REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4714-4715 OF 2012

UNION OF INDIA & ORS. .....APPELLANT(S)

VERSUS

V.R. NANUKUTTAN NAIR .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) The challenge in the present appeals is to the orders passed by the

Armed  Forces  Tribunal,  Regional  Bench,  Kochi1 on  26th October,

2010 and April 12, 2011 holding that the respondent2 is entitled to

service element of disability pension from the date of discharge.   

2) The facts in brief  are that the applicant was discharged on 30th

June, 1978 after completion of 10 years and 169 days of service.

He  was  in  low  medical  category  since  1970.   He  was  granted

disability  pension  @50%  on  account  of  suffering  from  Viral

Myocarditis  post  discharge,  but  the  applicant  was  denied  the

benefit of service element of disability pension.  It is the denial of

this  service  element  which  led  the  applicant  to  invoke  the

1  for short, ‘Tribunal’ 2  hereinafter referred to as the ‘applicant’

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jurisdiction of the Tribunal.

3) The  stand  of  the  appellants  before  the  Tribunal  was  that  the

applicant is not entitled to service element of disability pension as

he was released on expiry  of  engagement before completion of

pensionable qualifying service of 15 years and was not invalided

out of service on account of disability, though  he has been paid

service gratuity and death-cum-retirement gratuity.  

4) The learned Tribunal relied upon Regulation 101 of Navy (Pension)

Regulations, 19643 to hold that since applicant has been invalided

from service on account of disability, therefore, he is entitled to full

disability pension including the service element.  The reliance was

also  placed  upon  Regulation  107  of  the  Regulations  which

contemplates that where the individual has not rendered sufficient

service to qualify for service pension, the personnel will be entitled

to proportion of the minimum service pension appropriate to the

individual’s  ranks and group.  It  is  the said order passed by the

Tribunal  which is  the subject matter of  challenge in the present

appeals.

5) Ms. Divan, learned Additional Solicitor General for the appellants

argued  that  the  applicant  was  not  boarded  out  of  service  on

account  of  disability  but  on  account  of  completion  of  the

engagement. The learned ASG traced the history of the grant of

disability  pension.  It  is  submitted  that  disability  pension  was

3  for short, ‘Regulations’

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initially granted when a member of the Armed Forces could not be

retained  in  the  Force  on  account  of  disability,  attributed  to  or

aggravated by military service. Such course was creating hardship

to the personnel boarded out on account of injury suffered due to

military service. Therefore, the concept of disability pension was

introduced. The disability pension has two components i.e. service

element  and  the  disability  element.   The  disability  element  is

related to disability whereas; the service element is to be granted

as  per  the  rules  and  regulations  applicable.  The  qualification

service  for  earning pension is  15 years;  therefore,  an individual

who has not rendered 15 years of qualifying service and was not

boarded  out  on  account  of  disability  is  not  entitled  to  service

element of pension.  

6) It  is  argued  that  Regulation  105B  of  the  Regulations  would  be

applicable if an individual is not invalided out of service on account

of  disability  and  has  not  opted  for  continuation  in  the  Armed

Forces. The said Regulation provides that on completion of period

of engagement, apart from service pension admissible which is on

completion  of  15  years  of  service,  a  disability  element  is  also

granted.

7) It is argued that initially, the Regulations contemplated 10 years of

engagement  with  another  10  years  as  reservist.   Therefore,  an

individual would not be entitled to pension merely upon completion

of 10 years of active service but would become entitled to service

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pension upon completion of 15 years of service including 5 years

as reservist.  It is argued that such situation has undergone change

when on 3rd July, 1976, the Government of India contemplated 10

years  as  initial  period  of  engagement,  with  the  option  of  re-

engagement of the existing sailors on completion of 10 years of

engagement.  It is argued that the period of engagement in case of

the applicant was 10 years approximately, therefore, he has not

completed the qualifying service of 15 years in terms of Regulation

78 of the Regulations. Thus, he is not entitled to service element as

the same is payable only after completion of 15 years other than to

an  individual  who  is  boarded  out  from  service  on  account  of

disability.   The reliance is  placed upon a judgment of  this Court

reported as T.S. Das & Ors.  v. Union of India & Anr.4 wherein,

the Court held as under:

“29.  As aforesaid, on introducing the new policy on 3-7- 1976, the Fleet Reserve was discontinued and instead the Sailors  in  service  at  the  relevant  time  were  given  an option to continue in active service for a further term of 5 years.  Some  of  the  Sailors  opted  to  continue  till completion  of  15  years,  who,  then  became  eligible  for “service pension” having qualifying service.

30.   The quintessence for grant of reservist pension, as per Regulation 92, is completion of the prescribed Naval and Reserve qualifying service of 10 years “each”. Merely upon completion of 10 years of active service as a Sailor or  for  that  matter  continued  beyond  that  period,  but falling short of 15 years or qualifying Reserve Service, the Sailor concerned cannot claim benefit under Regulation 92 for  grant  of  reservist  pension.  For,  to  qualify  for  the reservist pension, he must be drafted to the Fleet Reserve Service for a period of 10 years. In terms of Regulation 6

4  (2017) 4 SCC 218

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of the Indian Fleet Reserve Regulations, there can be no claim to join the Fleet Reserve as a matter of right. None of the applicants were drafted to the Fleet Reserve Service after  completion  of  their  active  service.  Hence,  the applicants before the Tribunal, could not have claimed the relief of reservist pension. …”

8) On the other hand, learned counsel for the applicant supported the

order  of  the  Tribunal  to  contend  that  Regulation  105B  of  the

Regulations was introduced to clarify that the benefit of disability

element who has completed the period of engagement shall be in

addition to the service pension. The provision was to grant benefit

and not to deny the benefit of the service element.  It was inserted

to avoid payment of service element twice i.e. as part of disability

pension and again as service pension.  In respect of an individual

who has either been invalided out of service or has completed less

than  15  years  of  qualifying  service  for  pension,  the  disability

pension including service element is  computable and payable in

terms of Regulation 107 of the Regulations.  Such Regulation deals

with an individual who has not rendered sufficient service to qualify

for service pension.  The service element is granted in proportion

to the minimum service pension appropriate to an individual’s rank

and  group,  in  which  the  number  of  his  completed  years  of

qualifying service bears to 15, but in no case less than two-thirds of

the minimum service pension.  Such Regulation would be rendered

otiose, if the argument of the appellants is to be accepted.   

9) The relevant clauses from the pension Regulation read as under:

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“78.   Minimum  qualifying  service  for  pension.  -  Unless otherwise provided, the minimum service which qualifies for service pension is fifteen years.

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101. Conditions for the grant of disability pension. – Unless otherwise specifically provided,  a disability pension may be granted to a person who is invalided from service on account  of  a  disability  which  is  attributable  to  or aggravated by service and is assessed at twenty per cent, or over.

101A.   Individuals  discharged on account  of  their  being permanently  in  low medical  category.  –  Individuals  who are placed in a lower medical  category (other  than ‘E’) permanently  and  who  are  discharged  because  no alternative  employment  suitable  to  their  low  medical category could be provided shall be deemed to have been invalided from service for the purpose of the Rules laid down in Appendix V of these Regulations.

101B.  Reservists discharged on account of being placed in a low medical  category.  –  (1)  A reservist  who is  placed permanently in a lower medical category (other than ‘E’) and is discharged from the Fleet Reserve on that account will be deemed to have been invalided out of service for the purpose of the rules laid down in Appendix ‘V’ of these regulations.

(2)  An individual who is found to be ineligible for the grant of  disability  pension  shall  be  paid  service  gratuity  as admissible under regulation 89.

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105B.  Disability at the time of discharge. – (1) A sailor, who is discharged from service after he has completed the period of his engagement and is, at the time of discharge found to be suffering from a disability attributable to or aggravated by naval service may at the discretion of the competent authority be granted in addition to the service pension admissible, a disability element as if he has been discharged on account of that disability.  

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(3)  The provisions in sub-regulations (1) and (2) shall also apply to sailors discharged from service on completion of the period of their engagement and who have earned only a service gratuity.

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107.  Amount of disability pension. – In cases where the accepted  degree  of  disablement  is  twenty  per  cent,  or over, the monthly rates of disability pension consisting of service  and  disability  elements,  shall  be  as  follows, namely:

(1) Service element (a)   Where  the  individual  has rendered  sufficient  service  to qualify for a service pension.

Service pension admissible in  accordance  with  his rank and group last  held, and length of service.

(b) Where the individual has not rendered  sufficient  service  to qualify for service pension.

(i)  If  the  disability  was sustained  while  on  flying or parachute jumping duty in  an  aircraft  or  while being carried on duty in an aircraft  under  proper authority,  the  minimum service  pension appropriate  to  his  rank and group. (ii)  In all other cases, that proportion of the minimum service  pension appropriate  to  the individual’s  rank  and group which the number of his  completed  years  of qualifying service bears to fifteen but in no case less than  two-thirds  of  the minimum service pension.

Provided  that  for  the  purpose  of  this  clause,  service rendered  before  the  age  of  seventeen  years  shall  be treated as qualifying service.

Explanation. – The service element shall be assessed –  

(i)  in the case of ordinary seaman or equivalent, on the basis of the minimum service pension laid down for able seaman or equivalent of the same group.

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Appendix  V  –  Nature,  Assessment  and  Attributability  of Disability and Entitlement to Disability Pension.

1. xx xx xx

2.  Invalidment from service is a necessary condition for the grant of disability pension. An individual who at the time of his release under the Release Regulations is in a lower  medical  category  than  that  in  which  he  was recruited will be treated as invalided from service.   Sailors who are placed permanently in a medical category other than  ‘A’  and  are  discharged  because  no  alternative employment suitable to their low medical category can be provided as well  as  those who having been retained in alternative  employment  but  are  discharged  before  the completion of their engagement will be deemed to have bene invalided out of service.”

10) We have heard learned counsel for the parties and find no merit in

the present appeals.

11) The disability pension has two elements: disability element and the

service element.  The disability element is in relation to the extent

of disability suffered by an individual whereas the service element

is to be granted keeping in view of rules and regulations. Service

pension  and  service  element  are  synonymous.   The  expression

service element is used in the case of payment of disability pension

whereas,  service  pension  is  used  for  the  pension  payable  on

account of services rendered.

12) In the present case, we are concerned with the situation where the

individual  has  completed  his  period  of  engagement  in  the  low

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medical category but not the qualifying service for pension in terms

of Regulation 78 of the Regulations.  The question is whether the

applicant  is  entitled  to  service  element  of  disability  pension

corresponding to the number of years he has put in the service of

Navy.   

13) We do not find any merit in the argument that as per Clause (1) of

Regulation  105B,  the  service  element  is  admissible  only  if  the

following conditions are satisfied:

(i)  That discharge was on account of disability attributable to or

aggravated by Naval Service.

(ii)  The individual is entitled to service pension only on completion

of 15 years of service in terms of Regulation 78.  

 14) In terms of Regulation 101A of the Regulations, an individual who is

placed in  lower medical  category and is  discharged because no

alternative employment suitable to his low medical category and

an individual  who at  the time of  his  release under  the  Release

Regulations is in a lower medical category than that in which he

was recruited will be treated as invalided from service in terms of

Clause 2 of Appendix V of the Regulations.   Therefore, in terms of

such Regulations, individuals who are invalided out of service on

account of disability for the reason that no alternative employment

suitable to their low medical category or an individual who at the

time of  his  release under the Release Regulations  is  in  a lower

medical category, are entitled to disability pension.   

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15) Clause 1 and 2 of Regulation 105B are applicable to sailors who are

discharged  from  service  on  completion  of  the  period  of

engagement and who have earned only a service gratuity in terms

of Clause (3) of the said Regulation.  Clause 1 pertain to the grant

of service pension in addition to the disability element. Therefore,

in  terms  of  Clause  3,  service  element  would  be  payable  to  an

individual who has been paid service gratuity.   

16) We find that the purpose of the Regulation 105B is to exclude dual

payment  of  the  service  element  of  disability  pension,  when  an

individual is entitled to service pension as well.  In the absence of

such  Regulation,  an  individual  would  be  entitled  to  disability

pension  including  the  service  pension.   Therefore,  the  service

element cannot be granted again as part of disability pension.  It is

to  avoid  the  payment  of  service  element  twice  over.   The

Regulation  105B has  not  used the expression ‘on  completion  of

qualifying service’.   The interpretation as argued by the learned

ASG leads to addition of  words in Regulation 105B which is  not

permissible as the Regulations have to be interpreted harmoniously

and not by adding words to the Regulations.  A person who has

completed  the  period  of  engagement  is  entitled  to  disability

element  apart  from  service  pension.   The  expression  ‘service

pension’  admissible  is  not  restricted  to  the  qualifying  service

provided under Regulation 78. It is not for the Courts to remedy the

defect  in  the  Statute.  The  reference  may  be  made to  an  early

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judgment of this Court reported as Nalinakhya Bysack v. Shyam

Sunder Haldar5, wherein it was held as under:-

“9.  …It must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Purposes of Income Tax v. Pemsel [LR (1891) AC 531 at p 549], that it is not competent to any court to proceed upon the assumption that the legislature has made a mistake. The Court must proceed on the footing that the legislature intended what it has said. Even if there is some defect in the phraseology used by the legislature the court cannot, as pointed out in Crawford v. Spooner [6 Moo PC 1: 4 MIA 179] , aid the legislature's  defective  phrasing  of  an  Act  or  add  and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as  said  by  Lord  Russell  of  Killowen  in Hansraj Gupta v. Official  Liquidator  of  Dehra  Dun-Mussoorie Electric Tramway Co., Ltd. [(1933) LR 60 IA 13; AIR (1933) PC 63] , for others than the courts to remedy the defect. In our  view it  is  not  right  to  give to  the word  “decree” a meaning other than its ordinary accepted meaning and we are bound to say, in spite of our profound respect for the opinions of the learned Judges who decided them, that the several  cases  relied  on  by  the  respondent  were  not correctly decided.”

17) In  another judgment  reported as Petroleum and Natural  Gas

Regulatory Board  v. Indraprastha Gas Limited & Ors.6, this

Court held:

“35. After so stating the Court has referred to the obser- vations made by Lord Diplock in Duport Steels Ltd. [Du- port Steels Ltd. v. Sirs, (1980) 1 WLR 142 : (1980) 1 All ER 529 (HL)] wherein it has been ruled thus: (All ER p. 541h- j)

“… the role of the judiciary is confined to ascer- taining  from the  words  that  Parliament  has  ap- proved as expressing its intention what that inten-

5  AIR 1953 SC 148 6  (2015) 9 SCC 209

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tion  was,  and  to  giving  effect  to  it.  Where  the meaning of the statutory words is plain and un- ambiguous it is not for the Judges to invent fan- cied ambiguities as an excuse for failing to give effect  to  its  plain  meaning  because  they  them- selves consider  that the consequences of  doing so would be inexpedient,  or  even unjust  or  im- moral.  In  controversial  matters  such  as  are  in- volved in industrial relations there is room for dif- ferences of opinion as to what is expedient, what is just and what is morally justifiable. Under our Constitution  it  is  Parliament's  opinion  on  these matters that is paramount.”

(emphasis supplied)

36. Recently,  in Sarah Mathew v. Institute of  Cardio Vas- cular  Diseases [(2014)  2  SCC  62  :  (2014)  1  SCC  (Cri) 721] , while interpreting Section 468 CrPC, the Court has opined: (SCC p. 99, para 45)

“45. It is argued that a legislative casus omissus cannot be supplied by judicial interpretation. It is submitted that to read Section 468 CrPC to mean that  the  period  of  limitation  as  period  within which  a  complaint/charge-sheet  is  to  be  filed, would amount to adding words to Sections 467 and 468. It is further submitted that if the legisla- ture has left a lacuna, it is not open to the court to fill it on some presumed intention of the legis- lature.  Reliance  is  placed  on Shiv  Shakti  Coop. Housing Society [Shiv Shakti Coop. Housing Soci- ety v. Swaraj  Developers,  (2003)  6  SCC 659]  , Bharat  Aluminium [(2012)  9  SCC  552  : (2012) 4 SCC (Civ) 810] and several other judg- ments of this Court where doctrine of casus omis- sus is discussed. In our opinion, there is no scope for  application  of  doctrine  of  casus  omissus  to this case. It is not possible to hold that the legis- lature  has  omitted  to  incorporate  something which this Court is trying to supply. The primary purpose of construction of the statute is to ascer- tain the intention of the legislature and then give effect to that intention. After ascertaining the leg- islative intention as reflected in the Forty-second Report of the Law Commission and the Report of the JPC, this Court is only harmoniously constru- ing the provisions of  Chapter  XXXVI  along with

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other  relevant  provisions of  the Criminal  Proce- dure Code to give effect to the legislative intent and to ensure that its interpretation does not lead to any absurdity. It is not possible to say that the legislature has kept a lacuna which we are trying to fill up by judicial interpretative process so as to encroach upon the domain of the legislature. The authorities  cited  on  doctrine  of  casus  omissus are, therefore, not relevant for the present case.”

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38.   We must take note of  certain situations where the Court in order to reconcile the relevant provision has sup- plied words and the exercise has been done to advance the  remedy  intended  by  the  statute.  In Surjit  Singh Kalra v. Union of India [(1991) 2 SCC 87] , a three-Judge Bench perceiving the anomaly, held: (SCC p. 98, para 19)

“19. True it is not permissible to read words in a statute which are not there, but ‘where the alter- native lies between either supplying by implica- tion words which appear to have been acciden- tally  omitted,  or  adopting  a  construction  which deprives certain existing words of all meaning, it is  permissible  to  supply  the  words’ (Craies Statute Law, 7th Edn., p. 109). Similar are the  observations  in Hameedia  Hardware Stores v. B. Mohan Lal Sowcar [(1988) 2 SCC 513 at  pp.  524-25]  where it  was  observed that  the court  construing  a  provision  should  not  easily read into it words which have not been expressly enacted  but  having  regard  to  the  context  in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance  the  remedy  intended  by  the  statute. (See Siraj-ul-Haq Khan v. Sunni  Central  Board of Waqf [AIR 1959 SC 198 : 1959 SCR 1287].)”

18) It, thus, transpires that by judicial interpretation, words cannot be

added to a statute, which would include the Rules, Regulations and

Instructions issued under a Statute, as an excuse to give effect to

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its  plain  meaning  of  the  language  of  the  regulations.  If  the

legislature has left a lacuna, it is not open to the Court to fill it on

some presumed intention of the legislature. But where the Courts

find that the words appear to have been accidentally omitted, or if

adopting  a  construction  deprives  certain  existing  words  of  all

meaning, it is permissible to supply additional words but should not

easily  read  words  which  have not  been  expressly  enacted.  The

Court should construct the provisions harmoniously having regard

to the context and the object of the statute in which a provision

appears, to make it meaningful. An attempt must always be made

so  to  reconcile  the  relevant  provisions,  so  as  to  advance  the

remedy intended by the statute. Thus, it  is not possible to read

completion  of  qualifying  service  in  Regulation  105B  of  the

Regulations.

19) In  view  of  the  principles  of  interpretation  relating  to  Casus

Omissus, we find that a reading of the Regulations does not lead to

an  inference  that  the  service  element  should  be  limited  to  an

individual who has completed minimum 15 years of engagement.

Regulation 78 cannot be read into Regulation 105B when no such

qualification is provided in Regulation 105B.  

20) Still further, the Regulation 107 providing service element in the

event  of  an  individual  who  has  not  completed  the  qualifying

service  will  become  otiose.   A  reading  of  all  the  regulations

harmoniously and keeping in view the object of grant of disability

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pension, we find that the interpretation which advances the object

and purpose of the grant of disability needs to be accepted being a

beneficial  provision for  a  class  of  individuals  who have suffered

disability in the course of duty.

21) The  quantification  of  disability  pension  in  the  cases  of  an

individual, who has not completed qualification service is dealt with

in Regulation 107.  Sub-clause (a) of Clause (1) of Regulation 107

deals  with  the  situation  where  the  individual  has  rendered

sufficient service to qualify for a service pension i.e. 15 years of

service in terms of Regulation 78.  However, sub-clause (b) comes

into play where the individual has not rendered sufficient service to

qualify  for  service  pension.   In  cases  where  the  disability  was

suffered while flying or parachute jumping, the minimum service

pension is appropriate to his rank and group but in all other cases,

the service pension is restricted to minimum of two-thirds of the

minimum service pension. For such reason, the disability element

would be in addition to the service pension by cumulative reading

of  Regulation  78,  Regulation  105B  and  Regulation  107  of  the

Regulations.  The service pension is to be assessed on the basis of

the minimum service pension laid down for an able individual of

the same group in Regulation 107 of the Regulations.   

22) Learned counsel for the appellants refers to an order passed by

this Court in Bhola Singh v. Union of India & Ors.7.  We find that

7  Civil Appeal No. 4486 of 2002 decided on 10th August, 2010.

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this  Court  has  not  referred  to  Regulation  105B  as  well  as

Regulation 107 of the Regulations to maintain an order of the High

Court to deny service element of pension to an individual who has

completed the initial fixed period of 10 years.  Since the appeal has

been decided without any reference to statutory regulations, we

find that the reliance of  the appellants on the said order is  not

helpful to the arguments advanced. We find that the reliance on

the judgment of this court  T.S. Das is not tenable for the reason

that it was not the case of grant of disability pension. It was the

case of grant of special pension.  

23) In view of the above, we find no merit in the present appeals, the

same are dismissed.  The appellants shall pay the arrears of service

element preferably within a period of four months from today in

terms of directions issued by the Tribunal.   

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; NOVEMBER 07, 2019.

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