A person guilty of desertion under Section 38 of the Army Act forfeits prior service towards pension, with an exception for exemplary conduct and completion of a further three years of service without misconduct.

Sanjay Karol, J.—This judgment is being dictated in open Court in presence of the learned Counsel for the parties.

2. Petitioner was enrolled in the Indian Army on 30th November, 1979. He was served with a show-cause notice dated 18.9.1995. Perusal of the same shows that during his service, he has incurred various entries in his conduct sheet, details are given as under:— Date of offence Offence under AA Section Punishment Awarded Date of Award (a) 25 Jul. 83 AA Sec.39(b) Without sufficient cause OSL 10 days pay fine. 25 Jul. 83 (b) 06 Mar. 85 -do- 14 days RI 18 Mar. 85 (c) 01 Nov. 87 AASec. 38(1) Deserting the Service. Tried by SCM and awarded 09 months RI in military prison and to be under stoppage of pay and allowances for Rs. 432.44 13 Nov. 90 12 Sep. 90 AA Sec. 54(b) Lossing by Neglect the property of the Govt. 12 Sep. 90 AA Sec. 54(B) Lossing by Neglect clothing & equipment the property of the Govt. (d) 21 Apr. 92 AA Sec. 39 (b) without cause OSL sufficient 28 days RI and 14 days detention 09 Jun 92 (e) 21 Apr. 95 AA Sec. 39 (a) Absenting himself without leave. 28 days RI 20 May 95 (f) 02 Aug. 95 AA Sec. 39 (b) Without sufficient cause OSL 28 days RI 31 Aug 95

3. In the notice, it was indicated that the petitioner had become a bad example for other soldiers and his further retention in the service was undesirable in the interest of discipline. An opportunity in compliance of Rule 13(3), Table III (V) of the Army Rules, was afforded to the petitioner. However, he did not respond to the said show-cause notice. He was dismissed from the Army on 29th September, 1995. Even though the order of his dismissal is not on record, however, his certificate of service placed as Annexure P-l, on record, indicates the reason of his dismissal as "Undesirable soldier". The certificate shows that he has rendered 15 years 10 months 16 days of service, which also includes non-qualifying service also.

4. Petitioner preferred an appeal dated 29th June, 1992 seeking condonation of 3 years and 291 days of non-qualifying service to enable him to fulfill the eligibility criteria of availing the pension under the Pension Regulation for Army 1961. The same was, however, rejected by the respondents vide letter dated 9th September, 1999 (P-3), relevant portion of the letter is reproduced as under:— "You were discharged from service on 28 September 95 under Army Rule 13(3) Item III (V) as undesirable soldier before fulfill the terms and engagement of your service. Hence, this office is unable to take any action on your petition. As per existing rules, your non-qualifying service cannot be included towards pension by this office."

5. Petitioner further sent a legal notice dated 19th September, 2000 and for want of response in the affirmative from the respondents, petitioner preferred the present writ petition on 11th August, 2002.

6. Section 38 of the Army Act, 1950 (hereinafter referred to as the Act) stipulates that a person who desert or attempt to desert service shall, on conviction by a Court Martial be liable to suffer imprisonment for a term, which may extend upto seven years. The Pension Regulation for Army, 1961, Part 1, Regulation 123 provides that a person who has been guilty of an offence of desertion under Section 38 shall forfeit the whole of his prior service towards pension or gratuity upon being convicted by Court Martial with one exception that on completion of period of three years further service, in the colours with exemplary conduct and without any red ink entry, he shall be eligible to reckon the forfeited service towards pension.

7. Admittedly, the petitioner has been awarded rigorous imprisonment for a period of nine months in the year 1990. Show-cause notice as reproduced hereinabove indicates that the petitioner had further been inflicted with punishment of rigorous imprisonment on three different occasions. Para 2 page 34 of the counter-affidavit categorically states that thereafter petitioner has again suffered three more