WG CDR. ASHWINI KUMAR HANDA (RETD.) versus UNION OF INDIA & ORS.

Citation: [2018] 1 S.C.R. 873 · Decided: 01-02-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Dismissed

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Judgment (excerpt)

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WG CDR. ASHWINI KUMAR HANDA (RETD.)
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 1491 of 2018)
FEBRUARY 01, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Service Law:
Refund of pay and allowances – Propriety of – Study leave
granted to appellant in terms of Army Instructions 13/78 – Submitted
Service Guarantee Certificate whereby, he was liable to serve for
nine years from the date of return from study leave – Appellant, on
return from study leave, after serving for 6 years and 8 months was
permitted to retire prematurely –  Pay and allowances paid during
study leave were deducted from his post retirement dues on the
ground that he committed breach of contract by not serving for
nine years – Order of recovery challenged – Armed Forces Tribunal
dismissed the case of appellant – On appeal to Supreme Court,
appellant took the plea that since he had served for 6 years 8 months,
there should have been proportionate deduction; and not making
proportionate deduction was discriminatory as in case of another
officer proportionate deduction was made – Held: In the facts of
the case, proportionate deduction is not permissible – Plea of
discrimination also not admissible as it was taken for the first time.
Dismissing the appeal, the Court
HELD : 1. In the facts of the present case, question of
proportionate deduction does not arise at all. The employer had
paid him salary and allowances even for the period he did not
work and was on study leave.  This payment was made subject to
the condition that after his return the appellant would serve for
entire nine years.  As he has not served for that period, the
employer is entitled to receive back the pay and allowances given
during the period of study leave, in terms of the Army Instructions
coupled with the Service Guarantee Certificate. Validity of the
aforesaid Instruction has not been questioned by the appellant.
[Para 9 and 10] [880-E-G]
 [2018] 1 S.C.R. 873
   873
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd.
(2003) 5 SCC 705 : [2003] 3 SCR 691 ; Subir Ghosh
v. Indian Iron and Steel Company 1976 SCC OnLine
Cal 222  – distinguished.
State of Punjab & Ors. v. Dr. Rajeev Sarwal (1999) 9
SCC 240 – referred to.
2. So far as the plea of discrimination is concerned, there
are no foundational facts in support of this argument. No such
plea was taken either before the Tribunal or in the instant appeal.
Only with the additional documents, communication dated
February 6, 2014 is enclosed which the appellant has received
under the Right to Information Act, 2005 in respect of another
officer.  It is not known as to under what circumstances recovery
of proportionate cost was made in his case.  Moreover, in the
absence of pleadings, the respondents did not have any
opportunity to explain the same.  Therefore, such a plea cannot
be allowed in the facts of the present case. [Para 11] [881-B-D]
Case Law Reference
(1999) 9 SCC 240
referred to
Para 7
[2003] 3 SCR 691
distinguished
Para 8
1976 SCC OnLine Cal 222
distinguished
Para 8
CIVIL APPELLATE JURISDICTION :  Civil Appeal No. 1491
of 2018.
From the Judgment and Order dated 26.07.2017 in O. A. No. 188
of 2013 / Order dated 09.09.2017 in M. A. No. 1493 of 2017 with M.A.
No. 1494 of 2017 in O. A. No. 188 of 2013 of the Armed Forces Tribunal,
Regional Bench, Lucknow.
Sudhanshu S. Pandey, Gaichangpou Gangmei, Abhishek R. Shukla,
Arjun Singh, Advs for the Appellant.
Vikramjit Banerjee, Sr. Adv, Santosh Kumar, Sayooj Mohandas
M., M. K. Maroria, Advs for the Respondents.
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The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. Delay condoned.  Leave to appeal granted.
2. The appellant herein while working with the Indian Airforce in
the rank of Wing Commander has applied for and was granted study
leave for a period of two years i.e. from December 27, 2003 to December
26, 2005.  At that time, he had submitted an undertaking in the form of a
Service Guarantee Certificate to the effect that he would serve for nine
years from the date of his return from study leave.  On this undertaking,
the appellant was also given pay and allowance for the period of study
leave.  After his return, he started serving but before the completion of
nine years period, applied for premature retirement on health grounds.
His request for premature retirement was accepted.  At the same time,
the pay and allowances drawn by the appellant during the period of
study leave was dedu

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