UNION OF INDIA Vs. HAWALDAR VED PRAKASH SANGWAN

JUDGEMENT

(1.) THE respondent Ved Prakash Sangwan was working as Havaldar in the Indian Army and was dismissed vide order dated 16.5.1994. He was denied pensionary benefits vide order dated 18.10.1996. Aggrieved by this situation he filed writ petition No. 556/1997 before this Court. The learned Single Judge vide order dated 4.5.2000 allowed the writ and directed the appellants to grant pensionary benefits to the respondent till 30.6.2000. In this Letters Patent Appeal (LPA) the appellants have called into question the order passed by the learned Single Judge. The facts germane to the present appeal are these. During leave the respondent had to face a criminal case. The accused was convicted for offences under Section 302 read with Section 149 of Indian Penal Code. All the accused were convicted and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/ - each under Section 302 read with Section 149 IPC. They were further sentenced to undergo RI(rigorous imprisonment) for three months under Section 323 read with Section 149 IPC. On the basis of this conviction the petitioner was dismissed from service by the competent authority vide order dated 30.7.1991 in accordance with Rule 17 of Army Rules 1954 read with Section 20(3) of Army Act, 1950. He also received a similar order dated 18.8.1991. During the appeal, High Court reduced the sentences of all the accused. Barring the main accused, the remaining accused including the respondent were convicted under Section 323 of IPC. The sentence already undergone by the respondent was considered to be sufficient and he was released on the sentence already undergone by him. The Apex Court vide order dated 14.11.1994 gave the benefit of probation to the respondent under Section 360 Cr.PC but maintained the conviction of the respondent under Section 323 IPC. On 16.5.1994 a discharge certificate was issued by the Record Officer, OIC Records. On 2.6.1994 the Brigadier Commander informed the father of the respondent that respondent is not entitled to pension or other pensionary benefits in view of the circumstances detailed above. On 7.8.1994 the respondent made a representation to the Ministry of Defence. On 23.8.1994 the respondent made another representation to the OIC Records, Raj RIF Records Officer, Delhi Cantt., requesting that an order of dismissal may kindly be substituted by an order of discharge and an order of discharge may be passed so that he may draw pension and other benefits. His representation/appeal was rejected on 18.10.1996. Consequently the respondent filed the writ petition No. 556/1997 before this court on 8.1.1997 with the prayers that order of his dismissal dated 16.5.1994 be set aside, respondent be reinstated into service with all consequential benefits or in the alternative he should be paid pensionary benefits with interest on arrears of pension.

(2.) WE have heard the counsel for the parties. The learned counsel for the respondent while defending the judgment of the Single Judge made few submissions. The main plank of his arguments was that the Hon'ble Supreme Court had given the benefit of probation in favour of the respondent and as such he is not to suffer from any disqualification, if any, attaching to a conviction of an offence under such law by virtue of Section 12 of Probation of Offenders Act, 1958 and would not affect his service or pension or his pensionary benefits. The respondent had a good record throughout during his service. His father also served the nation and had a good record. The respondent was convicted under Section 323 IPC simplicitor. This is a technical kind of offence. The respondent at this stage, does not want to rejoin the service. His only grievance is that he should be granted pensionary benefits. He also highlighted the fact that the order dated 30.7.1991 passed by Brigade Commander 170 Infantry Brigade dismissing the respondent with retrospective effect from 16.7.2000, is based on the judgment passed by the Additional Sessions Judge. The appellants did not try to wait for the decision to be given by the High Court and the Apex Court. It was alleged that the above said dismissal order was passed without the application of mind. It was, however, explained that order of dismissal was passed under Section 20(3) of the Army Act but without serving the mandatory notice under Rule 17 on 16.5.1994 as well. In order to embolden his case he has cited few authorities. In Shankar Dass Vs. Union of India and another, : (1985) 2 SCC 358, it was held:

(3.) FROM the judgment of the High Court it appears that though the sentence imposed for the offence u/s. 323 of the Code was six months, the appellant and the co -accused had already suffered over one year's imprisonment. Ordinarily, in a situation as here, there would be no need to interfere. Learned counsel for the appellant has, however, pressed the appeal as the appellant is in Government service and if the conviction and sentence are maintained, he would lose his service. Both the parties to the assault were close relations. There is no material on the record to indicate that the appellant had any previous conviction. In the absence of such evidence, we treat the appellant as a first offender. He is entitled to be admitted to the benefits of probation under Section 3 of the Probation of Offenders Act, 1958, taking into consideration the circumstances of the case, the nature of the offence and the character of the appellant. While maintaining his conviction we direct that he shall be released on probation of good conduct under Section 4 of the Act. The Chief Judicial Magistrate, Bhiwani, before whom the appellant is directed to appear within four weeks from today shall release him after due admonition. We do not consider it necessary to direct him to enter into a bond in the facts of the case.