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2000 DIGILAW 390 (KER)

Mathew v. Union of India

2000-07-26

J.B.KOSHY, M.RAMACHANDRAN

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Judgment :- J.B. Koshy, J. appellant/ petitioner is an unfortunate person who served the Military for about 13 years. He was appointed as a Gunner on 13.3.1948. He was transferred to the reserve on 24.8.1955. Later on 15.6.1961 he was invalided by an Invaliding Medical Board under Army Rule 13 Item III (iii). These facts are clear from Annexure R3(a) produced by the respondents. His total service works out to 13 years and 94 days including reserve service. The respondents accepted the invaliding disability of the petitioner as attributable to military service and he was paid disablement compensation. This is also stated in the counter affidavit filed in the Writ Appeal. Appellant was getting disability pension continuously till 13.5.1987. After getting pension for more than 25 years Ext. P3 was issued by the Accounts Officer stating that his pension will be discontinued as his disability was assessed on 5.3.1987 as less than 20%. appellant/ petitioner filed appeal and various representations, but all in vain. Finally, by Ext. P8 dated November, 1993, the appeal was rejected and petitioner was informed accordingly. Challenging the above when appellant/ petitioner filed the Original Petition, the Original Petition was dismissed on the ground of delay as he filed the Writ Petition on 1.6.1995 and more than one and a half years have elapsed after Ext. P8. When appeal was filed, taking note of the fact that petitioner has got continuing grievance the appeal was admitted and notice was issued. 2. A detailed counter affidavit is filed. It is submitted by the appellant that only when the counter is filed appellant was actually aware of the details of the matter. In Ext. P3 itself it is stated that it is issued on the basis of the re-assessed Medical Certificate. Annexure R3(b) is the Medical Certificate issued by the Re-survey Medical Board which clearly shows that his disablement was fixed at 20% permanently with effect from 13.5.1987. Annexure R3(c) shows that it was recommended to give disability pension for a period of ten years. Annexure R3(c) reads as follows: "The degree of disability in respect of the above named pensioner has been re-assessed by three successive medical boards at the same percentage i.e. 20%. His disability pension is therefore required to be sanctioned by you for a period of 10 years," But Accounts Officer (Pension) on the basis of Annexure R3(b) and R3(c) informed by Ext. His disability pension is therefore required to be sanctioned by you for a period of 10 years," But Accounts Officer (Pension) on the basis of Annexure R3(b) and R3(c) informed by Ext. R3(d) that his disability has been re-assessed on 5.3.1987 as less than 20% for life. In Annexure R3(d) it is stated that: "The award of temporary disability pension granted to the above named individual under this office PC/PPO No. D/403 3/62 dated-has been discontinued from 13.5.1987 as his disability has been re-assessed on 5.3.1987 at less than 20% for life." Ext. P3 also shows the same thing. On the basis of Annexure R3(b) and R3(c) it is very clear that Ext. P3 and Annexure R3(d) contains patent mistake. The Accounts Officer (Pension) has no right to sit in judgment over the three successive Medical Boards which re-assessed appellant's disability as 20% permanent. When three successive Medical Boards re-assessed permanent disability at 20% there is no justification for the Accounts Officer to discontinue the pension on the ground that his disability has been re-assessed as less than 20% for life. 3. Now we may consider the Rules and Regulations regarding payment of pension. Regulation 173 of the Pension Regulations (governing Armed Forces Personnel) provides as follows: "PRIMARY CONDITIONS FOR THE GRANT OF DISABILITY PENSION: 173. Unless otherwise specifically provided a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over." If disability is fixed at 20% petitioner/ appellant is entitled to get disability pension. We also refer to Regulation 185(a) and (b) which provides as follows: PERIOD OF GRANT OF DISABILITY PENSION WHEN THE INVALIDING DISABILITY IS INCAPABLE OF IMPROVEMENT 185(a). If the disability is accepted as attributable to or aggravated by military service and is certified on the basis of an invaliding or a re-survey Medical Board to be incapable of improvement, disability pension may be granted for a period of 10 years in the first instance. During this period, the pensioner will have a right to claim re-assessment of his pension on the basis of aggravation if any. During this period, the pensioner will have a right to claim re-assessment of his pension on the basis of aggravation if any. Where pension is modified as a result of re-assessment, the pension may again be granted for a period of 10 years from the date of the revised award, provided the disability is still regard as incapable of improvement. Each successive assessment at higher, lower rate will be for a 10 year period during which the pensioner will be given one opportunity to have his pension re-assessed on the basis of further aggravation. (b) When the percentage of disablement has remained unmodified for a period of 10 years, the pensioner shall be brought before a resurvey Medical Board and in the event of disability still being regarded by the pension sanctioning authority as incapable of improvement his pay may be sanctioned for life. Thereafter no revision of pension will be admissible." It is clear from Annexure R3(b) and R3(c) documents produced by the respondents that three successive Medical Boards have assessed appellant's disability at 20% and Ext. P3 and Annexure R3(d) were issued on a misconception that appellant's disability was assessed as less than 20% for life. The documents produced by the respondents show that the matter is otherwise as Medical Board certifies disability as 20% and, therefore, appellant is entitled to get disability pension. 4. There is no time limit fixed in filing a Writ Petition. Of course, if there is undue delay or laches on the part of the petitioner, Court will not be inclined to pass a discretionary order under Art.226 or 227 of the Constitution of India. Here the delay is about one and a half years from the date of Ext. P8. But Ext. P3 challenged is manifestly erroneous and Court cannot be precluded from rectifying a grave injustice simply because there was some delay. (See Moon Mills v. Industrial Court, Bombay. (AIR 1967 SC 1450). Petitioner/ appellant is a poor pensioner who got disability due to his military service, was continuously getting pension for 25 years and his pension was stopped abruptly. Appellant was 70 years old at the time of filing the Writ Petition. Since it is a continuing liability it cannot be stated that Writ Petition is time barred. We refer to the decision of the Supreme Court in M.R. Gupta v. Union of India and others (AIR 1996 SC 668). Appellant was 70 years old at the time of filing the Writ Petition. Since it is a continuing liability it cannot be stated that Writ Petition is time barred. We refer to the decision of the Supreme Court in M.R. Gupta v. Union of India and others (AIR 1996 SC 668). Further petitioner was not informed of the details of Medical Board re-assessment even when Ext. P3 was issued. Only when counter affidavit is filed in the Writ Appeal, petitioner came to know that what is stated in Ext. P3 is wrong and Exts. R2(b) and R2(c) Medical Board Certificates are in his favour. On the facts of this case we are of the opinion that a Writ Petition cannot be rejected on the ground of time bar and delay is explained. 5. We have already held that on the basis of Regulation 173 of Pension Regulations (governing Armed Forces Personnel) petitioner/ appellant is entitled to get pension as his disability was assessed by three Medical Boards at 20% and Ext. P3 as well as Annexure R3(d) were erroneous. Therefore, petitioner/ appellant is entitled to get disability pension. In an identical case where pensionary benefit was discontinued for about 15 years without any valid reason the Supreme Court directed to pay a lump sum apart from future payment of pension, interest and compensation for harassment. (See Ram Pal Singh v. Union of India and others (1983 (3) SLR 291)). Here there is no justification at all for denying disability pension to the appellant who was assessed at 20% permanent disability by the Medical Board. In fact, his pension was recommended, but only on misreading the above certificate his pension was denied by Ext. P3 as well as Annexure R3(d). Petitioner/ appellant has already attained the age of 75. Therefore, arrears of pension should be paid to the appellant/ petitioner immediately. 6. In the circumstances of the case, we direct the respondents to pay pension to the appellant/ petitioner. Arrears of pension from the date when pension was stopped till today with interest at 12% per annum to the date of payment should be paid within three months. Future pension should be paid to the petitioner /appellant regularly. Petitioner/ appellant is also entitled to get a cost of Rs. 5,000/-. Arrears of pension from the date when pension was stopped till today with interest at 12% per annum to the date of payment should be paid within three months. Future pension should be paid to the petitioner /appellant regularly. Petitioner/ appellant is also entitled to get a cost of Rs. 5,000/-. If the arrears of pension with interest is not paid within three months as directed, respondents shall be liable to pay 18% interest from the respective dates of due payment of pension till payment. The Writ Appeal is allowed with the above directions.