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“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

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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.

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