C.W.P. No. 13708 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P. No. 13708 of 2007 Date of decision : 21.4.2008. ... Kaptan Singh Driver ................ Petitioner vs. State of Haryana and others .................Respondents Coram: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice K.C. Puri Present: Sh. R.S. Sangwan, Advocate for the petitioner Sh. Harish Rathee, Senior Deputy Advocate General, Haryana. ... Jasbir Singh, J. (Oral) By filing this writ petition, petitioner has laid challenge to order dated 4.7.2007 (P-8), vide which his service rendered between 10.2.1974 to 1.11.1981 has not been counted towards grant of pension. It is further prayer of the petitioner that service rendered by him in Indian Army during National Emergency, be also counted towards qualifying service for payment of pension to the petitioner. It is apparent from the records that the petitioner was taken in service on 10.2.1974 as a Driver. In November 1981, he proceeded on leave for a period of three months upto 29.1.1982. He was granted C.W.P. No. 13708 of 2007 -2- permission to go abroad to meet his relative. He failed to come back and moved an application for extension of his leave, which was declined. Petitioner joined duty on 11.11.1982. On the charge of remaining absent from duty, departmental enquiry was instituted against him and on conclusion thereof, the competent authority vide order dated 30.9.1983 dismissed him from service and ordered that period of absence between 30.1.1982 to 10.11.1982 be treated as extra ordinary leave. He went in appeal, which was allowed and vide order dated 23.4.1985 punishment of censure was inflicted upon him and he was ordered to be reinstated in service. However, it was ordered that for the period he remained out of service nothing be paid to him. Relevant portion of the order reads thus:- “I have gone through the record of the appellant carefully. The circumstances of this case do not warrant any sympathetic view towards him. However, since the appellant had a considerable length of service at his credit, I take a lenient view and orders to censure of his conduct reinstate him in service. However he would not be paid anything for the period he remained out of service. He is given one more chance in service.” Petitioner joined service thereafter and retired on 30.4.2006. By counting the period of service, which he rendered after his reinstatement in service till his retirement, pension was released in his favour. At that time he agitated his right to get service between 10.2.1974 to 1.11.1981 counted towards pensionary benefits alongwith military service rendered by him before joining with the C.W.P. No. 13708 of 2007 -3- respondents but his prayer was declined vide order Annexure P-8. Hence this writ petition. Counsel for the parties heard. It is apparent from the impugned order that prayer to count period between 10.2.1974 to 1.11.1981 was declined on the ground that since the petitioner remained absent from duty and his reinstatement was virtually a fresh appointment in service and as such there was break in service, on which account he was not entitled to get that period counted towards pension. We feel that reasoning given is not justifiable. It is apparent from order Annexure P-1 dated 23.4.1985 (i.e. in appeal against his dismissal), that the competent authority chose to recall the order of dismissal, punishment of censure was inflicted upon the petitioner and he was ordered to be reinstated in service. It was further directed that nothing be paid to the petitioner for the period he remained out of service. Abovesaid order clearly indicates that the petitioner was not given a fresh appointment. His reinstatement will relate back to the date when he was ordered to be dismissed from service. By passing order Annexure P-8, the competent authority, now has tried to add something in the order Annexure P-1, which was not stipulated against the petitioner. As such we feel that reasoning given in the impugned order is liable to be rejected. So far as counting of military service is concerned, the same has not been counted on the ground that the petitioner has not deposited the gratuity amount with the respondents which he has received from the Army authorities. It is categoric case of the petitioner that he has not received C.W.P. No. 13708 of 2007 -4- any amount, towards gratuity, for his service rendered with the Indian Army. Be that as it may, if the petitioner puts on record a certificate from the concerned authorities of the Army that he has not received any gratuity amount, the respondents are duty bound to count service rendered by him in Army as per rules for grant of pension. In view of facts mentioned above, we allow the writ petition and direct the authorities to count the period falling between 10.2.1974 to 1.11.1981 as qualifying period for grant of pension. It is further directed that if the petitioner proves on record that he has not received any gratuity amount from the Army authorities, the service period rendered by him with the Army will also be counted towards qualifying period for pension as per rules. In case, petitioner has received any amount from the Army authorities towards gratuity, he shall be duty bound to deposit the same with the respondents, only thereafter the period of service rendered by him with Indian Army shall be counted towards the grant of pension. Needful be done within three months from the date of receipt of a certified copy of this order. ( Jasbir Singh ) Judge ( K.C. Puri ) 21.4.2008. Judge chug