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2007 DIGILAW 186 (JK)

Bihari Lal v. Union Of India

2007-09-14

NIRMAL SINGH

body2007
1. This is a petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, seeking a direction to respondents to grant disability pension to the petitioner along with interest on the arrears of pension. 2. Petitioner was enrolled in the Army on 10th of Jan66. As per the averments made in the writ petition, after rendering seven years and sixty six days of active service, he was discharged from service on 17th of March73, on the ground of disability. 3. The grievance of the petitioner is that he continuously approached the respondent authorities for grant of disability pension but the same has been denied to him. It is this action of non release of disability pension in favour of the petitioner by the respondents which is the subject matter of challenge in this petition. 4. On notice, respondents have filed counter stating therein that after the enrollment of the petitioner on 10th of Jan66, and after successful completion of basic military training, the petitioner was attested as Rifleman and posted to 2 JAK Rifles on 10th of Jan67. Thereafter, the petitioner suffered from the disability namely Ankylosing Spondylitis and he was hospitalized, details of which have been given in the counter. It is stated that the petitioner was placed in low medical category EE(Temp) with effect from 6th of July68 for six months by the Medical Board held at Military hospital Babina. On review, he was upgraded to medical category AYE on 6th of Jan69 by the Medical Board held at Military hospital Jhansi. The petitioner was placed in low medical category CEE(Temp) for six months with effect from 24th of Oct72. The further stand taken by the respondents is that petitioner applied for discharge from army service on compassionate grounds vide his application dated 22nd of April72. It is stated that the authority concerned after considering the application of the petitioner accepted the request of the petitioner and discharged him from service under Army Rule 13(3) item III(IV) on 17th of March73. It is thus stated that as the petitioner was discharged from service on his own request, therefore, he is not entitled to disability pension. 5. It is stated that the authority concerned after considering the application of the petitioner accepted the request of the petitioner and discharged him from service under Army Rule 13(3) item III(IV) on 17th of March73. It is thus stated that as the petitioner was discharged from service on his own request, therefore, he is not entitled to disability pension. 5. The learned counsel for the respondent Union of India thus submitted that the petitioner was discharged from service upon his own request in the year 1973, and therefore, the grievance of the petitioner, if any, cannot be looked into at this stage and this petition suffers from delay and laches. 6. Learned counsel for the petitioner on the other hand submitted that so far as grant of pensionary benefit is concerned, this is a recurring cause and delay, if any, is not to be taken into consideration. Reliance in this regard is placed on the judgments reported as S.R. Bhanrale v. Union of India and others, AIR 1997 SC 27, H.S.Grewal v. Union of India, 1999(1) SCT 348 and Union of India v. Rattan Lal, 1999(2) SCT 39. 7. I have heard learned counsel for the parties and perused the record. A perusal of application dated 22nd of April72, addressed by the petitioner to the Commanding Officer, 2 JAK Rif (copy placed on record as Annexure II with the counter), shows that the petitioner himself made a request to the authority concerned for considering his case for discharge from service on compassionate grounds. The request made by the petitioner in this regard in the said application is as under:-- "..........There is now a great household problem before me, which is wholly solely to be faced by me. The whole responsibility is to be shared by me as my parents are too old and weak. There is no one to look after them. They cannot even feed themselves. My elder brother is separated from us. I am working here on meager pay with which it is very difficult to make both ends meet. We wholly depend on the produce of the land which is at present given to tiller for cultivation as there is no body else to cultivate the land. I shall lost my ancestral land if I continue my service. I am working here on meager pay with which it is very difficult to make both ends meet. We wholly depend on the produce of the land which is at present given to tiller for cultivation as there is no body else to cultivate the land. I shall lost my ancestral land if I continue my service. In the above circumstances, it is humbly requested that I may be discharged from services so that I may be able to attend my old parents and domestic affairs." 8. The said application of the petitioner, as indicated above, was considered by the authority concerned and he was discharged from service on compassionate grounds. Under the Army rules aforementioned, there is no such provision that if an employee, even though he is suffering from any disability, seeks his discharge from service on compassionate grounds, then he is entitled for disability pension. 9. In the instant case, first of all, the court has to give a finding that the petitioner has not got himself discharged voluntarily. Till this finding is recorded, the petitioner is not entitled for disability pension. For discharge under Army Rule 13(3) item III(IV), the petitioner should have filed the petition within a reasonable time challenging the entry in the discharge certificate that he has voluntarily sought his discharge from service rather, he has been discharged on disability grounds. The same has not been done by the petitioner, and therefore, a finding to the extent cannot be recorded that the petitioner has wrongly been discharged. Therefore, the present petition suffers from delay and laches. 10. The learned counsel for the petitioner, however, submitted that the petitioner has been filing representations to the authorities concerned for considering his case for grant of disability pension, and therefore, the delay if any, would not come in the way of the petitioner. 11. The petitioner in the present case, as indicated above, has been discharged from service on his own request way back in the year 1973. He has filed this petition in Nov04 i.e. after more than 30 years of his discharge from service. So far as the grant of pensionary benefit to an employee is concerned, no doubt, this is a recurring cause but even in such cases the facts and circumstances under which the claim seeking pensionary benefit is concerned have to be taken note of. So far as the grant of pensionary benefit to an employee is concerned, no doubt, this is a recurring cause but even in such cases the facts and circumstances under which the claim seeking pensionary benefit is concerned have to be taken note of. Reliance in this regard can be placed on a judgment of the Apex Court reported in 2007(3) SLR 444, Shiv Dass v. Union of India and others. What has been said in para 9 of the judgment is being reproduced below:-- "In the case of the pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years....." 12. The Apex Court in the aforesaid case has also observed as under:-- "It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in D.V. Raja Lakshmiah v. State of Mysore, AIR 1967 SC 993. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyarimohan Samantaray, AIR 1976 SC 2617: 1977(1) SLR 255(SC) making of repeated representations was not regarded as satisfactory explanation of the delay......" 13. In view of the above, the submission made by the learned counsel for the petitioner that delay would not come in the way of the petitioner as he had been filing repeated representations, cannot be accepted. 14. In State of Uttaranchal and others v. Pitamber Dutt Semwal, (2005) 11 SCC 477, the writ petition was filed after 29 years by the petitioner challenging the recorded date of birth. The Apex Court in the said case held as under:-- "....Be that as it may, even dehors the said rule, we are of thye opinion that the plea of the respondent that the date of birth was wrongly recorded was highly belated. The Apex Court in the said case held as under:-- "....Be that as it may, even dehors the said rule, we are of thye opinion that the plea of the respondent that the date of birth was wrongly recorded was highly belated. He joined service in 1964, the service book was prepared in 1965 and according to the appellant he has signed the said service book at least on three occasions. In any case, the plea of the wrong recording of the age in the service book has been taken nearly thirty years after the service book was prepared. In our opinion, the Division Bench was in error in ignoring the provisions of the said Rule 2 and even otherwise, in the facts of the case, there was no occasion for the High Court to have interfered with the decision of the appellant." 15. In Cheripalli Madar v. Assistant Division Engineers and others, (2005) 11 SCC 546, the writ petition was filed after three years of order impugned passed by the authorities concerned against the appellant. The Apex Court in para 2 of the judgment in the said case, observed as under:-- "The petition was actually filed after a delay of 3 years, naturally the High Court was not inclined to interfere in the matter because of the laches....." 16. In SDO, Grid Corporation of Orissa Ltd and others v. Timudu Oram, (2005) 6 SCC 156, it has been held as under:-- "........The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit. The writ petition was filed after a lapse of 10 years. No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a case, awarding of compensation in exercise of its jurisdiction under Article 226 of the Constitution cannot be justified......" 17. In the present case, the petitioner was not discharged from service by the authorities concerned of their own but this was done on the request of the petitioner itself. The petitioner, as observed above, did not make any challenge to his discharge on the ground that the entry made in the discharge certificate by the authorities concerned has been wrongly made. If the petitioner was aggrieved of his discharge, he should have challenged this action of the respondents within a reasonable time. The petitioner, as observed above, did not make any challenge to his discharge on the ground that the entry made in the discharge certificate by the authorities concerned has been wrongly made. If the petitioner was aggrieved of his discharge, he should have challenged this action of the respondents within a reasonable time. This has not been done which shows that the petitioner himself opted for his discharge on compassionate grounds. Once such an option was exercised and he himself made a request to the authorities seeking discharge from service on compassionate grounds, he cannot now turn up and lay a claim seeking disability pension after thirty years of his discharge, that too, as indicated above, on his own request. For the reasons mentioned above, this petition is found to be without merit and is dismissed.