JUDGMENT
Sanjay Kishan Kaul, J.
1. Rule.
2. With consent of learned counsel for the
parties, the petition was taken up for final disposal.
3. 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 abinitio,
reinstatement of the petitioner with consequential
benefits and direction of payment of pro-rate pensionary
benefits to the petitioner. Since the order is of
24.11.1988 after a lapse of 10 years relief in respect of
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.
4. 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 (I) AD Missible Bty.
shall be terminate without terminal
benefits with effect from the date on
which he is relieved of his duties.”
(emphasis supplied)
5. 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 martial 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 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
defense, 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 adhors 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 shift 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.”
6. 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, , 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.
7. Another issued 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 and Ors 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 principal 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 latches the petitioner cannot claim the
benefit of pension.
8. I have considered the rival contentions
advanced by the learned counsel for the parties.
Pensionary benefits accrues 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 principal laid down in M.R. Gupta’s 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.
9. In view of the aforesaid the petitioner would
ben 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.
10. Petitioner stands allowed in the aforesaid terms.
Parties are left to bear their own costs.