IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No. 10 of 2008 Date of decision: 17.09.2010 __________________________________________________________________ Union of India & Others. .....Appellants. Versus Rajinder. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? NO. __________________________________________________________________ For the appellants: Mr. Sandeep Sharma, Assistant Solicitor General. For the respondent: Mr. Deepak Kaushal, Advocate. V.K. Sharma, J (Oral). The challenge in this Letters Patent Appeal is against the judgment dated 29.10.2007 of a learned Single Judge of this Court, whereby CWP No. 620 of 2006, titled Rajinder. M. vs. Union of India and others, filed by the respondent herein as petitioner against the appellants herein being respondents, was allowed in the following terms: “Consequently the writ petition is allowed. Annexure R-IV dated 22nd February, 2005, Annexure R-X dated 23rd February, 2005 are quashed and set aside with the direction that the discharge of the petitioner will take effect from 22nd February, 2005 and he will be entitled to all 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... the consequential benefits i.e. arrears of salary etc. with effect from 22nd March, 1994 onwards. The respondents are directed to calculate the arrears of salary etc. within a period of 8 weeks. There shall be no order as to costs.” 2. The facts giving rise to the filing of the present appeal as pleaded by the parties and noticed by the learned Single Judge, are as follows. 3. The petitioner was enrolled in the Army as a Direct Entry Junior Commissioned Officer on 23rd March, 1989 for a period of five years under the provisions of Government of India, Ministry of Defence letter No. 76878/EIA/1155-S/D(Works-II), dated 19th October, 1963. He was discharged on 11th December, 1993. The posting orders were issued from Garrison Engineer Chandigarh to Director General Naval Project, Vizag vide Record Office BEG Roorkee letter No. A9/4903/Vol-83/04/(R) (MES), dated 30th April 1993. Movement orders were passed on 15th February, 1994 by the authorities. The discharge order passed in favour of the petitioner was cancelled vide Records BEG Roorkee letter No.A3/5225/09/Vol- I/R dated 16th February, 1994 consequent to approval of Army Headquarters for grant of regular Junior Commission. The petitioner remained absent with effect from 23rd February, 1994 onwards. He was apprehended on 5th August, 1995. He filed a criminal writ petition No.39/1995 before this Court and pursuant to order dated 21st September, 1995, he was set free by the Army authorities. He reported to DGNP (V) physically on 22nd November, 1996. The disciplinary proceedings were initiated against him, ...3... however, he remained absent from 1st May, 1998 onward. The petitioner filed writ petition bearing No. 244/99 in this Court assailing the cancellation of discharge order dated 11th December, 1993. The writ petition was allowed by this Court on 11th March, 2004 and the order dated 16th February, 1994 was quashed and set aside, but the respondents were directed to cancel the discharge order dated 11th December, 1993 in accordance with law after giving reasonable opportunity to show cause against the proposed action. The LPA No.33/2004 was preferred against the decision dated 11th March, 2004 but the same was dismissed by a Division Bench of this Court on 3.8.2004. 4. It is revealed from the reply filed by the respondents that during pendency of the writ petition i.e. CWP 244 of 1999, the petitioner was dismissed from service with effect from 1st May, 2001 purportedly under section 20 of the Army Act, 1950 read with Rule 17 of the Army Rules, 1954. After the dismissal of the LPA No.33/2004 by this Court on 3.8.2004, the case was referred to Army Headquarters to obtain sanction of the Government of India to amend the order vide BEG Record Office letter No.2017/613/AI dated 1st September, 2004. The Army Headquarters vide letter No.39382/BEN/RM/226/CC/EIA dated 22nd February, 2005 accorded sanction to the effect that petitioner will be deemed to have discharged from service on 22nd March, 1994. The text of letter dated 22nd February, 2005 being relevant is reproduced below, which reads thus: “I am directed to convey the sanction of the ...4... competent authority to implement the above cited Court Order in respect of No. JC-199873 A Nb Sub/E&M II Rajendra M of BEG, Roorkee. The individual will be deemed to have been discharged from service on 22 Mar 94 as per his original contractual period of engagement without prejudice to the pending disciplinary proceeding. He will not be entitled for pay and allowances or any other benefit arising out of his service performed after 22 Mar. 94. This issues in consultation with Min. of Def (Finance) vide their U.O No.174/PD/05 dated 21 Feb. 2005.” 5. Resultantly the dismissal order was converted to discharge SSO with effect from 22nd March, 1994 which was issued on 15th March, 2005. 6. In the meantime on 10.09.2004, the petitioner made a representation to the competent authority for implementation of the orders as passed by this Court followed by another representation dated 15.01.2005. The last representation was made by the petitioner on 02.07.2005. 7. The dispute between the parties lies within a narrow compass. Whereas, according to the appellants, the respondent stood discharged from service on and w.e.f. 22.03.1994, the case of the respondent is that, in fact, the order of discharge would be effective only on and w.e.f. 22.02.2005. 8. Without going into an elaborate discussion of the respective contentions raised on behalf of the parties, by way of their pleadings as also at the bar during hearing of the appeal, it would be suffice to say that even as per the case set up by the appellants, the respondent was dismissed from service on and w.e.f. ...5... 01.05.2001. However, due to some inadvertence and bona fide oversight, this fact could not be brought to the notice of this Court during adjudication of CWP No. 244 of 1999 filed by the respondent, which was decided in his favour on 11.03.2004 as also during pendency of the Letters Patent Appeal No. 33 of 2004 arising out therefrom, which was ultimately dismissed on 03.08.2004. 9. The further case set up by the appellants is that by taking a lenient view the order of dismissal dated 01.05.2001, passed against the petitioner was suo motu converted into an order of discharge, vide order dated 22.02.2005 w.e.f. 22.03.1994, which was taken to be the deemed date of discharge coinciding with the date of the initial contractual appointment of five years. However, the fact remains that even after 22.03.1994 the respondent remained on the rolls of the appellants upto 01.05.2001 and during this period he was also proceeded against departmentally on various charges, such as, willful absence from duty etc., meaning thereby that the respondent, in fact, served the appellants during the period 22.03.1994 to 01.05.2001, though as per the appellants this period of employment had a chequered history which according to the respondent was not of his own making and instead was thrust upon him by the appellants themselves. 10. One thing is more than clear from the above narration of facts that in fact the respondent was not on the rolls of the appellants after his dismissal from service on and w.e.f. 01.05.2001. In such circumstances, we are more than clear in our minds that he ...6... is not entitled for any monetary service benefits for the period 01.05.2001 to 22.02.2005. To this extent, the impugned judgment dated 29.10.2007, requires to be modified. Order accordingly. To be explicit, the benefits to which the respondent has been found entitled by the learned Single Judge, under the impugned judgment, dated 29.10.2007, shall now be restricted only for the period from 22.03.1994 to 01.05.2001 and not beyond that and, as such, he would be treated to have been discharged from service on and w.e.f. 01.05.2001 instead of 22.03.1994. 11. In view of the above, the appeal succeeds partly and is allowed in part in the above terms. While parting, it is directed that the consequential benefits arising out of this judgment shall be paid by the appellants to the respondent within six months from the date of receipt of a certified copy of the judgment by the learned Assistant Solicitor General. 12. In view of disposal of the main appeal, pending application, if any shall also stand disposed of as infructuous. (R.B. Misra) Judge (V.K. Sharma) Judge 17th September, 2010 (virender)