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Union of India Vs. R.C. Jain - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 48 of 1981
Judge
Reported in25(1984)DLT245; 1984LabIC1935
ActsNavy Act, 1957 - Sections 184; Navy (Pension) Regulations, 1964 - Regulation 79
AppellantUnion of India
RespondentR.C. Jain
Advocates: U.L. Watwani,; P.L. Sharma,; Arun Kumar and;
Excerpt:
service - retirement benefit - section 184 of navy act, 1957 and regulation 79 of navy (pension) regulations, 1964 - appeal against judgment whereby single judge quashed decision of appellant and directed appellant to calculate and pay pensionary and other benefits due to respondent on basis that he was in service as seaman - appellant contended that respondent entitled to pension neither as officer nor as sailor - respondent was not a direct recruit to rank of ordinary seaman - respondent initially enrolled as 'boy' and subsequently advanced to rank of electrical artificer which is equivalent to leading seaman - leading seaman is higher category than an ordinary seaman - petition dismissed. - .....of his aforesaid training. the learned single judge after considering regulation 79 of the navy (pension) regulations, 1964 framed in exercise of the powers conferred by section 184 of the navy act, 1957 (hereinafter referred to as the act), as also section 13 of the act requiring oath of allegiance to every officer and every seaman and the definition of the word 'seaman' given in section 3(20) of the act, came to the conclusion that r. c. jain was in naval service and consequently he must be regarded as a seaman with effect from august 22, 1959 the date of his initial enrolment as artificer apprentice in the indian navy and for that reason even his training period with effect from august 22, 1959 to august 23, 1963 as artificer apprentice should also have been taken into.....
Judgment:

Jagdish Chandra, J.

(1) This letters patent appeal is directed against the judgment dated October 28, 1980 of the learned Single Judge, B. N. Kirpal J. whereby the learned Single Judge accepted the writ petition of respondent R.C.Jain, quashed the decision of the appellant Union of India contained in the impugned letter dated November 10, 1976 and directed the Union of India, within three months of the receipt of his judgment, to calculate and pay pensionary and other benefits which may be due to R.C. Jain, except those benefits which have already been allowed to him, on the basis that he was in service as a seaman with effect from August 22, 1959. R. C. Jain was also allowed costs of the writ petition.

(2) R. C. Jain was initially enrolled as Artificer Apprentice on August 22, 1959 in the Indian Navy at Indian Naval Ship Shivaji Lonavela, Poona. He worked as a trainee in that capacity uptil 23rd August, 1963. From the date of completion of his aforesaid training he was advanced to Electrical Artificer (Power) V Class with effect from August 24, 1963. Since then he was promoted to various higher ranks and as a result of the said promotions R. C. Jain came to the position of Commissioned rank of Acting Sub. Lt. (S. D. P.) on 30th September 1971 in which rank he was confirmed on 30th September, 1972. From this rank he retired from service on December, 1, 1976.

(3) On June 1, 1976 R. C. Jain proceeded on six months leave pending retirement and during that leave period he was served with the impugned letter dated November 10, 1976 by the appellant Union of India and the stand taken therein regarding non-entitlement of the respondent for pension and gratuity as a Sailor, according to the respondent R. C. Jain, was wholly unfounded and untenable. He, accordingly, made a representation to the Naval Headquarters, Delhi on December 15, 1976 'but he did not receive any reply to his representation notwithstanding the reminder. Thus finding himself helpless he invoked the jurisdiction of the High Court under Article 226 of the Constitution of India wherein he assailed the aforesaid letter dated November 10, 1976 and the act of the Union of India in not releasing to him his pension and death-cum-retirement gratuity, as illegal, void, ineffective, ultra vires, unconstitutional and mala fide and thus liable to be quashed.

(4) The appellant Union of India asserted that the respondent was entitled to pension neither as an Officer nor as a Sailor. It was also specifically asserted that R. C. Jain was only an Artificer Apprentice from August 22, 1959 to August 23, 1963 and that period could not be counted for the purpose of determining qualifying service for pension or gratuity of the petitioner. All the pensionary/gratuity benefits had since been given to R. C. Jam except for the period from August 22, 1959 to August 23, 1963 during which lie worked as Artificer Apprentice (Trainee).

(5) So, in the writ petition before the learned Single Judge, the short question which remained and arose for determination was as to whether the training of R. C. Jain for the period from August 22, 1959 to August 23, 1963 as Artificer Apprentice was to be counted or not for determining the qualifying service for the purpose of pension/gratuity or the same was to be reckoned with effect from August 24, 1963 on which date he was promoted as Electrical Artificer (Power) V Class on the completion of his aforesaid training. The learned Single Judge after considering Regulation 79 of the Navy (Pension) Regulations, 1964 framed in exercise of the powers conferred by Section 184 of The Navy Act, 1957 (hereinafter referred to as the Act), as also Section 13 of the Act requiring oath of allegiance to every Officer and every Seaman and the definition of the word 'Seaman' given in Section 3(20) of the Act, came to the conclusion that R. C. Jain was in Naval Service and consequently he must be regarded as a Seaman with effect from August 22, 1959 the date of his initial enrolment as Artificer Apprentice in the Indian Navy and for that reason even his training period with effect from August 22, 1959 to August 23, 1963 as Artificer Apprentice should also have been taken into consideration for the purposes of calculating the pension benefits which may be due to him.

(6) Regulation 79 of the Navy (Pension) Regulation, 1964 referred to above is the relevant rule determining the service qualifying for pension and gratuity in this case, and it reads as under :-

'SERVICE qualifying for pension and gratuity-(1) All service from the date of enrolment or advancement to the rank of ordinary seaman or equivalent to the date of discharge shall qualify for pension or gratuity with the exceptions of: (i) any period of service on a temporary establishment or for which a special rate of pay is granted without pensionary benefits. (ii) .................. (iii) .................. (iv) .................. (v) .................. 247 (vi) .................. (vii)................. (viii) any period of absence without leave, as also any period inter veining between the date of dismissal/discharge/release and that of its cancellation, to the extent it is regularised as extra ordinary law without pay and allowances.'

(7) The really relevant phrase used in this regulation is 'from the date of enrolment or advancement to the rank of Ordinary Seaman or equivalent' and it is on the interpretation of this phrase that the entire case hinges. The learned Single Judge has interpreted this phrase as meaning the enrolment as a 'Seaman' and consequently held that respondent R. C. Jain entered the Naval Service on August 22, 1959 and thus must be regarded as a Seaman with effect from that date and the period of his training with effect' .from August 22, 1959 up to August 23, 1963 as Artificer Apprentice must also be taken into consideration for calculating his pensionary benefits. The learned Single Judge thus appears to have confused the terms-'Seaman' and 'Ordinary Seaman and has not sought to bring out any distinction between the two and has rather on the other hand treated them at par with each other but this is not correct.

(8) As a matter of fact the term 'Seaman' is a bigger general term while the term 'Ordinary Seaman' is only one of the categories of the general tens. The term 'Seaman' has been defined in Section 3(20) of the Act as follows :-

'Section 3(20)- 'Seaman' means a person in the Naval Service other than an Officer.'

The words 'Naval Service' used in the aforesaid definition have also been defined in Section 3(14) of the Act as under :

'SEC.3(l'4)-'Naval Service' means the naval organisation of india So from these two definitions a Seaman means a person in the naval organisation of India other than an officer.

(9) Respondent R. C. Jain has been in the Electrical Branch of the Indian Navy and in this Branch Electrical Artificer (Power) Apprentice is equivalent to a 'Boy' and 'Electrical Artificer (Power) V Class' is equivalent to a 'Leading Rating' as has been mentioned on Page 6. of the Navy (Advancement) Regulations of Navy Instructions No. 2/S of 3rd June 1961, while a 'Leading Seaman has been shown equivalent to a Leading Rating' in Seaman Branch on Page 15 of the same Thus, R.C. Jain joined the Indian Naval Organisation as a 'Boy' on August 22, 1959 when he joined as Artificer Apprentice and continued as such till August 23, 1963 whet after on August 24, 1913 he was promoted as Electrical Artificer (Power) V Class, which rank is equivalent to 'Leading Seaman' as already pointed out above and that was the first promotion of R. C. Jain in the India Navy. Again on page 15of the said Instructions 'Seaman Branch' includes Boys, 'Ordinary Seamen', 'Able Seaman' and 'Leading Seamen'. Thus they all belong to the bigger and the general term 'Seaman' as defined in Sec, 3(20) of the Act belonging to the Naval Organisation. Then again on pages 115 to 120 of these Instructions these various categories of Seaman Branch Sailors occur together with their qualifications for advancement force lower categories to higher categories and the perusal of the sane shows that 'Boy' ranks the lowest and thereafter follow in higher ranks an 'Ordinary Seaman', 'Able Seaman' and 'Leading Seaman'. It is further pointed out in the aforesaid pages that an 'Ordinary Seaman' may be recruited by direct entry or by promoting or advancing a 'Boy' on attaining the age of 17 years or on the date of successful completion of training in the Boys Training Establishment whichever is later. Sometimes 'Boys' are awarded accelerated advancement to be promoted as 'Ordinary Seaman'. Similarly, an 'Ordinary Seaman' can be promoted as 'Able Seaman' who in turn can be promoted as 'Leading Seaman'. It would thus be seen that even though a Boy in the Naval Organisation is a 'Seaman' he cannot be called an 'Ordinary Seaman' and on the other hand he becomes an Ordinary Seaman only when he is advanced to the rank of 'Ordinary Seaman,' on the completion of his training in the Boys Training Establishment or on attaining the age of 17 years, whichever is later. R. C. Jain was above 17 years of age when he was initially enrolled an Artificer Apprentice on 22nd August, 1959 in the Indian Navy and so he could be advanced as an 'Ordinary Seaman' only on the completion of his training as Artificer Apprentice which continued from 22nd August 1959 up to 23rd August 1963. As already pointed out above under Regulation 79 of the Navy (Pension) Regulations, 1964 service qualifying for pension and gratuity of 'Seaman' starts from the date of his enrolment or advancement to the rank of 'Ordinary Seaman' or equivalent and continues to the date of discharge. This regulation would mean that the seaman should be either a direct recruit to the rank of 'Ordinary Seaman' or he may have been advanced to the rank of 'Ordinary Seaman' before his service can be stated as service qualifying for pension and gratuity. In the instant case R. C. Jain was not a direct recruit to the rank of Ordinary Seaman but was initially enrolled as a 'Boy' and was subsequently advanced to the rank of Electrical Artificer (Power) V Class from August 24, 1963 which rank, as already pointed out above, is equivalent to a 'Leading Seaman'. It has also been pointed out above that a 'Leading Seaman' is a higher category in Seaman Branch than the category of 'Able Seaman' which in turn is again a category higher than an 'Ordinary Seaman' and so with the promotion of R. C. Jain from Artificer Apprentice to the rank of Electrical Artificer (Power) V Class on 24th August, 1963 he shall be deemed to have already converted his advancement to the still earlier higher category of 'Ordinary Seaman'. Thus, in view of Regulation 79 of Navy (Pension) Regulations, 1964, referred to above, R. C. Jain would be qualified to earn his pension and gratuity not with effect from 22nd August 1959 the date of his initial enrolment as Artificer Apprentice in Indian Navy but with effect from 24th August 1963 when he was promoted to the rank of Electrical Artificer (Power) V Class which automatically included his advancement to the category of 'Ordinary Seaman'.

(10) Classification of 'Seaman' in various categories is not a recent development found only in the Navy (Advancement) Regulations of Navy Instructions No. 2/S dated 3rd June 1961, but has been there in the Indian Navy since quite some time past. Regulations for the Royal Indian Navy Vol. Ii (Provisional) Pension Section 1938 provided in appendix 5 pertaining to index of substantive rating on pages 495 to 498 enlisting the hierarchy of Seaman asunder:-

'(1)Chief Petty Officer (2) Petty Officer (3) Leading Seaman (4) Able Seaman 249 (5) Ordinary Seaman and . (6) Boy'

(11) . It provides for the advancement of Boys to the rank of 'Ordinary Seaman' and similarly the advancement of 'Ordinary Searnaa' to the higher category of 'Able Seaman' and so on.

(12) Rule 181 of Pension Regulations for the Royal Indian Navy, 1943 also provided for the exclusion of any service rendered before being rated 'Ordinary Seaman' or equivalent in other branches for special and ordinary pensions for counting service for the purposes of pension. The relevant portion of this Rule is reproduced below : -

WHAT service counts for pension : - (1) All service rendered in a class eligible for pension or gratuity, counting from date of enrolment to date discharge, shall reckon towards pension or gratuity, with the exception of:-- (a) ..................... (b) any service rendered before being rated ordinary seaman or equivalent in other branches (for special and ordinary pensions only) (e) ..................... (d) .....................'

(13) Regulation 247 of the Regulations for the Navy 1965, Part Iii, Chapter Ii also sets out the heirarchy of sailors as under :-

(1)Chief Petty Officer (2) Petty Officer (3) Leading Seaman (4) Able Seaman (5) Ordinary Seaman (6) Boy.

(14) Any sailor of any one of the above ranks shall rank and command before any sailor of a rank below in the above mentioned list.

(15) Thus, it would be seen that the learned Single Judge erred in reckoning the period of respondent R. C. Jain an Artificer Apprentice (Trainee) which was from 22nd August 1959 to 23rd August 1963 by getting oblivious of the fact that even though R. C. Jain could be called a Seaman in the general sense of the term even when he was working as Artificer Apprentice during the said period, be had not till then been advanced to the rank of 'Ordinary Seaman' which is a category higher than 'Boys' or 'Artificer Apprentices' as required under the pension/gratuity rule contained in Regulation 79 of Navy (Advancement) Regulations of Navy Instructions No. 2/S of 3rd June 1961. It is thus a proposition obviously made out that whereas 'Seaman' is the genus the 'Ordinary Seaman' is only one of the species thereof higher 'in rank than the other specie known as 'Boy' or 'Artificer Apprentice'.

(16) Section 13 of the Act talks of oath of allegiance to be taken by every officer and every Seaman at the time of his appointment' or enrolment and this provision of law read as follows :- Section 13.

'EVERY officer and every seaman shall, as soon as may be, after appointment or enrolment make and subscribe before the commanding officer of the ship to which he belongs, or the prescribed officer on oath or affirmation.....-'

(17) The learned Single Judge after setting out the aforesaid provision of law pertaining to oath of allegiance made the following observations in his judgment:

'IF the petitioner had not been appointed or enrolled as a seaman, the question of his being asked to take oath in accordance with Section 13 would not have arisen. The fact that the petitioner was required to take oath of allegiance on 22nd August, 1959 goes to show that the petitioner was regarded as having been appointed or enrolled as seaman as on that day ....If the petitioner was in Naval service then he must be regarded as a seaman as on 22nd August 1959. The .respondents should, thereforee, have taken into consideration his service with effect from 22nd August 1959 for the purposes of calculating the pensionary benefits which may be due to him.'

(18) The learned Single Judge also set out in the impugned judgment the definition of the word 'Seaman' as given in Section 3(20) of the Act. As already pointed out above, the learned Single Judge did not care to draw a distinction between the general term 'Seamen' audits branch or category known as 'Ordinary Seaman', and thus erroneously held P.. C. Jain respondent to be entitled to pensionary benefits with effect from his initial enrolment as Artificer Apprentice in the Indian Navy, even though the relevant Rule 79 of the Navy (Pension) Regulations, 1964 entitled him to pensionary and gratuity benefits- only on his advancement to the rank of 'Ordinary' seaman'. Although a 'Boy' or an 'Artificer Apprentice' is a 'Seaman' as defined :in Section 3(20) of the Act, but that is the initial and the lowest category of 'Seaman' and cannot be equated with an 'Ordinary Seaman' which is a rank and a category higher and which is also included in the general term 'Seaman'.

(19) Though not of appreciable importance or significance for the case in hand, it would .be noted from the regulations for the Navy, 1965 that a 'Boy' and an 'Artificer Apprentice' have been dealt with as a category separate from other 'Seaman' or 'Naval Officer' in the matter summary punishment and' character assessment etc. which is again an indicator of a 'Boy' or an 'Artificer Apprentice' being category' apart from the other categories of 'Seaman'.

(20) In view of what has been stated and discussed above, the judgment under appeal cannot be upheld and is, thereforee, set aside and the writ petition is dismissed.

(21) There shall, however, be no order as to the costs of this appeal as notice was ordered not to be issued to the respondent.

(22) It is also made clear that when this appeal came up for admission it was time barred and normally the delay was not to be condoned but considering that the question of law decided by the learned single Judge was to affect a large number of people, the appeal was admitted and delay was also formally condoned but it was made clear that notwithstanding the decision in this appeal, the benefits which had already been given to respondent R. C. Jain by the appellant Union of India would not be affected ana he would remain entitled to the benefit of the order under appeal passed by the learned Single Judge. In other words, the benefits on account of pension or gratuity etc. paid by the appellant to the respondent inclusive of the period of his training as 'Artificer Apprentice' from 22nd August 1959 to 23rd August 1963 are not to , refunded by the respondept.to,the appellant notwithstanding setting aside of the impugned judgment of the learned Single Judge by the acceptance of this appeal.

(23) In the end we record our appreciation of the able assistance rendered by Mr.P.L.Sharma, Judge Advocate General, Naval Headquaters, Delhi to us in the matter of deciding this appeal involving as it did Complicated technicalities singular only to the Naval Organisation of India.


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