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In the Matter Of: Ex. Rfn. Mohinder Singh Vs. Union of India and Others

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  • Decided on Sep-12-2012
LegalCrystal Citation
CourtArmed forces Tribunal (AFT) - Principal Bench - New Delhi
Decided On
Case NumberO.A. NO. 317 OF 2011
Judge
AppellantIn the Matter Of: Ex. Rfn. Mohinder Singh
RespondentUnion of India and Others
Excerpt:
.....the sanction of competent authority the petitioner was notionally reinstated into service from the date of dismissal, and was discharged from service w.e.f. 31.03.2005, on completion of the terms of engagement. then on receipt of the sanction the case was referred to the pay and accounts office to work out monetary benefits accrued. then after settling certain observations in the case of the petitioner, the pao provided its preliminary audit report (annexure r-4) calculating the pay and allowances amount at rs.6,04,890/-, with the direction that the intervening period of absence from duty is to be regularised, and final audit report is to be obtained from pcad, western command, chandigarh. then it is pleaded that in order to get regularised, the absence period of the petitioner, the.....
Judgment:

1. This petition has been filed by the petitioner seeking setting aside of the order dated 24.03.2011, whereby the case was returned for certificate from the State Government of Haryana, that further appeal is not contemplated in the instant case, and that the individual has been honourably acquitted. Other relief prayed is, for direction to the respondents to pay the arrears of pay and allowances for the period 08.02.1994 to 31.03.2005 and with interest, and service pension w.e.f. 01.04.2005. Costs have also been prayed.

2. The facts alleged are, that the petitioner was enrolled on 09.03.1988, and while at his home on sanctioned annual leave, he came to be implicated in a murder case on 04.01.1994, and was ultimately convicted by the Court of Additional Sessions Judge, Rohtak vide judgment dated 23.10.1996 for the offences under Section 302 IPC and awarded life term, along with fine of Rs.5,000/-. However, in appeal the Hon’ble Punjab and Haryana High Court acquitted the petitioner vide judgment dated 10.02.2005. Thereafter, the petitioner filed a petition before the OIC, Raj Rif Records (respondent No.3) on 14.03.2005 for reinstatement consequent upon his acquittal. The statement of case for reinstatement of the petitioner was taken up, and an order was passed reinstating the petitioner in service, notionally w.e.f. 08.02.1994 and to be discharged w.e.f. 31.03.2005, on expiry of 17 years of service, being the period of engagement. However, no order for grant of service pension was passed though he is entitled to the same. Then OIC, Pay and Accounts (respondent No.4) submitted audit report dated 10.01.2008 to Commandant, Raj Rif Centre, stating that the petitioner is entitled to pay and allowance for the period 08.02.1994 to 31.03.2005, which amount worked out to Rs.6,04,890/-. It was further advised that in order to make payment of the said amount sanction of Ministry of Defence was required. This is produced as Annexure A-4. The case of the petitioner further is, that without obtaining sanction of MoD, the Records Raj Rif sent the final statement of account to PAO for making payment to the petitioner, which was returned vide Annexure A-5. Then the case for seeking regularisation of absence period in terms of Schedule II to Appendix II FR Pt I (Aug) 1983 was submitted to Directorate General of Infantry on 28.05.2008, followed by subsequent reminders. However, Director General sent the file for grant of Government’s sanction, vide Annexure A-7, but no reply was received. Then petitioner came to receive the impugned communication detailed above.

3. Respondents filed a reply, though after good long adjournments, as notice was issued way back on 19.08.2011 and the reply was filed on 01.08.2012. Be that as it may.

4. The stand taken in the reply, inter alia, is that as per the records available, the petitioner was notionally discharged from service w.e.f. 31.03.2005 on completion of terms of engagement being 17 years, under Rule 13(3)(iii)(i) of the Army Rules, 1954. When he was serving he was granted annual leave from 23.12.1993 to 21.01.1994. During this period he was arrested on 14.01.1994 for the aforesaid offences (302/148/149 IPC) and consequent upon his conviction he was dismissed from service w.e.f. 23.10.1996, under Sections 19 and 20(3) of the Army Act. Consequent upon the acquittal of the petitioner on all the charges by the Hon’ble High Court, his case for reinstatement was referred to Integrated Headquarter of MoD, which directed the respondent No.3 to process the case for reinstatement, and the headquarters vide their letter Annexure R-2 dated 03.11.2005 finally sanction of the competent authority was obtained for reinstatement on 09.09.2006, and based on the sanction of competent authority the petitioner was notionally reinstated into service from the date of dismissal, and was discharged from service w.e.f. 31.03.2005, on completion of the terms of engagement. Then on receipt of the sanction the case was referred to the Pay and Accounts Office to work out monetary benefits accrued. Then after settling certain observations in the case of the petitioner, the PAO provided its preliminary audit report (Annexure R-4) calculating the pay and allowances amount at Rs.6,04,890/-, with the direction that the intervening period of absence from duty is to be regularised, and final audit report is to be obtained from PCAD, Western Command, Chandigarh. Then it is pleaded that in order to get regularised, the absence period of the petitioner, the respondent No.3 referred the case to Integrated Headquarter, MoD along with all report for obtaining sanction, and while the case was under consideration with Integrated headquarter, respondent No.3 also referred the case to PCDA for obtaining final audit report vide Annexure R-6. However, the case was returned by PCDA vide Annexure R-7, with a direction to the respondent No.3 that the case to be submitted along with sanction of Ministry of Defence.

5. In the meantime, the integrated headquarter, where the case was pending consideration for grant of sanction to regularise, directed the respondent No.3 to reconcile the amount worked out to be paid to the petitioner in the light of Rule 52(C) of Pay and Allowance Regulations, 1970, which stipulate that remission of pay and allowance will be allowed for a period exceeding three years preceding the date fixed for joining the duty, and accordingly calculations were made. Then it is pleaded that subsequently, “after thorough consideration of the case”, integrated headquarter directed the respondent No.3 vide Annexure R-11 to produce certain documents, in the direction to find out that the acquittal was honourable acquittal, or by benefit of doubt, and it is in that sequence that impugned communication came to be addressed.

6. Arguing the petition, learned counsel for either sides maintained their respective stand. Learned counsel for the respondents pressed into service, with all vehemence in his command, the provisions of Rule 52 (C) mentioned above.

7. Before proceeding further, we may gainfully quote the provisions of Rule 52 as such, which read as under: -

“52.(a) The forfeiture of pay and allowances under clauses (b) and (c) of Rule 51 may be remitted in the circumstances and by the authorities specified in Rule 195 of the Army Rules, 1954.

(b) The forfeiture of pay and allowances under clause (g) of Rule 51 consequent on conviction by a criminal court may be remitted by the authority competent to cancel his dismissal/removal/discharge when he is reinstated in service upon his acquittal or appeal or revision in the following manner:-

(A) If in the opinion of the authority ordering reinstatement, the person reinstated has been honourably acquitted/fully exonerated he may make a specific order for-

(i) remitting the forfeiture of pay and allowances in respect of the period from the date of dismissal removal/discharge to the date of acquittal and from the date of acquittal to the date fixed for joining duty, and

(ii) treating the period as duty which will also count for the purpose of classification, increments and G.S.Pay.

(B) In other cases-

(i) The pay and allowances for the period from the date of dismissal/removal/discharge to the date of acquittal may be remitted by the authority ordering the reinstatement to an extent considered equitable but not less than 50% of pay and allowances admissible at the time of the individual’s dismissal/removal/discharge. The period will not be treated as duty unless the reinstating authority directs that it shall be so treated for any specific purpose.

(ii) The forfeiture of pay and allowances for the period from the date of acquittal to the date fixed for joining duty may be remitted in full and the period will be treated as duty.

(C) The orders passed under sub-clauses (A) and (B) above shall be subject to the following conditions:-

(i) In no case remission will be allowed for a period exceeding three years preceding the date fixed for joining duty.

(ii) No payment shall be made unless the soldier furnishes a certificate that he was not engaged in any other employment, business, profession or vocation during the period between dismissal and the date fixed for joining duty. If any amount has been earned by him during such period, the pay and allowances remitted by the competent authority shall be reduced to that extent.

(iii) If a person during the period of dismissal reaches the age of superannuation by service/age/tenure limit the remission of pay and allowances should be restricted to the date of superannuation.

(iv) No pay and allowances should be admissible to an individual for any period of imprisonment undergone during the period between the date of discharge/removal/ dismissal and reinstatement without the specific sanction of the Government of India.”

8. Since this Rule 52 deals with remission in forfeiture of pay and allowances under Clauses (b) and (c) of Rule 51, it would be apt to refer to, and to reproduce the provisions of Rule 51 also, which reads as under: -

“51. A person, subject to the Army Act, 1950, will forfeit his pay and allowances (including expatriation allowance) for every day (as defined in Section 92 of that Act) of:-

(a) desertion;

(b) absence without leave;

(c) absence as a prisoner of war;

(d) the period between recovery from the enemy and dismissal from the service in the case of a recovered prisoner of war in respect of whom a Court of Enquiry convened under Rules 178 and 179 of the Army Rules, 1954 has recommended and convening officer has decided that the provision of this sub-clause shall be applied;

(e) Imprisonment awarded by a criminal court, or imprisonment or field punishment awarded by a court-martial, or an officer exercising authority under Section 80 of the Army Act, 1950;

NOTE:-In case the sentence of imprisonment or punishment is suspended, the individual will be entitled to draw full pay and allowances from the date of such suspension.

(f) confinement on a charge for an offence of which he is afterwards convicted by a criminal court or court-martial, or on a charge of absence without leave for which he is afterwards awarded imprisonment or field punishment by an officer exercising authority under Section 80 of the Army Act, 1950;

(g) the period between dismissal, removal, discharge, release or retirement carried out in the prescribed manner by the competent authority and reinstatement on its being cancelled by the competent authority; and

(h) sickness in hospital certified by the medical officer attending on him to have been caused by an offence under the Army Act, 1950, committed by him.”

9. A reading of Rule 51 shows that in the circumstances mentioned therein a person subject to Army Act forfeits his pay and allowances, including expatriation allowance for everyday as specified in Section 92 of the Act. Significantly Clause (b) of Rule 51 speaks about the absence without leave, while Clause (c) speaks about absence as war prisoner, and Clause (g) speaks about period between dismissal, removal, discharge, release or retirement carried out in the prescribed manner by the competent authority, and reinstatement on its being cancelled by the competent authority. Obviously, we are not concerned with Clauses (b) and (c) as the controversy centres around Clause (g), because the petitioner was dismissed consequent upon conviction, and that dismissal has been cancelled, in the form of directing notional reinstatement and discharge, from particular date. This contingency is comprehended by Rule 52(B), which provides that forfeiture of pay and allowance and Clause (g) may be remitted by the competent authority to cancel dismissal, removal, discharge etc. when he is reinstated in service upon his acquittal or appeal or revision in the manner detailed in Rule 52. It is, in this sequence, that Clause (A) comes in, providing that if in the opinion of the authority reinstating, person reinstated has been honourably acquitted/fully exonerated he may made a specific order of remitting the forfeiture of pay and allowances in respect of the period from the date of dismissal, discharge, dismissal, removal to the date of acquittal and from the date of acquittal to the date of joining the duty, and treating the period as duty, which will also be count for the purposes of classification, increments and G.S. pay. Then, under Clause (B) in other cases the pay and allowances for the period from the date of dismissal, removal, discharge, to the date of acquittal may be remitted by the authority ordering reinstatement, to an extent considered equitable, but not less than 50% of the pay and allowances admissible at the time of individual’s dismissal, removal or discharge. The period will not be treated as duty, unless reinstating authority directs, that it shall be so treated for any specific purpose. It also provides that forfeiture of pay and allowances for the period, from the date of acquittal to the date fixed for joining duty, may be remitted in full, and the period will be treated as duty. It is, in this sequence, that Clause (C) figures and provides that the orders passed under Clauses (A) and (B) above are to the subject of conditions, being that in no case remission shall be for a period exceeding three years of the date fixed for joining duty, no payment shall be made unless the soldier furnishes the certificate about non-engagement etc. and if during this period he reaches the age of superannuation by service, age tenure limit, remission should be restructured to the date of superannuation, and no pay and allowances should be admissible for any period of imprisonment undergone during the period in between.

10. As the things emerged from the documents made available, that the petitioner was ordered to be notionally reinstated and to be discharged w.e.f. the date of his terms of engagement coming to an end. Admittedly, no order was passed by the competent authority either forfeiting, or remitting, whole or any part of the pay and allowances, or as to how the interregnum period is to be treated, i.e. whether on duty or not, and if on duty, for what purpose and is to be treated on duty for all purpose.

11. However, at this stage, learned counsel for the respondents showed us the sanction order dated 09.09.2006, directing the dismissal order to be cancelled, and the petitioner to be reinstated into service w.e.f. 23.10.1996.

12. In that view of the matter, as the things stand, natural consequences of the reinstatement (notional reinstatement) and discharge, have to flow in absence of any order passed, adverse to the petitioner, with regard to treating the interregnum period from the date of dismissal till date of reinstatement.

13. It appears that the petitioner is being made to lend in the trap of red-tapism, and is simply sought to be tossed from pillar to post, notwithstanding the fact that the amounts payable to him had been calculated at a figure of Rs.6,04,890/-. And the petitioner should have been straightaway paid up that amount, and since he was notionally discharged on completion of 17 years of service, he was required to be sanctioned admissible pension.

14. In the circumstances, we also would have, straight way, passed the orders directing the respondents to release all these benefits, however, the predicament is that the petitioner had been under imprisonment during this interregnum period, and obviously in view of Rule 51(E), the petitioner cannot be allowed pay and allowances for the period he actually remained under imprisonment, and despite our specific query learned counsel for the petitioner is not in a position to give specific dates, so much so, that the parties are variance, even on the aspect of initial date of arrest, as, according to the respondents, the petitioner was arrested on 14.01.1994, while according to the petitioner’s counsel he was arrested on 08.02.1994, then it is not shown to us as to whether pending trial he was on bail or not nor are we told as to how long he remained in imprisonment, after being convicted by the learned Trial Court.

15. In these circumstances, with all predicaments in our way, we partly allow the petition by directing, that the order directing notional reinstatement of the petitioner w.e.f. the date of dismissal and discharge w.e.f. the date of completing terms of engagement, obviously treating the entire period to count for the purpose of service benefits, including pension, should be respected implemented and enforced in accordance with the restrictions available under Rule 51, and after making calculations of the actual amounts payable to the petitioner, the same should be paid and should be sanctioned admissible pension.

16. All this be done within a period of three months from the date of receipt of certified copy of this order by the learned counsel for the respondents, failing which the amount shall carry interest @ 10% per annum. The petition is accordingly allowed as above.

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