IMPORTANT POINT
Dismissal after imprisonment for the same offense constitutes double punishment; the period of dismissal must be treated as qualifying service for pension computation.

JUDGMENT :

N. UNNI KRISHNAN NAIR, J.

Heard Mr. F. U. Barbhuiya, learned Counsel for the petitioner and Mr. S. K. Medhi, learned CGC appearing for the respondents.

2. The petitioner by way of instituting the present proceeding has prayed for a direction upon the respondent authorities to compute his pension and pensionary benefits by reckoning the entire period of service rendered by him as qualifying service.

3. The petitioner in the present proceedings while working as a Rifleman/General Duty with the Assam Rifles was detained on 30.11.1990 vide travelling from Silchar to Ajmeer at Guwahati Railway Station. In connection with the said detention of the petitioner, the petitioner was prosecuted under Section 69 of the Army Act , 1950 for committing a civil offence punishable under Section 20(b) of the Narcotics, Drugs and Psychotropic Substances Act , 1985. The charge against the petitioner was that he was found in possession of 36 Kgs of Ganja on 30.11.1999 at Guwahati Railway Station and he was arrested and handed over to his employer. Accordingly a Summary Court Martial proceeding was drawn up against the petitioner by the Commandant, 14th Assam Rifles.

4. On conclusion of the trial, the petitioner was sentenced to 89 days of Rigorous Imprisonment (RI) in Military Custody. After completion of the period of imprisonment the petitioner was released from imprisonment and he was assigned regular duties as Rifleman w.e.f., 05.02.2001. After 26 months from the date of release of the petitioner from imprisonment, a Show Cause Notice came to be issued to him on 03.04.2003, basing on the same allegation for which he was so sentenced to undergo Rigorous Imprisonment. The petitioner submitted his reply to the Show Cause Notice issued to him and therein had taken a plea that he should not be punished twice for the same offence. The Respondent Authorities, by invoking the power under Section 20 of the Army Act read with Rule 17 of the Army Rules, 1954, vide order dated 21.08.2003, proceeded to impose the penalty of dismissal from service upon the petitioner w.e.f. 31.08.2003.

5. The petitioner had initially assailed the said order of dismissal by way of instituting a Title Suit being T. S. No. 5/2004 (renumbered as T.S. No. 445/2006) before the Court of the learned Munsiff at Silchar, however, the said suit was withdrawn on 13.11.2006 and a writ petition being WP(C) No.1146/2009 was instituted before this Court.

6. This Court upon examining the issues arising in the matter was pleased vide Order dated 10.09.2015 to set aside the order dated 21.08.2003 by which the petitioner was imposed with the penalty of dismissal from service. This Court further directed that the petitioner shall be granted notional benefits from the date the order of dismissal so issued to him had come into effect. It was further provided that the petitioner on his reinstatement may apply for voluntary retirement. This Court had made it clear that arrear wages need not be paid to the petitioner for the period he had remained out of service on account of the imposition of the penalty of dismissal from service.

7. The petitioner in pursuance to the Order dated 10.09.2015 , passed by this Court in WP(C) No. 1146/2009, submitted application for proceeding on voluntary retirement. The said application of the petitioner on being considered, the competent authority vide communication dated 19.04.2016 approved the prayer of the petitioner for proceeding on voluntary retirement w.e.f. 01.04.2016. The said application was so approved considering that the petitioner had already rendered 20 years of qualifying service for grant of service benefits. Accordingly, the petitioner was issued with a discharge certificate. In pursuance to the permission granted to the petitioner for proceeding on voluntary retirement, the pensio