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Major Rajinder Singh v. Union Of India And Others
Factual and Procedural Background
The petitioner filed a writ petition seeking declaration that his termination order dated 24.11.1988 was void ab initio, reinstatement with consequential benefits, and a direction for payment of pro‑rata pensionary benefits. The termination order had been passed in exercise of power under Section 18 of the Army Act and expressly stated that the services of the petitioner were "terminated without terminal benefits." The writ petition was filed on 15th December 1998, approximately ten years after the termination order; because of that delay, the petitioner did not press reliefs relating to reinstatement or challenge to any show‑cause notice, but did press the claim for pensionary benefits. The matter was taken up for final disposal with the consent of counsel.
Legal Issues Presented
- Whether an order of termination made by exercise of the Presidential pleasure under Section 18 of the Army Act can lawfully deny pensionary/terminal benefits to the officer.
- Whether delay/laches in approaching the Court (a 10‑year delay from the date of termination) bars the petitioner from claiming pensionary benefits.
- Whether the principle in M.R. Gupta (regarding denial of salary as a continuing wrong) applies analogously to pensionary claims, and if so, the temporal extent of any relief.
Arguments of the Parties
Petitioner's Arguments
- Relying on Hazara Singh v. Chief of Air Staff (1982 (1) SLR 521), counsel argued that where termination is effected by exercise of power under Section 18 (Presidential pleasure), denial of pensionary/terminal benefits cannot be sustained and the officer should not be deprived of pension without proper jurisdiction or opportunity.
- Counsel further contended that pensionary benefits are not defeated by delay or laches in the same way as reinstatement claims; pension accrues month to month and thus the petitioner should not be non‑suited on grounds of delay in respect of pension.
Respondent's Arguments
- The respondent relied on Union of India v. P.D. Yadav (JT 2001 (8) SC 617) to contend that denial of pension can be valid in law (i.e., that pensionary benefits can be withheld in appropriate circumstances).
- The respondent argued that the M.R. Gupta principle relates to salary during the course of employment and therefore does not apply to pensionary claims arising after termination; on the basis of delay and laches the petitioner cannot claim pensionary benefits for the earlier period.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hazara Singh v. Chief of Air Staff, 1982 (1) SLR 521 | Where dismissal is by exercise of Presidential pleasure under Article 310/Section 18, Regulation 16(a) (forfeiture of pension) cannot be invoked because the officer is not informed of reasons and cannot be given an effective opportunity to defend; jurisdiction to forfeit pension under Regulation 16(a) arises when dismissal is punitive (court‑martial or actions under Sections 19/20), not where pleasure doctrine is invoked. | The Court applied and followed Hazara Singh to hold that the portion of the termination order dated 24.11.1988 that denied terminal/pensionary benefits to the petitioner could not be sustained when the order was passed under Section 18. |
| Union of India v. P.D. Yadav, JT 2001 (8) SC 617 | Authority relied on by respondent to support denial of pension in certain cases (pertains to cases where disciplinary proceedings were initiated). | The Court distinguished this authority because P.D. Yadav dealt with cases involving disciplinary proceedings, whereas the present case involved exercise of the pleasure doctrine under Section 18; the Court did not follow P.D. Yadav for denying pension here. |
| M.R. Gupta v. Union of India, 1995 31 ATC 186 | Denial of salary is a continuing wrong; a fresh cause of action arises at each payment (salary/pension accrues periodically), so relief may be claimed for each periodic payment and analogous to the right of redemption in a subsisting mortgage. | The Court applied the M.R. Gupta principle analogously to pensionary benefits, reasoning that pension accrues month to month like salary; consequently the petitioner could claim pensionary arrears for the period analogous to the limitation period (three years) before filing. |
Court's Reasoning and Analysis
The Court proceeded in two main analytical steps:
- On the nature of the termination order: The Court accepted the petitioner's reliance on Hazara Singh and held that the order of 24.11.1988 was passed under Section 18 of the Army Act (exercise of Presidential pleasure). Applying Hazara Singh, the Court reasoned that forfeiture or denial of pension under Pension Regulation 16(a) cannot be legitimately invoked when termination is under Section 18 because the officer is not provided reasons and cannot effectively defend against a deprivation of pension. The respondent's reliance on Union of India v. P.D. Yadav was distinguished because P.D. Yadav concerned cases involving disciplinary proceedings, not exercise of the pleasure doctrine. On this basis the Court concluded that the portion of the termination order denying terminal/pensionary benefits could not stand.
- On delay and temporal scope of relief: The Court considered whether the petitioner's 10‑year delay in filing should defeat his claim to pensionary benefits. Relying on the principle in M.R. Gupta that denial of salary is a continuing wrong with fresh cause of action at each payment, the Court analogised pension to salary (pensionary benefits accrue month to month). Therefore, a belated approach to Court does not preclude recovery of pensionary benefits for at least a defined retrospective period. Applying that principle to the facts, the Court held the petitioner — who filed on 15th December 1998 — was entitled to pensionary benefits from 15th December 1995 (three years prior to filing). The Court declined to award interest on the past amounts in view of the belated approach by the petitioner.
All aspects of the Court's analysis and the reasons for its rulings are drawn from the opinion as provided.
Holding and Implications
Holding: Petition allowed.
Direct consequences ordered by the Court:
- The portion of the termination order dated 24.11.1988 denying terminal/pensionary benefits could not be sustained where the order was made under Section 18; the petitioner is entitled to pensionary benefits.
- The petitioner is entitled to pensionary benefits with effect from 15th December 1995 (three years prior to the date the writ petition was filed, i.e., 15th December 1998).
- The Court refused to award interest on the past amounts because of the belated approach to the Court.
- The respondents were directed to pay the arrears of pensionary benefits to the petitioner within two months.
- The petition stands allowed in the terms stated, and the parties were left to bear their own costs.
Implications: The decision applies established authorities (notably Hazara Singh and the M.R. Gupta principle by analogy) to permit recovery of pensionary benefits for a specified retrospective period despite long delay in approaching the Court. The opinion does not purport to establish novel law beyond applying and distinguishing the precedents cited; its practical effect is to restore pensionary benefits for the petitioner from the date identified above and to direct payment of arrears without interest.
Sanjay Kishan Kaul, J.— With consent of learned Counsel for the parties, the petition was taken up for final disposal.
2. This writ petition was filed by the petitioner for declaration of the order of termination of petitioner from service without issuing show cause as void ab initio, reinstatement of the petitioner with consequential benefits and direction of payment of pro-rata pensionary benefits to the petitioner. Since the order is of 24.11.1988 and the writ petition was filed only in the year 1998 after a lapse of 10 years relief in respect of reinstatement and challenge to show cause notice is not pressed. Learned Counsel however, contends that insofar as the grant of pensionary benefits is concerned, the petitioner cannot be non-suited on the grounds of delay and cannot be deprived of these pensionary benefits.
3. Learned Counsel for the petitioner relied on the judgment in the case of Hazara Singh v. Chief of Air Staff (Delhi), 1982 (1) SLR 521, to contend that if the power is exercised under Section 18 of the Army Act by the President of India, then exercise of such power cannot deny pensionary benefits to the petitioner. There is no dispute about the fact that the order dated 24.11.1988 has been passed in exercise of power under Section 18. The order is as under:
“The President, in exercise of the powers conferred by Section 18 of the Army Act, 1950 and all other enabling provisions in this behalf, is pleased to order that the services of IC-3066L Maj. Rajinder Singh of 252(1) AD Missile Bty. shall be terminated without terminal benefits with effect from the date on which he is relieved of his duties.”
(Emphasis supplied)
4. Thus learned Counsel for the petitioner contends that the direction in the order that the petitioner will not be entitled to terminal benefits from the date on which he is relieved from duty, cannot be sustained in view of Hazara Singh's case (supra). The relevant para from this judgment is as under.
“10. Now it would be understandable if as a consequence of Court marital or the enquiry under the Act and Rules a person is dismissed or cashiered, where he has had full opportunity to meet the charge and to prove his innocence, but has failed and thereafter an order forfeiting pension is made. In such a course the officer would know the reasons for proceeding against him and could in answer to proceedings under Regulation 16(a) show that no order of forfeiture or total forfeiture of pension should be made. But where, as in the present case dismissal is in exercise of Presidential pleasure under Article 310 of the Constitution read with Section 18 of the Act, it is apparent that no reasons will be told or known to the officer. In such a case if Regulation 16(a) could be invoked it would virtually amount to condemning and depriving a person of his pension without giving him an opportunity because in such a situation what could, an officer say, in his defence, when he does not know the reason why Presidential pleasure has been withdrawn from him. These considerations lead us irresistibly to the conclusion that resort could only be had to Regulation 16(a) if it had been preceded by an order of dismissal, or cashiering either in pursuance of a Court Martial trial or in pursuance of an action taken under Sections 19 and 20 of the Act and the rules. As admittedly none of the eventualities were present the condition precedent to taking action under Pension Regulation 16(a) were lacking. The respondents seek to justify the action under Regulation 16(a) on the sole ground of use of the word ‘dismissed’ even when the order of 21.2.1971 is passed under Section 18 of the Act. Though the pleasure doctrine is quite all embracing still we must not forget that our Constitution ad hors arbitrariness, and proclaims clearly that it is a Government of laws and not of men that we are having, so that interpretation which permits an unfettered way of arbitrary action must necessarily receive short shrift when interpretation of Statute is given by the Courts. We are of the view that the jurisdiction to take action under pension Regulation 16(a) arises only when an officer has been dismissed or cashiered as a measure of punishment. Admittedly that is not the case in the present instance. Thus the President lacked the jurisdiction to proceed against the petitioner under Pension Regulation 16(a). The impugned order of 4.6.1979 is, therefore, without authority of law and deserves to be quashed.”
5. Ms. Pinki Anand, learned Counsel for the respondent on the other hand relied upon the judgment in the case of Union of India v. P.D Yadav, JT 2001 (8) SC 617, to contend that such denial of pension is valid in law. However, the said judgment deals with a case where disciplinary proceedings have been initiated against the officer and in not a case where doctrine of pleasure has been exercised. The law in respect of a case where doctrine of pleasure has been invoked is crystalised by Division Bench in the case of Hazara Singh (supra). In view thereof the latter portion of the order dated 24.11.1988 denying the termination benefits to the petitioner cannot be sustained.
6. Another issue which arises for consideration is the delay by the petitioner in approaching this Court. Learned Counsel for the petitioner referred to the judgment of the Supreme Court in M.R Gupta v. Union of India, 1995 31 ATC 186, where the Supreme has held that denial of salary was a continuing wrong and so long as if person is in service a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to law. It was held that claim to be paid during the entire tenure of service can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules and the rule was found to be akin to the right of redemption which is an incident of subsisting mortgage and subsists so long as the mortgage subsists unless the equity of redemption is extinguished. Learned Counsel for the petitioner submits that the same principle would apply in case of pensionary benefits. On the other hand Ms. Pinki Anand, learned Counsel contends that M.R Gupta's case (supra), deals with a case of a salary and that to during the course of employment. Thus on the ground delay and laches the petitioner cannot claim the benefit of pension.
7. I have considered the rival contentions advanced by the learned Counsel for the parties. Pensionary benefits accrue from month to month and is thus analogue to the concept of a salary which a person would be entitled during the course of his service. Thus the principle laid down in M.R Gupta case (supra), would apply to the case where the claim is of pension. Thus, if a person approaches the Court belatedly, the same cannot be held against him in denying the benefits of pension at least from the period he approached the Court. Therefore, I am of the considered view that since the petitioner approached this Court on 15th December, 1998, the petitioner would be entitled to the pensionary benefits for the period commencing from 15th December, 1995 i.e, from three years prior to approaching the Court.
8. In view of the aforesaid, the petitioner would be entitled to the pensionary benefits with effect from 15th December, 1995, I am also not agreeable to give the interest on the past amount to the petitioner, in view of petitioner having approached the Court so belatedly. The arrears of the pensionary benefits be paid to the petitioner by the respondents within a period of two months.
9. Petition stands allowed in the aforesaid terms. Parties are left to bear their own Costs.
Petition allowed accordingly.
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