COURT NO. 2, ARMED FORCES TRIBUNAL, PRINCIPAL BENCH, NEW DELHI O.A. NO. 140 OF 2009 O.A. No. 140/2009 IN THE MATTER OF:...Applicant Through : Mr. P.D.P. Deo with Ms. Monica Nagi, counsels for the Applicant Versus Union of India and Others...Respondents Through: Mr. Ankur Chhibber, counsel for the Respondents CORAM: HON BLE MR JUSTICE MANAK MOHTA, JUDICIAL MEMBER, HON BLE LT GEN M.L. NAIDU, ADMINISTRATIVE MEMBER Date: 05.09.2011 JUDGMENT 1. The OA was filed before this Tribunal on 10.11.2009. 2. The applicant vide his application has prayed for holding him entitled for pay and allowances for the period of 02.12.1999 to 25.10.2005. He has further prayed that sum of Rs.2,01,960/- (pay and allowances for the period 02.12.1999 to 25.10.2002) as sanctioned vide ex-post facto sanction of Army HQ letter dated 09.12.2003 be paid to him. He has also prayed that the letter of 20.04.2009 (Annexure P-7) by which his claims for pay and Page 1 of 9
allowances for the period 26.10.2002 to 25.10.2005 and for promotion have been denied by the respondents be quashed. 3. The brief facts of the case are that the applicant was enrolled on 07.10.1985. In 1999, a show cause notice was served on the applicant under Army Rule 13 (3) (III) (V) being undesirable having earned four red ink entries during service. The applicant was discharged w.e.f. 02.12.1999 which was based on the Show Cause Notice (SCN) dated 01.12.1999 when he had 14 years 1 month and 8 days of service. 4. The applicant approached the Hon ble Delhi High Court vide CWP No.2497/01 against his termination of service under Army Rule 13(3)(III)(v) and AHQ Policy letter dated 28.02.1998. The Hon ble High Court while setting aside the termination order on account of invalid notice issued by C.O., who was not authorised to discharge under said rules, pronounced the judgment in favour of the applicant on 11.09.2002 (Annexure A-1) holding we are of the opinion that the order cannot be sustained, which is set, aside accordingly. This writ petition is, therefore, allowed without being any order as to costs. 5. Consequently, the applicant was notionally reinstated in service with effect from the date of discharge (i.e. 02.12.1999) for continuance of service until completion of his terms of engagement (i.e. 25.10.2002). Accordingly, the occurrence of reinstatement in Page 2 of 9
service w.e.f. 02.12.1999 with 100% pay and allowances for the period from 02.12.1999 to 25.10.2002 (i.e. date on which the applicant completed 17 years of service excluding the 18 days of none qualifying service) was granted and ex-post facto sanction by the competent authority was issued on 09.12.2003. (Annexure P-7). 6. Learned counsel for the applicant prayed that applicant needs to be considered for 20 years of service as 17 years as colour and three years as reserve extension after having completed 17 years of colour service as per DSR 134 (Annexure A-3). In normal course he would have been entitled to an extension which would have got him 20 years of service and, therefore, the order by the Government (Annexure P-7) needs to be quashed. He further argued that amount of Rs. 2,01,960/- should be paid to the applicant immediately. 7. Learned counsel for the respondents argued that the applicant had filed a CCP No. 465/2003 to the order of the Hon ble Delhi High Court in case CWP No. 2497/2001. The CCP was dismissed on 19.01.2004 with direction to pay Rs. 3,000/- as compensation to delayed payment. This was complied by a demand draft for Rs.3,000/- was paid on 16.06.2004 through the Zilla Sainik Board, Jhunjunu. 8. Learned counsel for the applicant further argued that the applicant filed a CM No. 7013/2004 in CCP No. 465/2003 (arising out of CWP No. 2497/2001) to pay interest on all dues and to endorse Page 3 of 9
character in service as exemplary in the Discharge Certificate. On 20.10.2005, their Lordships directed to the competent authorities to examine the same. The CCP no. 7013/2004 was finally disposed off on 18.01.2007 with their Lordships observing the petitioner, if aggrieved by non-compliance with the order of the court should file a substantive petition. 9. It was contended by learned counsel for the applicant that the applicant submitted representation in the form of statutory complaint to the Army Staff for redressal of his grievances for promotion and payment of dues. The said representation was rejected vide impugned order dated 20.04.2009 (Annexure P-7). 10. Learned counsel for the respondents has argued that the applicant once again filed a CCP No. 217/2007 in CWP No. 2497/2001 in the Hon ble High Court, Delhi with a prayer to re-instate him in service, allow promotion to higher ranks and grade his character as exemplary in the discharge book. Vide order dated 11.12.2007, their Lordships dismissed the CCP observing that the prayer in CWP No. 2497/2001 have already been implemented by the respondents, and no case is made out to continue the contempt proceedings. 11. Learned counsel for the respondents further argued that vide present O.A. No.140/09, the applicant is now seeking 20 years of service instead of 17 years of service granted in compliance of court Page 4 of 9
order of Hon ble High Court Delhi dated 18.01.2007 (Supra). He argued that colour service for a Sepoy is 17 years. Two years of reservist service is authorized when there is a requirement by the establishment which is based on a sanctioned strength and vacancies therein. Besides, there is no pay and allowance authorized to reservist nor does it impact on pension so granted after colour service. 12. Learned counsel for the respondents contended that period of engagement of CMP (to which area the applicant belongs) is 17 years of colour service and 2 years is reserve, as laid down in SAI 1/S/76. Due to some printing error CMP period of three years has been shown in para 134 (a) (ii) Group II of Regulations for the Army (RA) 1987 Revised Edition, which has since been amended to read as per 134 (a) (i) Group I of RA 1987 Revised Edition. The terms of engagement thus states 17 years of colour service and 2 years of reserve or till attainment of 40 years whichever is earlier. Further the applicant has signed the revised undertaking on Enrolment Form 1AFK 1162 for 17 years of colour service and 02 years in reserve or till attainment of 40 years of age whichever is earlier. 13. In view of the above, learned counsel for the respondents argued that applicant has now no right to ask for payment of 20 years of service as normal colour service is up to 17 years. In addition to granting him pay and allowance for his colour service, it made him Page 5 of 9
eligible for pension at 17 years. He has already been granted the weightage as per the pension regulation. He further submitted that the amount of Rs, 2,01,960/- as sought by the applicant has already been paid to the applicant vide Pension Disbursing Authority letter of 26.06.2004. A Pension Payment Order (PPO) has already been issued on 09.06.2004. Accordingly, all dues, due to him including the pension have been paid to the applicant. In case the same has not credited in his account, he should take necessary steps and approach his bankers. 14. Having heard both the parties at length and having examined the documents, we observe that while dismissing the contempt petition, the Hon ble Delhi High Court on 11.12.2009 held that : 6. If petitioner feels that he is entitled to 20 years of colour service the same has to form subject matter of the substantive proceedings. 7. In respect of further amounts payable to the petitioner pursuant to directions issued by the Division Bench, I note that the respondent has explained the same in para 6 and 7 of the counter affidavit. 8. Before concluding I may note that grievance of the petitioner pertaining to a blame less discharge certificate has been duly responded to by the respondent in para 10 of the counter affidavit. Annexure R-12 is the order of the Officer Incharge (Records) pertaining to fresh re-assessment of character in respect of the petitioner. The discharge certificate Page 6 of 9
revises the re-assessment of the character of the petitioner from good to very good. 9. No case is made out to continue contempt proceedings. Notice of contempt is discharged. 10. Petition is dismissed. 15. The present OA 140/2009, therefore, seeks : (a) To be re-instated in service from 02.12.1999 to 25.10.2005 instead of 08.12.1999 to 25.10.2002 which has been granted by the respondents. (b) To pay immediately the sum of Rs. 2,01,986/- already sanctioned by the Ministry of Defence. (c) Quash the impugned order dated 20.04.2009. 16. Our attention has been drawn to RA 1987 (Revised) and RA 1962, which have been amended from time to time. Thus, AI 1/S/76 cannot over-ride the Regulations. A Sepoy from CMP will have terms of engagement for 17 years of colour service and 2 years as reserve or 40 years of age whichever is earlier. SAI 1/S/76 basically reiterates this position. Besides, the applicant accepted the terms of engagement when he enrolled on 07.10.1985. The applicant is not entitled of any financial benefits for the said period. His claims in this respect is misconceived. All other dues have already been settled. 17. As regard, the payment of Rs. 2,01,986/- to the applicant, the applicant has stated as on 25 th March, 2010 in their rejoinder affidavit Page 7 of 9
that the said amount has yet not been received. This delay in payment is despite the cost of Rs.3,000/- ordered by the Hon ble Delhi High Court on 19.01.2004 is considerable. The applicant is entitled for relief in this respect. The amount of this order or else the amount due will attract a penal interest of 12% from the date of this order, if it is not found paid to applicant. 18. The impugned order dated 20.04.2009 states that the applicant is not entitled to pay and allowance from 26.10.2002 to 25.10.2005 on the basis of aforesaid discussion and for promotion as he does not meet the laid down criteria are not found suffering from infirmity. The applicant has not been able to establish that he is entitled for pay and allowances for the reserved period i.e. from 26.10.2002 to 25.10.2005. The contention of the applicant consequent to the Hon ble Delhi High Court order of 11.09.2002, all the red-ink entries in his conduct sheet have been expunged is erroneous. The Lordships opined that : 16. For the reasons aforementioned we are of the opinion that the impugned order cannot be sustained, which is set aside accordingly. This writ petition is, therefore, allowed without being any order as to costs. 19. It clearly denotes that the discharge order was set aside because the Show Cause Notice was infirm. The Hon ble High Court did not quash the red ink entries (punishments awarded to the applicant). Hence, the applicant was not meeting the laid down Page 8 of 9
promotion criteria. Thus, he cannot seek promotion on having been reinstated, even though it was notional reinstatement. 20. In view of the foregoing, we are of the opinion that on merits, no interference is needed in impugned order, except interest on delayed payment, as observed. Should the applicant not receive the payment of Rs.2,01,986/- as due to him within 60 days of this order, he will be entitled to a penal interest of 12% on the sum due from the date of this order. 21. The O.A. is partially allowed, accordingly. No orders as to costs. M.L. NAIDU (Administrative Member) MANAK MOHTA (Judicial Member) Announced in the open Court on this 05 th day of September, 2011 Page 9 of 9