Regulation 125(a) of the Pension Regulations for the Army allows for the condonation of shortfalls in pensionable service, even in cases of voluntary discharge.

JUDGMENT

Dr. S. Muralidhar, CJ. - Challenging an order dated 12th October, 2012 of the Armed Forces Tribunal, Kolkata Bench, Kolkata (AFT) dismissing his application in O.A. No.5 of 2011, the Petitioner has filed the present petition. By the impugned order the AFT held that since there is a short fall of three months twelve days of pensionable service rendered by the Petitioner until he was voluntarily discharged from service, the provision of condonation of the shortfall as provided in Regulation 124 will not apply in case of the Petitioner to make up for his inability to complete 15 years of mandatory service to make him eligible for pension.

2. The background facts are that the Petitioner was enrolled in the Army (Corps of EME) as an Apprentice on 30th March, 1973 and transferred as a combatant to the Bench service with effect from 14th March, 1975. The Petitioner was discharged from service at his own request on 'extreme compassionate grounds' with effect from 18th December, 1987.

3. It must be noted here that while the Petitioner claims that he was compelled to seek discharge, the fact remains that he did not make any such grievance soon after his discharge and this aspect has been denied by the Opposite Parties. Since it gives rise to a disputed question of fact, the Court is unable to adjudicate this aspect in exercise of its jurisdiction under Article 226 of the Constitution of India. Be that as it may, what is not in dispute is that the Petitioner made a representation on 8th July, 2009 to the Office of the EME Records, Secunderabad praying that the approximately two years during which he served as Apprentice had not been taken into account for calculating the eligible period for pension and that it should be so counted and he should be granted pension.

4. On 29th July, 2009 the Senior Record Officer for the Officer-in- Charge, EME Records addressed the following communication to the Petitioner:

'GRANT OF SERVICE PENSION

1. Reference to your petition dated 08 Jul 2009.

2. As per records held in this office, you were enrolled on 30 Mar 1973 and discharged on 18 Dec 1987 at your own request on extreme compassionate grounds after rendering 14 years 08 months and 18 days service including two years apprentice service whereas 15 years qualifying service is a mandatory requirement to earn service pension vide Para 132 of Pension Regulations for the Army 1961 (Part-I).

3. Further, since you were discharged from service on extreme compassionate grounds at your own request, condonation of deficiency in service is also not applicable in your case as per provisions given at Para 125 of Pension Regulations for the Army 1961 (Part- I).

4. In view of the above, you are not entitled to get any pension.'

5. Dissatisfied with the above reply, the Petitioner addressed further representations on 3rd September, 2009 and 4th September, 2010. After no response was received to these representations, the Petitioner filed O.A. No.5 of 2011 before the AFT, Kolkata Bench.

6. Before the AFT, the stand of the Opposite Parties was that even after accounting for the nearly two years of Apprenticeship, the Petitioner did not complete the minimum qualifying service of 15 years for grant of service pension. According to the Opposite Parties, during his service the Petitioner had 593 days of non-qualifying service. It was stated that he had overstayed his leave for 284 days between 21st May, 1004 and 28th February, 1995 and again 309 days from 6th October, 1995 to 9th August, 1986. According to the Opposite Parties, after deducting the non-qualifying service and including the Apprentice period service, the total service rendered by Petitioner would be 13 years 24 days and therefore, he could not be granted pension.

7. It is clear from the impugned order of the AFT it chose to go by the letter dated 29th July written by the EME Records where it had been stated that the Applicant had indeed rendered 14 years 8 months and 18 days of service. The AFT noted that in t