whether the respondent is entitled to service element of disability pension from the date of discharge.? yes
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 jurisdiction of the Tribunal. - the objection is that 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. - 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. -Apex court held that In the present case, we are concerned with the situation where the individual has completed his period of engagement in the low 8 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.-
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. Learned counsel for the appellants refers to an order passed by this Court in Bhola Singh v. Union of India & Ors. We find that 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. 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.
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’
1
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’
2
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
3
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 reengagement 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
4
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:
5
“78. Minimum qualifying service for pension. - Unless
otherwise provided, the minimum service which qualifies
for service pension is fifteen years.
xx xx xx
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.
xx xx xx
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.
xx xx xx
6
(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.
xx xx xx
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.
7
xx xx xx
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
8
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.
9
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
10
judgment of this Court reported as Nalinakhya Bysack v. Shyam
Sunder Haldar
5
, 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 observations made by Lord Diplock in Duport Steels Ltd. [Duport Steels Ltd. v. Sirs, (1980) 1 WLR 142 : (1980) 1 All ER
529 (HL)] wherein it has been ruled thus: (All ER p. 541hj)
“… the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that inten5 AIR 1953 SC 148
6 (2015) 9 SCC 209
11
tion was, and to giving effect to it. Where the
meaning of the statutory words is plain and unambiguous it is not for the Judges to invent fancied ambiguities as an excuse for failing to give
effect to its plain meaning because they themselves consider that the consequences of doing
so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences 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 Vascular 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 legislature has left a lacuna, it is not open to the court
to fill it on some presumed intention of the legislature. Reliance is placed on Shiv Shakti Coop.
Housing Society [Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC
659] , Bharat Aluminium [(2012) 9 SCC 552 :
(2012) 4 SCC (Civ) 810] and several other judgments of this Court where doctrine of casus omissus 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 legislature has omitted to incorporate something
which this Court is trying to supply. The primary
purpose of construction of the statute is to ascertain the intention of the legislature and then give
effect to that intention. After ascertaining the legislative intention as reflected in the Forty-second
Report of the Law Commission and the Report of
the JPC, this Court is only harmoniously construing the provisions of Chapter XXXVI along with
12
other relevant provisions of the Criminal Procedure 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.”
xx xx xx
38. We must take note of certain situations where the
Court in order to reconcile the relevant provision has supplied 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 alternative lies between either supplying by implication words which appear to have been accidentally 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
13
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
14
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.
15
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.
16
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 jurisdiction of the Tribunal. - the objection is that 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. - 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. -Apex court held that In the present case, we are concerned with the situation where the individual has completed his period of engagement in the low 8 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.-
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. Learned counsel for the appellants refers to an order passed by this Court in Bhola Singh v. Union of India & Ors. We find that 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. 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.
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’
1
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’
2
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
3
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 reengagement 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
4
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:
5
“78. Minimum qualifying service for pension. - Unless
otherwise provided, the minimum service which qualifies
for service pension is fifteen years.
xx xx xx
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.
xx xx xx
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.
xx xx xx
6
(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.
xx xx xx
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.
7
xx xx xx
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
8
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.
9
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
10
judgment of this Court reported as Nalinakhya Bysack v. Shyam
Sunder Haldar
5
, 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 observations made by Lord Diplock in Duport Steels Ltd. [Duport Steels Ltd. v. Sirs, (1980) 1 WLR 142 : (1980) 1 All ER
529 (HL)] wherein it has been ruled thus: (All ER p. 541hj)
“… the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that inten5 AIR 1953 SC 148
6 (2015) 9 SCC 209
11
tion was, and to giving effect to it. Where the
meaning of the statutory words is plain and unambiguous it is not for the Judges to invent fancied ambiguities as an excuse for failing to give
effect to its plain meaning because they themselves consider that the consequences of doing
so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences 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 Vascular 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 legislature has left a lacuna, it is not open to the court
to fill it on some presumed intention of the legislature. Reliance is placed on Shiv Shakti Coop.
Housing Society [Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC
659] , Bharat Aluminium [(2012) 9 SCC 552 :
(2012) 4 SCC (Civ) 810] and several other judgments of this Court where doctrine of casus omissus 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 legislature has omitted to incorporate something
which this Court is trying to supply. The primary
purpose of construction of the statute is to ascertain the intention of the legislature and then give
effect to that intention. After ascertaining the legislative intention as reflected in the Forty-second
Report of the Law Commission and the Report of
the JPC, this Court is only harmoniously construing the provisions of Chapter XXXVI along with
12
other relevant provisions of the Criminal Procedure 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.”
xx xx xx
38. We must take note of certain situations where the
Court in order to reconcile the relevant provision has supplied 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 alternative lies between either supplying by implication words which appear to have been accidentally 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
13
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
14
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.
15
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.
16
