- (1.) PETITIONER was enrolled in the Indian Army on 21.5.1956. During the period when the petitioner was on reserve service w.e.f. 1.10.1960, he was called upon to join colour service on 21.9.1965 after declaration of national emergency during 1965 Indo-Pak war. However, the petitioner, for one reason or the other, could join the services only on 21.9.1966. Declaring the petitioner as deserter, his pay and allowances were forfeited for the above period of the duration of 339 days. The petitioner continued in the colour as well as reserve service till 21.10.1971 when he reached the age' of superannuation. Since the petitioner was not paid any pension or other retiral benefits, various representations were made by the petitioner and having failed to get the positive response, the present writ petition has been filed claiming the pensionary benefits.
(2.) IN reply to the writ petition it has been submitted on behalf of the respondents that the petitioner had not completed the qualifying period of 15 years of colour as well as reserve service. As such, he was not entitled for any pension or other retiral benefits. Learned counsel for the petitioner relied on Para 123 of the Regulations of Army 1961 (REV) Pt.I. As has come on record, the petitioner has completed 14 years and 62 days of service in both reserve as well as colour service. Only 300 days fall short so as to entitle him for pension and other retiral benefits. Regulation 123, as relied on by the counsel for the petitioner, is reproduced here as under: "123(a)- A person who has been guilty of any of the following offences: (i) desertion vide Sec. 38 of the Army Act; (ii) Fraudulent enrolment vide Sec. 43(a) of the Army Act; shall forfeit the whole of his prior service towards pension or gratuity upon being convicted by Court Martial of the offence. (b)- A person who has forfeited service under the provisions of the preceding clause but has not been dismissed shall on completion of any period of three years further service in the colours and/ or service in the reserve with exemplary conduct and without any red ink entry be eligible to reckon the forfeited service towards pension and gratuity." There is nothing on record to show that after the period of desertion when the petitioner was continued in service till 1971, there was any complaint or red ink entry in the service roll of the petitioner. A bare reading of the provisions, as referred above, shows that in absence of any red ink entry or other adverse service record, since the petitioner not having been dismissed on the ground of desertion, the above period 339 days have to be counted for the purpose of pension and gratuity. The above provisions appears to have been made only for the purpose of giving benefit to such persons who are continued in service even after the period of desertion and not dismissed by way of punishment. Accordingly, the writ petition is allowed. The petitioner is held entitled for pension and gratuity counting the above period of 339 days in the qualifying period. The due amount be paid to the petitioner within 30 days from the date of receipt of certified copy of this order.;