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1997 DIGILAW 545 (PAT)

Shree Bhagwan Pandey v. Union of India

1997-08-01

R.N.PRASAD

body1997
JUDGMENT R.N. Prasad, J. This application has been filed for issue of a writ of mandamus commanding the respondents for payment of pension and gratuity to the petitioner. 2. The petitioner was enrolled as A.C. 2. Medical Assistant in the Air Force on 26.10.1949. He completed 15 years of service on 25.10.1964. According to the petitioner he became eligible for pension and gratuity under the Rule. He opted for extension of service and he was allowed extension of six years which was to expire on 25.10.1970. He thereafter, did not file any petition for extension of his service. In 1968 he was posted at Pune. In the month of June, 1968 he was implicated in a criminal case instituted at Udwant Nagar P.S., District Bhojpur, Bihar. He was put behind the bar and was being paid subsistence allowance. The criminal trial concluded and he was convicted and sentenced to undergo imprisonment for life under section 302 of the Indian Penal Code vide order dated 28.6.1973. He was dismissed from service with effect from 18.9.1974 i.e. after serving 24 years 10 months 22 days while he was posted under the Commanding Officer, Bihta, Bihar. He filed a representation before the Commanding Officer for salary /allowance. A reply was communicated to him that he had been dismissed from service with effect from 18.9.1974. Thereafter, he filed a representation to the Chief of Air Staff. According to the petitioner since he had completed 15 years of service, he is entitled for pension and gratuity. 3. A counter-affidavit has been filed stating, inter-alia, therein that the petitioner was initially enrolled for 9 years in regular service on 26.10.1949. Subsequently, he was granted extension of service for six years with effect from 26.10.1958. He was further granted extension of service for a period of six years with effect from 26.10.1964. The petitioner was retained in service with effect from 26.10.1970 to 17.9.1974 on account of his involvement in a criminal case. No representation was received at the Air Force Head Quarters addressed to the Chief of Air Staff. Only the representation that was received from the petitioner as per record is dated 1.6.85 addressed to the Hon'ble President of India which was duly considered and rejected. No representation was received at the Air Force Head Quarters addressed to the Chief of Air Staff. Only the representation that was received from the petitioner as per record is dated 1.6.85 addressed to the Hon'ble President of India which was duly considered and rejected. The petitioner was sentenced to imprisonment for life and was dismissed from service and as such he was not entitled to pension and gratuity under the provision of Pension Regulation for the Air Force, 1961 (hereinafter to be referred as the 'Regulation, 1961'). 4. Learned counsel for the petitioner contended that the petitioner completed 15 years service and as such he is entitled to pension and gratuity. The extended period was to expire on 26.10.1970 but he was retained in service without any application by the petitioner and as such the respondents cannot deny the claim of the petitioner. On the other hand, learned counsel for the respondents contended that since the petitioner has been dismissed from service he is not entitled to pension and gratuity under the Regulation, 1961. 5. It is manifest from the material available on the record that the petitioner completed 15 years of service on 25.10.1964. He opted for extension of service and he was allowed extension of service for six years which was to expire on 25.10.1970. During extended period of service he was made an accused in a criminal case under Section 302 of the Indian Penal Code in the year 1968. Due to involvement in a criminal case his service was retained even after 25.10.1970. He was convicted in the criminal case and sentenced to imprisonment for life in the year 1973. He was dismissed from service with effect from 18.9.1974. Rule 25A of Regulation 1961 prescribes 20 years minimum qualifying service for grant of pension and 15 years in the case of late entrant. Late entrant has been explained in Rule 15 of Regulation 1961. However, Rule 102 A of the Regulation 1961 says that an individual who is dismissed under the provision of the Act is ineligible for pension or gratuity in respect of all previous service. It is an admitted position that the petitioner has been dismissed from service and thus under the provisions of Regulation, 1961 he is not entitled to pension and gratuity. 6. It is an admitted position that the petitioner has been dismissed from service and thus under the provisions of Regulation, 1961 he is not entitled to pension and gratuity. 6. Thus on consideration of the entire facts and circumstances as indicated above, I do not find any substance in the submission of the learned counsel for the petitioner. Accordingly, this writ application is dismissed.