IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) WRIT APPEAL NO.410 OF 2013 Sri Mahesh Singh S/O- Shyam Singh, Permanent resident of village and P.O.- Bin, Dist.- Pithoragarh (Uttarkhand) and presently residing temporarily at the house of Sri Sombhu Choudhury, Basistha Road, Beltola, Guwahati-28, Dist.- Kamrup(Metro), Assam. ---- Appellant Vs. 1. Union of India represented by the Secretary, Department of Personnel, Public Grievances and Pension, Govt. of India, New Delhi. 2. Director General, Assam Riffles Shillong – 11 C/O: 99 APO. 3. Commandant, 27 Assam Riffles, C/O: 99 APO. 4. Chief Accounts Officer, C/O office of the DGAR, Shillong-11. ---- Respondents BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI THE HON’BLE MR. JUSTICE MANOJIT BHUYAN For the appellant : Mr. W. Rahman, Advocate. For the respondents: Mr. S.C. Keyal, Asstt. S.G.I. Date of hearing : 17-03-2016 Date of judgment : 19-04-2016 JUDGMENT (T. Vaiphei, J.) 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. WA No. 410/13(Pension) Page 1 of 9 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 counter- affidavit 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 WA No. 410/13(Pension) Page 2 of 9 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. 4. After perusing the impugned judgment and material on record and on hearing the learned counsel appearing for the rival parties, the ponts for consideration in this appeal are as follows: 1. Whether the order of dismissal/discharge of the appellant from service is valid or not? 2. If it is not valid, whether the period from 20-2-1999 to 3-6-2004 in which he did not admittedly render service can be computed for the purpose of qualifying service for the purpose of pension? 5. Before proceeding further, we record the findings of the learned Single Judge, which are found at para 11, 12, 13, 14 and 15 of the impugned judgment, which read thus: “11. The fact that the petitioner (appellant) was punished four times, which led to recording of four Red Ink entries in his Service Dossier is not disputed. It is also not in dispute that petitioner lost 1 year, 7 months and 4 days of his service as non- WA No. 410/13(Pension) Page 3 of 9 qualifying service on account of the punishments awarded which led to recording 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 being an undesirable soldier under the provisions of Assam Rifles Manual Chapter VIII Rule 24and Para 6 of 4/88. This was also communicated to the petitioner. By a subsequent order dated 19-02-1999, the previous order was amended to read date of discharge as w.e.f. 20-02-1999 instead of 28-02-1999. Failure to issue formal discharge order has been attributed to inadvertence and oversight, which was subsequently rectified by issuing the order dated 03-06-2004. The same did not in any way prejudice to the petitioner inasmuch as petitioner was served with the order dated 07-02- 1999 and 19-02-1999 and he was struck off the rolls of Assam Rifles w.e.f. 20-02-1999. 12. In this writ petition, the petitioner has not challenged his discharge from service and only seeks a direction to grant pensionary benefits. 13. However, it has been explained by the respondents that the qualifying service of the petitioner after deducting the period of service covered by the punishment awarded which also remained unchallenged stood at 8 years, 2 months 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 petitioner in Gurdev Singh Sidhu (supra), is not attracted to the facts of the present case as that case was concerned with the issue relating to compulsory retirement of a permanent public servant, which is not the same issue here. This court finds no WA No. 410/13(Pension) Page 4 of 9 error or infirmity in the stand taken by the respondents to warrant any judicial interference.” 6. The contentions raised by the appellant before the learned Single Judge are reiterated by Mr. W. Rahman, the learned counsel for the appellant by urging that the order of discharge made with retrospective effect is non-est and is not operative. So understood, submits the learned counsel, the date of discharge should be treated as 3-6-2004, when the order was actually issued, and, if the date of discharge is taken as on 3-6- 2004, there would be no difficulty in holding that the appellant had rendered the qualifying service of 10 years or more for receiving pension and gratuity as admissible under the rules. In support of his contentions, the learned counsel relies on B. Jeevaratnam v. State of Madras, AIR 1966 SC 951. Per contra, Mr. S.C. Keyal, the learned Assistant Solicitor General of India, submits that retrospective order of discharge may be illegal, but that will not make any material difference to the case of the appellant for availing the benefit of pension. According to him, the discharge of the appellant with retrospective effect does not invalidate the discharge order in so far as its operation with prospective effect is concerned and cannot have the effect of wiping out his period of absence for one year, seven months and four days of service, which must be deducted from the period of his completed service. In these circumstances, contends the learned ASG, the learned Single Judge did not commit any illegality in dismissing the writ petition. He, therefore, forcefully submits that this writ appeal is bereft of merit and is, therefore, liable to be dismissed. 7. In so far as the legality of discharge of the appellant with retrospective effect is concerned, the law is now no longer res integra. Just as an order of dismissal cannot be given effect to with retrospective effect, on a parity of reasoning, an order of dismissal cannot be given effect to with retrospective effect, but that does not mean that the order of discharge is invalid; it only means that it will take effect prospectively.