In this post we will discuss about an application been filed by the applicant praying for revision of his pension in accordance with the last rank held by him before retirement on the basis of Govt. of india circular dated 09.02.2001, wherein it has been clarified that ten months continuous service in the last rank held is not required for grant of pension in such rank.
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FACTS:
The present OA has been filed by the applicant praying for revision of his pension in accordance with the last rank held by him before retirement on the basis of Govt. of india circular dated 09.02.2001, wherein it has been clarified that ten months continuous service in the last rank held is not required for grant of pension in such rank. Reference is made to orders of this Tribunal (Principal Bench) in O.A. No. 1166 of2017-JWO Pramod Kumar Singh & Ors. Vs. Union of India and O.A. No. 882 of 2016 JWO Ashok Kumar Tanwar & Ors. Vs. UOI. The applicant has also referred to the order of the Tribunal (Regional Bench) at Chennai in the matter of Thiagraian Vs. Union of India in O.A. No. 93 of 2014, which waived-off the ten months as stipulated in Para 123 of Pension Regulations for Air Force 1961 and opined that pension cannot be deprived to an individual to a rank for which he has already rendered his service and that the applicant had earned his pension in the rank of JWO already, and therefore is entitled to be paid pension in the rank of JWO. Even if. for some reason, such a pension is found to be less, the applicant is entitled to receive the highest pension he earned already. The said statutory right for pension already earned by the applicant cannot be reduced even if an undertaking is executed by him for the receipt of any lower pension in the rank of JWOThough the respondents concede that the requirement of holding the last rank of ten months before retirement has been dispensed with in keeping with Govt. of India circular dated .We find that there are a catena of judgements of various Benches of the Armed Forces Tribunal on this issue. Consequently, the fact that the applicant is entitled to pension in the last rank held by him, even if he held it for a duration less than 10 months, stands clearly established.
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ISSUES:
In consideration of all these issues as well as Circulars, the Tribunal, in that case, came to the conclusion that the basis of calculation being pursued in the instant case was detrimental for the pension of petitioner. To this end, we would like to quote Para 14 of the order in the case of JWO P.Gopala Krishnan (supra), which reads as under:
“For appreciating the rival contentions, we have gone through the Tables annexed with Circular 430 issued in pursuance of the policy letters dated 11.11.2008 by the Government of India. As per the Circular 430 in Table 116, we find the revised pension of Sergeant rank who has completed 20 years of service and retired after 01.04.2004 was fixed at Rs.3,694/-.The submission of the learned Central Government Standing Counsel as to the pension of Sergeants who retired on01.05.2005 shall be Rs.3,694/- is found correct to that extent. However, when we go through the service pension payable to a JWO in Table 116 of Circular 430 having20 years of service and retired after01.04.2004 would be Rs.4, 711/- and not Rs.3,358/- as put forth by the respondents. Therefore, the pension payable to the applicant as on 13 01.2005 in accordance with the policy letters of theand 09.02.2001 would be Rs.4,711/- and not Rs.3, 694/-. Similarly, the benefits conferred upon the JWO as per the VI Central Pay Commission recommendations as tabulated in Table 116 of Circular 430 for 20 years of service, we see that the pension payable to the applicant with effect from 01.01.2006 would be Rs. 7,100/- and the revised pension with effect from 01.07.2009 would be Rs.8, 720/-. When the benefits conferred upon the Armed Forces personnel on the changed policies have been clearly laid down in the Circular 430 containing several Tables, it ought to have been issued by the respondents without any request from the applicant. However, we find that the applicant had sought for payment of pension in the last held rank on several occasions and it was not heeded. The claim for pension is a statutory right and the respondents ought to have granted the entitled pension, admittedly, even without issuing any corrigendum in the PPO. This has been reiterated in various communications of the Government. Therefore, the respondents are under the obligation to revise the pension when it is brought to their notice of any defect in granting the pension. However, in this case, the respondents have not acceded to the plea of the applicant even when it was raised immediately after his retirement”.
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CITE JUDGEMENTS QUOTED ON SETTLED LAW:
Append below is the copy of Supreme Court judgement in the above referred Civil Appeal which emphatically lays down that the date of retirement cannot form the very criterion for classification – reliance on the decision of Apex Court in the case of D.S.Nakara and others vs Union of India reported in (1983)1 SCC 305. It further directs that as far as revision of pension is concerned, there cannot be two approaches – viz. those who retired before 01-01-1996 (less pension) and after 01-01-1996 (higer pension) – Pre-1996 Pensioners – Post 1996 Pensioners – to apply revised pension uniformly to all the Pensioners irrespective of any cut off date i.e. those who retired pre-1996 or those who retired post 1996.
The applicant who joined the Indian Railway Accounts Service on 4th November, 1957, took voluntary retirement in November, 1989 and was appointed as the Member of the Railway Claims Tribunal for a tenure of 5 years from 8th November, 1989. On completion of the tenure, the applicant retired on 7th November, 1994. His additional pension for the service as Member of the Railway Claims Tribunal was fixed at the rate of Rs. 293/- per month or 3,500/- per annum taking into account the 5 years of his service. Sub-rule 2 of Rule 8 of the Railway Claims Tribunal (Salaries and Allowances and Conditions of Service of Chairman, Vice Chairmen and Members) Rules, 1989 was amended by notification No. N. GSR 185 (E) dated 11.4.96 and the amended Sub-rule 2 of Rule 8 reads as follows:-“8(2) Pension under Sub-rule (1) shall be calculated at the rate of rupees one thousand fourhundred and fifty per annum for each completed yearof service subject to the condition that the aggregate amount of pension payable under this Rule, together with the amount of any pension including commuted portion of pension, if any drawn or entitled to be drawn, while holding office in the Tribunal shall not exceed rupees Four thousand per annum.”
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FINDINGS OF THE COURT:We find that the applicant is entitled to revised pension from the date of discharge in the rank of Sgt, last held by him on that date, in accordance with Govt. of India (MOD) letters dated 07.06.1999 and 09.02.2001. Similarly, the respondents need to implement the calculation of revised pension for the applicants w.e.f. 01.01.2006 as per Govt. letter dated11.11.2008 and Table 116 in Circular 430 was ordered by AFT Chennai in O.A. No. 612 of 2014 in the case of JWO P.Gopala Krishnan (supra).Accordingly, the OA is allowed. Subject to verification, the respondents are directed as under :
- To calculate the pension of the applicant based on the last held rank by him before retirement, and in consonance with the principles of calculation that have been upheld in the judgment of JWO Gopala Krishnan (supra) in this regard.
- The applicant will be accordingly issued a fresh Corrigendum PPO in the last rank of Sgt held by him within a period of three months and arrears be paid accordingly. Interest @6% will be paid to the applicants. However, interest of 10% will be levied in case this order is not complied with within three months.
CONCLUSION:
we hold that the contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defense during the trial. However, in cases involving issues such as privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides. In view of the above, this appeal partly succeeds. The impugned judgment and order passed by the trial Court and the High Court respectively stand modified by giving option to the appellant/accused to the extent indicated.
- Resultantly, the application filed by the appellant before the trial Court being Crl.M.P. No. 49/2018 in C.P. No. 16/2017 is partly allowed in the aforementioned terms. We direct the trial court to ensure that the trial in C.P. No. 16/2017 is concluded expeditiously, preferably within six months from the date of this judgment.”
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This post was written by Pranothi Rama.
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