Gujarat High CourtThakur Sudhirkumarsingh ... vs Union Of India & 3 on 9 July, 2015Author:Ks JhaveriBench:Ks Jhaveri,G.B.ShahC/SCA/7917/2015                                JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              SPECIAL CIVIL APPLICATION NO. 7917 of 2015



FOR APPROVAL AND SIGNATURE:



HONOURABLE MR.JUSTICE KS JHAVERI


and
HONOURABLE MR.JUSTICE G.B.SHAH

==========================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of
      the judgment ?

4     Whether this case involves a substantial question of
      law as to the interpretation of the Constitution of
      India or any order made thereunder ?

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    THAKUR SUDHIRKUMARSINGH MAHENDRAPALSINGH....Petitioner(s)
                            Versus
               UNION OF INDIA & 3....Respondent(s)
==========================================================
Appearance:
MS.P J.JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR NIKUNT K RAVAL, ADVOCATE for the Respondent(s) No. 1 - 4
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          CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
                 and
                 HONOURABLE MR.JUSTICE G.B.SHAH

                            Date : 09/07/2015


                                 Page 1 of 4
          C/SCA/7917/2015                            JUDGMENT




                           ORAL JUDGMENT(PER : HONOURABLE MR.JUSTICE KS JHAVERI)1.   Rule. Mr. Nikunt Raval, learned advocate appearing for
the respondents waives service of notice of Rule.        With the
consent of the parties, matter is taken up for final hearing
today.2.   The petitioner herein has prayed to quash and set aside
the order dated 07.02.2015 passed by respondent authorities
and to consider the reinstatement of the petitioner and also to
direct the respondent authorities to grant pensionary and
monetary benefits to the petitioner.3.   It is the case of the petitioner who was enrolled with the
Indian Army on 08.07.2000 that the respondents dismissed
the petitioner from service just before five months to
completion of pensionary service.           It is the case of the
petitioner that in the year 2006 while he was on leave the
brother of the petitioner had entered into a scuffle with a
person and therefore the petitioner along with other friends
had been indulged in the said crime.          An FIR came to be
registered undersection 143,147,148,149,302,307,324of
Indian Penal Code andsection 135(1)of B.P Act with
Shaherkotda Police Station bearing C.R. No. - I 169/2006.
The petitioner was convicted by the trial court and is
sentenced to suffer rigorous imprisonment for life and to pay
fine of Rs. 5000/- vide judgement and order dated 24.09.2014.
It is the case of the petitioner that after bail being granted to
the petitioner, he resumed his duty with the respondents. The
respondents thereafter was served with a show cause noticePage 2 of 4C/SCA/7917/2015                                         JUDGMENT




and then he was dismissed from service vide order dated
07.02.2015. Being aggrieved by the order dated 07.02.2015,
the petitioner has approached this Court by way of the
present petition.4.     Ms. Joshi, learned advocate appearing for the petitioner
submitted that the respondent authorities have failed to
consider the conduct and the sincere service rendered by the
petitioner.       He submitted that the petitioner was near
retirement and therefore this Court may consider the case of
the petitioner for grant of retiral benefits.5.     Having heard learned advocates for the parties and
having gone through the records of the case, we are of the
view    that     the      circumstances          which   were     taken    into
consideration        by    the   disciplinary       authority     have     been
sufficiently set out in the order of dismissal, they being that
the petitioner's conviction undersections 143,147,148,149,302,307,324of Indian Penal Code andsection 135(1)of B.P
Act of theIndian Penal Codeand the nature of the offence
which led the disciplinary authority to the conclusion that the
further retention of the respondent in the defence was
undesirable. The facts here are eloquent and speak for
themselves. It is trite that this Court has granted bail to the
petitioner pending the appeal but the                    same cannot be a
ground for reversing the order passed by the disciplinary
authority.5.1    Imposition of penalty is one aspect of the matter and
entitlement to the pension in terms and rules or regulation is
entirely different consideration. The pension as such is not aPage 3 of 4C/SCA/7917/2015                                    JUDGMENT




vested or fundamental right but is a condition of service and
depends upon the relevant rules under which pension
becomes payable to an employee, therefore, for the purpose of
claiming pension, the primary consideration is whether a
person is entitled to a pension under the Rules. It is an
admitted position that the petitioner was five months short of
the requisite period of pensionary service.                 Moreover, the
petitioner was dismissed from service after being convicted by
the court of law and therefore also the petitioner shall not be
entitled to pension as he has not completed the requisite
years of pensionary service.          Thus, this court is not inclined
to interfere in the present petition.6.      In   the     premises   aforesaid,       petition   is   dismissed.
However, if he is ultimately acquitted by the appellate court it
shall be open to the petitioner to pray for appropriate relief
thereafter.        Rule is discharged.         Interim relief if any shall
stand vacated.(K.S.JHAVERI, J.)




                                                             (G.B.SHAH, J.)
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