Bhagwan Singh vs Union Of India & Anr.
2011 Latest Caselaw 3185 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Decision: 7th July, 2011

+                           W.P.(C) 8298/2010

         BHAGWAN SINGH                           ..... Petitioner
                     Through:         Mr.Ashok Aggarwal, Advocate
                                      with Mr.Khagesh B.Jha,
                                      Advocate

                                      versus

         UNION OF INDIA & ANR.                 ..... Respondents
                        Through:      Ms.Archana Gaur, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SUNIL GAUR

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?

     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. On 06.7.1991 the petitioner was dismissed from service. The order is the culmination of petitioner being stated to have pleaded guilty at the Summary Court Martial.

2. The writ petition filed by the petitioner in the year 1993 unfortunately remained pending in the record room of this Court till it was transferred to the Armed Forces Tribunal upon the constitution of the Tribunal when the Armed Forces Tribunal Act 2007 was promulgated.

3. On transfer before the Tribunal, the writ petition was registered as T.A. No. 97/2009.

4. Holding in favour of the petitioner that there was no evidence that the petitioner had pleaded guilty, the sentence and the conviction at the Summary Court Martial has been set aside.

5. The Tribunal directed that the petitioner shall be deemed to be in service till he attains minimum pensionable service, after which he would be deemed to have been discharged and would be entitled to pension and other retiral benefits. No order on back wages.

6. Petitioner grievance is to back wages being denied as also his entitlement for further promotion not being directed to be considered.

7. We find that the Tribunal has held in favour of the petitioner on technical ground and not on merits. Though not stated by the Tribunal, the respondents have not been permitted to re-try the petitioner, for the obvious reason, the stated incident relates to the year 1991 and by the time the Tribunal decided, 19 years had gone by. A midway solution has been found by the Tribunal. The respondents have been denied the right to hold a re-trial. The petitioner has been denied back wages.

8. We take cue from FR 54 which permits no back wages being paid where a dismissal is set aside on a technical ground.

9. At this stage, learned counsel for the petitioner makes a concession and prays that to bring the curtains down, the petitioner would be satisfied if the direction issued by the

Tribunal is modified, in that, the direction that the petitioner would be deemed to be in service till he attains minimum pensionable service and thereafter would be deemed to be discharged, and he being entitled to pension with respect to having served for the minimum pensionable service, be replaced with the direction that the petitioner would be treated as having superannuated on rendering service for such period which he could render as a Jawan.

10. Learned counsel for the respondents states that a Jawan is entitled to serve for 18 years and with reference to the date when petitioner joined service, would state that the petitioner would superannuate on 12.9.1997, having joined service on 12.9.1979. 18 years would be over by 12.9.1997.

11. In our opinion, since the conviction of the petitioner has been set aside on a technical ground and keeping in view the fact that as of today, 20 years have passed by, if respondents are being denied the right to re-try the petitioner, it would be fair and proper, as conceded by learned counsel for the petitioner, to deny back wages to the petitioner, but for purpose of pension, it must be directed that treating the petitioner as having superannuated on 12.9.1997, pension be paid to the petitioner for having rendered full pensionable service as a Jawan.

12. The writ petition stands disposed of modifying para 8 of the impugned order and directing as aforesaid, i.e. the petitioner would be treated as having superannuated from service on 12.9.1997. Pension would be paid to the petitioner keeping in

view that he would be required to be treated as having rendered full 18 years service as a Jawan.

13. Arrears of pension would be paid within two weeks from today.

14. No order as to costs.

PRADEEP NANDRAJOG,J

SUNIL GAUR, J JULY 07, 2011 KA