Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 1013 (MP)

Raghubir Singh v. Union Of India

2003-08-26

S.P.KHARE

body2003
ORDER : This is a writ petition under Articles 226 and 227 of the Constitution of India for a direction to the respondents to grant 'disability pension' to the petitioner from the date of his discharge from Army service. 2. It is not in dispute that petitioner Raghubir Singh was enrolled in the Army on 28-9-1953. He was Driver (Mechanical Transport). He was found suffering from "vitreous hemorrhage Right eye effect of (Eales disease) No. 388" in July, 1957. He was declared unfit for military service on 3-11-1959 by the Medical Board, Military Hospital, Jabalpur. In the opinion of the Medical Board the disability of the petitioner was "aggravated by military service". The disability was assessed at 30%. The disability pension claim of the petitioner was forwarded to the Controller of Defence Accounts (Pension) Allahabad on 12-12-1959 but it was rejected on the ground that the disability is not attributable to or aggravated by military service. The petitioner submitted several representations against the rejection of his claim for disability pension but he was not granted any relief by the Military authorities. 3. The petitioner : case is that his disability is attributable to or aggravated by military service and it has been assessed at more than 20% and, therefore, as per Regulation 173 of the Army Pension Regulations, 1961 he is legally entitled to disability pension. His case was not properly considered by the Military authorities. By letter dated 4-3-1998 the petitioner was informed by respondent No. 3 Director General of Signals, New Delhi that his case was being examined but no relief has been given to him. He has claimed disability pension from the date of his discharge from Military service i.e. 5-12-1959. 4. The respondents' case is that the disease of the petitioner was constitutional in origin which remained aggravated due to stress and strain of Army Service. It is not attributable to military service. Therefore, the petitioner's claim has been rejected. 5. The learned counsel for both the sides have been heard. Regulation 173 of the Army Pension Regulations, 1961 provides as under : "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 on aggravated by military service and is assessed at 20 per cent or over. Regulation 173 of the Army Pension Regulations, 1961 provides as under : "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 on aggravated by military service and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II." Rules 7(a) and (b) in Appendix II are as follows :- "7. In respect of diseases, the following rules will be observed :(a) Cases, in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will fall for acceptance on the basis of aggravation. (b) A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual's acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service the disease will not be deemed to have arisen during service." 6. In the present case it is an admitted fact and it is also borne out from the opinion of the Medical Board that the disability of the petitioner was "aggravated by military service". Regulation 173 envisages a disability which is attributable to or aggravated by military service. The use of disjunctive 'or' shows that even if the disability is not attributable to but is "aggravated by military service" the individual is entitled to disability pension. Clause (a) of Rule 7 in Appendix II further makes it clear that cases, in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will fall for acceptance on the basis of aggravation. In the present case no note of the eye disease of the petitioner was made at the time of his acceptance for military service. In the present case no note of the eye disease of the petitioner was made at the time of his acceptance for military service. There is also no medical opinion to the effect and there are no reasons in support thereof, that the disease could not have been detected on medical examination prior to acceptance for service and therefore the second limb of clause (b) of rule 7 would not apply and the first limb would remain operative. The disease will be deemed to have arisen in service and at any rate the petitioner's case falls for acceptance on the basis of aggravation. In para 3 of the return it is admitted that the disability remained "aggravated due to stress and strain of Army service". 7. It has been observed by the Supreme Court in Union of India vs. Baljit Singh, (1996) 11 SCC 315 while dealing the above mentioned Regulation and the rules in Appendix II that the petitioner is entitled to disability pension if the disability has been "aggravated by military service". 8. The respondents have produced a copy of letter dated 15-3-1960 (Annexure R-1) of the CDA (Pension) in which the reasons for rejection of the petitioner's claim are stated as under :- "the disability (1) is not attributable to military service, (2) does not fulfil the following conditions namely : that it existed before or arose during military service has been or remains aggravated thereby". This is contradictory to the opinion of the Medical Board mentioned above according to which the disability of the petitioner was "aggravated by military service". It is beyond comprehension how a definite opinion of the Medical Board could be overruled by an Accounts Officer. That could be done by a greater Medical expert. It is not demonstrate by the respondents that a superior Medical expert examined the correctness of the opinion given by the Medical Board. The Accounts Officer could not sit over the opinion of the Medical Board and that too without assigning any reason. It is obvious that the petitioner's case for disability pension was not properly dealt with and it has been rejected mechanically at every level. Gross injustice has been done to the petitioner as there was no objective consideration of his claim for disability pension. 9. It is obvious that the petitioner's case for disability pension was not properly dealt with and it has been rejected mechanically at every level. Gross injustice has been done to the petitioner as there was no objective consideration of his claim for disability pension. 9. No doubt there has been delay in filing the present writ petition but a legitimate legal claim of the petitioner cannot be rejected on the ground of delay alone. The reasons are (a) the petitioner was a military personnel, (b) his claim for disability pension was rejected mechanically by the CDA (Pension) contrary to the opinion of the Medical Board, (c) his case was not properly considered even at a higher level when he made numerous representations and appeals, (d) the delay appears to have been caused due to the 'disability' and impecuniosity of the petitioner and such a disabled person discharged from military service deserves justice tempered with mercy, (e) it appears that the petitioner did not get timely legal advice to knock at the doors of this Court, (f) the claim for disability pension is a continuing cause of action, (g) the rights of any other person are not going to be adversely affected by allowing this petition and (h) the petitioner is now about 68 years of age. On a cumulative consideration of all the factors just narrated the claim of the petitioner cannot be thrown out by this Court which is a Court of Conscience also on the ground of delay alone. On the facts of the present case the petitioner should be granted disability pension from the date of his discharge but without interest. This course was adopted by the Division Bench of Punjab and Haryana High Court in Sardara Singh vs. Union of India, 1992 (6) SLR 683 where disability pension was claimed after 40 years. 10. The question of delay in invoking the writ jurisdiction under Article 226 of the Constitution has to be considered along with inaction on the part of the authorities who had to perform the statutory duty. (Ramchand vs. Union of India, (1994) 1 SCC 44 ). 10. The question of delay in invoking the writ jurisdiction under Article 226 of the Constitution has to be considered along with inaction on the part of the authorities who had to perform the statutory duty. (Ramchand vs. Union of India, (1994) 1 SCC 44 ). The Supreme Court observed in Dehri Rohtas Light Railway vs. District Board, (1992) 2 SCC 598 that the rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. In R. S. Deodhar vs. State of Maharashtra, AIR 1974 SC 259 it was observed by the Constitution Bench of the Supreme Court that it "cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like". Again it is said in S. R. Bhanrale vs. Union of India, AIR 1997 SC 27 : "it ill-behoved the Union of India to plead bar of limitation against the retiral dues of the appellant". Recently in S. K. Mastan Bee vs. G. M. South Central, (2003) 1 SCC 184 the family pension was claimed through a writ petition after some delay. The Supreme Court held that the petition could not be dismissed on the ground of laches or delay as the very denial of pension violated Article 21. Recently in S. K. Mastan Bee vs. G. M. South Central, (2003) 1 SCC 184 the family pension was claimed through a writ petition after some delay. The Supreme Court held that the petition could not be dismissed on the ground of laches or delay as the very denial of pension violated Article 21. In the present case the detailed reasons have been given above for not dismissing the petition on the ground of delay. 11. In the result the petition is allowed. The respondents are directed to grant "disability pension" to the petitioner from the date of his discharge from military service within two months of the date of this order.