- (1.) THE petitioner, who was initially joined the Border Security Force as Constable on 27. 8. 1974, was later on posted as Constable Nursing Assistant during the year 1984. While in Service he was charged for having committed an offence under Section 40 of the Border Security Force Act vide charge-sheet dated 14. 12. 1994 and was tried by the Summary Security Force Court on 6. 3. 1995. Summary Security Force Court found him guilty of the offence and he was punished with the penalty of dismissal from service. Copy of the order of dismissal is attached as Annex. P. 1 to the writ petition which reads as under :- SENTENCE BY THE COURT Taking all these matters into consideration, I now sentence the accu- sed No. 740320635 Rank Constable Name R. Unnikrishnan of HQ R & C Frontier BSF Jodhpur to be dismissed from the service. Signed at HQ R&g Frontier this 6th day of March'95 BSF Jodhpur Sd/- (R. C. SAXENA) AD/comny/ OC TROOPE COMMANDANT HOLDING THE TRIAL"
(2.) THE contention of the petitioner is that he had served more than 20 years from the date of joining till the date of dismissal i. e. from 27. 8. 1974 to 6. 3. 1995. This period of service was reckonable to earn pension. Counsel for the petitioner submits that he is entitled to retiral benefits for the reason that the Summary Security Force Court had not awarded any such puni- shment for forfeiture of service for the purpose of pension or any other prescribed purpose in terms of Section 48 (g) of the Border Security Force Act. The facts as stated by the petitioner are not denied in the reply filed on behalf of the respondents. However, it is denied by the respondents that the petitioner is entitled to any retiral benefits on the ground that he had been dismi- ssed from service and the dismissal from service entitles itself the forfeiture of pension, gratuity and other benefits to which the petitioner would have been entitled to. Section 48 of the Border Security Force Act enumerates the punishments to be inflicted in respect of the offences committed by the persons subject to the Border Security Force Act i. e. death, imprisonment, dismissal from service, forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose. The relevant provisions of the Border Security Force Act are reproduced as under :- "48 (1) Punishments may be inflicted in respect of offences commi- tted by persons subject to this Act and convicted by the Security Force Courts according to the scale following, that is to say :- (a) death (b) imprisonment which may be. . . . (c) dismissal from service; (d) xxxx (e) xxxx (f) xxxx (g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (h) xxxx (i) xxxx (j) xxxx (k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public dues to him at the time of such dismissal; (l) xxxx" To support the contention, the counsel for the petitioner had relied on a Supreme Court judgment in the case of Major G. S. Sodhi vs. Union of India (1 ). In a similar claim of pension where the army officer had been dismissed from service and on the similar defence having been taken by the Union of India to the fact that the pensionary benefits in respect of those who were dismissed from service cannot be claimed as a matter of right, had come up for consideration before the Hon'ble Supreme Court in Major G. S. Sodhi's case. Relying on the case of Lt. Col. (T. S.) Harbans Singh Sandhu vs. Union of India (2), wherein the Apex Court had taken the view that because of the reason that no other penalty forfeiting the pensionary benefits was passed, therefore, the officer could not be deprived of his pensionary benefits by applying any of the regulations. A similar view was taken by the Hon'ble Supreme Court in the case of Religious Teacher Ex. N. Sub. R. K. Sharma vs. Chief of the Army Staff (3), wherein the Bench had observed that the court-mar- tial had not inflicted a punishment on the officer of forfeiture of pension or other service benefits and, therefore, an assurance was given to the Court that whatever pension and other service benefits were permissible to the officer under the law that would be given to him.
(3.) THE provisions of Section 48 of the Border Security Force Act in regard to the inflicting of punishments on B. S. F. personnel are para materia to Section 71 of the Army Act, 1950, under which provisions the army officers were tried and punished in the case which had come up before the Hon'ble Supreme Court as mentioned above. Section 71 of the Army Act prescribes the similar punishments, which are reproduced as under : "71. Punishment awardable by courts-martial-punishment may be inflicted in respect of offences committed by person subject to this Act and convicted by court-martial, according to the scale following, that is to say :- (a) death; (b ). . . . . . . . (c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years; (d) cashiering in the case of officers; (e) dismissal from the service; (f ). . . . . . . . . (g ). . . . . . . . . (h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (i ). . . . . (j ). . . . . (k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dis- missal; (l ). . . . . . . . . . " Sub-clause (e), Sub-clause (h) and sub-clause (k) of Section 71 of the Army Act are verbatim the same to as that of sub-clause (c), sub-clause (g) and sub-clause (k) of section 48 of the Border Security Force Act, and, therefore, the law laid down in Major G. S. Sodhi's case is applicable in the present case with all force. The Hon'ble Supreme Court in Major G. S. Sodhi's case has held as under :- "in the instant case also, the court-martial has not inflicted any other punishment of forfeiture of pension or other service benefits of the petitioners. Therefore they are also entitled to these benefits. Accor- dingly the respondent is directed to pay the entire pension, gratuity and provident fund under the rules to each of these petitioners within three months from the date of receipt of this order. Both the criminal miscellaneous petitions are accordingly disposed of. " In view of the categorical law laid down by the Hon'ble Supreme Court, the writ petition deserves to be allowed for the reason that in the present case also the court-martial has not inflicted any other punishment of forfeiture of pension of other service benefits on the petitioner. Therefore, he is also entitled to these benefits. Accordingly, the respondent is directed to pay the entire pension, gratuity and provident fund under the rules to the petitioner within three months with in- terest at the rate of 12% per annum from the date of receipt of this order, and in case the order is not complied with within the stipulated period as mentioned above, the respondent shall pay the enhanced interest at the rate of 18% per annum to the petitioner. The writ petition is allowed with any order as to costs. .;