Veerappan vs The Union Territory of Pondicherry and Another

Ramanujam, J.—The Petitioner herein was a member of the Police force under Ex. French Government. He continued to be a constable

after the dejure transfer, under the Union Territory of Pondicherry. He was promoted as Head Constable in 1963. While he was serving as a head

constable in Reddiarpalayam in 1967, he applied for medical leave for six months from 5th August, 1967 for taking treatment for leprosy. He again

applied for further six months and got the leave sanctioned. He again applied for the extension of leave for further period of six months. Before the

expiry of the extended leave for six months, the Petitioner got himself involved in a criminal case. He was convicted by the Judicial First Class

Magistrate for an offence punishable u/s 147 , Indian Penal Code and sentenced to undergo imprisonment for a period of two months. The matter

was taken up in appeal and ultimately in a revision to this Court, this Court upheld the conviction, but reduced the sentence of imprisonment to the

period already undergone. The result was that the Petitioner has been in jail for six days.

After the Petitioner was convicted by the Criminal Court the second Respondent passed an order on 2nd January, 1969 dismissing the

Petitioner from service with effect from 13th August, 1968 i.e. from the date of his conviction by the First Class Magistrate Pondicherry in Crime

No. 17 of 1968. The Petitioner took the matter in appeal to the Lt. Governor of Pondicherry praying that he might be compulsorily retired on the

ground of physical in capacity or that disciplinary proceedings might be (sic) against him on the basis of the criminal Court judgment. That appeal

was partly allowed and it was ordered that the dismissal from service will operate only from the date of the order of the dismissal and not from the

date of the judgment of the criminal Court. The Petitioner has been thereafter making representations to the Respondents that the offence with

which he has been convicted by the criminal Court did not involve any moral turpitude, that as such he could only be retired compulsorily u/s 59(1)

of the Police Standing Order, volume I and that, therefore, the order of dismissal passed by the second Respondent cannot be sustained in law. All

his representations having been turned down, the Petitioner has approached this Court ultimately challenging the order, dated 14th July, 1972 of

the second Respondent as confirmed by the first Respondent in his order, dated 27th June, 1974.

It is contended by the learned Counsel for the Petitioner that the offence, with which the Petitioner in this case has been convicted, does not

involve moral turpitude, that as such the case of the Petitioner should be dealt with only u/s 59(1) of the Police Standing Order, volume I, and that

if compulsory retirement is ordered as per Section 59(1), the Petitioner will be entitled to pension. The Petitioner''s case is that by dismissing the

Petitioner straightaway on the basis of the judgment of the criminal Court, without taking any disciplinary action he has been deprived of his

pension, as he had put in the qualified years of service and this results in a double punishment. The Petitioner''s alternative case is that even if

compulsory retirement cannot be ordered straightaway disciplinary proceedings u/s 73 of the order, could have been initiated by framing a charge

basing on the conviction of the criminal Court.

Since the order impugned in the writ petition is the order of the second Respondent holding that the Petitioner is not entitled to pension, the

validity of the order of dismissal from service does not arise.

The only question, the Court has to consider now, is whether the Petitioner is entitled to claim pension. According to the Petitioner, since he has

already put in the qualifying years of service, he is entitled to pension, notwithstanding the fact that his services have been terminated on the basis of

the criminal Court conviction.

In the counter affidavit, the Respondents have Stated that since the Petitioner was a member of the Ex. French Government, he was governed

by Ex. French rules with regard to payment of pension conditions that as a member of Police force, service conditions were regulated by the

provisions of Arret of Public Force, dated 12th August 1943, as amended from time to time, and that under the said Arret the Petitioner was not

entitled to claim pension. It is said that though the Petitioner is entitled to pension under Article II of the Arret as amended on 28th February 1952,

as he has put in 15 years of service, the said Arrete is subject to Article 30 of the Arret which is as follows:

Section 30:--The Local Pcs. of Public Forces in India can leave their service once and for all either:

(1) By submitting an application for retirement in the conditions laid down u/s 11 above ;

(2) by voluntary termination of their contract;

(3) by compulsory retirement; and

(4) by compulsory termination of their contract.

The termination of service by the last two methods may be ordered either for physical unfitness certified by the Medical Board or on disciplinary

grounds for habitual misconduct or serious fault in the service or offence against honor. Compulsory retirement and compulsory termination of the

contract shall be ordered by the Governor on the proposal of the Commandant of Public Forces and the date on which the individual should have

his service shall also be fixed by him.

When it is ordered for physical unfitness, compulsory termination can give right to pension, if the following conditions, are fulfilled,

simultaneously:

(1) Physical unfitness due to discharge of duty,

(2) Recommendation of the Medical Board,

(3) Like decision of the Governor.

When Compulsory termination of the contract is ordered on disciplinary grounds, the individual will not be entitled to any allowance. The Police

Constable struck off from the rolls on disciplinary grounds will not be eligible for re-enlistment later on either in the sepay Company or in the Police

Force.

The counter affidavit further proceeds on the basis that, if a member, who had put qualifying years of service, he will be entitled to pension even

though his services were terminated, but that if a member is dismissed from service on disciplinary ground, then he will not be entitled to pension.

The question, therefore, is whether the Petitioner who has put in qualifying years of service, has become disentitled to the pension as a result of

Article 30. In my view where a Government servant is dismissed from service or there is termination of service as a result of disciplinary

proceedings based on misconduct, he will not be entitled to pension. Therefore, the next question is whether, in this case, the Petitioner has been

dismissed on disciplinary grounds. Admittedly no disciplinary proceedings had been initiated against the Petitioner. As a matter of fact, the

Petitioner''s grievance was that no disciplinary proceedings had been initiated against him. There was no complaint or charge of any irregularity or

misconduct on the part of the Petitioner. No disciplinary proceedings were taken against the Petitioner for any charge of misconduct and

misdemeanour. The Petitioner''s service have been terminated only on the basis of conviction by the criminal Court. The conviction by the criminal

Court cannot be said to be a punishment on disciplinary grounds, so as to attract Article 30. Where a member of police service is dismissed from

service on the basis of a judgment of the criminal Court without any further disciplinary proceedings, it cannot be said that he has been dismissed

from service on disciplinary grounds. Normally the word disciplinary grounds will refer only to the disciplinary action taken by the authorities

against the member of the Police force with reference to the performance of his duties or his conduct while on duty. Termination of a contract

based on criminal Court''s conviction for an offence not involving his conduct as a Policeman is not a termination of service on disciplinary grounds.

Hence Article 30 cannot have any application in this case. If Article 30 does not stand in the way, as the Petitioner has put in the qualifying years of

service, namely, 15 years, he will be entitled to claim pension. It is not disputed that the Petitioner in this case has put in 15 years of service. In the

counter affidavit except saying that Article 30 prevents the Petitioner from drawing the pension, no other statutory provision disabling the Petitioner

from claiming pension has been pointed out. The Petitioner''s claim has therefore to be allowed.

The writ petition is therefore allowed. There will be no order as to costs.