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2004 DIGILAW 1803 (RAJ)

Chhagan Kanwar v. The Union of India

2004-12-17

ASHOK PARIHAR

body2004
Judgment Ashok Parihar, J.-Husband of the petitioner (the concerned workman) was enrolled in the Army in ASC as a MT Driver on 211.1948, however, boarded out from the Army Services on 01.05.1956. As per recommendations of the Medical Board, the concerned employee was granted disability pension treating the disability to be 40% w.e.f. 30.07.1956. The same was paid upto 111.1975. On a re-assessment of the Medial Board, since the disability as assessed was between 13% to 19%, the disability pension was stopped from 111.1975. On further re-assessment by the Medical Board, the concerned employee was again paid disability pension w.e.f. 29.06.1999 till he died on 02.07.2000. 2. It has been submitted on behalf of the respondents that since the concerned employee was member of Disability Pension Scheme at the time of his death, on receiving necessary papers from the petitioner, the wife of the concerned employee, payment of family pension to the petitioner is under process. 3. Though this Court does not sit in appeal over the opinion of the Medical Board and further the concerned employee also having dies long back, no directions for re-assessment of the disability pension can be issued by this Court. However, the grievance which still remains is in regard to the “Service Element” as claimed on the basis of Army Instructions No. 4/S/75 issued vide order dated 112.1975. As per Clause 3rd of the above instructions, an individual invalided out of service before completion of his prescribed engagement/service limit on account of a disability which is attributable to or aggravated by military service and is assessed below 20 per cent, shall be granted an award equal to service element of disability pension determined in the manner given in Regulation 183 Pension Regulations for the Army, Part I (1961), read with Appendix ‘A’ to A.I. 1/S.75. The above benefit was also to be allowed in all cases where an individual is granted disability pension, but whose degree of disablement subsequently falls below 20%. 4. Learned Counsel for the respondents submitted that the above Army Instructions of the year 1975 were to take effect from 01.01.1973 i.e. The same will apply to all those who were in the effective strength of army on that date and who became non effective thereafter. 5. On the other hand, Mr. 4. Learned Counsel for the respondents submitted that the above Army Instructions of the year 1975 were to take effect from 01.01.1973 i.e. The same will apply to all those who were in the effective strength of army on that date and who became non effective thereafter. 5. On the other hand, Mr. Bhadauria, learned Counsel for the petitioner submitted that the above instructions issued on 112.1975 came to be challenged before Allahabad High Court to the extent of fixing the cut off date as 01.01.1973. Reference has been made to 1993 (III) CSJ 49 (HC), Ram Roop Singh vs. Union of India & Ors. A copy of the Judgment has also been placed on record. In the above Judgment , the learned Single Judge of the Allahabad High Court, relying upon the Judgment of the Supreme Court in the case of D.S. Nakara, quashed the cut off date i.e., 01.01.1973, as referred in the Circular dated 112.1975 and held that the Army Instructions dated 112.1975 must be applied to all covered by it whether retired before or after 01.01.1973. 6. In the present case, the concerned employee has been denied disability pension for the period from 111.1975 till 19th June, 1999. As such, as per the circular referred above, he was entitled for service element for the above period. 7. Accordingly, their writ petition is partly allowed. The respondents are directed to make the payment of service element which the concerned employee was entitled for the period from 111.1975 till 28th June, 1999 to the petitioner after calculating the same as per the instructions and regulations as applicable on such employees. Necessary calculation be made and due amount be paid to the petitioner within sixty days from the date of receipt of certified copy of this order. If family pension has yet not been paid, the same will also be paid with arrears within the aforesaid period. There is nothing on record to show that the Judgment of Allahabad High Court in Ram Roop Singhs’ case has further been challenged by the respondents. As such, it was duty of the authorities of the respondents to automatically give such benefit to all similarly situated concerned employees irrespective of their applying for the same or not. Such duty has been casted on the authorities under the Army Act and Regulations itself . As such, it was duty of the authorities of the respondents to automatically give such benefit to all similarly situated concerned employees irrespective of their applying for the same or not. Such duty has been casted on the authorities under the Army Act and Regulations itself . After retirement or discharge on any ground whatsoever most of the persons settle in their remote native places and are not aware of their rights accruing after retirement. Considering entire facts and circumstances, I deem it proper to allow a cost of Rs. 2000/-also to the petitioner, which may be paid alongwith arrears as ordered above.