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2017 DIGILAW 1184 (HP)

Deep Singh v. Union Of India

2017-10-18

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this writ Petition, the Petitioner has prayed for the following reliefs: "(i) That a writ in the nature of Mandamus may be issued directing the respondents to give the entire consequential benefits of service to the Petitioner, like seniority, salary or arrears etc. w.e.f. 9.5.1989 to till date. (ii) That the respondents may further be directed to count the period of Extra Ordinary Leave of the Petitioner i.e. 8.4.2000 to 3.1.2008 towards annual increments, seniority and pensionary benefits. (iii) That the respondents may be further directed to pay the arrear of salary for the period he remained out of job. (iv) That the entire relevant record of the case may kindly be ordered to be summoned from the respondents for the kind perusal of this Hon''ble Court. (v) That the cost of the Petition may kindly be awarded in favour of the Petitioner and against the respondents. (vi) That any other order which this Hon''ble Court may deems just and proper in the facts and circumstances of the case may also be passed in favour of the Petitioner and against the respondents." 2. Brief facts necessary for adjudication of the present case are that the Petitioner was initially appointed as Constable in Border Security Force (BSF) on 09.05.1989. Vide order dated 2nd June, 1999 (Annexure P-1), pursuant to a Summary Security Force Court trial, for an offence committed under Section 40 of the BSF Act, the Petitioner was awarded the sentence of dismissal from service after he was found guilty of the charge alleged against him. The allegation against the Petitioner was that while being posted at BOP Mora Ghatti in West Bengal in May, 1999, he had permitted three civilians to cross the border alongwith three pairs of cattle. 3. Feeling aggrieved by the order of dismissal from service, the Petitioner filed an Appeal. Vide order dated 10.12.2007, appellate authority disposed of the Appeal in the following terms. "I have gone through the service record of the Petitioner, which reveals that he has rendered 10 years and 21 days of service at the time of trial and has got only one punishment that is under Section 19 (b) of the BSF Act for overstaying leave without sufficient cause. He has earned seven rewards during this short span of 10 years of service. He has earned seven rewards during this short span of 10 years of service. Looking to the post service record of the Petitioner, I am of the considered view that the ends of justice would be met if sentence of dismissal from service is commuted to that of 03 months Rigorous Imprisonment in Force custody and I order accordingly. The absence period that is 01-06-1999 till rejoining duty, excluding period of commuted sentence of 3 months RI in Force custody, be regularized by granting leave of kind due." 4. Pursuant thereto, order dated 1st February, 2008, was passed which reads as under. " No. 89008117 CT Deep Singh of this unit who was dismissed from service w.e.f. 01 June 1999 for committing an offence under section 40 of BSF Act tat is to way "an act of prejudicial to good order and discipline of the force," vide this office order No. Estt/84 Bn./dismiss/99/6420-60 dated 02 June, 1999. Now, the sentence of dismissal from service of the individual has commuted to that of 03 months Rigorous Imprisonment in Force custody by DG BSF and also directed that the absence period that is 1.6.99 till rejoining duty excluding period of commuted sentence of 3 months in force custody be regularized by granting leave of kind due vide FHQ (D&L Branch) order No. 06/155/2002/GLO(1)&(L)/BSF/8813-18 Dated 10 Dec., 2007 in compliance of ibid order the said Constable reported to this nit on 03 Jan 2008 (A/N). 2. As approved by the commandant, the absence period of the above constable w.e.f. 1.6.99 to 3.1.2008 i.e. total 3137 days is hereby regularized as per details mentioned above: (a) 23 days absence period w.e.f. 1.6.1999 to 23.6.1999 by granting 23 days Earned leave. (b) 198 days absence period w.e.f. 24.6.99 to 7.1.2000 by granting 198 days half Pay Leave. (c) 2916 days absence period w.e.f. 8.1.2000 to 3.1.2008 by granting 2916 days EOL. 3. Fixation of Pay: Pay of the Indl is also hereby fixed as under:- (a) Indl was drawing basic pay at the time of dismissal of service i.e. 1.6.99. Rs. 3275/- (w.e.f. 1.10.98 DNI 1.10.99) (b) DNI 1.10.99 notionally increased without financial benefit as indl was not on duty at that time but absence period has been regularized by granting HPL. Rs. 3350/- (c) Indl will draw Rs. Rs. 3275/- (w.e.f. 1.10.98 DNI 1.10.99) (b) DNI 1.10.99 notionally increased without financial benefit as indl was not on duty at that time but absence period has been regularized by granting HPL. Rs. 3350/- (c) Indl will draw Rs. 3350 w.e.f. 4.1.2008 onwards i.e. date of joining service with next date of increment after completing 12 months i.e. on 28.9.2008 (03 months & 06 days w.e.f. 1.10.1999 to 7.1.2000 plus 08 months and 24 days w.e.f. 4.1.2008 to 27.9.208 total 12 months). 4. He is further posted to C.Coy. of this unit. Distribution: Sd/- 1.2.2008 (Sourabh) Dy. Commandant/ADJT For Commandant, 84 BN. BSF" 5. Feeling aggrieved by order dated 1st February, 2008, the Petitioner vide communication Annexure P-9, called upon the authorities to confer upon him seniority and also to revise his wages as per his seniority and also to pay to him wages for a period of 8 1 /2 years, which service of his, according to him, had not been counted for the purpose of salary. 6. In response to the same, vide Annxure P-1, the Petitioner was again provided details by the authority concerned as to how his leave was adjusted and how his salary was thereafter fixed. Petitioner was also informed that his salary stood correctly fixed and that he would also be entitled to his original seniority and period of duty minus extraordinary leave will also be taken into consideration for the purpose of pension. 7. Still feeling aggrieved, Petitioner has filed the present Petition praying for the reliefs already enumerated above. 8. In reply filed to the Petition by the respondents, while denying the claim of the Petitioner, it has been mentioned therein that against the order of dismissal from service, in the Appeal, which was filed by the Petitioner, the appellate authority commuted the sentence of dismissal from service, to three months imprisonment in force custody, and absence period i.e. period from 1st June, 1999, till the period of re-joining, excluding the period commuted sentence of three months, was ordered to be regularized by granting leave of kind due which order of the appellate authority was accordingly implemented. It is further mentioned in the reply that Petitioner rejoined on 1.3.2008 after reinstatement and accordingly, absence period w.e.f. 1.6.1999 to 3.1.2008 i.e. total of 3,137 days was regularized vide order dated 16.01.2009 (Annexure R-III) as under. It is further mentioned in the reply that Petitioner rejoined on 1.3.2008 after reinstatement and accordingly, absence period w.e.f. 1.6.1999 to 3.1.2008 i.e. total of 3,137 days was regularized vide order dated 16.01.2009 (Annexure R-III) as under. "(a) 90 days RI period w.e.f. 1.6.99 to 29.8.99. (b) 23 days absence period w.e.f. 30.8.99 to 21.9.1999 by granting 23 days earned leave. (c) 198 days absence period w.e.f. 22.9.99 to 7.4.2000 by granting 198 das half pay leave. (d) 2826 days absence period w.e.f. 8.4.2000 to 3.1.2008 by granting 2826 days EOL." 9. On these bases, the claim as put forth by the Petitioner stands contested by the respondents. In his rejoinder, the Petitioner has reiterated his claim. 10. I have heard learned Counsel for the parties and also gone through the records of the case. 11. The relief claimed by the Petitioner is for grant of all consequential benefits like seniority, salary and arrears thereof w.e.f. 9.5.1989. He has also prayed that respondents be directed to count the period of his extraordinary leave for annual increments, seniority and pensionary benefits. Now a perusal of the order passed by the appellate authority demonstrates that it is not as if findings of guilt returned by the disciplinary authority were set aside by the appellate authority. All that learned appellate authority did was that it commuted the sentence of dismissal from service to that of three months rigorous imprisonment in force custody. It further ordered that the absence period of the Petitioner w.e.f. 1.6.1999 till rejoining duty, excluding the period of commuted sentence of three months rigorous imprisonment in force custody, be regularized by granting leave of kind due. Now it is not in dispute that the order so passed by the appellate authority stands complied with by the respondents vide communication dated 1.2.2008. It is not even the case of the Petitioner that what was ordered by the appellate authority had not been complied with by the respondents. However, he wants that he be granted all consequential benefits of being in service like seniority, salary, arrears, w.e.f. 09.05.1989. He also wants that the period of extraordinary leave from 8.4.2000 to 3.1.2008 be counted towards annual increment, seniority and pensionary benefits. In my considered view, this cannot be done. However, he wants that he be granted all consequential benefits of being in service like seniority, salary, arrears, w.e.f. 09.05.1989. He also wants that the period of extraordinary leave from 8.4.2000 to 3.1.2008 be counted towards annual increment, seniority and pensionary benefits. In my considered view, this cannot be done. This is for the reason that respondents cannot be directed to confer upon the Petitioner any benefit which has not been granted to him by the appellate authority. Now the factum of order passed by the appellate authority having been complied with in letter and spirit is also not in dispute. Learned Counsel for the Petitioner during the course of arguments could not substantiate as to how the Petitioner was entitled for grant of benefits like seniority, salary and arrears thereof w.e.f. 09.05.1989. He also could not substantiate that on what basis his prayer for counting the period of extraordinary leave of the Petitioner w.e.f. 8.4.2000 to 3.1.2008 towards annual increment, seniority and pensionary benefits could be granted. Here is a case where the Petitioner was tried by a Summary Security Force Court for commission of offence committed under Section 40 of the BSF Act and was awarded the sentence of dismissal from service after having been found guilty. In Appeal, learned appellate authority has not set aside the order passed by the Summary Security Force Court on merit nor the Petitioner has been exonerated of the charges of which he was found guilty by the Summary Security Force Court. In the absence of there being any order so passed by the appellate authority to the effect that the absence of period after regularization by granting leave of kind due should be counted for all consequential benefits, in my considered view, this relief cannot be granted to the Petitioner by this Court. When the Petitioner has been found guilty of the charges alleged against him which findings have not been disturbed even by the appellate authority, the Petitioner could also not be conferred benefits of service like seniority, salary or arrears of salary etc. w.e.f. 09.05.1989, as has been claimed by the Petitioner. Incidentally, the order passed by the appellate authority dated 01.02.2008 has not been assailed by the Petitioner in this writ Petition. w.e.f. 09.05.1989, as has been claimed by the Petitioner. Incidentally, the order passed by the appellate authority dated 01.02.2008 has not been assailed by the Petitioner in this writ Petition. Therefore, taking into consideration the fact that the order so passed by the appellate authority stands complied with by the respondents in letter and spirit, the Petitioner is not entitled for reliefs which are being claimed by way of this Petition. In view of above discussion, as there is no merit in the present Petition, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of. No orders as to costs.