Gauhati High Court
No. 143590M Rfn/Gd Baharul Islam Ahmed vs The Union Of India And 4 Ors on 4 February, 2025
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GAHC010314322019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/9508/2019
NO. 143590M RFN/GD BAHARUL ISLAM AHMED
S/O. LT. RIAZ UDDIN AHMED, VILL. BIDRUHIPAR, P.O. HATIKHAL BAZAR,
P.S. KACHUDARAM, DIST. CACHAR, ASSAM, PIN-788116.
VERSUS
THE UNION OF INDIA AND 4 ORS.
REP. BY THE SECRETARY, TO THE GOVT. OF INDIA, MINISTRY OF
DEFENSE DEPTT., NEW DELHI.
2:PAY AND ACCOUNTS OFFICER
CENTRAL PENSION ACCOUNTING OFFICE
GOVT. OF INDIA
TRIKOOT-2
BHIKAJI CAMA PLACE
NEW DELHI-110066.
3:DIRECTORATE GENERAL
ASSAM RIFLES
UNIT PAY AND ACCOUNTS OFFICE (NE-III)
SHILLONG-793011.
4:SENIOR ACCOUNTS OFFICER
PAY AND ACCOUNTS OFFICE (AR)
MINISTRY OF HOME AFFAIRS
GOVT. OF INDIA
SHILLONG-793011.
5:THE DY. INSPECTOR GENERAL
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HEAD QUARTERS
ASSAM RIFLES
NAGALAND RANGE (SOUTH)
C/O. 99 APO
Advocate for the Petitioner : MR F U BARBHUIYA, MS S DAS
Advocate for the Respondent : ASSTT.S.G.I., MR. S K MEDHI,MR. S K MEDHI (C.G.C.)
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
JUDGMENT & ORDER (Oral)
Date :04.02.2025
Heard Mr. F. U. Barbhuiya, learned Counsel for the petitioner and Mr. S. K.
Medhi, learned CGC appearing for the respondents.
2. The petitioner by way of instituting the present proceeding has prayed
for a direction upon the respondent authorities to compute his pension and
pensionary benefits by reckoning the entire period of service rendered by
him as qualifying service.
3. The petitioner in the present proceedings while working as a
Rifleman/General Duty with the Assam Rifles was detained on 30.11.1990
vide travelling from Silchar to Ajmeer at Guwahati Railway Station. In
connection with the said detention of the petitioner, the petitioner was
prosecuted under Section 69 of the Army Act, 1950 for committing a civil
offence punishable under Section 20(b) of the Narcotics, Drugs and
Psychotropic Substances Act, 1985. The charge against the petitioner was
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that he was found in possession of 36 Kgs of Ganja on 30.11.1999 at
Guwahati Railway Station and he was arrested and handed over to his
employer. Accordingly a Summary Court Martial proceeding was drawn up
against the petitioner by the Commandant, 14th Assam Rifles.
4. On conclusion of the trial, the petitioner was sentenced to 89 days of
Rigorous Imprisonment (RI) in Military Custody. After completion of the
period of imprisonment the petitioner was released from imprisonment and
he was assigned regular duties as Rifleman w.e.f., 05.02.2001. After 26
months from the date of release of the petitioner from imprisonment, a
Show Cause Notice came to be issued to him on 03.04.2003, basing on the
same allegation for which he was so sentenced to undergo Rigorous
Imprisonment. The petitioner submitted his reply to the Show Cause Notice
issued to him and therein had taken a plea that he should not be punished
twice for the same offence. The Respondent Authorities, by invoking the
power under Section 20 of the Army Act read with Rule 17 of the Army
Rules, 1954, vide order dated 21.08.2003, proceeded to impose the penalty
of dismissal from service upon the petitioner w.e.f. 31.08.2003.
5. The petitioner had initially assailed the said order of dismissal by way of
instituting a Title Suit being T. S. No. 5/2004 (renumbered as T.S. No.
445/2006) before the Court of the learned Munsiff at Silchar, however, the
said suit was withdrawn on 13.11.2006 and a writ petition being WP(C) No.
1146/2009 was instituted before this Court.
6. This Court upon examining the issues arising in the matter was pleased
vide order dated 10.09.2015 to set aside the order dated 21.08.2003 by
which the petitioner was imposed with the penalty of dismissal from service.
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This Court further directed that the petitioner shall be granted notional
benefits from the date the order of dismissal so issued to him had come into
effect. It was further provided that the petitioner on his reinstatement may
apply for voluntary retirement. This Court had made it clear that arrear
wages need not be paid to the petitioner for the period he had remained out
of service on account of the imposition of the penalty of dismissal from
service.
7. The petitioner in pursuance to the order dated 10.09.2015, passed by
this Court in WP(C) No. 1146/2009, submitted application for proceeding on
voluntary retirement. The said application of the petitioner on being
considered, the competent authority vide communication dated 19.04.2016
approved the prayer of the petitioner for proceeding on voluntary retirement
w.e.f. 01.04.2016. The said application was so approved considering that the
petitioner had already rendered 20 years of qualifying service for grant of
service benefits. Accordingly, the petitioner was issued with a discharge
certificate. In pursuance to the permission granted to the petitioner for
proceeding on voluntary retirement, the pension and pensionary benefits of
the petitioner was finalized and the respondent authorities for the purpose of
computation of the pension and pensionary benefits of the petitioner had
assessed the total qualifying service of the petitioner to be 16 years 2 month
and 15 days. Basing on the said assessment with regard to the qualifying
service of the petitioner, the petitioner was authorized his pension and other
pensionary benefits vide issuance of a pension payment order dated
05.09.2016. The amount so authorized to the petitioner as his pension as
well as the computation of the other pensionary benefits not being so done
by reckoning the entire service length of the petitioner, he has instituted the
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present proceedings praying for reliefs as noticed hereinabove:
8. Mr. F. U. Barbhuiya, learned Counsel for the Petitioner, by reiterating the
above facts has submitted that the period w.e.f. 01.09.2003 till 31.03.2016,
when the petitioner was required to remain out of service on account of
imposition of the order of penalty cannot be construed to be non-qualifying
service. In view of the fact that the penalty of dismissal as imposed upon the
petitioner was set aside by this Court vide order dated 10.09.2015 in WP(C)
No. 1146/2009, with further direction that the petitioner would be entitled
for notional service benefits for the period he had remained out of service.
Accordingly, it is submitted by Mr. Barbhuiya, learned Counsel for the
Petitioner, that the period of 12 years 7 months i.e. the period when he had
remained out of service on account of imposition of the said order of penalty
must be reckoned as qualifying service for the purpose of computation of his
pension and pensionary benefits.
9. Mr. Barbhuiya, learned Counsel for the Petitioner, has further submitted
that even the benefits so determined by the respondent authorities including
the pension so determined in his case after coming into effect of the
recommendations of the 7th Central Pay Commission have not been released
to him. In the above premises, Mr. Barbhuiya, learned Counsel for the
petitioner, submits that appropriate directions is called upon to be issued to
the respondent authorities to reckon the period of service of the petitioner
w.e.f. 01.09.2003 to 31.03.2016, as service qualifying for pension and
accordingly the respondent authorities be directed to recompute the pension
and pensionary benefits due to be authorized to the petitioner on his
application for proceeding on voluntary retirement being approved w.e.f.
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01.04.2016.
10. Per contra Mr. S. K. Medhi, learned Counsel for the respondents has
submitted that in terms of the directions passed by this Court vide the Order
dated 10.09.2015 in WP(C) No. 1146/2009, the respondent authorities had
proceeded to grant to the petitioner notional increments from the date of his
dismissal to the date of his retirement. Accordingly, it is submitted that the
increments due to the petitioner for the period w.e.f. 01.09.2003 to
31.03.2016 have already been accounted for and the pay of the petitioner as
on 31.03.2016 was so fixed by accounting for all due increments receivable
by the petitioner.
11. Mr. Medhi, learned CGC appearing for the respondents has further
submitted that the petitioner only being granted notional pay for the period
he was required to remain out of service on account of imposition of the
penalty of dismissal from service upon him, no service having been received
from the petitioner during the said period, the said period cannot be treated
to be qualifying service for the purpose of computation of his pension and
pensionary benefits. Accordingly, it is submitted that the period of 12 years 7
months i.e. w.e.f. 01.09.2003 to 31.03.2016 was considered as non-
qualifying service for the purpose of computation of pension and pensionary
benefits. Consequently, the pension and pensionary benefits of the petitioner
was so computed by treating his qualifying service to be 16 years 2 months
15 days.
12. Mr. Medhi, learned Counsel for the respondents, has further submitted
that on the implementation of the 7 th Central Pay Commission
recommendations, the pay of the petitioner was revised w.e.f. 01.01.2016
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along with the corresponding revision of his pension and pensionary
benefits. The arrears of the salaries as well as pension and the other
pensionary benefits now becoming due to the petitioner on account of the
revision so effected, were released to him.
13. In the above premises Mr. Medhi, learned Counsel for the respondents
submits that the petitioner is not entitled to the claims so made by him in
the present writ petition and accordingly, the writ petition deserves to be
dismissed in limine.
14. I have heard the learned Counsel for the parties and also perused the
materials available on record.
15. The facts has noticed hereinabove pertaining to the service tenure of
the petitioner with the Assam Rifles is not disputed. The petitioner was
dismissed from his service vide order dated 21.08.2003.The said order was
assailed by the petitioner before this Court by way of instituting the writ
petition being WP(C) No. 1146/2009. This Court upon considering the issues
arising in the said proceeding was pleased to interfere with the order dated
21.08.2003.
16. The operative portion of the order dated 10.09.2015 as passed by this
Court in WP(C) No. 1146/2009 being relevant is extracted herein below:
"13. In my opinion, when the petitioner has suffered the punishment of Rigorous Imprisonment,
the second punishment of dismissal from service from the same offense is disproportionate and
since the petitioner's reply was not taken into account while deciding on the penalty, I hold that
the dismissal order dated 21.08.2003 (Annexure-4) is legally unsustainable and the same is
accordingly quashed. Consequently the nature of the appropriate relief will have to be decided
in this Case.
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14. In his reply to the show cause notice, the rifleman has expressed his intention to go on
voluntary retirement as he had rendered 18 years service then and now the petitioner is aged
about 44 years (while the retirement age from service is 60 years). When he is out of service for
so many years, fitness might be an issue for re-employment. Therefore I feel that interest of
justice would be better served by directing notional reinstatement of the rifleman from the date
of his dismissal. Upon reinstatement the petitioner may formally apply for voluntary retirement.
This will enable the rifleman to receive his services benefit(s). But it is made clear that arrear
wages need not be paid for the period when services was not received by the employer. It is
ordered accordingly."
17. A perusal of the directions passed by this Court vide the said order
dated 10.09.2015, would go show that the order dated 21.08.2003, imposing
the penalty of dismissal from service upon the petitioner, was held to be not
legally sustainable and accordingly, the same was quashed. On quashing of
the said order dated 21.08.2003, this Court noticing the intention expressed
by the petitioner to proceed on voluntary retirement and also appreciating
that the petitioner having remained out of service for so many years his
fitness might be an issue for re-employment, proceeded to grant liberty to
the petitioner that on his reinstatement he may formally apply for voluntary
retirement so as to enable him to receive his service benefits. Having passed
the said directions, this Court had further directed that the petitioner would
not be entitled to receive arrear wages for the period when he has not
rendered any service in the force.
18. The respondent authorities, has projected in the affidavit in opposition
filed by them in the matter, which was reiterated by Mr. S. K. Medhi, Learned
CGC in the present proceeding, that the petitioner was granted notional
increments for the period w.e.f. 01.09.2003 till 31.03.2016 and accordingly,
his pay being so fixed, the pension and pensionary benefits receivable by the
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petitioners were so computed. Thereafter, on implementation of the
recommendations of the 7th Central Pay Commission, the pay of the
petitioner was further revised w.e.f. 01.01.2016 and subsequently, his
pension and pensionary benefits were also revised and the arrears so
working out so released to the petitioner. However, the period of service of
the petitioner w.e.f. 01.09.2003 till 31.03.2016 i.e. the period when he had
to remain out of service on account of imposition of the penalty of dismissal
upon him till the quashing of the order dated 21.08.2003 was construed by
the respondent authorities as non-qualifying service. The petitioner had till
31.03.2016 rendered a total service of 28 years 10 months 14 days.
Accordingly, it is to be examined as to whether pursuant to the interference
made by this Court with the order dated 21.08.2003, the period of service
rendered by the petitioner w.e.f. 01.09.2003 till 31.03.2016 can be construed
as qualifying service for the purpose of computation of his pension and
pensionary benefits.
19. As noticed hereinabove, the order of dismissal of the petitioner dated
21.08.2003 was interfered by this Court holding the same to be legally
unsustainable. Further this Court, vide the order dated 10.09.2015, had
directed that the petitioner would be entitled to only for notional benefits for
the period of his service w.e.f. 01.09.2003 till 31.03.2016. The petitioner
having been directed by this Court to be granted notional benefits for the
period of service w.e.f. 01.09.2003 to 31.03.2016, on interference being
made with the order of dismissal so issued in his case, the petitioner would
be entitled to notional increments for the said period. Grant of notional
increments to the petitioner for the said period has the effect of regularizing
the said period of service of the petitioner. Accordingly, the said period of
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service has to be deemed to be qualifying service, at least for the purpose of
computation of the pension and pensionary benefits of the petitioner.
20. In view of the fact and circumstances involved in the matter, the
decision of the respondent authorities to deem the period w.e.f. 01.09.2003
to 31.03.2016 as non-qualifying service is clearly erroneous and the said
period of service having been already directed by this Court vide the said
order dated 10.09.2015, to be so regularized by grant of notional benefits to
the petitioner, the said period has to be construed to be qualifying service
for the purpose of computation of pension and pensionary benefits to the
petitioner.
21. In view of the conclusions reached by this Court hereinabove, the
respondent authorities are directed to construe the period of service from
01.09.2003 till 31.03.2016 as qualifying service for pension and accordingly it
is now required that the pension and pensionary benefits due to the
petitioner be re-computed. The respondent authorities would now re-
compute the pension and pensionary benefits so authorized to the petitioner
w.e.f. 01.04.2016, by also construing the period of service of the petitioner
w.e.f. 01.09.2003 till 31.03.2016 as qualifying service for pension. On such
computation being made, the respondent authorities would issue a fresh
Pension Payment Order (PPO) to the petitioner in supersession of the
Pension Payment Orders (PPO) issued to him earlier. The arrears of pension
and pensionary benefits that would now accrue to the petitioner on account
of the re-computation directed hereinabove, be released to the petitioner
within a period of 3 months from the date of receipt of a certified copy of
this order.
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22. With the above observation and directions, the present writ petition
stands disposed of.
JUDGE
Comparing Assistant
