Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4523 OF 2006

Shish Ram                                          …     Appellant

Versus

Union of India & Ors.        … Respondents

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article 136 of  

the Constitution against the judgment dated 22.11.2004 of the  

Delhi High Court in Writ Petition (Civil) No.5580 of 2000 (for  

short ‘the impugned judgment’).

2. The  facts  very  briefly  are  that  the  appellant  was  

enrolled in the Army on 28.01.1963.  As per the terms  

of his enrolment, he was to put in not less than ten  

years in Army Service and if required, a further period  

in  Reserve  Service  which  would  be  sufficient  to  

complete a total period of twenty years of service.  After

he completed more than ten years of Army Service, he  

was transferred to the reserve establishment with effect  

from 24.07.1974.  While in the reserve establishment,  

he was required to attend reservist training held from  

time  to  time.   He  attended  the  biennial  reservist  

training  for  the  year  1976.  An  intimation  dated  

20.01.1978  was  sent  to  him  to  attend  the  biennial  

reservist  training from 05.06.1978 to 02.07.1978 but  

he failed to attend the reservist training.  He was given  

another chance and was advised to attend the reservist  

training  with  the  next  batch from 19.06.1978 by  an  

intimation dated 16.05.1978 and yet he did not attend  

the  reservist  training.   On  coming  to  learn  that  the  

appellant  was  employed  as  a  driver  in  the  Delhi  

Transport  Corporation,  letters  were  sent  to  the  

appellant  as well  as  the Depot  Manager  of  the  Delhi  

Transport  Corporation   for  furnishing  the  required  

exemption certificate exempting him from the training  

during 1978, but there was no response to the letters.  

Consequently, the appellant was declared as a deserter  

with  effect  from  19.06.1978  and  was  eventually  

dismissed from service with effect from 20.10.1981.  

3. The appellant filed Writ Petition (C) 1294 of 1997 which  

was disposed of by the High Court with a direction to  

the  authorities  to  consider  the  representation  of  the  

appellant with liberty to the appellant to file a fresh writ  

petition  in  case  he  is  aggrieved.   After  the  

representation  of  the  appellant  was  rejected,  the  

appellant filed Writ Petition (C) No.2728 of 1997 which  

was also disposed of by the High Court on 28.04.2000  

granting permission to the appellant  to withdraw the  

writ  petition and to challenge the order of  dismissal.  

Thereafter, the appellant filed Writ Petition (C) No.5580  

of 2000 challenging the order of dismissal and claiming  

pension and by the impugned judgment the High Court  

has dismissed the writ petition.

4. Mr.  S.  M.  Hooda,  learned  counsel  for  the  appellant,  

submitted that the appellant has been dismissed from  

service  by  the  brigade  commander  who  had  no  

authority  to  dismiss  the  appellant  from  service.  

According to him, the authority who could dismiss the  

appellant was the officer-in-charge of the reservists.  In  

support of this submission, he relied on Regulation 206  

of the Defence Services Regulations, 1961.  Mr. Hooda

next submitted that in any case since the appellant had  

put  in  service  during  the  period  from 21.01.1963  to  

27.01.1978, he was entitled to pension and gratuity but  

pension and gratuity had been denied to the appellant.

5. Mr.  R.  Balasubramaniam,  learned  counsel  for  the  

respondents,  on  the  other  hand,  submitted  that  the  

authority to dismiss the appellant from service is the  

brigade  commander  and  this  should  be  clear  from  

Section 20(3) of the Army Act, 1950.  He submitted that  

the appellant has in fact been dismissed by the brigade  

commander.   Regarding  pension,  he  submitted  that  

Regulation  113(a)   of  the  Pension  Regulations,  1961  

clearly  provided that  an individual,  who is dismissed  

under the provisions of the Army Act, is ineligible for  

pension and gratuity in respect of all previous service.  

He submitted that as the appellant has been dismissed  

under the provisions of the Army Act, he was ineligible  

for  pension  and  gratuity  in  respect  of  his  previous  

service.

6.   Sub-section (3) of Section 20 of the Army Act, 1950  

and  Regulation  206  of  the  Defence  Services  

Regulations, 1961 are quoted hereinbelow:

“Section 20 – Dismissal, removal or reduction  by  the  Chief  of  the  Army Staff  and  by  other  officers- (3).An  officer  having  power  not  less  than  a  brigade  or  equivalent  commander  or  any  prescribed officer may dismiss or remove from  the  service  any  person  serving  under  his  command  other  than  an  officer  or  a  junior  commissioned officer.”

“Regulation  206.  Responsibility  for  effecting  transfer  to  the  reserve-OsC  reservists  are  responsible  for  maintaining  the  establishment  of reservists in accordance with the quota laid  down by Army headquarters.  Transfers to the  reserve  will  be  effected  by  OsC  units  in  consultation with OsC reservists or Officer-in- Charge  records.   Once  a  man  has  been  transferred to the reserve, he comes under the  administration  and  disciplinary  orders  of  the  OC reservists.”

7. A  reading  of  Regulation  206  of  the  Defence  Services  

Regulations, 1961, on which the learned counsel for the  

appellant has relied upon, would show that a man, who  

has been transferred to the reserve, comes under the  

administration and disciplinary orders of the Officer-in-

Charge reservists.  There is no mention in Regulation  

206 that the Officer-in-Charge reservists has the power  

to either remove or dismiss a reservist from service.  A  

plain  reading  of  sub-section  (3)  of  Section  20  of  the  

Army Act quoted above, on the other hand, would show

that an officer having power not less than a brigade or  

equivalent  commander  or  any  prescribed  officer  may  

dismiss or remove from the service any person serving  

under his command other than an officer or a junior  

commissioned  officer.   Regulation  206  cannot  take  

away  the  power  vested  under  the  Army  Act  in  the  

brigade commander to dismiss or remove any person  

working under him.  We, therefore, hold that the High  

Court rightly held in the impugned judgment that the  

brigade  commander  had  the  power  to  dismiss  the  

appellant from service.   

8. Regarding  pension  and  gratuity  claimed  by  the  

appellant,  Regulation  113  (a)  of  the  Pension  

Regulations, 1961 is quoted hereinbelow:

“An  individual,  who  is  dismissed  under  the  provisions  of  the  Army  Act,  is  ineligible  for  pension  or  gratuity  in  respect  of  all  previous  service.  In exceptional cases, however, he may,  at  the  discretion  of  the  President  be  granted  service  pension  or  gratuity  at  a  rate  not  exceeding  that  for  which  he  would  have  otherwise qualified had be been discharged on  the same date.”

Regulation  113(a)  is  clear  that  an  individual,  who  is  

dismissed  under  the  provisions  of  the  Army  Act,  is  

ineligible for pension or gratuity in respect of all previous

service.   As the appellant had been dismissed from the  

service under the provisions of the Army Act, he was not  

eligible for pension and gratuity and the High Court was  

right in rejecting the claim of the appellant for pension in  

the impugned judgment.

9. We, therefore, do not find any merit in this appeal and  

we,  accordingly,  dismiss  the  same with  no  order  as  to  

costs.     

.……………………….J.                                                                       (P.  Sathasivam)

………………………..J.                                                                        (A. K.  Patnaik) New Delhi, November 23, 2011.