian Airforce how do they go about on reservist pension. Role player for Indian Airforce : 1.Reservist Applicant 2.AFT /Civil Court 3.Air Force 3.Supreme Court. AFT from various region according to the AFTteam flexibility award grant of reservist pension to the applicant and through for example 10 applicant that is the end and the applicant receive all applicable entaitlement. If one AFTteam FAIL applicant and the applicant move to other favourable AFT team on other region AFT / or the failed applicant to await for AFT failing Team retire and the new team to take over and the FAIL applicant qualifies and have PASS ticket. Now the reappeared to be paid all dues from the date of previous application and award reservist pension.The Airforce Management was not bothered on this pattern and never moved to Supreme Court for any appeal to dis-prove. The recent Cpl.when his application failed in AFT he made an civil appeal in Supreme Court and Passed ( 9+ 6 ) 6 years of the reserve not utilised is the Air Force management fault and Waived.Awarded reservist pension without completion of 15years service. As usual Air Force management maintained As Gentleman. Indian Navy to remember Supreme Court waived left out period to complete 15 full years of service for Apprentices and the agreed initial agreement is good enough to qualify pension and awarded to all similarly placed in one-go. Simple Indian Navy fail to avail services to complete full 15 years.The expert committee aligned and ask the Services to action similarly placed 9+6years reserve for Air Force and 10+10years reserve for Indian Navy as the reserve periods are waived and pointed out to be mistake / deficiency in services system to fail to avail the services of reservist respective to complete required 15 full years. Who is responsible to close out ? When will be?

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  • Dear all, Let me have knowledge sharing. We all know Defence Minister Organised expert committee team analysed in-depth of services system and listed many item for corrective action. All the correctives were INCIDENT- POTENTIAL SEVIORITY VERY HIGH as all items identified PEOPLE related and not closed out.If you rate from external do you think our country they rate First- Second -Third. That is our problem we all know and take more years to correct.

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  • Dear all, All the way as a reservist non pensioner we have burnt our all the fingers. As a schooling entry in service guy’s played master mind all the way. The fight is not complete and we will win.

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  • Dear all, Let me brainstorm. What I see on the arguments on the reservist subject all related with GUIDELINES (ACT – LAW – RULE ) The approved Policy /plan – approved procedures write up for the Indian Naval Boys Entry recruitment not seen. Many times it has been pointed out that, Defence services documentation are very poor.The statement of very poor is no way excuse – if fail to maintain approved external -internal Origen document with updated register. Retention period for document, instead of closing eyes and sitting infront of all old document as pointed out before rightly by one among the ex.serviceman requirement of document with volume numbers and revision status – Document superseded stamp duly signed. All updates readily available -traceable. If very much confidential and do not allow any third party audit at least they should make up with cross audit within services -Army,Navy and Airforce and clear out all outsandings.Feel self managed is most important with negligible correctiveness will do.

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  • Dear all , Let me brain storm. We all know Our laundry, Tailor they cautioned with a display board ,the Service users if failed to collect with in 30 days they are not responsible. Indian Navy also claimed it is very late to come for reservist Pension claim when AFT approached earlier. As of date 141 days complete on DM initiated implementation of reservist pension as agreed for 30days to action. We have to Confirm Indian Navy , are they following the rules display of our laundry ,Tailors after 30 days not responsible for any claim ,any out standing.If DM fails who is left to lead?

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  • Ramachandrarao Mohan says:

    Dear all, What is the out come on all reasons of Indian Naval Administrations excuses on conditional pension to the three respectives . Very long time now and It is understood the game is over. We will put all lesson learned . We await for the reports.Pain to many families for the delay.

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  • Ramachandrarao Mohan says:

    Dear all,

    The report made as final – Supreme court , the report available / acknowledged – Indian Navy, Even if not officially communicated about the report and exchanged words that, release sailors had an option open for + 5 years to serve and avail pension by dictating force full / as well blocking – stopping reserve liability stating 10+ 10 years discontinued with effect from 1976 and none of the 10 years release sailors will get reservist status as well special pension are totally responsible. WHAT WE CALL THE REPORT MADE, SEEN, HEAR, LISTEN ALL OF THEM ARE DOUBLY INVOLVED AND RESPONSIBLE UNTIL SAFE EXECUTION OF 10 YEARS RELEASE SAILORS BENEFITS ARE NOT WASHED AWAY AND IF SO, and proved to be error in report close out the consequences may lead to questionable.Every one worried why such delay on SC report action close out by Navy.

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  • VINOD KUMAR SHARMA says:

    The Judgement of Supreme Court is defective. When Indian Navy had come out with circular/order dated 3rd July 1976 that Navy had discontinued keeping sailors in the Fleet Reserve then there was no need to mention in IN 271 “Not Drafted to Fleet Reserve as not Required” of the sailors retired after 3rd July 1976 by the Indian Navy. The appropriate notation should have been “Practice of keeping sailors in the Fleet Reserve discontinued with effect from 3rd July 1973”. When a practice is discontinued than requirement itself become redundant and when requirement become redundant due to operation of an order or circulare then no notation is required to be mentioned in IN 271 and mentioning “Not drafted to Fleet Reserve as not Required” is contradictory to the statement Practice of keeping sailors in the Fleet Reserve dicontinued with effect from 3rd July 1973. There fore this judgement is challangable

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  • Mohan rao indian says:

    Dear all – 10 Years release sailors, IN 271 IS THE MAGIC SHEET AND WRITE 10 + 10 YEARS IS THE YET ANOTHER MAGIC DESIGN OF INDIAN NAVY AND THE GOI PLAYED GAME. DEBONAIR PUBLISHED A MIDDLE PAGE ATTRACTION OF SAILORS ARE SLAVES AND APPEARS A FEAR MADE THEM FOR INDIAN NAVY AND GOI MANY SAILORS WILL COME OUT AND LEAD A MUTINY ON THIS ISSUE AND NOW INDIAN NAVY AND GOI IS IN STRONG POSITION AS NON LEFT WITH INDIAN NAVY AND ALL OF THEM RELEASED WHO OBTAIN 10 YEARS INITIAL ENGAGEMENT WITH INDIAN NAVY. MASTER MINDED AND TRICK PLAYED

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