1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2437 OF 2007 IN WRIT PETITION NO.2268 OF 2000 1.Shri.Gurayya Shankarayya Swami. ...Applicant. vs. 1.Union of India & others. ...Respondents. --- Mr.Shrishail Sakhare, for Applicant. Mr.D.A.Dubey, for Respondents. CORAM: D.K.DESHMUKH & K.K.TATED, JJ. DATED: 21st November,2009 P.C.:- 1. Heard the learned Counsel appearing for both the sides. Civil application is granted in terms of prayer clause (a), (b) & (c). (D.K.DESHMUKH, J.) (K.K.TATED, J.) 2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2268 OF 2000 1.Shri.Gurayya Shankarayya Swami. ...Applicant. vs. 1.Union of India & others. ...Respondents. --- Mr.Shrishail Sakhare, for Applicant. Mr.D.A.Dubey, for Respondents. CORAM: D.K.DESHMUKH & K.K.TATED, JJ. DATED: 21st November,2009 P.C.:- 1. The matter is not on board for final hearing today but it is taken on record and heard finally by consent of parties. The petitioner by this petition challenges communication dated 22.10.1998 by which it was informed that he has been dismissed from the 3 services with effect from 31.8.1998. That letter is addressed by the Record Officer to the Secretary, DSO & A Board, Dist.Solapur. According to the petitioner, when he was on leave he visited his parents at his native place and found that they are seriously ill and applied for premature discharge from the military service and at that time he came to know that he has been dismissed from service. The petitioner challenges the dismissal order. The petitioner relying on the judgment of the Supreme Court in the case Major G.S.Sodhi Vs. Union of India, (1991)2 Supreme Court Cases 371 submitted that in any case he is entitled to receive full pension. 2. We have heard the learned Counsel appearing for both the sides. So far as the record of the petitioner is concerned, in the affidavit filed on behalf of his employer-Union of India it is stated that the record of service of the petitioner is extremely poor, he was not a disciplined officer. Whenever he went on leave he overstayed. He overstayed on six occasions. Last time he overstayed in April, 4 1993 when he did not report on duties for 58 days after the leave period was over and therefore, he was awarded punishment of Rigorous imprisonment for 28 days. In the affidavit of respondents it is stated that he was a habitual offender and indisciplined soldier according to the Army Rules. He proceeded on leave from 14.5.1992 without sufficient cause and till he was dismissed from services, did not report on duties. The petitioner has not filed any rejoinder disputing these statements made in the affidavit. It is, thus, clear from the affidavit in reply that the petitioner was dismissed from service for not reporting on duties after his leave was over. So far as the case of the petitioner that he had submitted application for premature discharge is concerned, the respondents stated that that application was returned to his Unit. In our opinion, therefore, no exception can be taken to the action taken by the Union of India by dismissing the petitioner from service. The respondents have clearly stated in their reply that according to paragraph 113 of Ibid Pension Regulations the soldier who is dismissed from services is not 5 entitled to any pensionary benefits. The learned Counsel appearing for petitioner is not able to point out to us that these statements made in the reply are in any way wrong or incorrect. 3. So far as the reliance placed on the judgment of the Supreme Court referred to above is concerned, the Supreme Court has held that the Commissioned officer who is removed from the military service as a result of Court Martial, is entitled to pension as the Court martial has not inflicted a punishment on him of forfeiture of pension or other service benefits, and therefore, pension cannot be withheld merely because the officer has been removed. Firstly, there is no ground taken in the petition by the petitioner that as no order of forfeiture of the petitioner s pension is passed, his pension cannot be forfeited. Secondly, we find that the Supreme Court in that judgment was considering the issue of removal from service and not dismissal from service. The provisions of paragraph 113 of the Pension Regulations clearly disentitles the dismissed soldier from 6 getting any pension. Taking overall view of the matter, therefore, we find no substance in the petition. The petition is dismissed. Rule discharged. No order as to costs. (D.K.DESHMUKH, J.) (K.K.TATED, J.)