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2007 DIGILAW 415 (MP)

Union of India v. Ex-Signalman Ram Sharan Prasad

2007-04-05

DIPAK MISRA, R.S.JHA

body2007
ORDER Misra, J. -- 1. Questioning the sustainability of the order dated 17.2.2006 passed by the learned Single Judge in WP No. 621/1996 the Union of India and its functionaries have preferred this intra-court appeal under section 2 (I) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. 2. The factual scenario, as depicted in the order, if we permit ourselves to say so, has an inherent paradox because a rational equip becomes imperative to strike a balance between two concepts, namely, doctrine of delay and laches and denial of a claim on the foundation of erroneous perception not based on any kind of callousness and lackadaisical and recalcitrant attitude. The appellant, a Signal man, working in the Army was boarded out on the ground of illness in late 60's and not conferred the benefit of disability pension and the prayer for grant of disability pension, as conceded to by the learned counsel for the respondent, was rejected in the year 1968 itself. The respondent did not assail the said order till 1994 but did so for the first time when he knocked the doors of Patna High Court in CWJ-C.No. 8780/1994 which was dismissed on 22.2.1996 on the ground that the said High Court did not have the territorial jurisdiction to adjudicate the lis. Being unsuccessful because of lack of territorial jurisdiction the respondent invoked the extraordinary jurisdiction of this Court by filing a writ petition. 3. Before the learned Single Judge it was urged that the disability was suffered by him due to stress and strain of service conditions and hence, he was entitled to get the benefit of disability pension. For the aforesaid purposes, reliance was placed on the decision rendered in the case of Sant Kumar v. Union of India and others [WP (S) No. 2775/2003] decided on 5.1.2006. 4. On behalf of the present appellant, the stand put forth by the learned counsel for the petitioner was combated on two grounds, namely, (i) the petition was hit by the doctrine of delay and laches: and (ii) that the Medical Board has rightly given the report that the disability has no nexus with the service of the petitioner therein. 5. Learned Single Judge came to hold that the composite assessment of disability comes to 90% and hence, the respondent would be entitled to the disability pension. 5. Learned Single Judge came to hold that the composite assessment of disability comes to 90% and hence, the respondent would be entitled to the disability pension. Regard being had to the facts in entirety and placing reliance on the decisions rendered in Savitri Devi Mehta and others v. Union of India and others [ (2005) 10 SCC 325 ] and S.R. Bhanrale v. Union of India and others [ AIR 1997 SC 27 ] and S.K. Mastan Bee v. General Manager, South Central Railway and another [ (2003) 1 SCC 184 ] the learned Single Judge held that the delay would not defeat the case of the petitioner therein and accordingly, directed that the benefit of disability pension be given to him from the date of discharge alongwith interest at the rate of 6% per annum. 6. Mr. Satish Sharma, learned senior counsel for the appellant alongwith Mr. J.K. Pillai submitted that the finding of the learned Single Judge may be correct with regard to grant of disability pension but on a deeper scrutiny the perception of the employer cannot be regarded as malicious or perverse. In effect and essence, the proponement of Mr. Sharma is that the learned Single Judge has erred in law by granting full pension from the date of discharge alongwith 6% interest. 7. Mr. K.C. Ghildiyal, learned counsel for the respondent, per contra, has submitted that if the decisions rendered in the case of S.K. Mastan Bee (supra) and S.R. Bhanrale (supra) are understood in proper perspective there can be no shadow of doubt that the relief granted by the learned Single Judge has a sound bedrock and dent is imperceivable. 7. Mr. K.C. Ghildiyal, learned counsel for the respondent, per contra, has submitted that if the decisions rendered in the case of S.K. Mastan Bee (supra) and S.R. Bhanrale (supra) are understood in proper perspective there can be no shadow of doubt that the relief granted by the learned Single Judge has a sound bedrock and dent is imperceivable. He has invited our attention to paragraph six of the decision rendered in S.K. Mastan Bee (supra) wherein it has been held as under: "6.....We think on the facts of this case inasmuch as it was an obligation of the Railways to have computed the family pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact that her husband was only a Gangman in the Railways who might not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate, the learned Single Judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of her husband. Consequently, we are of the considered opinion that the Division Bench fell in error in restricting that period to a date subsequent to 1.4.1992." 8. On a perusal of the aforesaid paragraph we are of the considered opinion that their Lordships took note of the special features of the case and held that the High Court had fallen into error in restricting the period to a date subsequent to 1.4.1992. The appellant therein was an illiterate woman, wife of a gangman, who had died during service and she had no access to any information as to her right to family pension and there by there was breach of Article 21 of the Constitution of India. In the case at hand, the writ petitioner was a Signal Man who was fully aware of the order and it cannot be said that he did not have the access to the material. He was in know of things and they were within his special knowledge. In the case at hand, the writ petitioner was a Signal Man who was fully aware of the order and it cannot be said that he did not have the access to the material. He was in know of things and they were within his special knowledge. Thus, the obtaining factual matrix has to be viewed from a different perspective that has been frescoed in the case of S.K. Mastan Bee (supra) and that alone makes the decision rendered in S.K. Mastan Bee (supra) distinguishable. 9. In S.R. Bhanrale (supra) a two Judge Bench of the apex Court was dealing with a case where the department defaulted in making payment. It is worth noting that in paragraph 3 of the said decision it has been observed that the Department of Telecommunication filed a statement by the Director that certain claims made by the appellant towards leave encashment, efficiency bar arrears and pro forma promotion arrears were due to the appellant and after calculating the same were paid through different cheques before the apex Court. In that context, the apex Court observed in paragraph 4 that the same was wrongly withheld. In that factual backdrop their Lordships directed payment of Rs. 2 lacs towards interest, compensation, litigation expenses etc. for the amount was wrongly withheld from the appellant for more than 12 years. Submission of Mr. Ghildiyal, learned counsel for the respondent is that, in the case at hand the amount has been erroneously withheld and, therefore, the order passed by the learned Single Judge cannot be faulted. On a close scrutiny of the factual scenario there can be no scintilla of doubt that before the apex Court the facts were absolutely clear that rightful dues had been wrongly withheld. That was the admitted position. But such is not the case here. Hence, the decision in distinguishable on facts. 10. At this juncture, we have been commended to the decision rendered in Shiv Dass v. Union of India and others [2007 AIR SCW 1487] wherein a two Judge Bench of the apex Court has held as under: "10. In the case of 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. In the case of 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. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone." (Emphasis supplied) 11. In the case at hand, the writ petitioner had approached Patna High Court in the year 1994, though he was very much aware that the benefit had not been made available to him. He also knew that there was no response and a tacit denial. In view of this backdrop, a balance has to be struck. Regard being had to the same, we restrict the benefit to 1991 and for the sake of clarity we fix the date to be 1.4.1991. The arrears shall be computed from 1.4. 1991 and be paid to the respondent within a period of two months from the date of receipt of the order passed today. Ordinarily, we would have considered the issue of interest as the learned Single Judge has granted 6% interest but as we have restricted the period, we are not disposed to interfere with the issue relating to interest and accordingly the same remains undisturbed. 12. In the result, the appeal is allowed in part and the order of the learned Single Judge is modified to the extent indicated above. There shall be no order as to costs.