Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 55 (DEL)

EX. SEPOY BISHAN LAL v. UNION OF INDIA

2007-01-11

G.S.SISTANI, SWATANTER KUMAR

body2007
SWATANTER KUMAR, J. ( 1 ) THE petitioner was enrolled in the 2 Kumaon Regiment on 15. 7. 1942. The second World War broke out and India was a part of the allied forces during the period 1944-45. The petitioner claims to have participated in the said war when the Japaneese Forces attacked India through Burma. During one operation, while the petitioner was holding a light Machine Gun of his Rifle Company, he received a burst fire in his right leg from the enemies. Inspite of bleeding, he fought. This action of bravery was appreciated by his Commanding Officer, Lt. Colonel robertson. The petitioner became a battle casualty and was discharged from the service upon invalidation by a duly constituted Medical Board on 1. 4. 1941. The petitioner claims that he was entitled to and should have been granted disability pension as the same had not been paid to him for all these years and he has filed the present petition on 14. 12. 2006. In order to substantiate his claim, the petitioner has placed on record a copy of the booklet showing that the Medical Board subjected the petitioner to medical examination and that he was discharged under Rule 13 (b ). ( 2 ) IT is contended by the learned counsel appearing for the respondents that the present writ petition has been filed after a lapse of more than 61 years as such the petitioner is not entitled to the prayed relief and the writ petition is liable to be rejected on this ground. ( 3 ) THE learned counsel appearing for the petitioner has relied upon the judgments of this Court in the case of Smt. Freda James vs. Chief of Air Staff and Ors. , W. P. (C) NO. 11764/2005 decided on 16. 11. 2006 and the cases of Ex signalman Shri Bhagwan vs. Union of India, 103 (2003) DLT 369/269 and Hoshiar singh vs. Union of India 2004 (115) DLT 207 to contend that the present writ petition, especially in relation to the claim of pension etc. should not be dismissed on the grounds of delay and latches and the Court should mould the relief keeping in view the facts and circumstances of the case. ( 4 ) TWO different Division Benches of this Court had entertained petitions after a lapse of 25 years and had moulded the relief. should not be dismissed on the grounds of delay and latches and the Court should mould the relief keeping in view the facts and circumstances of the case. ( 4 ) TWO different Division Benches of this Court had entertained petitions after a lapse of 25 years and had moulded the relief. In the case of Smt. Freda james vs. Chief of the Air Staff and Ors. (supra) wherein husband of the petitioner had met with an accident on 19. 3. 1981, died on 13. 3. 1982. No action had been taken by the respondents for a considerable time and vide message dated 23. 3. 2005, in response to a notice served by the petitioner, the respondents had informed the petitioner that his case had been examined and it was revealed that the petitioner was suffering from Myocardial Infraction and Diabetes Mellitus disease which was not attributable to the military service and was result of a constitutional disorder. The petition was filed in the year 2005 and the Court declined to dismiss the writ petition on the ground of delay, which issue was dealt with by the Court as follows:- "no explanation of any sort has been rendered as to why the respondents did not conduct a court of enquiry to investigate the injuries sustained by the husband of the petitioner or as to why the injury report was not submitted to the appropriate authority. During the life time of the husband of the petitioner, he made representations dated 17. 3. 1981, 31. 3. 1981 and 4. 10. 1981. We find no justification as to why the Officer Incharge, Records, did not take any action in spite of communication dated 19. 3. 1981, which was sent by the Assistant registrar. Copy of which has been reproduced above. The husband of the petitioner made all attempts to bring the fact of the accident to the notice of the concerned authorities. For not holding a court of enquiry the husband of the petitioner cannot be put to prejudice as it was for the respondents to hold the court of enquiry. In a recent Judgment delivered by this Court on 31. 8. 2006 in the case Ex. Sep. Roop Singh Vs. Union of India and Ors. [wp (C)No. 3697/2006], while dealing with the question of delay, it has been held: "5. In a recent Judgment delivered by this Court on 31. 8. 2006 in the case Ex. Sep. Roop Singh Vs. Union of India and Ors. [wp (C)No. 3697/2006], while dealing with the question of delay, it has been held: "5. As far as the question of delay is concerned certainly some of these petitions have been filed after some delay. The delay, per se, may not be a ground for rejecting these writ petitions. In most of these cases, the petitioners have been corresponding with the respondents. They have also filed appeals before the competent authorities in the recent past, which were rejected by the authorities during the period 2000 to 2005 where after the present writ petitions have been filed. This aspect of delay cannot be totally ignored. Though, firstly the cause of action had arisen in favour of the petitioners, if at all, more than 15 to 20 years back but the same was revived by subsequent rejection of their claim by the competent authorities, more so, this has been treated as a recurring cause of action. Even if we treat these petitions as having been filed after some delay, it has been settled by the Supreme Court in the cases of S. R. Bhanrale v. UOI AIR 1997 SC 27 : 1996 (4)SCT 573 (SC), M. R. Gupta v. UOI and others 1996 (1) SCT 8 (SC) as well as by various High Courts in the cases of Major Rajinder Singh v. UOI 2002 (3) SCT 434 (Delhi), Lok Ram v. Haryana State Electricity Board (1996-1) 112 PLR 332, Manjit Singh, Ex. Naik v. Government of India 2000 (2) SCT 52 (Pandh), Sardara Singh v. UOI 92 (6) SLR 683 and a Full Bench Judgment of Punjab and Haryana High Court in the case of Saroj kumar and others v. The State of Punjab 1998 (3) RSJ 350 (FB) that such petitions may not be dismissed on the ground of delay alone but reliefs be moulded. Some of these petitions have also been pending in this court for number of years. At this stage to dismiss these petitions on the ground of delay, otherwise, may not be just and fair. Furthermore, it is a recurring cause of action and the court can mould the relief by denying benefits to the petitioner prior to a period of three years from the date of filing of these petitions. At this stage to dismiss these petitions on the ground of delay, otherwise, may not be just and fair. Furthermore, it is a recurring cause of action and the court can mould the relief by denying benefits to the petitioner prior to a period of three years from the date of filing of these petitions. Thus these objections on principle of law taken by the respondents deserve to be rejected. " we fail to understand as to how it can be held that the husband of the petitioner was not entitled to the disability pension for the disease Mycardinal infraction and Mellites Diabetes. Admittedly, the husband of the petitioner has put in more than 37 years service. Mycardinal Infraction in any case would be aggravated by military service, if not attributable to such service. Once it is not denied that the husband of the petitioner suffered an accident during service and the Orthopedic Specialist assessed the disability at 80%, merely because the injury report or court of enquiry was not submitted or conducted, the petitioner could not be put to any disadvantage of any act or omission on behalf of the respondents. " ( 5 ) THESE judgments are based on equitable principles and provisions of the limitation Act are not strictly applicable to the writ jurisdiction. But still a petition suffering from patent defect of delay and latches is a material consideration that is to be kept in mind by the Courts while exercising its discretionary jurisdiction under Article 226 of the Constitution of India. As is evident from the above referred facts of Smt. Freda James (supra), the delay was attributable to the respondents and the petitioner had provided due explanation for the same. The respondents, in fact, rejected the claim of the petitioner in an arbitrary manner on 22. 3. 2005 and immediately thereafter the petitioner had filed a petition in that very year and without undue delay. In the present case, it is apparent that the husband of the petitioner had slept over his rights for a long period of more than 60 years. No facts, much less, even a reasonable explanation for such an inordinate delay had been stated in the writ petition and the petition is void of any averments and grounds for undue delay and latches. No facts, much less, even a reasonable explanation for such an inordinate delay had been stated in the writ petition and the petition is void of any averments and grounds for undue delay and latches. In absence of any such averments, it is obviously difficult for the Court to ignore the objections of the respondents in regard to the inordinate delay and latches. The onus to explain such prolonged delay is upon the petitioner and the petitioner has certainly and miserably failed to discharge such onus, as there is not even a reference to the cause or ground of delay in the entire writ petition. ( 6 ) IN the cases of Ex-Gunner Hoshiar Singh vs. Union of India (DB) 2004 (115) DLT 207; 2005 (1) AD (Delhi) 164 and Ex. Rect/rfn. Nahar Singh vs. Union of India and Ors. W. P. (C) No. 12853/2005 decided on 13. 7. 2006, two different division Benches of this Court had declined to grant relief to the petitioner where there was unexplained delay of 26 years and 36 years and the same was taken to be fatal to the maintainability of the petition and the Courts declined to grant any relief to the petitioner. Useful reference can be made to the findings recorded by the Courts in the cases of Ex. Rect/rfn. Nahar Singh (supra) and Ex-Gunnerhoshiar Singh (supra):- "5. In terms of the judgment of the Supreme Court in the case of Controller of defence Accounts (Pension) and Ors. Vs. S. Balachandran Nair Page 2764 the report and opinion of the Medical Board has to be respected and cannot be ignored. Once the Medical Board has been conducted in accordance with law and patently does not suffer from any travesty or factual arbitrariness, the court would accept the said opinion. 6. We may also notice that the present petition suffers from the defect of delay and latches. The petitioner was discharged from army in the year 1967 but has opted to approach the Court in the year 2005. During this long period, he has not taken any effective steps which could persuade the Court to condone the delay on the part of the petitioner. The remedy under Article 226 of the constitution of India is a discretionary and equitable remedy. During this long period, he has not taken any effective steps which could persuade the Court to condone the delay on the part of the petitioner. The remedy under Article 226 of the constitution of India is a discretionary and equitable remedy. Keeping in view the facts and circumstances of the case, the objection of delay raised by the respondents would also have to be accepted. " Ex-Gunnerhoshiar Singh (supra) "6. Considering the facts and circumstances of the case, we are of the considered opinion that the petitioner sought to bring into evidence record with interpolations and a document, which in fact does not exist. The petitioner has not come to the court with clean hands. In this connection, reference may be made to the decision of this court in Satish Khosla vs. M/s Eli Lilly Ranbaxy ltd. and Another reported in 1998 I AD (Delhi) 927 as also to the decision of the Supreme Court in The Chancellor and another Vs. Dr. Bijaynanda Kar and others reported in AIR 1994 SC 579 wherein under similar circumstances the supreme Court observed that if a person does not come to the court with clean hands the petition could be thrown out on that grounds. 7. On going through the records also we find that the petitioner is not entitled to grant of disability pension as the petitioner was discharged of his own request and not on medical ground. The petition is also filed after 26 years of his discharge and, therefore, there is not only inordinate and unexplained delay but the records of the case also came to be destroyed by the respondents due to long passage of time. " ( 7 ) IN the case of Ex. Naik Charan Singh vs. Union of India and Ors. W. P. (C) NO. 1714/2006 and CM No. 1499/2006 decided on 13. 7. 2006, the Court held as under:-The petitioner has made no averment in the writ petition as to how and when he came to know of the order of dismissal. The defect of delay and latches would certainly and adversely affect the claim of the petitioner before this Court. The learned counsel appearing for the respondent has relied upon the Division bench Judgment of this Court in the case of Ex. Constable Sukhvir Singh vs. Union of India and Ors. in Civil Writ Petition No. 2576/2000 decided on 14. 3. The defect of delay and latches would certainly and adversely affect the claim of the petitioner before this Court. The learned counsel appearing for the respondent has relied upon the Division bench Judgment of this Court in the case of Ex. Constable Sukhvir Singh vs. Union of India and Ors. in Civil Writ Petition No. 2576/2000 decided on 14. 3. 06 in which it has been stated that where there is a delay of seven years and the court declined to interfere in an order of dismissal passed in somewhat similar circumstances, the Court held as under :-At this stage, the respondents pointed out that there was inordinate delay in filing this writ petition by the petitioner and as a consequence the records pertaining to the case of the petitioner, including the records which contain the aforesaid evidence indicating issuance of show cause notice to the petitioner at his home address through Registered AD post are destroyed by the respondent as they were required to maintain the record of a case only for a period of 7 years. In support the said stand and contention reference is made by the respondent to GFR 284 of the Border Security Force Procedure, indicating that the said records pertaining to the service of the petitioner were already destroyed and the same is placed on the record. Since the said records are not available as they have been destroyed by the respondent, we are not in a position to decide as to whether or not show cause notice issued to the petitioner was served or not. It is only the petitioner who is responsible for this position. He was negligent and slept over his rights, it any and due to his lapses and inordinate delay, the connected records came to be destroyed. The petitioner can not take advantages of his own lapses and make submission before us that there was violation of the principles of natural justice as he did not receive copy of the show cause notice. In this connection we may refer to the decision of the Division Bench of our own Court titled as Hans Ram Vs. Union of India reported in 1995 (34) DRJ (DB) where it was held that belated claim after destruction of service record can not be entertained. "5. In this connection we may refer to the decision of the Division Bench of our own Court titled as Hans Ram Vs. Union of India reported in 1995 (34) DRJ (DB) where it was held that belated claim after destruction of service record can not be entertained. "5. We have no reason to take a different view particularly in the facts and circumstances of the present case. The service of the petitioner was dismissed on 14. 2. 90 and there is nothing on record before us which could show any reasonable ground for the petitioner to approach the Court after a lapse of nearly fifteen years. The conduct of the petitioner is certainly not what is expected of a person belonging to security forces. From the rank of a Constable he was promoted to the rank of a Nayak and it is required of him as a member of the disciplined security force to report to any nearby hospital of the forces or at least join his duties after expiry of a reasonable period while keeping the authorities informed. From the service record of the petitioner produced before us, it is clear that no such intimation for all this long period was sent by the petitioner of his illness. Even alongwith the writ petition, the petitioner has not annexed any postal receipt or document to substantiate his above version that he had informed the authorities from time to time. It is strange that though he had gone to Kerala for his treatment but the medical certificate or prescription what he has sent which he claims to have obtained from Safdarjung hospital that too on 23. 6. 89 the copy of which has been annexed as an Annexure-I to the petition. It is obligatory upon the part of the member of the forces to inform the authorities within a reasonable time if the said member suffers from any illness. We are unable to accept the version of the petitioner that he could not have gone to his own unit for these fifteen years. " ( 8 ) THESE principles clearly demonstrate that it is not a matter of course that the Courts would ignore the objection in regard to unexplained, prolonged delay and latches. It will depend on the facts and circumstances of each case. " ( 8 ) THESE principles clearly demonstrate that it is not a matter of course that the Courts would ignore the objection in regard to unexplained, prolonged delay and latches. It will depend on the facts and circumstances of each case. The Court would mould the relief and restrict the benefit in favour of the petitioner, only when the petitioner has rendered some kind of explanation for such delay. The explanation should be bonafide and the petitioner in law should be entitled to the relief claimed. The present case is a glaring example of no explanation for the inordinate delay and we see no reason to ignore the objections taken by the respondents. Equitable jurisdiction has to be exercised keeping in view the equities between the parties. No indefeasible right is vested in any person to claim a relief after a delay of 60 years, that too without rendering any explanation for approaching the Court at such a belated stage. We find that there is no averment or reasons stated in the writ petition as to why the petitioner is approaching the court after such an inordinate delay. For all this time the petitioner was aware of his rights and right to receive such pension was available to the petitioner, which he in his wisdom chose not to enforce for all these years. He did not even write a letter to the authorities concerned and as stated by the respondents, the Records of the case have already been destroyed and are not available with them as the case is more than 60 years old. An equitable remedy has to be invoked on equitable and reasonable grounds and permitting the petitioner to take advantage of his own wrong at this stage would vest the respondents with prejudicial and serious consequences. ( 9 ) FOR these reasons, we dismiss this petition in limine, while leaving the parties to bear their own costs.