Lacuna And Interpretation
| Date :18-Nov-2019 |
In view of the principles of interpretation relating to Casus Omissus, the court found that a reading of the Regulations does not lead to an inference that the service element should be limited to an individual who had completed minimum 15 years of engagement.
IN THE judgement of the case – Union of India & Others v. V. R. Nanukuttan Nair, delivered on November 7, 2019, Justice L. Nageswara Rao and Justice Hemant Gupta, at the Supreme Court, have held 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. Elaborating further, by way of clarification, the Court has stated that “but where the Courts find that the words appear to have been accidently 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 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 Navy (Pension) Regulations, 1964.” In view of the principles of interpretation relating to Casus Omissus, the court found that a reading of the Regulations does not lead to an inference that the service element should be limited to an individual who had completed minimum 15 years of engagement.
Regulation 78 cannot be read into Regulation 105B when no such qualification was provided in Regulation 105B. 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 pension, the court found 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. The quantification of disability pension in the cases of an individual, who has not completed qualification service is dealt with in Regulation 107.
Regulation 107(1)(a) deals with the situation where the individual has rendered sufficient service to qualify for a service pension that is 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 Regulations 78, 105B and 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. The challenge in these civil appeals was to the orders passed by the Armed Forces Tribunal’s Regional Bench at Kochi on October 26, 2010 and April 12, 2011 holding that the respondent was entitled to service element of disability pension from the date of discharge. The respondent was discharged on June 30, 1978 after completion of 10 years and 169 days of service. He was in low medical category since 1970. He was granted disability pension at the rate of 50 pc 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.
According to the Supreme Court, 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. In the present case, the court was concerned with the situation where the individual had completed his period of engagement in the low medical category but not the qualifying service for pension terms of Regulation 78 of the Regulations.
The question to be answered was whether the applicant was entitled to service element of disability pension corresponding to the number of years he has put in the service of Navy. The court found this argument without merit that as per clause (1) of Regulation 105B, the service element is admissible only if these conditions are satisfied: (i) That discharge was on account of disability attributable to or aggravated by Naval Service; and (ii) The individual is entitled to service pension only on completion of 15 years of service in terms of Regulation 78. In terms of Regulations like Regulation 101A, an individual who is placed in lower medical category is discharged because of there being no alternative employment suitable to his 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 invalid from service in terms of Clause 2 of Appendix V of the Regulations.
Therefore, terms of such Regulations such individuals are entitled to disability pension. The court has pointed out that the purpose of Regulation 105B is to exclude dual payment of the service element disability pension, when an individual is entitled to service pension as well. It is to avoid the payment of service element twice over, the Regulation 105B has not used the expression ‘on completion of qualifying service’. According to the court, the interpretation as argued by the Additional Solicitor General 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 defect in the statute. (see also Nalinakhya Bysack v. Shyam Sunder Haldar – AIR 1953 SC 148 and Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Ltd. & Others- (2015) 9 SCC 209). 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 its plain meaning of the language of the regulations. The Supr