Ex-Hav/Clk Narain Singh v. Union Of India & Ors.

1. By this writ petition, petitioner has prayed that respondents may be directed to pay his legitimate mustering out pension w.e.f. his date of discharge as recorded in his discharge book and also to pay interest @18% per annum till the date of realization.

2. The brief facts which are necessary for disposal of the petition are that petitioner was discharged from service on 17.08.1947 at the young age of 30 years in consequence of reduction of the Indian Army on demobilisation. Though the petitioner was enrolled on 21.02.1934 and discharged from service on 28.02.1943 after completing 9 years 8 days service with 1/6 Gorkha Riffles and then he was re-enrolled on 15.02.1944 and finally discharged on 17.08.1947 at the age of 30 years inconsequence to reduction of Indian Army on demobilisation. Petitioner was decorated with War Medal and Indian Service Medal, I.G.S.M. 1936 with Clasp North West Frontier 1936-1937. He participated in Wazirstan Operation 1936-1937. It is further submitted that he was a first grade Havildar Clerk cum Typist having Civil qualification of Matriculation and by dint of this educational background, he was given a military educational certificate of English First Class.

3. The grievance of the petitioner was that he was given only Rs. 550/- gratuity at the time of his mustering out pension and out of that he was only paid Rs. 174/- at the time of his discharge. Therefore, the grievance of the petitioner is that he has been given a paltry gratuity at the time of his discharge somewhere in the year 1947 and he has been fighting with the Government and requesting the Government for giving him the benefit of pension. It is pointed out that his papers were also processed at Army Headquarters as per the communication dated 12.06.1991 which reads as under:

“Telephone: 46361/18 Abhilekh Karyalya Records 39 Gordkha Riffles Varansasi Cantt-221002 2545/Misc/61/SP 12 Jun 91 Dte Gen of lnfantry/lnf-6(pers) General Staff Branch Army Headquarters DHQ PO New Delhi-110011

GRANT of MUSTERING OUT PENSION

1. Refer to Army Headquarters letter no. 89555/1/Gen/39GR/lnf-6 (Pers) dated 16 May 91.

2. It is submitted that decision for grant of mustering out pension in respect of following individuals has since been received from CCDA(P) Allahabad under their DO letter No. Gts/Tech/0143-XU dated 15 May 91 (copy attached):—

(a) Ex No D-42543 Hav(Clk) Narain Singh Rana

(b) Ex No A-95342 Hav(Clk) Tej Bahadue Mall.

3. “It is further submitted that this Govt. Sanction is required to be accorded before submitting the claim to CCDA (P) Allahabad Ex. No. A-95342 Hav (Clk) Tej Bahadur Mall has been asked to submit the claim to this office at the earliest vide this office letter no. 2545/Misc/58/SP dated 10 Jun 91. On receipt of the said claim the cases in respect of the above named individuals will be submitted to Army Headquarters immediately to accord Govt. Sanction on the subject.”

(SS Chauhan)

Record Officer

for OIC Records

Copy to:—

Ex No D-42543 Hav/Clk Norain Singh Rana Village-Raipur PO-Raipur Distt-Dehradun (UP) - For information and necessary action Ex No. 95342 Hav(Clk) Tej Bahadur Mall Vill-(Basic Primary School Near) Raipur PO - Raipur Distt - Dehradun (UP)” - Please forward your proper claim as asked for vide this office letter no. 2345/Misc/58/SP dated 10 Jun 91 at the earliest for our further action.

4. But nothing appears to have transpired on this communication though the Army Headquarters wanted to seek a clarification from the Government that since the petitioner has been given gratuity and not mustering pension, whether the incumbent can be given any mustering pension or not. No further record on the subject is placed as the records have been destroyed being 25 years old. Then in 1993, the petitioner again filed a petition before the Government and Government informed the petitioner on 03.05.1993 that he had been paid a lump sum mustering out gratuity of Rs. 550/- in lieu of the mustering out pension at the time of discharge. Therefore, he is not entitled to any type of pension. Then again petitioner filed petition and in this petition, he mentioned that he has received a total sum of Rs. 174/- which is evident from his representation sent on 17.05.1996. In that representation, he has categorically mentioned that a sum of Rs. 550/- as gratuity was given but on reconciliation a sum of Rs. 174/- was only paid to him on 25.09.1990.

5. The respondent in his petition has pointed out that as per Rules bearing on the subject, the incumbent is only entitled to mustering out gratuity or pension. The incumbent cannot claim both together as per Rule 213 of Pension Regulation, 1940. On other averments made by the petitioner, the respondent has pointed out that because of the record being destroyed, they are not in a position to say whether the Army Headquarter letter of year 1991 bore any fruit. But the fact is that communication dated 03.05.1993 makes it clear that Government has refused to grant any pension over and above the amount of gratuity released to the petitioner.

6. We have heard the learned counsels for parties and perused the record.

7. It is very sad state of affairs that incumbent who has been discharged on 17.08.1947 after having put in long and very illustrious service was sent out with a paltry gratuity of Rs. 550/- and out of that on reconciliation, he was paid a sum of Rs. 174/-. There cannot be pathetic and unfortunate case other than this. Though the regulations appears to be that incumbent cannot be paid two amounts i.e. gratuity as well as pension since the incumbent was paid amount of gratuity in lieu of pension and net received only Rs. 174/- way back in September, 1990. There cannot be more unfortunate case of a solider having been dealt by the Government so harshly then this. We have full sympathy with the man who unfortunately still survives and he was present before us and looks to be a man beyond 90 years. Looking into his pathetic condition and of the fact that matter has been dealt in most disheartened manner by the Government, the man deserves some sympathy from this Court. Having regard to the facts and circumstances, it deem just and proper that incumbent should be paid a sum of Rs. 1 Lac as an ex-gratia payment for his meritorious service rendered by him in Indian Army. There are number of cases in which this course has been adopted by the Courts in order to mitigate the hardship of persons such as incumbent. Therefore, we fully felt persuaded that since we cannot help him out in face of rigid rules but looking to pathetic condition, advance age and his glorious service rendered by him as solider in the Indian Army, we deem just and proper that he deserves sympathy from this Court. We direct that respondent shall pay ex-gratia payment of Rs. 1 Lac to petitioner in lieu of his glorious past service. The amount shall be released forthwith as condition of petitioner appears to be very pathetic and if it takes long time, perhaps he may or may not survive. Therefore, looking into advanced age and pathetic condition of petitioner, we direct that ex-gratia amount of Rs. 1 Lac shall be released within 2 months from the date of receipt of order. The petition is disposed of accordingly. One copy may be released to incumbent as soon as it is ready. No order as to costs.