KANWARPAL SINGH Vs. UNION OF INDIA
LAWS(DLH)-2007-4-132
HIGH COURT OF DELHI
Decided on April 20,2007

HAV.KANWARPAL SINGH Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

S.N.AGGARWAL, J. - (1.) At the time the petitioner was tried by the Summary Court Martial for his over-staying leave for 16 days from 11.5.2002 till 27.5.2002, he was holding the rank of Havildar. Pursuant to Summary Court Martial vide order dated 20.72002, the petitioner was dismissed from service by his Commanding Officer, 91, Field Regiment (Asal Uttar) under Section 39 (a)(i) of the Army Act, 1950. Sentence of reduction of rank from Havildar to Sepoy was also passed by the Summary Court Martial against the petitioner. Aggrieved by the sentence of dismissal and reduction in rank awarded by the Summary Court Martial, the petitioner filed a statutory petition dated 4.9.2002, which was considered and decided by the General Officer Commanding in Chief, Southern Command, who commuted the sentence of dismissal from service awarded by the Summary Court Martial into that of discharge vide Southern Command order bearing no.D/2406002/651/DV-3 dated 8.2.2003. However, the punishment of reduction in rank awarded to the petitioner was neither remitted nor modified but the same kept static by the General Officer Commanding in Chief, Southern Command, vide above order. Accordingly, the petitioner was discharged from service on fulfilling the condition of enrollment under item no.(iii) (i) of the table annexed to Rule 13(3) of the Army Rules, 1954 by granting service pension to him for the rank of Sepoy.
(2.) The case of the petitioner in the writ petition is that by virtue of provisions contained in Section 77 of the Army Act, 1950, the punishment of reduction in rank of the petitioner awarded to him by the Summary Court Martial automatically goes with the conversion of punishment of dismissal into discharge. His grievance is that since he was holding the rank of Havildar at the time of commencement of Summary Court Martial against him, he is entitled to get pension in the rank of Havildar and not Sepoy. He has, therefore, filed this writ petition seeking a writ of mandamus against the respondents directing them to grant him the pensionary benefits in the rank of Havildar w.e.f. the date of discharge i.e. 20.7.2002.
(3.) In response to notice of this writ petition, the respondents have filed their counter affidavit in which they have denied the claim of the petitioner for grant of pension in the rank of Havildar. It is contended by them that the petitioner was a habitual offender of over-staying leave. It is stated that while the petitioner was posted in 91, Field Regiment in 1996, he was granted 15 days annual leave from 25.9.1996 to 9.10.1996 and he was required to re-join duty on 10.10.1996 but he did not report and absented himself without leave till he re-joined of his own on 14.11.1996. For this offence, the petitioner was awarded punishment of 'reprimand' and 14 days pay fine by the Commanding Officer, 91 Field Regiment on 3.1.1997 under section 39(b) of the Army Act, 1950. During 1998 he was granted 24 days annual leave from 20.6.1998 to 13.7.1998 and his said leave was further extended by 15 days on compassionate grounds from 14.7.1998 to 28.7.1998. He failed without sufficient cause to re- join the duty after expiry of his aforesaid leave till he re-joined of his own on 6.8.1998. For this second offence of his over-staying the leave, he was again awarded punishment of 'reprimand' and 14 days pay fine by Commanding Officer, 91, Field Regiment on 28.8.1996 under Section 39(b) of Army Act, 1950. Again during the year 2001 the petitioner was granted 60 days annual leave from 20.1.2001 to 20.3.2001. He failed to re-join the Unit on expiry of his leave and re-joined duty of his own on 2.4.2001. This time also, he was awarded punishment of 'reprimand' by the Commanding Officer, 91 Field Regiment on 7.4.2001 under Section 39(b) of the Army Act, 1950. It is further stated that while the petitioner proceeded on temporary duty from 91, Field Regiment to Regiment of Artillery Association, he absented himself without leave on expiry of temporary duty from 11.5.2002 to 27.5.2002 (AN). For this offence, (fourth in the series) he was tried by a Summary Court Martial and reduced to ranks and dismissed from service on 20.7.2002 under Section 39(a) of the Army Act. The punishment of dismissal from service awarded by the Summary Court Martial was reduced from dismissal to discharge by the General Commanding Officer in Chief, Southern Command on the statutory representation of the petitioner but his punishment of reduction in rank was maintained. The respondents have contended that in view of provisions contained in Regulation 133 of the Pension Regulations for the Army, 1961, the service pension is assessed on the basis of rank actually held by an individual regardless of whether it is held in a substantive or paid acting capacity and the lowest group for which he is paid during the last ten months of his service qualifying for pension. It is stated that in the present case since the petitioner was discharged from service in the rank of Gunner (Sepoy) [consequent upon his reduction in rank by the Summary Court Martial], he was entitled to pension only in the rank of Sepoy and not Havildar. As per respondents, the writ petition is not tenable in law and a prayer has been made for its dismissal.;


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