High Court
Case Details
WP(C) 6040/2012 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Judgment & Order (CAV) By this petition, under Article 226 of the of the Constitution of India, petitio ner, Sri Mahesh Singh seeks a direction to the respondents authority to grant pe nsionery and other statutory benefits due to him as admissible. Case of the petitioner is that he joined as Rifleman, General Du 02. ty in the Assam Rifles on 02.05.1989. After rendering eight years of service, pe titioner developed health related problems, which deteriorated subsequently. Bec ause of health related problems, petitioner on a couple of occasions overstayed his leave, for which he was punished. Petitioner was awarded rigorous imprisonme nt (RI) altogether for 1 year 7 months and 4 days. He also incurred four Red Ink Entries in his Service Dossier. Thereafter, without issuing any notice and with out affording any opportunity of hearing, petitioner was discharged from service by respondent No. 3 on 22.01.1999. Thereafter, petitioner was show caused to wh ich he submitted his written statement in defence. Long thereafter, order dated 03.06.2004 was issued by respondent No. 3 discharging the petitioner from servic e w.e.f. 20.02.1999. 03. After being discharged from service, petitioner was paid some of his dues without proper calculation. However, pensionery benefits were not paid to the petitioner. Petitioner’s wife submitted several representations before t he authority seeking release of pensionery benefit to the petitioner, but no ste ps were taken in this regard. As petitioner was having health problems, the repr esentations were made by his wife.
Legal Reasoning
04. Aggrieved, petitioner had filed a writ petition before the Hon’b le Uttarakhand High Court, which was registered as WP No.962/2011(S/S). However, vide order dated 12.10.2012, writ petition was dismissed on the ground of lack of territorial jurisdiction. 05. Thereafter, the present writ petition has been filed seeking the relief as indicated above. 06. Respondents have filed a common affidavit. It is stated that pet itioner was enrolled in the Assam Rifles on 02.05.1989 and was discharged from s ervice being habitual offender w.e.f. 20.02.1999 for having incurred four Red In k Entries in his Service Dossier. The four Red Ink Entries related to award of p unishments dated 21.12.1996, 17.03.1997, 03.10.1998 and 05.12.1998. The punishme nts were awarded under the Army Act for overstaying leave. Though the total serv ice of the petitioner at the time of discharge on 20.02.1999 was 9 years 9 month s and 18 days, the non-qualifying service due to the punishments awarded came to 1 year 7 months and 4 days. Thus, after deducting the non-qualifying service, t he qualifying service of the petitioner was assessed at 8 years, 2 months and 17 days. As per Rule 49 (2) (b) of the Central Civil Services (Pension) Rules, 197 2, a minimum of 10 years of qualifying service is mandatory for grant of pension , but as the petitioner had rendered 8 years 2 months and 17 days of qualifying service, he is not entitled to pensionery benefits. However, other dues, such as , IRLA credit balance, GPF, retirement gratuity and service gratuity were paid t o the petitioner. In the affidavit, it is stated that petitioner was not compuls orily retired by imposition of a penalty, but was discharged from service by the Unit Commandant vested with statutory powers under Para 24 of Chapter-VIII of A ssam Rifles Manual and Assam Rifles Act, 1941. Such a discharge by the Unit Comm andant is an administrative action to maintain discipline amongst the combatised soldiers of Assam Rifles and do not fall in the category of penalty or punishme nt of compulsory retirement, they contend. It is further pointed out that petiti oner was discharged w.e.f. 20.02.1999, though formal discharge certificate was i ssued on 03.06.2004, which was an administrative lapse. 07. Saikia, learned Central Govt. Counsel appearing for the respondents.
Legal Reasoning
Heard Mr. NN Jha, learned counsel for the petitioner and Mr. DK Mr. Jha, learned counsel for the petitioner submits that a perus 08. al of the order dated 03.06.2004 would indicate that the discharge of the petiti oner was given retrospective effect from 20.02.1999. In the circumstances of the case, such retrospective discharge cannot, either be justified or is tenable, h e contended. Therefore, petitioner’s discharge should be treated w.e.f. 03.06.20 04 i.e. the date of issuance of the discharge order. If the date of discharge of the petitioner is taken as on 03.06.2004, petitioner would have the required qu alifying service to receive pension. Discharge order dated 03.06.2004 also indic ates that petitioner would be entitled to pension and gratuity as admissible und er the Rules. He has also placed reliance on a decision of the Hon’ble Apex Cour t in Gurdev Singh Sidhu Vs. the State of Punjab & Anr., reported in AIR 1964 SC 1585. Submissions made by the learned counsel for the petitioner have 09. been opposed by Mr. Saikia, learned Central Govt. Counsel. Referring to the affi davit filed and the record folder of the petitioner which he produced, he submit s that petitioner was not a fit person to be retained in service of a discipline d force like the Assam Rifles. He was tried summarily for committing various off ences under the Army Act and punished four times, which led to recording of four Red Ink Entries in his Service Dossier. Mr. Saikia submits that actual discharg e order of the petitioner was already published in the Battalion Routine Order P art-II dated 07.02.1999, which was subsequently amended on 19.02.1999. Thus, dis charge order was correctly published and entered in the service record of the pe titioner on 19.02.1999 i.e. before the actual date of discharge on 20.02.1999. T hrough inadvertence, the formality of issuing formal discharge order from servic e was left out. Therefore, discharge order dated 03.06.2004 was subsequently iss ued. He submits that since petitioner did not have qualifying service of 10 year s entitling him to receive pension, the respondents have rightly declined to gra nt pensionery benefits to the petitioner. He, therefore, seeks dismissal of the writ petition. 10. Submissions made have been considered. 11. The fact that petitioner was punished four times, which led to r ecording of four Red Ink Entries in his Service Dossier is not disputed. It is a lso not in dispute that petitioner lost 1 year 7 months and 4 days of his servic e as non-qualifying service on account of the punishments awarded which led to r ecording of four Red Ink Entries. From the record, it is evident that order was passed on 07.02.1999 discharging the petitioner from service w.e.f. 28.02.1999 b eing an undesirable soldier under the provisions of Assam Rifles Manual Chapter- VIII Rule 24 and Para 6 of 4/88. This was also communicated to the petitioner. B y a subsequent order dated 19.02.1999, the previous order dated 07.02.1999 was a mended to read date of discharge as w.e.f. 20.02.1999 instead of 28.02.1999. Fai lure to issue formal discharge order has been attributed to inadvertence and ove rsight, which was subsequently rectified by issuing the order dated 03.06.2004. The same did not in any way cause prejudice to the petitioner inasmuch as petiti oner was served with the orders dated 07.02.1999 and 19.02.1999 and he was struc k off the rolls of Assam Rifles w.e.f. 20.02.1999. 12. e from service and only seeks a direction to grant pensionery benefit. In the writ petition, petitioner has not challenged his discharg 13. However, it has been explained by the respondents that the quali fying service of the petitioner after deducting the period of service covered by the punishments awarded which also remained unchallenged stood at 8 years 2 mon ths and 17 days, which fell short of the minimum qualifying service period of 10 years as per the Central Civil Services (Pension) Rules, 1972. 14. The decision relied upon by the learned counsel for the petition er in Gurdev Singh Sidhu (Supra), is not attracted to the facts of the present c ase as that case was concerned with the issue relating to compulsory retirement of a permanent public servant, which is not the issue here. This Court finds no error or infirmity in the stand taken by the respondents to warrant any judicial interference.
Decision
15. ismissed. However, there shall be no order as to costs. There is no merit in the writ petition, which is, accordingly, d