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CASE NO.: Appeal (civil)  3892 of 1999

PETITIONER: Baldev Singh

RESPONDENT: Union of India and Ors.

DATE OF JUDGMENT: 28/10/2005

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASASYAT, J.

       Appellant calls in question legality of the judgment  rendered by a Division Bench of the Punjab and Haryana High  Court dismissing the writ petition filed by him under  Article 226 of the Constitution of India, 1950 (in short the  ’Constitution’) praying for grant of arrears of pay and  pension.                    The factual background is as follows:  

       The appellant was enrolled in the Indian Army on  September 13, 1978.  On March 30, 1987 he was arrested in a  criminal case for offence punishable under Sections 302/34  and 452 of the Indian Penal Code, 1860 (in short ’IPC’).   The appellant was convicted by the trial Court. However, his  appeal was accepted by the High Court and he was acquitted  vide order dated March 26, 1992.  The appellant alleges that  he was released from the Jail on April 4, 1992 and that he  had reported to his Unit along with a copy of the judgment  on the next day. He further stated that he was reinstated on  the strength of such acquittal and continued in service, but  his pay and allowances were not fixed or released. On  September 30, 1993 he was discharged from the service. He  claimed to have completed the requisite period of service  from the date of enrolment to the date of discharge and  claimed entitlement to the release of arrears of salary for  the period from March 30, 1987 to September 30, 1993 as also  pension for the subsequent periods.

       The respondents contested the appellant’s claim. It was  averred that after his conviction in the criminal case the  appellant was dismissed from service with effect from July  18, 1990. The averment that the appellant had reported for  duty in the unit on April 5, 1992 has also been denied. It  was specifically averred that he did not report on duty  despite several reminders to him for the purpose. It was  also pointed out that after the appellant’s acquittal by the  Court, the Army Headquarters had directed vide letter dated  August 18, 1993 that he be reinstated in service.  Orders  for the appellant’s reinstatement with effect from July 18,  1998 were passed.  On receipt of this order the appellant  was repeatedly advised by his parent Unit to rejoin  forthwith. The respondents placed on record letters dated  September 6, 1993 and September 9, 1993 to substantiate this  stand. When the appellant did not respond to these letters a  courier was sent to his place to pursue him to rejoin the

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duty. Despite all this the appellant never rejoined the  duty. He was accordingly, discharged from service with  effect from September 30, 1993 (afternoon). Still further,  it was pointed out that due to the appellant’s failure to  resume duty despite repeated requests, the auditors raised  objections regarding the admissibility of the pay etc. for  the period from March 30, 1987 to September 30, 1993.  The  matter was referred to the Government of India.  The audit  authorities returned the documents with various observations  and asked the reasons for non-joining duty by the appellant.  It was further observed that when the appellant has not  reported for duty despite issue of as many as nine letters  and also after sending a person to his home, it is felt that  case does not warrant consideration for regularization by  obtaining Government sanction. On this basis, the  respondents prayed that the appellant’s claim for the  release of pay etc. be dismissed.

       The High Court held that from the materials on record  it was clear that in spite of several attempts the writ- petitioner avoided to join duty and his conduct established  a clear motive for only getting arrears of salary and  pension. It was held that he was to be entitled to salary  for the period for which the writ petitioner actually  rendered service and not for earlier periods. He is entitled  to receive salary for the period he had actually worked or  offered to work.  The admitted position was that the  appellant had neither worked nor offered to work during the  period from 30th March, 1987 to 30th September, 1993. In  fact, he was in custody while facing trial upto March, 1992.   He had rendered service for the period September 1978 and  end of March 1987. He had not completed actual fifteen years  of service and, therefore, was not entitled to pension.   Additionally it was submitted that the date of discharge was  30th September, 1993 and the writ petition was filed on  December 22, 1997 and there was considerable delay.  Even  suit for payment of arrears of salary may be barred by  limitation.  Accordingly, the writ petition was dismissed.

       In support of the appeal, learned counsel for the  appellant submitted that the certificate issued to the  appellant clearly shows his period of service to be 15 years  and 18 days and the effect of acquittal in a criminal case  cannot be wiped out and because of the proceedings which  ended in acquittal the appellant was unable to attend duty.   When the conviction which was originally recorded was set  aside, the effect is that there was no proceeding in the eye  of law.  The dismissal was as a consequence of the  conviction by order dated 18th July, 1990.  He was under  custody from 9th April, 1987 to 16th August, 1988.  Against the conviction by the Trial Court, he filed an  appeal before the Punjab and Haryana High Court which was  allowed. But in the meantime because of his conviction, he  had been dismissed in terms of para 423 of the Regulation  for the Army 1987 (in short the ’Regulation’). According to  the appellant, the natural consequence of an order of  acquittal is that the period in custody has to be treated as  if he was on duty and the order of dismissal is non est.

       Learned counsel for the respondent supported the  judgment of the High Court.

       As the factual position noted clearly indicates the  appellant was not in actual service for the period he was in  custody.  Merely because there has been an acquittal does

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not automatically entitle him to get salary for the  concerned period.  This is more so, on the logic of no work  no pay. It is to be noted that the appellant was terminated  from service because of the conviction.  Effect of the same  does not get diluted because of subsequent acquittal for the  purpose of counting service. The aforesaid position was  clearly stated in Ranchhodji Chaturji Thakore v.  Superintendent Engineer, Gujarat Electricity Board,  Himmatnagar (Gujarat) and Anr. (1996 (11) SC 603).  

       The position was reiterated in Union of India and Ors.  v. Jaipal Singh (2004 (1) SCC 121).  

       Learned counsel for the appellant further pointed out  that the authorities were awaiting Government sanction to  grant the consequential relief. Reference is made in this  connection to some documents, more particularly, letter of  the Officiating Chief Record Officer for Commanding Officer  dated 4.12.1996.  A bare perusal of the letter shows that  nowhere was it indicated that the appellant was to be paid  for the period he was absent from duty.  It merely stated  that the claims and dues admissible will be settled after  the Government sanction is received. This only was an  indication that only after the Government sanction for  regularization is received the claim will be settled.   Nowhere there was admission of the entitlement of the  appellant. In any event the appellant having not rendered  service, the question of inclusion of the period, does not  arise and if the said period is excluded then the inevitable  conclusion is that the appellant has not rendered the  requisite period i.e. service of 15 years in order to be  entitled to pension.   

       Looked from any angle the High Court’s order does not  suffer from any infirmity.

       The appeal deserves to be dismissed which we direct.   Costs made easy.