Dismissed

Mana Birua v. Union of India And Ors.

Jharkhand HC13 Aug 2019WPC/2300/2009

Case brief

AI extract

What is this about?

In a writ petition by an ex-army Sepoy seeking pension and quashing of orders declaring him a deserter, the High Court dismissed the petition. The court held that even if the petitioner completed 14 years of service, he was not eligible for pension as he failed to complete the mandatory 15 years, and the dismissal for desertion precluded benefits. Additionally, the 35-year delay was fatal.

What did the court decide?

Writ petition dismissed; petitioner not entitled to pensionary benefits due to lack of qualifying service and dismissal for desertion.

Mana Birua Vs Union of India And Ors. — Pension and Retirement Benefits | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2300 of 2009

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Mana Birua, Ex-S.P.R. No. 1420988, son of late Kumar Birua,

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… … Petitioner

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Versus

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Union of India

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Secretary, Ministry of Defence (Army), South Block, New Delhi

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The Controller of Defence Acounts (Pensions), Allahabad

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The Deputy Commandant (Army), Bengal Engineering Group Records Centre, Roorkee-908799, c/o 56-A.P.O.

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Additional D.T.E., Personnel Services, Adjutant Branch Army Headquarters (D.H.Q.) New Delhi

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... ... Respondents

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-----CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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----- For the Petitioner : Mr. Rajesh Kumar, Advocate Mr. Apoorva Singh, Advocate Mr. Gaurav Raj, Advocate For the Respondents : Ms. Niki Sinha, C.G.C. -----

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22/Dated 13^th August, 2019

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Per Sanjay Kumar Dwivedi, J.

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1. Heard Mr. Apoorva Singh, counsel appearing for the petitioner and Ms. Niki Sinha, C.G.C. appearing for the Union of India.

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2. The petitioner has preferred this writ petition for a direction upon the respondents for his pension and payment of retiral dues with interest with effect from July, 1970. The petitioner has also prayed for quashing the orders dated 16^th May, 2008 and 18^th June, 1974 and the order whereby the petitioner has been declared a deserter and his pension has been denied.

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3. Mr. Singh, appearing for the petitioner, submits that petitioner joined service in the Army as a Sepoy in the Bengal Engineering Group Centre on 30.11.1956 and continued in active service till 29.11.1967. Subsequently, petitioner attended reserve training from 24.9.1968 to 21.10.1968 and from 16.01.1970 to 13.7.1970, during which period he also received specialised training from 14^th June, 1970 at the Bengal Engineering Group of Centre, Roorkee.

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Learned counsel appearing for the petitioner submits that during his service, his assessment done by his superiors was found to be exemplary

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and at the time of his discharge he was declared as fit for civil employment and was advised to contact the Sub Regional Employment Exchange at Singhbhum for assistance in finding employment by commanding officer, Depo-Battalion, Bengal Engineering Group and Centre of Engineering, Roorkee. The petitioner, during his service, was not only adjudged as exemplary but was in active war duty three times. The petitioner was also decorated with the SAINYA SEWA MEDAL with CLASP NEFA.

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Learned counsel appearing for the petitioner submits that the petitioner has not received his pension or any retiral dues. He has not received his compensation book and compensation money although he made a representation dated 03.5.1974 addressed to the Senior Record Officer, Depot Battalion, Bengal Engineering Group and Centre, Roorkee.

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Further submission is that the petitioner received a letter, dated 18^th June, 1974, whereby the petitioner was informed that he has been declared a deserter from service with effect from 29.10.1971 and accounts of the petitioner has already been settled with a credit of Rs. 303.50., which was credited to the government as a deserter credit balance and hence no benefit could be granted to him.

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Learned counsel for the petitioner submits that the petitioner has never been served with any letter or Notice as to why he had been declared a deserter or why he should not be declared a deserter. He further submits that the petitioner has appealed before the Hon’ble President of India against the order declaring him a deserter.

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It is further submitted that after several representations, the petitioner received letter dated 16.5.2008 from Lt. Colonel, Senior Records Officer B.E.G. Records C/O-56, A.P.O., which was in response to the legal notice sent by the petitioner, wherein it has been informed that the petitioner was in service till 29.11.1967, but, though he attended Reserve Training twice he did not report for duty/Reserve Training which he was required to attend with effect from 29.10.1971 and accordingly, he was declared as absent without leave/deserter with effect from 29.10.1971 and dismissed from service as deserter on 18.11.1974 and hence, he is not entitled for pensionary benefits.

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Learned counsel for the petitioner submits that the petitioner came to know about his dismissal vide letter dated 16.05.2008 after 34 years. He was finally relieved from service in the year 1970, whereafter he received no communication for attending Reserve Training as alleged in the year 1971. The petitioner was never served with any dismissal letter. He further submits that seven years of colour service, which the petitioner completed on 30.11.1963. He was however retained up to 29.11.1967 despite his transfer to Reserve Establishment on 20.10.1966 and further was in Reserve Service till 13.07.1970 when he was finally discharged from service and returned home with bag and baggage. According to the counsel for the petitioner, petitioner had completed 14 years of service. On this ground, learned counsel for the petitioner submits that the petitioner is entitled for pensionary benefits.

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4. Per contra, Ms. Niki Sinha, appearing for the respondent Union of India, submits that the petitioner has never informed his Commanding Officer regarding his change of address. The petitioner has never changed his residential address, which is reflected from the Enrolment Letter of the petitioner, which is at Annexure R-1 to the supplementary counter affidavit.

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She further submits that the first procedure of call up notice which is regulated by custom of service was that an individual is communicated on all known address. Secondly, in case of no response/acknowledgement, follow up procedure is done additionally with two more government organizations to ascertain whereabouts. After completion of that procedure, dismissal orders are being passed and accordingly, dismissal order against the petitioner was passed.

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Further submission is that the petitioner has not received the dismissal order because he has not provided the change of address. She further submits that in view of the regulations for the army contained in Defence Service Regulations, 1987, documents pertaining to non-pensioners will be retained only for 25 years from the date the personnel becomes non-effective. She submits that the petitioner approached this court in the year 2009, after 35 years, being fully aware that documents were destroyed by now.

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She further submits, on the basis of Annexure A to the counter affidavit, which is dated 19.2.2003, that by this letter the petitioner was in-

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formed about his dismissal with effect from 18^th November, 1974. On the basis of this, she submits that the contention of the petitioner about non service of the dismissal order is incorrect.

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She further submits that for pensionary benefits, 15 years of qualifying service is to be rendered, whereas the petitioner has not completed even that. She further submits that a personnel, who is dismissed form service, is not allowed pensionary benefits.

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5. As a cumulative effect of aforesaid facts and reasons, this Court finds that the petitioner has approached this Court after 35 years of the cause of action. Even after accepting the contention of the petitioner that he has completed 14 years of service, he is not entitled for the pension because for earning pension, 15 years of qualifying service is to be completed. Further, according to rules of defence, documents are being retained for 25 years only, whereas the petitioner has approached this court after 25 years and the petitioner has not disclosed the reason for such a long delay in approaching this Court in the writ petition.

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6. Accordingly, this writ petition stands dismissed.

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(Sanjay Kumar Dwivedi, J.)

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s.m

Mana Birua v. Union of India And Ors.

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Mana Birua v. Union of India And Ors.

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