Lt. Gen. C.A. Krishnan (Member-A).
1. The applicant has filed this Original Application before this Tribunal praying for his reinstatement in the Army in the same cadre as Sepoy with effect from 01.04.2001 with continuity of service with 50% backwages from 01.04.2001, or, in the alternative, payment of Rs.30 lakhs as cost of damages for his sufferings due to the erratic remark in his Discharge Book as Non Ex-serviceman which resulted in non-availability of government benefits to him for the past 15 years as extended to ex-servicemen, and also prayed for the discretionary grant of special pension by the Army, under the Army Pension Rules.
2. The learned counsel for the applicant averred that the applicant was enrolled in the Indian Army on 26.02.1988 and was discharged from Army on 01.04.2001 after 13 years 01 month and 07 days of service, indicating in his Discharge Book(Annexure-A3 to O.A) that he is discharged as per Army Regulation 13(3) III(iv) and discharged as a Non Ex-Serviceman. The applicant submits that the entry in his Discharge Book as a Non Ex-Serviceman is contrary to the Government of India Orders on Ex-Servicemen (Re-employment in Central Civil Service and Posts) Rules 1979 which were in vogue during 2001. Further, the Ex-Servicemen (Re-employment in Central Civil Service and Posts) Rules 1979(Annexure-A5 to O.A) stipulates that an Ex-Serviceman who has been released at his own request after completing five years services in the Armed Forces of the Union falls into the eligibility criteria of Ex-Servicemen for all purposes and benefits. He submits that though it was remarked in the Discharge Book that the applicant is fit for Group C and D posts in Central/State Government posts, the erratic remark embossed on his Discharge book as NON EX-SERVICEMAN made him disqualified for registering in civil employment Exchanges/Ex-servicemen Board Employment exchanges, rendering him jobless for the past 15 years and deprived him of the privileges of Ex-Serviceman during his young age after his discharge from Madras Regiment. The learned counsel further submits that it was deliberately marked in the applicant’s Discharge Book as 'Non Ex-Serviceman' during his discharge on 01.04.2001, for reasons only known to OIC, Records, Madras Regiment and by this dereliction of duty, the applicant suffered pecuniary loss due to joblessness, defamed in society, suffered mental agony/mental torture/ restlessness in mind due to the wrong entry in his Discharge Book. The applicant was awarded with 50th Year Independence Service Medal and 9 years long service army medals and had unblemished military service and his character was assessed as good at the time of discharge from Army as per his Discharge Book. During the applicant’s service he underwent two punishments for overstaying leave and absence without leave amounting to 462 days. He argued that as the applicant was punished for these two offences, the non-qualifying service period of 462 days must be converted into qualifying service. The applicant was issued Ex-Serviceman Canteen Card(Annexure-A4 to O.A) by the ATNK&K Area, Golden Palm Canteen, Trichy. The learned counsel for the applicant argued that para-3 of the impugned order No.2593608N/SR/NE-4(Wel) dated 06.04.2016 stated that as the applicant is a non-pensioner he is not an Ex-serviceman vide Gazette Notification No.518 dated 10.10.2012 which is incorrect and irrelevant as the applicant was discharged from Army way back on 01.04.2001 and is eligible for Ex-Servicemen benefits/privileges as per ibid Rules 1979, which were in vogue during the year 2001.
3. The learned counsel for the Respondents submitted that the applicant was enrolled in the Madras Regiment on 24.02.1988 for the terms of engagement of 17 years colour and 2 years reserve. He further submitted that on 29.07.2000, while serving in 4 MADRAS the applicant has submitted for premature discharge on extreme compassionate grounds, which was sanctioned under Army Rule 13(3)III(iv) and he was discharged on 01.04.2001 after completion of 13 years, 01 month and 08 days of service including 462 days of non-qualifying service, with assessment of character as good. The applicant was issued with non-Ex Serviceman discharge book being a non-pensioner. The learned Counsel for the respondents argued that the averments of the applicant based on Re-employment in Central Civil Service and Posts Rules, 1979 is incorrect, since as per Govt. of India, Ministry of Personnel Public Grievances & Pensions, Dept of Personnel & Training O.M. dated 14.04.1987 and Ministry of Personnel, Public Grievances & Pensions, Gazette Notification No.518 dated 04.10.2012 (Annexure R-1 and R-2 to O.A) the applicant is not eligible for Ex-Serviceman status as below :
Ministry of Personnel, Public Grievances and Pensions. Notification dated 4th October, 2012.
An ’ex-serviceman’ means a person (i) who has served in any rank whether as a combatant or non combatant in the Regular Army, Navy and Air Forces of the Indian Union and :
(a) who either has been retired or relieved or discharged from such service whether at his own request or being relieved by the employer after earning his or her pension; or
(b) who has been relieved from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medial or other disability pension; or
(c) who has been released from such service as a result of reduction in establishment.
(ii) who has been released from such service after completing the specific period of engagement otherwise than at his own request, or by way of dismissal or discharge on account of misconduct or inefficiency and has been given a gratuity and includes personnel of the Territorial Army, pension holders for continuous embodied service or broken spells of qualifying service.
4. The learned counsel for the respondents submitted that the applicant is not eligible for Ex-Serviceman status as per the policy/rules and he is not eligible for re-instatement into service. He further argued since the petitioner was discharged from service under Army Rule 13(3) III (iv) on the basis of his own request and considering his non-pensioner status in view of his service of 13 years, 01 month and 08 days including 462 days of non-qualifying service, he falls far short of required qualifying service for pension and is also not eligible for Ex-Serviceman status. Therefore, the submissions of the applicant are devoid of any merit.
5. In his rejoinder to the reply statement of the respondents, the applicant stated that the two punishments mentioned by the respondents as imposed on the applicant, while he was in service, cannot be reviewed on their merits now and they have no relevance at this stage, since the applicant has claimed only Ex-serviceman status now. The applicant submits that the typewritten English letter dated 29.07.2000(Annexure R-3) said to have been written by him, as averred by the respondents, for his compassionate discharge was not at all prepared by him, as he lacked much English knowledge, but only his signature was obtained on a blank sheet forcibly by coercion and the contents were filled and on that basis he was discharged from Army. Therefore, the said letter has got no merits and is devoid of facts. The applicant has produced copy of Discharge Certificate of Mr.Vellapandi Maruthiah No.1325711 Ex.SPR (Ex-Army) who served from 07.05.1962 to 20.02.1968 (5 years and 9 months only) and who has been discharged on ‘Service No Longer Required’ basis and who had been given Ex-Serviceman benefits and ID Card No.TN12/04014, whereas the applicant has been denied the Ex-Serviceman status.
6. In the additional Reply Statement filed by the Respondents, it was submitted that due to multiple marital problems in applicant’s personal life, in addition to the issue of divorce of Smt.Santi, as seen from the letters received by Army authorities from Smt.V.Jothilakshmi (Annexure-R1) and also Smt.V.Veluduraichi (Annexure-RII) and the facts that came out of Smt.V.Veluduraichi’s letter dated 03.01.2001 and 11.01.2001, it emerged that the applicant’s discharge intention was to go for a job in Dubai, which was also mentioned by 4 Madras vide their letter dated 17.03.2001(Annexure R-III). The learned counsel for the Respondents argued that it is clear that the applicant has requested for discharge on his own and he is now making false and fabricated stories to mislead the Hon’ble Tribunal, regarding his discharge.
7. Heard learned counsels for both the sides and perused the records placed before the Tribunal.
8. It is not disputed that the applicant was enrolled on 26.02.1988 and was discharged from the Army on 01.04.2001 after 13 years 01 month and 07 days of service. While the applicant has mentioned his service as 13 years 01 month and 07 days, the respondents have mentioned the applicant’s service 13 years 01 month and 08 days. It is also not disputed that out of this service, a total of 462 days are non-qualifying service due to overstayal of leave of 444 days on one occasion and absenting himself without leave for 18 days on another occasion by the applicant. Therefore, we find that the applicant’s qualifying service has reduced to about 11 years and 11 months, which falls well below the qualifying service to be eligible for grant of pension.
9. The applicant submits that he was discharged from the Army on 01.04.2001 after 13 years 1 month and 7 days of service including 462 days of non-qualifying service and that he was discharged under Army Rule 13(3)III(iv) as a ‘Non Ex-Serviceman’ which is contradictory to the rules of eligibility as per Government order on Re-employment in Central Civil Service and Post Rules, 1979 that were in vogue during 2001. The respondents, on the other hand, argued that the applicant obtained discharge with effect from 01.04.2001 and by then the provisions quoted by the applicant regarding granting him the status of Ex-Serviceman had been superseded vide Government of India, Department of Personnel & Training Office Memorandum No.36034/5/85-Estt (SCT) dated 14th April, 1987 the contents of which are reproduced below:
No. 36034/5/85-Estt (SCT)
Government of India Ministry of Personnel Public Grievances & Pensions
Department of Personnel & Training
New Delhi, Dated 14 Apr 87
Sub:- Recommendation No. 15.2 of the High Level Committee on the problems of ex-Servicemen Revision of the definition of ‘ex-Servicemen’ in the Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules 1979.
The undersigned is directed to say that the High Level Committee on the problems of Ex-Servicemen recommended the following definition of the term 'ex-Servicemen'.
'An ‘ex-Servicemen’ means a person, who has served in any rank whether as a combatant or non combatant in the Regular Army, Navy and Air Force of the Indian Union and
(i) who retired from such service after earning his/her pension; or
(i) who has been released from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or
(i) who has been released, otherwise than on his own request from such service as a result of reduction in establishment; or
(i) who has been released from such service after completing the specific period of engagements, otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency, and has been given a gratuity and includes personnel of the Territorial Army of the following categories namely :-
(i) pension holders for continuous embodied service
(ii) persons with disability attributable to military service’ and
(iii) gallantry award winners.'
2. After careful consideration the Government have accepted the above definition recommended by the High Level Committee. However, it may be observed that in the new suggested definition certain categories of personnel which have served in the Armed Forces of the Union have been excluded for consideration as ex-Servicemen, whereas certain additional categories of Territorial Army Personnel have been added in the revised definition. The Notification containing the revised definition was issued on 27 Oct 1986 and published in the official Gazette on 15th Nov 1986. The Notification given effect to the new definition from the date of its publication, but since some of the categories were excluded without adequate publicity, the effect of the earlier notification of 27 Oct 1986 has been stayed by issuing another Notification dated 27 Mar 87 (copy enclosed) in which the date of effect has been indicated as 1.7.87. The net effect is that the following two categories of personnel, who were included in the pre-revised definition of ‘ex-Servicemen’ will now cease to be treated as ex-Servicemen w.e.f. 1.7.87 as will be seen from the following proviso, namely,
'Any person who has been released :
(a) at his own request after completing five years service in the Armed Forces of the Union; or
(a) after serving for a continuous period of six months after attestation, otherwise than at his own request or by way of dismissal or discharge on account of mis-conduct or inefficiency or has been transferred to the reserve pending such release; shall also be deemed to be an exServicemen for the purpose of this clause.'
3. The Territorial Army personnel will however be treated as exServicemen w.e.f. 15.11.86.
4. Ministry of Finance etc are, therefore, requested to bring the contents of this Office Memorandum to the notice of all the appointing authorities under their administrative control and ensure that there is no laxity on the part of the authorities implementing the above instructions.
Sd/-(BATA K DEY)
All Ministries/Departments of the Government of India
10. The applicant contended that he had no knowledge of his application dated 29.07.2000, seeking premature retirement on extreme compassionate grounds. The learned Counsel for the applicant submitted that his signature was forcibly obtained on a blank paper by way of coercion by the Company Commander. The learned counsel for the respondents, on the other hand, refuted this claim and submitted that that it is evident that the intention of the applicant to seek discharge was known even to his family members from the fact brought out in a letter received from Smt.V.Veluduraichi in her petitions dated 03.01.2001 and 11.01.2001(Annexure-R2) wherein she has requested 'if he (the applicant herein) asks for discharge from serv
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ice, he should not be discharged'. 11. From the facts brought out above, the applicant’s claim that his signature was obtained through coercion on the application for premature release on extreme compassionate grounds does not inspire confidence in us. We also find from a careful perusal of the documents placed on record and the oral submissions made by both the parties, that after deducting the non-qualifying service from his total service, the applicant’s actual qualifying service at the time of his discharge on 01.04.2001 is only 11 years and 11 months. This is far short of the qualifying service of 15 years required for being eligible for service pension. We also find that the applicant has not submitted either through written submission or by way of oral submission any grounds for his entitlement of special pension. We are, therefore, of the considered opinion that the applicant is not entitled to either Service pension or Special pension. 12. The applicant was discharged from service on 01.04.2001. The policy regarding eligibility for grant of Ex-Serviceman status which was in vogue at that point of time was the policy issued vide Government of India, Department of Personnel & Training letter No. O.M.No.36034/5/85-Estt(SCT) dated 14.04.1987. As per the provisions of this policy, we do not find the applicant eligible for grant of Ex-Serviceman status. 13. From the foregoing, we are of the considered opinion that the applicant is not entitled to service pension or special pension. The applicant is also not eligible for the status of Ex-Serviceman. 14. The O.A. is disposed of accordingly. No costs.