SRI MAHESH SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The legality of the judgment dated 29-10-2013 passed by the learned Single Judge in WP(C) No. 6040 of 2012 is called into question in this writ appeal.

(2.) The appellant joined as Rifleman, General Duty of Assam Rifles on 2- 5-1989. It is his case that after rendering his service for about eight years, he developed health related problems, which deteriorated year by year, for which he overstayed his leave and was punished for that. He was awarded rigorous imprisonment (RI) altogether for 1 year, 7 months and 4 days. He also incurred four Red Ink entries in his service dossier. He was thereupon discharged from service without issuing show cause or giving him an opportunity of hearing on 22-1-1999. Subsequently, a show cause notice was given to him to which he submitted his reply. Long thereafter, the order dated 3-6-2004 was issued by the respondent No. 3 discharging him from service with effect from 20-2-1999. After his discharge, he was paid some of his dues without proper calculation, but not pensionary benefits. The representations made by his wife, as he is ill, for payment of pension benefits did not get the desired result which prompted him to file WP(C) No. 962/2011(S/S) before the Jharkhand High Court, which, however, by the order dated 12-10-2012 dismissed the writ petition on the ground of lack of territorial jurisdiction. He thereafter filed the writ petition before this Court for appropriate relief.

(3.) The stance taken by the respondent authorities in their counteraffidavit is that he did not have the qualifying service of 10 years and could not be paid the pension benefits. According to the respondents, the appellant was enrolled in the Assam Rifles on 2-5-1989 and was discharged from service as he was found to be a habitual offender w.e.f. 20-2-1999 for having incurred four Red Ink entries in his service dossier. The four red entries related to award of punishments dated 21-12-1996, 17-03-1997, 3- 10-1998 and 5-12-1998 under the Army Act for overstaying his leave. Though the total service of the appellant at the time of his discharge on 20- 2-1999 was 9 years, 9 months and 18 days, after deducting the number of days for which he did not render service, i.e., 1 year, 7 months and 4 days, the service actually rendered by him came to 8 years, 2 months and 17 days, which is short of the minimum qualifying service of 10 years under Rule 49(2)(b) of the Central Civil Services (Pension) Rules, 1972 ("Pension Rules" for short) for receiving pension. According to the respondents, as the appellant did not render the minimum statutory qualifying service mandated by the Pension Rules, he is not entitled to pension benefits. However, other dues such as IRLA credit balance, GPF, retirement gratuity and service gratuity were paid to him It is the contention of the respondents that the appellant was not compulsorily retired by way of punishment, but was discharged from service by the Unit Commandant vested with statutory powers under para 24 of Chapter VIII of the Assam Rifles Manual and Assam Rifles Act, 1941 and that such discharge was an administrative action to maintain discipline amongst the combatised soldiers of Assam Rifles and did not fall in the category of penalty of compulsory retirement. It is, however, pointed out by the respondents that the appellant discharged from service w.e.f. 20-2-1999 though formal discharge certificate was issued on 3-6-2004, which was an administrative lapse.