ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI. O.A.No.158 of Tuesday, the 15 th day of July 2014

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1 1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI O.A.No.158 of 2013 Tuesday, the 15 th day of July 2014 THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH (MEMBER - JUDICIAL) AND THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER ADMINISTRATIVE) Smt. Kukkala Manga Devi Widow of Late M Sigmn KS Reddy Village-Kanagala, PO-Kanagala Mandal-Cherukupalli, Dist-Guntur Andhra Pradesh, PIN Applicant By Legal Practitioner: Mr.M.Selvaraj vs. 1. Union of India, rep. by Integrated Head Quarters MOD (Army) Adjutant General s Branch Addl Dte Gen Personnel Service New Delhi The Officer in Charge Records Signals Pin , C/o 56 APO 3. Principal Controller of Accounts (Pension) Droupathi Ghat Allahabad, Uttar Pradesh. 4. The Commanding Officer 28, Infantry Div Signal Regiment C/o 56 APO.Respondents By Major Suchithra Chellappan JAG Officer.

2 2 ORDER [(Order of the Tribunal made by Hon ble Justice V. Periya Karuppiah, Member (Judicial)] 1. This application is filed by the applicant to quash the order passed by the second respondent in Order No M/FP-1/NER, dated and to consequently direct the respondents to sanction the family pension and other attendant benefits to the applicant with effect from The factual matrix of the applicant s case would be as follows: The applicant s husband, viz., Signalman Kukkala Srinivasa Reddy was enrolled as soldier in the army on He served in various parts of our country in the Corps of Signals to the satisfaction of his superiors. He was granted leave in August 2009 and he returned to the unit after completion of the leave. However, her husband came home on in a pathetic sick condition and he died on The applicant immediately intimated the death of her husband to the unit and Records and requested for payment of pension and help. The respondents did not pay any pension till date, but passed the impugned order. The reasons as stated in the impugned order that the applicant was a declared deserter and he forfeited his previous service and was therefore not entitled for service pension and thus the applicant is not entitled to any family pension,

3 3 cannot be sustained. The respondents did not pass any order that the applicant s husband had forfeited his previous service prior to her claim for family pension. Therefore, the applicant has come forward to challenge the order passed by the second respondent in rejecting the family pension to the applicant. The applicant would also request that the application filed by her may be allowed, as prayed for. 3. The objections raised by the respondents would be briefly as follows: The applicant s husband Signalman Kukkala Srinivasa Reddy was enrolled in the Army (Corps of Signals) on While serving with 28 Infantry Division Signal Regiment, the applicant s husband proceeded on 34 days Balance of Annual Leave from 01 August 2009 to 03 September Thereafter, the applicant s husband had neither reported back to the unit after the expiry of his leave nor any intimation containing reasons for his absence was received by the unit. A Court of Enquiry was conducted at 28 Infantry Division Signal Regiment under Army Act Section 106 and he was declared as a deserter with effect from on On , the husband of the applicant voluntarily reported to Depot Regiment (Corps of Signals). After the initiation of disciplinary action, he was dispatched to 28 Infantry Signal Regiment on However, he had again failed to report back to 28 Infantry

4 4 Division Signal Regiment and was absent without leave with effect from The applicant intimated that her husband died on in her petition dated where she claimed family pension from Signals Records. No death certificate was attached with the said petition and it was suitably replied by Signals Records in its letter dated The applicant sent a petition dated which was forwarded by IHQ of MoD (Army) through its letter dated and it was also replied by Signals Records. Yet another petition dated was received through IHQ of MOD s letter dated and it was suitably replied by the Signals Records on The applicant sent another petition dated which was also suitably replied by Signals Records through its letter dated During the 17 years of army service, the discipline/character of the applicant s husband was not found satisfactory as he had overstayed leave for three times and was punished under Army Act Section 39 (b). He was absent without leave with effect from and thereafter he was declared a deserter. Therefore, the averment of the applicant that he visited home on 12 th September 2010 in pathetic condition has no relevance. As per Regulation 123 of Pension Regulations for the Army 1961 (Part- I), a person who has been guilty of desertion has to forfeit the whole of his prior service towards pension and gratuity. In this case, the

5 5 individual died during the desertion period and therefore, the applicant is not entitled to any terminal benefits. Therefore, the claim for family pension and arrears of service pension of her husband is not admissible to the applicant. The application filed by the applicant is therefore liable to be dismissed. 4. On the above pleadings, the following points emerged for consideration: (1) Whether the applicant s husband has forfeited his previous service towards pension and gratuity in view of the provisions in Regulation 123 of Pension Regulations for the Army 1961 (Part-I)? (2) Whether the applicant is entitled for sanction of the family pension and other attendant benefits with effect from , i.e., the date of death of her husband? (3) To what relief the applicant is entitled for? 5. Heard Mr. M.Selvaraj, learned counsel for the applicant and Major Suchithra Chellappan, learned JAG Officer representing for the respondents. We have also perused the relevant documents. 6. Point Nos. 1 and 2: The indisputable facts as culled out from the pleadings of both parties and the arguments advanced on either side would be that the applicant is the widow of late Signalman Kukkala

6 6 Srinivasa Reddy who was enrolled in Army (Corps of Signals) on The said individual was serving with 28 Infantry Division Signal Regiment and was granted annual leave from 01 August 2009 to 03 September 2009 and he did not report to unit after expiry of the leave, but he voluntarily reported on , disciplinary action was initiated against him and he was punished accordingly. Even before that, the individual overstayed leave on three occasions and he was tried by Summary Court Martial for the offence under Section 39(b) and 54 (b) and was also punished. 7. The case of the applicant was that the husband of the applicant Kukkala Srinivasa Reddy after completion of his leave went back to his unit, but he returned to his home in a serious sick condition on and he died on at home which was intimated by the applicant to the unit. 8. Per contra, the respondents would state that the husband of the applicant was given the Movement Order on by Depot Regiment (Corps of Signals) to report back to 28 Infantry Division Signal, but the husband of the applicant again failed to report to 28 Infantry Division Signal Regiment and remained absent without leave with effect from and therefore, proceedings were taken to hold him a deserter and accordingly, he was declared a deserter with

7 7 effect from and it was also entered in Part-II order of the applicant s husband on 11 th May It was argued that the applicant is not entitled to the relief since her husband forfeited his previous service as he was declared as a deserter as per provisions of Para 123 of the Pension Regulations for the Army 1961 Part-I. 10. For appreciating the rival contentions when we perused the said Part-II Order produced as Annexure-II, it would show that the applicant s husband was declared a deserter with effect from Further, the applicant even in her application made to the respondents for the grant of family pension had stated that her husband was declared a deserter with effect from and he died during the desertion period at home due to illness. Therefore, there is no doubt that the applicant s husband was declared as a deserter by the respondents, who also died on at his home due to sickness. The death certificate as produced by the applicant in Annexure A.5 would establish that the applicant s husband died on at Kanagala, Cherukapalli (MD), Guntur District, the native place of the applicant. The fact that the applicant s husband died during desertion period is also not disputed by the respondents. It is also not disputed that the applicant s husband was not dismissed from

8 8 service initially by any proceedings against him on the charge of desertion. 11. The only contention raised by the respondents would be that the applicant s husband was declared as a deserter and therefore he forfeited his previous service for the purpose of granting pension, gratuity and other benefits as per Para-123 of Pension Regulations for the Army 1961, Part-I. No doubt, the applicant s husband was in service on 1 st July 2008 and therefore, the Pension Regulations applicable to his case would be Pension Regulations for the Army, 2008, Part-I. The relevant Para equivalent to Para 123 of Pension Regulations for the Army 1961, Part-I is, Para-43 of Pension Regulations for the Army 2008, Part-I. On comparison of the provisions in both the Regulations, we could understand that Para 43 of Pension Regulations for the Army 2008, Part-I is the replica of Para 123 of Pension Regulations for the Army 1961, Part-I. The said provision of Para 43 of Pension Regulations for the Army 2008, Part-I would run as follows: FORFEITURE OF SERVICE FOR CERTAIN OFFENCES AND ITS RESTORATION: 43. (a) An individual shall forfeit the whole of his prior service towards pension or gratuity upon being convicted by court martial of the offence:

9 9 (i) desertion, vide Section 38 of the Army Act, 1950; (ii) fraudulent enrolment, vide Section 43 (a) of the Army Act, 1950, (b) An individual who has forfeited service under the provisions of the preceding clause (a) (i) but has not been dismissed shall, on completion of a period of 3 years further service with exemplary conduct and without any red ink entry, be eligible to reckon the forfeited service towards pension or gratuity. 12. On a careful perusal of the said provisions, we could find that an individual who has been guilty of desertion of service shall forfeit the whole of his previous service towards pension and gratuity. 13. The learned counsel for the applicant Mr. M.Selvaraj would submit in his argument that the death occurred during the desertion period should have been considered as occurred while he was serving in the army, since he was not dismissed from service and therefore, the provisions contained either in Para-123 of Pension Regulations for the Army, 1961 Part-I or in Para-43 of Pension Regulations for the Army, 2008 Part-I would not be attracted. He would also submit that those provisions would apply only to living persons who failed to remove the taint of desertion by following the procedure mentioned in Para 43(b) of Pension Regulations for the Army, He would also cite a judgment

10 10 of the Hon ble High Court of Delhi reported in 2001 (91) DLT 54 in the case between Hamandi vs. UOI & Others, wherein it was observed that the persons who died during desertion period should be deemed to have died in harness. However, the learned JAG Officer would argue that once a deserter is always a deserter and unless the desertion has been removed by following the procedure laid down in Para 43(b) of Pension Regulations for the Army, 2008 Part-I, the stigma cannot be removed. 14. Considering the rival submissions of by both sides, the only point to be determined in this case would be whether the applicant s husband who died on during desertion period be considered as an individual died in harness. The relevant passage from the judgment of the Hon ble High Court of Delhi made in 2001 (91) DLT 54 would be as follows: 7. There is no provision in the Act or Rules envisaging automatic termination of service of a member of armed forces on declaration of desertion. On the other hand, Army Regulation 376 provides to the contrary and says that a deserter does not belong to cease to corps though he is no longer shown on its returns. This regulation reads thus: 376. Deserters from the regular Army: A person subject to AA who is declared absent under AA, Section 106 does not thereby cease to belong to the corps in which he is enrolled though no longer shown on its returns, and can, if subsequently arrested, be tried by

11 11 Court Martial for desertion. When arrested he will be shown on returns as rejoined from desertion.. 9. It was thus evident that a desertion by itself did not and would not bring about cessation or termination of the service of a member of the armed forces whose service remained otherwise intact despite being declared a deserter, unless, of course, he was dismissed, removed or discharged under an appropriate order passed by the Competent Authority under the Act and the Rules It is submitted by learned counsel for respondents that there was no occasion to try petitioner s husband by Court Martial because of his death on and as such, he should be deemed to have committed offence of desertion without being convicted. The submission appears fallacious on the face of it because mere declaration of desertion may not necessarily lead to the conviction by the Court-Martial. If that was so, there was no need to hold a Court Martial to try a deserter for the offence of desertion. As such, there was no scope to fictionally deem the deceased gunner convicted by Court Martial to satisfy the pre-condition for application of APR 123 and so long this provision stood in its present form it would not be attracted to the case at all. 14. We accordingly hold that petitioner s husband should be deemed to have died in harness as no order of dismissal, removal or discharge from service was passed against him till his death and that declaration of desertion did not lead to automatic cessation of his service and that he had not died of causes attributable to or

12 12 aggravated by the military service. Consequently, Army Pension Regulation 123(a) (i) was not applicable to the case. 15. On a careful understanding of the dictum laid down by the Hon ble Delhi High Court, it is clear that any individual who was not dismissed from service as per the procedure contemplated under Army Act and he died during the desertion period, should be treated as died in harness and the desertion would not in any way affect his right to get benefits and consequently any family pension to his next of kin. The submission of the learned JAG Officer that the deserter is always a deserter cannot be accepted in view of the principle laid down by the Hon ble Delhi High Court in the aforesaid judgment. The facts and circumstances as discussed in that judgment are squarely similar to the facts and circumstances of this case. The respondents are not producing any other judgment against the principle laid down by the Hon ble Delhi High Court. Therefore, we are of the considered view that the applicant s husband who died during desertion period should be treated as an individual died in harness. 16. Admittedly, the applicant s husband had completed 15 years of service which would fetch a pensionable service to the applicant s husband. The only case of the respondents would be that the applicant s husband forfeited the previous service and therefore, he was not eligible for pension or gratuity. In view of the fact that the applicant s husband

13 13 should have been deemed as died in harness, the provisions of Para 123 of the Pension Regulations for the Army 1961 or Para 43 of Pension Regulations for the Army 2008 are not applicable. Therefore, we are of the opinion that the applicant s husband should have been treated as died while on the rolls of the army, i.e., died in harness. Since he had already completed qualifying service of 15 years for pension on the date of his desertion, i.e., , he is eligible for pensionary and other benefits. Since the applicant s name was entered in Part-II Records as next of kin, she is certainly entitled to family pension as asked for by her from the date of death of her husband. 17. While disposing of the application for condonation of delay in filing the Original Application, we found that three years period prior to the filing the Original Application would overlap the period commenced from the date of death of the applicant s husband on and therefore, she would be entitled to family pension from the date of death of her husband, i.e., , if she is found entitled. Therefore, there is no need to restrict the grant of family pension from any date since the applicant is entitled for family pension on the demise of her husband with effect from Accordingly, both the points are decided in favour of the applicant.

14 Point No.3: In view of our findings reached in Point Nos.1 and 2, that the applicant is entitled for the grant of family pension with effect from , i.e., the date of death of her husband, the impugned order passed by the second respondent dated is liable to be quashed and the application is therefore has to be allowed. 19. Accordingly, the application is allowed. The respondents are directed to pay the arrears of family pension to the applicant on and from and to issue Pension Payment Order in favour of the applicant within a period of three months from today. In default, the respondents shall be liable to pay the said arrears with interest at 9% per annum till the date of payment. No order as to costs. Sd/ LT GEN K. SURENDRA NATH MEMBER (ADMINISTRATIVE) Sd/ JUSTICE V.PERIYA KARUPPIAH MEMBER (JUDICIAL) (True copy) Member (J) Index : Yes/No Member (A) Index : Yes/No VS Internet : Yes/No Internet : Yes/No

15 15 To: 1. Integrated Head Quarters MOD (Army) Adjutant General s Branch Addl Dte Gen Personnel Service New Delhi The Officer in Charge Records Signals Pin , C/o 56 APO 3. Principal Controller Accounts (Pension) Droupathi Ghat Allahabad, Uttar Pradesh. 4. The Commanding Officer 28, Infantry Div Signal Regiment C/o 56 APO 5. Mr. M.Selvaraj Counsel for applicant. 6. Major Suchithra Chellappan JAG Officer, For respondents. 7. OIC, Legal Cell, ATNK & K Area, Chennai. 8. Library, AFT, Chennai.

16 16 HON BLE JUSTICE V. PERIYA KARUPPIAH MEMBER (JUDICIAL) AND HON BLE LT GEN K. SURENDRA NATH MEMBER (ADMINISTRATIVE) O.A.No.158 of 2013 Dt: