O.A. No. 43 of 2012. Case: Ex Major (No. MS14270A) Vennila LK Vs Union of India, Ministry of Defence. Bombay Armed Forces High Court

Case NumberO.A. No. 43 of 2012
CounselFor Appellant: Mr. S.P. Ilangovan and For Respondents: Mr. B. Shanthakumar, SPC
JudgesV. Periya Karuppiah, J. (Member (J)) and Lt. Gen. (Retd.) Anand Mohan Verma, Member (Ad.)
IssueService Law
Judgement DateApril 17, 2013
CourtBombay Armed Forces High Court


Lt. Gen. (Retd.) Anand Mohan Verma, Member (Ad.), (Regional Bench, Chennai)

1. The petitioner prays for quashing the order of respondents dated 28th May 2010 denying the service benefits of gratuity, 60 days leave encashment and salary in the rank of Major from 21st January 2006 to 21st January 2007 and pay this amount with interest at 12% p.a. till the date of payment. The petitioner was commissioned in the Army Medical Corps as a Short Service Commissioned Officer for a period of 5 years in the rank of Captain on 21st January 2002. In 2005, while she was posted at MH Belgaum, she was tried summarily on 11th December 2006 for the offence of absence from duty for 9 days by GOC, ATNK & K Area and was awarded punishment of severe reprimand and a sum of Rs. 7653/- for 9 days pay and allowances was recovered from the credit balance of her pay account. She was promoted to the rank of Major on 21st January 2006 and on completion of five years of service on 21st January 2007 was granted two months of annual leave and 28 days of terminal leave and relinquished her Short Service Commission on 19 April 2007.

2. Mr. S.P. Ilangovan, learned counsel for the petitioner would plead that on 18th June 2005, while posted at MH Belgaum, the petitioner received a telephone call intimating that her brother met with an accident. She was totally shaken up and upset and after informing the Commanding Officer of MH Belgaum on telephone, rushed home. On reaching home, she sent a telegram to the Commanding Officer of MH Belgaum and when the condition of her brother improved, joined duty on 27th June 2005. On reaching the unit, all her plea of emergency at home and her telephonic intimation to the Commanding Officer seeking promotion to leave fell on the deaf ears of her higher officers and she was tried summarily and awarded punishment of severe reprimand resulting in loss of pay for this period. Punishment awarded to her by the summary trial for being absent without leave could have been avoided by regularising her absence by granting her annual or casual leave for the year. She was a very young officer and was in transition from student life to that of an army officer and her act of absence under the situation that has been explained should not have been viewed seriously. The punishment was excessive and disproportionate to the offence. The learned counsel would argue that the petitioner is eligible for the benefit of gratuity under the legal maxim 'Nemo budet bis vixari pro un eaden causa' that is "Nobody can be punished for the same offence twice". Despite this incident, she was promoted to the rank of Major in January 2006 and after her retirement from service in 2007, she was granted 30 days of annual leave out of her entitlement of 60 days. The petitioner would claim that the balance of 30 days could not be accumulated for encashment as she had already accumulated the maximum eligible leave for encashment, i.e., 60 days. However, at the time of retirement, she had accumulated more than 90 days of leave for encashment and as the upper limit for encashment of leave is 300 days, she is entitled to encashment of 90 days. The petitioner would claim that though she was promoted to the rank of Major, she continued to get pay of Captain and in support of her argument, she would produce the Statements of Account which mention her rank as Captain. On her retirement, she was not paid service gratuity on account of shortfall of 9 days of service of payment of gratuity. The petitioner sent an application to the respondents and several reminders without any positive outcome. In view of the above facts, the petitioner prays for payment of arrears of pay from 21st January 2006 to 21st January 2007, leave encashment for 60 days with 12% interest p.a. and service gratuity.

3. The learned Senior Panel Counsel Mr. B. Shanthakumar would submit that the petitioner was tried summarily for the offence of absence from duty on 11th December 2006 and awarded punishment of severe reprimand. The offence is a serious act of indiscipline on the part of an Armed Forces Officers. On account of this shortfall of 09 days in qualifying service for gratuity the petitioner is not entitled to it. The Senior Panel Counsel would claim that availed and unavailed annual or casual leave, leave accumulation and leave encashment are totally irrelevant to the period of qualifying service for terminal gratuity. The respondents would submit that with effect from 1st September 2008, Short Service...

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