Kumar Vs. Chief of the Army Staff  INSC 168 (11 March 1994)
R.M. (J) Sahai, R.M. (J) Pandian, S.R. (J)
1994 SCC Supl. (2) 303 JT 1994 (7) 21 1994 SCALE (2)229
Judgment of the Court was delivered by R.M. SAHAI, J.- This is second
application for contempt filed by the petitioner, who was a Captain in Army and
was injured on war front in 1965, for implementation of the order passed by
this Court in 1981 and 1986. When the first contempt application and a writ
petition for habeas corpus filed by the wife of petitioner, in circumstances
which are not necessary to be narrated, was decided in 1986 it was observed as
under: [(1986) 2 SCC 217, 219, para 1] "When judgment was pronounced in
Civil Appeal No. 475 of 1976 (Captain Virendra Kumar v. Union of India), it was
thought that an unhappy litigation had come to a happy ending.
was not so. It appears that Civil Appeal No. 475 of 1976 was only a prelude to
a long drawn out acrimonious and dogged litigation, both parties to which
appeared to us to be blameworthy. On the one hand, the matter appears to be
viewed by the authorities as one of prestige, that is, false prestige and hurt
dignity. On the other hand, there is misplaced determination coupled with a sense
of an emotional hurt on the side of the Captain." 2.Since then seven years
elapsed and the petitioner once again approached this Court for implementation
of the orders passed in 1981 and 1986. It is not necessary for us to refer to
various affidavits filed by parties as Shri Altaf Ahmed, the learned Addl.
Solicitor General, on our request, had heard the petitioner and the Union of
India, Delhi Development Authority and Mahanagar Telephone Nigam Limited to
iron out the differences and find out the possible solution. He filed the
report on 30-9-1993. Relevant portions of it are
extracted below :
I, therefore, proceeded to examine as to whether 'all benefits, retiral or
otherwise' consequent upon the discharge of Capt. Virendra Kumar 'from service
on 21-2-1981' were paid to him or not. I desired
the Army authorities to produce year-wise and monthwise details of payments
made to petitioner in lieu of his benefits, retiral or otherwise. A statement
eventually came a copy whereof was given to Capt. Virendra Kumar. I enclose the
copy of the statement furnished to me with this report. Quite apart from the
details regarding arrears of pay and allowances set, out by the Army
authorities in the said enclosures I find that certain benefits to which Capt. Virendra
Kumar would be entitled in execution of aforesaid para 21 of the judgment of
this Hon'ble Court have not been given to him. These are 1 (1981) 1 SCC
485:1981 SCC (L&S) 233 305 (i)Benefit of Army Group Insurance Scheme.- The
Army authorities agreed before me that this benefit shall be extended to him
from the date of his discharge i.e. 21-2-1981 subject to the terms of Special
Army Order III/S/81.
petitioner will have to appear before the Medical Board. A cheque for Rs 3135
for the period prior to 21-2-1981 is lying ready with the Army
authorities under this head for being passed on to the petitioner.
Service Officers' Provident Fund.- (DSOPF) has admittedly not been paid to the
petitioner. It is further admitted that an amount of Rs 9331 is due to the
petitioner in this behalf and a cheque is lying ready.
Army Authorities Children's Education Fund.- This benefit was also agreed to be
worked out in accordance with rules.
Gratuity Benefits.- This benefit has admittedly not been worked out beyond 30-9-1970. Hence in my opinion the payment of this benefit is
required to be worked out and paid to the petitioner for the period from 1- 10-
1970 to 21-2-198 1.
Pension.- The petitioner, in my opinion, deserves to be giventhis benefit also
provided he is so entitled in the opinion of the medical board.
petitioner and the Army authorities agreed before me to cooperate with each
other for complying with the procedural requirements necessary for the purposes
of aforesaid benefits.
(2) Delhi Development Authority:
regard to DDA the petitioner states that the decision to allot a restaurant in
Block 'E', East of Kailash to him conveyed, vide their letter of 22-5-1980, was not carried out. It appears that the said
decision was subsequently revoked. The counsel for DDA has vehemently argued
that this dispute is beyond the scope of present proceedings. I would,
therefore, not express my opinion on the grievances of the petitioner against
Telephone Nigam Limited:
petitioner desires that MTNL provide him with one Telex and one Fax machine for
35 years, rent free, at the cost of the department. I had suggested to the
counsel for the department to explore the possibilities of a settlement. His instructions
are that the demands of the petitioner are unacceptable." Neither party
filed any objection to the report.
was submitted by the petitioner can be conveniently divided in two parts, one,
that he was still continuing in service and, second, that even though the
amount calculated for the period in the report was correct, the appellant was
entitled to even higher amounts for reasons which shall be discussed presently.
regards the first submission, the petitioner submitted that he was still
continuing in service. He urged that the opposite parties have acted in
violation of the rules in not giving him his rank and salary from 1986 onwards
after the decision was rendered by this Court. In support of his submission he
placed reliance on an invitation card sent to him by Sub. Major inviting him to
49th Defence Regiment Programme Raising Day. According to him, this invitation
card having been issued in April, much after the judgment was delivered by this
Court, it should be assumed that the Department was treating him in service.
Reliance was also placed on certain correspondence between the petitioner and
the department in respect of facility of air-travel concession and his filing
of an application for becoming member of Defence Service Officers' Institute
which was endorsed by no less a person than the personal assistant of Chief of
the Army Staff. Reliance was also placed on certain letters which indicate that
the petitioner was threatened that the court-martial proceedings shall be taken
against him. The petitioner urged that an officer serving in the Army could be
discharged only under Rule 18 and since no order has been passed till now the
petitioner should be deemed to have continued in service and he is entitled to
all the emoluments. We have given our anxious considerations to the arguments
advanced by the petitioner, but we are not inclined to accept the same in view
of the decision given by this Court in 1986 directing that the petitioner shall
be deemed to have been discharged from service on 21-2-1981. The relevant part of the judgment is extracted below:
[(1986) 2 SCC 217, 233, para 21] "While dismissing the contempt
application and the application for the issue of a writ of habeas corpus, we
direct the Army authorities not to arrest or detain Captain Virendra Kumar
unless he is convicted in court-martial or some other proceeding. But we do
hope that the authorities will not further pursue the officer with any
proceeding by way of court- martial or otherwise. We also direct the authorities
to pay to Captain Virendra Kumar arrears of salary from 21-7-1980 to 21-2-1981, if
not already paid. In view of the failure of the officer to accept the posting
to Ambala, we absolve the Military authorities from making any further offer of
appointment or posting to the officer. The officer will be treated as if he was
discharged from service on 21-2-1981 and
all benefits, retiral or otherwise, to which he may be entitled, may be paid to
him on that basis. There will be no order as to costs in the contempt
application or in the writ petition." 5.In view of the order of this
Court, we do not think that the respondents were required to issue any further
order. As regards the material on which reliance was placed, suffice it to say
that they could not result in continuing the petitioner in service when the
order passed by this Court was clear and specific. In our opinion after this
order no further order or notification was required to be issued.
regards second submission, the amount determined to be payable under Group
Insurance Scheme was not disputed.
fact the learned counsel for Union of India produced a cheque for the aforesaid
payment. But the petitioner claimed that he was entitled for payment under this
head even after release. He urged that an officer even after release could
deposit certain amount and on such deposit the benefit under the scheme was
available to him. He further urged that in case of officers released from the
Army on account of disability on recommendation of Medical Board even this
amount was not required to be deposited. We do not consider it necessary to
examine the rules as the petitioner having not been released on recommendation
of Medical Board and he on his own showing having not deposited any amount nor
having made any application for grant of this benefit was not, in our opinion,
entitled to any further amount under this head.
regards Defence Service Officers' Provident Fund, it was urged that this amount
has been calculated treating the petitioner as Captain whereas he was to be
treated as an officer in the higher rank and the amount should have 307 been
calculated on that basis. Suffice it to say that provident fund is paid on
contribution made by an employee.
admittedly, no contribution was made by the petitioner in any other capacity
except as Captain, the amount determined to be payable to petitioner is
have not accepted his submission that he continued in service even after 1986,
therefore, he could not claim any further amount under this head.
regards the third recommendation in the report, it was urged on behalf of the
respondents that this payment could not be calculated as the petitioner had not
submitted the certificate from the Principal of the institute. We do not find
any justification for such objection, after such long time, and direct the
authorities to calculate the amount and make the payment within a month from
regards terminal gratuity benefit, the learned counsel for the Union of India
produced a cheque and urged that the total amount due under this head was Rs
14,000 and odd out of which payment of Rs 5000 had been made till September
1970. Since the amount was not disputed, we think that the petitioner is
entitled to the amount as calculated by the department which may be paid to him
regards disability pension, the respondents have filed chart, now, showing the
disability pension payable to the petitioner from 21-2-1981 to 31-12-1985 at Rs 590 p.m.
from 1-1-1986 to 14-11-1995 at Rs 1283 p.m. How this figure has been worked out is
narrated thus :
above has been calculated by CDA(P) on the basis that officers of the rank of
Capt. having 20 years' service are entitled to service element of pension at
the rate Rs 750 per month. However, when an officer's qualifying service is
less than the standard service for his rank (20 years in this case), the amount
of retiring pension is worked out by making deductions from the retiring
pension which would have been admissible on retirement in the appropriate rank
at double the rate as given in the Pension Regulations for the Army.
the officer had completed only 16 years of service, four deductions at double
the rate (rate prescribed for the scale Rs 601-750 is Rs 20) worked out to Rs
40 x 4 = Rs 160.
the service element is Rs 750-160 + Rs 590, w.e.f. 21-2-1981 to 31-12-1985.
to the recommendations of IVth Pay Commission, the service element, w.e.f. 1-1-
1986 is required to be consolidated as follows:
Pension- Rs 590 Relief- Rs 538 Difference of Relief- Rs 125 Difference of
existing and- Rs 30 revised pension Rs 1283 p.m. w.e.f. 1-1-1986" 11.No
objection has been filed by the petitioner to it.
therefore, accepted as correct. The petitioner is entitled to this payment. The
amount shall be paid forthwith.
far as the allotment of a restaurant in Block 'E', East of Kailash and its
subsequent revocation are concerned, the matter is not very clear' According to
learned counsel for the DDA, the fault was of the petitioner as he did not
deposit the instalments as determined. Further, according to him, the
petitioner 308 had approached the High Court of Delhi by way of a writ petition
which was dismissed. But that was contested by the petitioner and it was
claimed that the allotment was in respect of a restaurant, whereas the dispute
for which the petitioner had approached the High Court was in respect of a
plot. We do not propose to enter into this controversy and leave it open to the
petitioner to seek his remedy before the appropriate forum. In any case, this
was not a dispute before this Court either in 1980 or in 1986 and, therefore,
this could not be decided in these contempt proceedings.
regards providing of a telex and fax machine at the cost of the department, we
do not find any justification for the same. But it is undisputed that the
petitioner had two telephones which were disconnected and the total outstanding
is approximately Rs 1000 and odd. The suggestion made by the learned Addl.
Solicitor General for exploring possibility of settlement appears to have
failed. The department is not willing to accede to the request of the
petitioner. However, after having heard the learned counsel for the department
and gone through the record, we are of the opinion that if the petitioner
deposits the total outstanding, i.e., approximately Rs 1000 and odd, within a
period of one month from today, the department shall reconnect one of the
telephones within one month thereafter.
that this order will finally bring down the curtain on the litigation which has
been going on for nearly 30 years. But we are constrained to observe that the
petitioner was not paid the sums which were due to him under the Group
Insurance Scheme, Defence Service Officers' Provident Fund, Children Education
Fund and Terminal Gratuity benefits. The total amount, excluding the amount of
Children Education Fund, comes to approximately Rs 21,000 and odd. That this
amount has not been paid to the petitioner for all these years brings out fully
the observation made by this Court that the department was viewing the matter
as one of false prestige. In the circumstances, there is no option but to award
an interest of 14 per cent on this amount from March 1986 to February 1994. The
petitioner shall further be entitled to interest at 14% on Children Education
Fund. The department shall pay interest on same rate at the total pension from
March 1986 to February 1994.
parting with this case we record our deep appreciation for the hard and sincere
labour undertaken by Shri Altaf Ahmed, the learned Addl. Solicitor General.
the result, this contempt petition is disposed of in the terms indicated above.
No orders are necessary on Crl. M.P. No. 5726 of 1993. The petitioner shall be
entitled to his cost which is assessed at Rs 10,000.