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2009 DIGILAW 1409 (PNJ)

Ex-sepoy Dhian Singh v. Union Of India

2009-08-13

PERMOD KOHLI

body2009
Judgment Permod Kohli, J. 1. The petitioner was recruited to the Army as Sepoy in the Sikh Light Infantry on 16.1.1976. It is stated that the petitioner was found medically fit at the time of recruitment by the Medical Officer/Board. On completion of the training, the petitioner was posted in 8th Sikh LI Regiment in West Bengal. It is the case of the petitioner that in the year 1979, during intensive rainy season, the petitioner, while performing duties in rural areas of West Bengal, developed severe allergy which subsequently developed in "Bronchial Asthma". It is also stated that the disease was not known to the petitioner prior to joining the Army. He was admitted to the Military Hospital during acute attacks of Bronchial Asthma. The said disease could not be cured and his condition deteriorated. An invaliding Medical Board was convened which degraded the medical category of the petitioner to "EEE". Hence the petitioner was found unfit for Army service. He was invalided out of army service with 30% disability on the basis of the opinion of the Medical Board and discharged from service on 13.11.1979 under Rule 13 (III) (iii) of the Army Rules. The grievance of the petitioner is that even though he was discharged from army service on medical ground with low medical category, but no disability pension has been given to him. The case of the petitioner was forwarded by the Sikh Light Infantry Abhilekh Karyalaya, Fatehgarh (UP) to CA (Pensions), Allahabad alongwith relevant record for grant/sanction of disability pension vide letter dated 28.11.1979 (Annexure P-1). After waiting for some time, the petitioner vide his letter dated 12.8.1981 (Annexure P-2) enquired about the pension which was followed by a number of letters written by the petitioner for grant of pension. Details of such letters/communications written by the petitioner have been given in the writ petition. Having received no response, the petitioner filed a statutory appeal dated 30.12.1997 to the Secretary, Ministry of Defence. However, he was informed vide letter dated 19.1.1998 (Annexure P-13) that he should file a fresh appeal before the competent authority. Accordingly, the petitioner field a statutory appeal on 30.1.1998. The statutory appeal Filed by the petitioner stood rejected vide letter dated 12.2.1998 (Annexure P-16) only on the ground of delay and latches. However, he was informed vide letter dated 19.1.1998 (Annexure P-13) that he should file a fresh appeal before the competent authority. Accordingly, the petitioner field a statutory appeal on 30.1.1998. The statutory appeal Filed by the petitioner stood rejected vide letter dated 12.2.1998 (Annexure P-16) only on the ground of delay and latches. The petitioner thereafter made a number of further representations and finally filed this petition seeking a direction for payment of the disability pension. 2. The respondents have filed detailed counter affidavit. While opposing the petition on the ground of jurisdiction, it is stated that the disease suffered by the petitioner is not attributable to nor aggravated by the Army service. It is also stated that the petition is liable to be dismissed on delay and latches. 3. I have heard learned counsel for the parties at length. 4. In so far as the issue of territorial jurisdiction is concerned, the petitioner was invalided out while serving in U.P. However, the petitioner is permanent resident of Village Panjoli, P.O. Mianpur, District Ropar (Punjab). All Army pensions were granted to the petitioner at the aforesaid address. The petitioner filed his representations and appeal from the State of Punjab. The statutory appeal of the petitioner was rejected and the order was communicated to the petitioner at the aforesaid address in the State of Punjab. Thus, part of cause of action has accrued to the petitioner in the State of Punjab. I am of the considered opinion that this Court has the territorial jurisdiction in the present case to entertain this petition. 5. The issue relating to delay and latches has been considered by the Honble Supreme Court in a recent judgment passed in the case of Union of India v. Tarsem Singh, 2008(4) SCT 19 : 2008(5) RAJ 203 : 2008(8) SCC 648, wherein following observations have been made :- "5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. 6. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances." In view of the dictum of the aforesaid judgment where cause of action is recurring like in the present case as it relates to grant of pension for which the right accrues periodically, the question of limitation will not arise. In any case. It ought not to have granted interest on arrears in such circumstances." In view of the dictum of the aforesaid judgment where cause of action is recurring like in the present case as it relates to grant of pension for which the right accrues periodically, the question of limitation will not arise. In any case. Honble Supreme Court has restricted the claim preceding three years to the filing of the writ petition. 6. Coming to the main issue whether the disease suffered by the petitioner can be said to be the outcome of the Army service. The petitioner has made specific averments in paragraph 7 of the writ petition that prior to Jan 1979, this disease was not known to the petitioner. There is no reply to this specific averment made in paragraph 7 of the writ petition. In the counter affidavit filed by the respondents, the aforesaid averment made in paragraph 7 of the writ petition has been generally denied and there is no specific denial to the averment made in paragraph 7 of the writ petition. The respondents have relied upon the opinion of Medical Board, but the copy of the same has not been produced on record. There is nothing on record to show that the disease being suffered by the petitioner at the time of invaliding him out of military service could not be caused during his service or the petitioner was suffering from the disease at the time of his recruitment. To the contrary, the petitioner has specifically alleged that he was found fit at the time of recruitment. It is also the case of the petitioner that in the year 1979, during intensive rainy season, the petitioner, while performing duties in rural areas of West Bengal, developed service allergy which subsequently developed in "Bronchial Asthma". This averment has also not been denied nor any medical opinion has been placed on record in this regard. The disability suffered by the petitioner is 30% as assessed by the respondents and under Regulation 173 of the Army Regulations, a personnel with 20% disability is entitled to the disability pension. This fact cannot be lost sight of that the Army service carries great stress and strains, particularly when the Army personnel are deployed not only during war, but even at the time of law and order problem and other natural calamities in the remote areas. This fact cannot be lost sight of that the Army service carries great stress and strains, particularly when the Army personnel are deployed not only during war, but even at the time of law and order problem and other natural calamities in the remote areas. Their life is full of stress and strains. Such a disease is not unknown in such cases. It is also not recorded by the Medical Board that such a disease could not be detected at the time of petitioners entry in service. Similar issue came up before various Courts from time to time. Relying upon various judgments of this Court and of the Delhi High Court, a Division Bench of this Court in the case of A.J.S. Chaudhary v. Union of India and others, 1999(1) RSJ 778 has held as under :- "19. The ratio of the decisions, referred to herein above, fully support the argument of Shri Randhawa that the rejection of petitioners claim for disability pension is legally unsustainable because at the time of his acceptance for military service, no note was recorded that he was suffering from Schizophrenia and the opinion recorded by the Medical Board at the time of his discharged from service does not contain a note that the disease was such which could not be detected at the time of petitioners entry in the service. xxx xxx xxx 22. For the reasons mentioned above, the writ petition is allowed. The decision of the respondents rejecting the petitioners claim for disability pension is quashed and it is declared that the petitioner is entitled to get disability pension in accordance with Rule 173 read with Appendix-II of the Army Regulations. The respondents are directed to calculate the disability pension payable to the petitioner from the date of discharge from service and pay the same to him within 4 months of the submission of certified copy of this order, else he shall get interest on arrears at the rate of 18% per annum." This Court, while considering similar circumstances in the case of Surjit Singh v. The Secretary to the Govt. of India, Ministry of Defence and others, 1999(4) SCT 645 : 1999(4) RSJ 385, has observed as under :- "3. It will be seen that the impugned orders Annexures P-2 and P-5 are based on the assessment made by the CCDA (P) Allahabad and there is no reference medical board. of India, Ministry of Defence and others, 1999(4) SCT 645 : 1999(4) RSJ 385, has observed as under :- "3. It will be seen that the impugned orders Annexures P-2 and P-5 are based on the assessment made by the CCDA (P) Allahabad and there is no reference medical board. As the CCDA (P) Allahabad or the Medical Authority attached thereto, did not have the occasion to examine the petitioner and had based their assessment only on the record no sanctity can be accorded to such a decision. It is true, that the respondents have also averred that the petitioners disease was a constitutional one and could not be attributed to military service and that this decision had come from the invaliding Medical Board at the initial stage, but nothing has been put on record with regard to the decision of the said Board. Moreover, a constitutional disease does not ipso facto debar a person from claiming disability pension. This has been also held in Union of India and others v. Sepoy Satwinder Singh and another, 1980(4) RSJ 467." In view of the ratio of the aforesaid judgments and the facts noticed here-in-above, this petition is allowed and the impugned order dated 12.2.1998 (Annexure P-16) is hereby quashed. The respondents are directed to assess the disability pension and release the same to the petitioner within a period of two months from the date a certified copy of this order is served upon the competent authority. As far as the arrears of disability pension is concerned, it shall remain confined to three years preceding the date of filing of the writ petition. Petition allowed.