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2003 DIGILAW 665 (PNJ)

Kulwant Singh v. Union Of India

2003-05-08

S.S.GREWAL, S.S.NIJJAR

body2003
Judgment S.S.Nijjar, J. 1. We have heard the learned counsel for the petitioner at length and perused the record of the case. 2. Admittedly, the petitioner was enrolled in the Indian Army on 23.02.1980, within less then six months, i.e., on 10.08.1980, he was invalidated out of Military Service. The petitioner claims that whilst he was a passenger in a truck, he suffered a fracture Base of II, III and IV and Metatarsal Bone left Foot which rendered him permanently disabled to the extent of 30 percent. According to the petitioner, be became disabled, while on duty, and the injury is attributable to military service. The claim of the petitioner was rejected by the military authorities on 07.07.1982 on the following grounds;- "a) is not attributable to Military Service; b) does not fulfil the following conditions, namely that it existed before or arose during Military Service and has been or remains aggravated thereby." 3. Against the aforesaid order, the petitioner did not file any appeal although, it was a statutory right of the petitioner. However, after fourteen years of unexplained silence, on 26.02.1996, he made a detailed representation to the respondents. No decision was taken on the aforesaid representation. Therefore, the petitioner again waited for a period of six years, when he made another representation on 21.09.2002. No order on this representation has also been communicated to the petitioner. 4. Learned counsel for the petitioner submits that the decision taken by the Military Authority rejecting disability pension on 17.07.1982, is contrary to the statutory provisions on the basis of which, the petitioner is entitled to disability pension. The petitioner has made an assertion in the petition that he has been continuously making representations to the authorities for redressal of his grievance. He further submitted that the benefit of disability pension cannot be denied to the petitioner merely on the ground of delay and laches. 5. We are unable to accept the submission made by the learned counsel for the petitioner to the effect that the decision taken by the respondents is either arbitrary or unreasonable. The petitioner has made a bald assertion that he was on military duty at the time when accident occurred. There is total lack of any material to support the aforesaid assertion. Surely, after the accident, there must have been an enquiry. The responsibility for the accident must have been fixed. The petitioner has made a bald assertion that he was on military duty at the time when accident occurred. There is total lack of any material to support the aforesaid assertion. Surely, after the accident, there must have been an enquiry. The responsibility for the accident must have been fixed. Further, there must me an official order putting the petitioner on duty, which the petitioner claims to be at the time when the accident occurred. Without any of the aforesaid material being on record, it would be improper for this Court to hold that the conclusion reached by the military authority to the effect that disability is not attributable to military service, is either incorrect or arbitrary. 6. Apart from this, we are of the opinion that there is gross delay and laches on the part of the petitioner is approaching this Court, Mr. Kalsy has brought to our notice, the judgment of this Court in the cases of Dhanpat Rai (Ex.PIR) v. Union of India and Ors., (2002-2)131 P.L.R. 714, Sardara Singh v. Union of India, 1992(6) S.L.R. 683, and a judgment of the Supreme Court in the case of Ram Pal Singh v. Union of India and Ors. (1984)1 S.C.C. 32, to submit that delay and laches cannot be taken into consideration as the petitioner is claiming disability pension. 7. In Dhanpat Rats case (supra), the petitioner had joined the Army on 07.12.1962. He was ultimately selected as Para-Trooper. During one of the para-jumps in August, 1970, he suffered fits, which were diagnosed as Epilepsy. He was placed in medical category "BEE" and his disability was assessed at 60 per cent. Judicial precedents were relied upon by the learned counsel for the petitioner, where it had been held that the epilepsy fits would be attributable to military service in the cases where at the time of enrollment for service in the Army, no such disease was detected. Reliance was placed on the judgment of this Court in the case of Ashwani Kumar Ex.Havaldar v. Union of India, 1991(1) R.S.J. 277 and Union of India v. Gurnam Singh, 1998(2) R.S.J. 478. 8. Reliance was placed on the judgment of this Court in the case of Ashwani Kumar Ex.Havaldar v. Union of India, 1991(1) R.S.J. 277 and Union of India v. Gurnam Singh, 1998(2) R.S.J. 478. 8. In Ashwani Kumars case (supra), it is held as follows;- "There is no controversy between the parties that at the time of petitioners entry in the service he was subjected to medical examination and there is no mention of any disease in the record prepared at the time of petitioners enrollment in military service. It is also borne out from the record that the medical board or any other competent authority has not recorded any reasoned conclusion that the disability disease suffered by the petitioner is such which could not have been detected at the time of his entry in the service. Therefore, we find merit in the contention of the learned counsel that the petitioner is entitled to the benefit of presumption contained in first part of Rule 7(b), namely, that the disability should be deemed to have been arisen during the course of the service and is attributable to military service." 9. In Gurnam Singhs case (supra), it is held as under:- "A bare reading of paragraph 7(b) shows that in the absence of any note recorded at the time of individuals acceptance for military service, the disease which has led to the individuals discharge will ordinarily be deemed to have arisen in the course of service. The only exception to this rule is that the competent authority holds an opinion, for the reasons to be recorded in writing, that the disease could not have been detected on medical examination prior to acceptance for service. In the case in hand no notice was made at the time of the respondents entry into service that he was suffering from epilepsy and no record was placed before the learned Single Judge to show that the competent authority had formed an opinion. On the basis of the reasons recorded on the file that the disease with which the respondent suffered was such that it could not be detected on medical examination prior to his acceptance for service. Alongwith the appeal also no such material has been produced." 10. On the basis of the reasons recorded on the file that the disease with which the respondent suffered was such that it could not be detected on medical examination prior to his acceptance for service. Alongwith the appeal also no such material has been produced." 10. The learned Single Judge, after referring to the aforesaid judgment has held that the only inference which can be drawn is that in case where from the circumstances brought out on the record, it is apparent that the armed personnel was found fit when he first entered the military service and the disease for which, he was ultimately invalidated out was not traceable at that point of time, the only inference, which can be drawn is that the same was attributable to military service. 11. As noticed earlier, the petitioner has not placed on the record any relevant material to show firstly that he was on duty and supervising the staff to organise "Cross Country on 15.03.1980. We have only his bald assertion. There is no material placed on the record to show that he was permitted to travel in the vehicle in which he was travelling. There is no material placed on the record as to the details of the accident. Therefore, it would not be possible to hold that the decision taken in Dhanpat Rais case (supra), would be relevant for determining the claim of the petitioner. In that case, the writ petition had been filed after a lapse of 20 years. This Court restricted the relief to 38 months prior to the filing of the writ petition. 12. In Sardara Singhs case (supra), there was a delay of 40 years. This was not permitted to come in the way of the grant of disability pension to the petitioner therein. In that case, the petitioner had served for a period of five years, eight months and eleven days. In that case, in paragraph 7(b) of the written statement filed by the respondents, it has been stated as under;- "That the contents of this sub-para are wrong and denied, it is submitted that the petitioner suffered fracture External Malleoulus Rt. injury moderately severe on 22 Oct. 1950. The disability was accepted attributable to military service in a peace area. In that case, in paragraph 7(b) of the written statement filed by the respondents, it has been stated as under;- "That the contents of this sub-para are wrong and denied, it is submitted that the petitioner suffered fracture External Malleoulus Rt. injury moderately severe on 22 Oct. 1950. The disability was accepted attributable to military service in a peace area. The petitioner received medical treatment at different hospitals but was found unfit for further military service by a medical board held at MH Lucknow, on 20 Nov. 51". 13. A perusal of the aforesaid shows that it was categorically accepted that "disability was accepted attributable to military service in a peace area". Having accepted that the disability was due to the military service, the benefit of disability was arbitrarily declined to the petitioner therein. In these circumstances, this Court did not permit the respondents to escape liability, merely on the grounds of delay and laches. It is also to be noticed that the representations made by the petitioner therein were ultimately rejected only on January 11, 1990. The writ petition was filed on 26.07.1991. In the peculiar facts and circumstances of that case, this court did not decline to exercise its discretionary jurisdiction on the ground of delay and laches. 14. In Ram Pals case (supra), the Supreme Court was dealing with a case of an injured Army Officer. The appellant was examined by the chairman of Release Medical Board, Delhi Cantt. The report of the Board, was submitted to the Court, which was as follows:- "(a). From the medical records, the disability of the ex-serviceman is multiple shell wounds both limbs sustained in September 1965 in Indo-Pak Conflict. XX XX XX XX (c) Disability was 20 per cent (twenty per cent)". 15. From a perusal of the above, it becomes apparent that disability of the Army Officer was due to the shell wounds to both the limbs sustained in September 1965 in Indo-Pak Conflict. 16. In our opinion, a soldier, who is wounded in active duty, and is disabled cannot be denied disability pension. In fact, those who are disabled while actively defending the territorial integrity of this country, are given other benefits apart from pension and retiral benefits, which are due under rules. The Supreme Court on considering the case of a soldier who had suffered multiple shell wounds on both the limbs had granted disability pension. 17. In fact, those who are disabled while actively defending the territorial integrity of this country, are given other benefits apart from pension and retiral benefits, which are due under rules. The Supreme Court on considering the case of a soldier who had suffered multiple shell wounds on both the limbs had granted disability pension. 17. We have noticed the aforesaid judgments of this Court and the judgment of the Supreme Court to show that the delay and laches by itself is not absolute bar to the entertainment of writ petition under Article 226/227 of the Constitution of India. The Court to take a decision with regard to the facts and circumstances of each case. In all the three cases mentioned above, disability was clearly attributable to military service. The respondents had acted arbitrarily and, therefore, in breach of Article 14 of the Constitution of India. 18. In the present case, there is no material on record to show that the decision taken by the respondents is, in any manner, illegal or arbitrary. We, therefore, decline to exercise our discretionary jurisdiction under Article 226/227 of the Constitution of India.