Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 569 (GAU)

Lakheswar Das v. Union of India

2014-05-27

TINLIANTHANG VAIPHEI

body2014
JUDGMENT Tinlianthang Vaiphei, J. 1. Both Mrs. S. Chakraborty, the learned counsel for the petitioner and Mrs. K. Bhattacharjee, the learned Central Govt. Counsel have been extensively heard. The question to be considered in this writ petition is whether an invalid pension can be granted to the petitioner irrespective of the period of service already undergone by him at the time of his discharge. The petitioner was in the service of the respondent authorities for about 6 years. During the period of his service, according to him, due to the task entrusted to him in the Motor Transport Section, he suffered from Tuberculosis and on the recommendation of the Medical Board duly constituted by the authority, he was retired from service with effect from 12.04.1986 on medical grounds, which incapacitated him from rendering service. 2. According to the petitioner, he approached the respondent authorities time and again but, even after 11 years, he has not been sanctioned his invalid pension. His representation was finally rejected on 11.10.2010 by the Inspector General HQ AM FTR BSF Shillong vide Annexure-11 whereupon he filed the writ petition. The fact that the petitioner was suffering from bodily infirmity which permanently incapacitated him for the service, has been admitted by the respondent authorities in their affidavit-in-opposition. The admission of the respondent authority is found at paragraph 12 of the affidavit-in-opposition dated 1.3.2011, which are as follows:-- 12. That the averments made in paragraph-8(a) of the writ petition are denied being false and baseless. As per provisions of Rule-25 of BSF Rules, where a Commandant is satisfied that an enrolled person is unable to perform his duties due to any physical disability, he may direct that the said person be brought before a medical board, where the said person is found unfit for further service in the post by the medical board, and if the Commandant agrees with the findings of medical board he may order the retirement of such person. In the instant case the petitioner was examined by a board of medical officers constituted at DIG Head Quarter, BSF, Silchar, on 7.3.1986, who opined that petitioner is suffering from pulmonary tuberculosis (Relapse) and was considered unfit for further service in BSF. In the instant case the petitioner was examined by a board of medical officers constituted at DIG Head Quarter, BSF, Silchar, on 7.3.1986, who opined that petitioner is suffering from pulmonary tuberculosis (Relapse) and was considered unfit for further service in BSF. The opinion of the medical board was approved by the DIG SHQ, Silchar and accordingly by an order dated 12.4.1986 issued by the Commandant 83 BN, BSF whereby the petitioner retired from service w.e.f. 2.9.1986 on medical grounds. In case the petitioner was aggrieved by the decision of the Commandant, he should have submitted a representation to the next officer in command. No such representation was submitted by the petitioner even when he had sufficient time to proceed on retirement w.e.f. 2.9.1986 after passing of order dated 12.4.1986 by the Commandant 83 Bn BSF. 3. Even a cursory look at the paragraph extracted above will reveal that the petitioner was examined by the Board of Medical Officers constituted by the competent authority, which opined that he was suffering from Pulmonary Tuberculosis (Relapse) and was considered unfit for further service in B.S.F. On the basis of this opinion of the Medical Board so constituted, he was retired from service w.e.f. 2.9.1986 on medical grounds. Rule 38 of the Central Civil Service Code (Pension) Rules, 1972 deals with invalid pension, which is reproduced below:-- 38. Invalid pension (1) Invalid pension may be granted if a Government servant retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service. (2) A Government servant applying for an invalid pension shall submit a medical certificate of incapacity from the following medical authority, namely:-- (a) a Medical Board in the case of a Gazetted Government servant and of a non-gazetted Government servant whose pay, as defined in Rule 9(21) of the Fundamental Rules, exceeds 1[Two thousand and two hundred rupees] per mensem; (b) Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases. NOTE 1.--No medical certificate of incapacity for service may be granted unless the applicant produces a letter to show that the Head of his Office or Department is aware of the intention of the applicant to appear before the Medical Authority. NOTE 1.--No medical certificate of incapacity for service may be granted unless the applicant produces a letter to show that the Head of his Office or Department is aware of the intention of the applicant to appear before the Medical Authority. The medical authority shall also be supplied by the Head of the Office or Department in which the applicant is employed with a statement of what appears from official records to be the age of the applicant. If a Service Book is being maintained for the applicant, the age recorded therein should be reported. NOTE 2.--A lady doctor shall be included as a member of the Medical Board when a woman candidate is to be examined. (3) The form of the Medical Certificate to be granted by the Medical Authority specified in sub-rule (2) shall be as in Form 23. (4) Where the Medical Authority referred to in sub-rule (2) has declared a Government servant fit for further service of less laborious character than that which he had been doing, he should, provided he is willing to be so employed, be employed on lower post and if there be no means of employing him even on a lower post, he may be admitted to invalid pension. 1. Substituted vide G.I., Dept. of P. & P.W., Notification No. 2/18/87-P.&P.W. (PIC), dated the 20th July, 1988. Published as S.O. No. 2388 in the Gazette of India, dated the 6th August, 1988. 4. The contention of the learned C.G.C. is that for entitlement of invalid pension, the petitioner must have completed the qualifying service of 10 years as provided for in Rule 49(2) of the Rules, and when the petitioner had barely completed 5 years 7 months 21 days at the time of his discharge, he is not entitled to invalid pension. On the other hand, the learned counsel for the petitioner relying on the decision of the Delhi High Court in Ex-Const. Badan Singh v. Union of India & Another, 2003 (I) All India Services Law Journal, submits that Rule 38 of the Pension Rules does not bar giving invalid pension irrespective of years of service. 5. On going through Rule 38 of the Rules, I find force in the contention of the learned counsel for the petitioner. Badan Singh v. Union of India & Another, 2003 (I) All India Services Law Journal, submits that Rule 38 of the Pension Rules does not bar giving invalid pension irrespective of years of service. 5. On going through Rule 38 of the Rules, I find force in the contention of the learned counsel for the petitioner. Rule 38 of the Rules simply says that invalid pension may be granted if a Government servant retires from service on account of any bodily or mental infirmity which permanently incapacitates him for the service. It is a cardinal principle of interpretation of statute that when the words of a statute are clear, plain and unambiguous, i.e. they susceptible to only one meaning, the courts are bound to given effect to that meaning irrespective of consequences. The rule is also stated in another form: "When a language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself'.? G.R Singh's Principles of Interpretation of Statutes, 9th Edn., pp. 45-46. Therefore, to accept the contention of the learned CGC, to my mind, will amount to rendering the provision of Rule 38 of the Rules odious. Thus, the extent and reach of Rule 38 cannot be controlled by Rule 49(2) by reading words into it which are not there in the statute. Under the circumstances, the claim for invalid pension by the petitioner is admissible in law. 6. However, the next question to be considered is what sort of relief can be granted to the petitioner considering the fact that he approached this Court after 28 years from the date of his retirement. The entitlement to invalid pension is one thing, but the entitlement to pension arrears is another thing. I have carefully considered the explanation of delay offered by the petitioner, but the explanation is far from satisfactory. Even if the invalid pension is found to be admissible to the petitioner at this belated stage as denial thereof amounts to a continuing wrong, unrestricted relief in respect of pension/salary arrears can no longer be granted in view of the law laid down by the Apex Court in Union of India v. Tarsem Singh, 2008 (8) SCC 648 . The Apex Court in explanation of difference of "continuing wrong" and "successive wrong" held as follows: 7. The Apex Court in explanation of difference of "continuing wrong" and "successive wrong" held as follows: 7. 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 continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, of 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 refixation 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 involves issue 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 consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing the writ petition. 7. As there is inordinate delay in approaching this Court, the admissibility of the invalid pension on the ground that the denial thereof amounts to a continuing wrong, does not necessarily lead to admissibility of the pension arrears. Consequently, in the light of law laid down by the Apex Court in Tarsem Singh case (supra), the pension arrears of the petitioner shall be restricted only to 3 years prior to the filing of this writ petition. For the reason stated in the foregoing, this writ petition is partly allowed. The respondent authorities are directed to grant invalid pension to the petitioner w.e.f. 01.12.2007. For the reason stated in the foregoing, this writ petition is partly allowed. The respondent authorities are directed to grant invalid pension to the petitioner w.e.f. 01.12.2007. The pension arrears due from 01.12.2007 together with the current invalid pension shall be released in favor of the petitioner within a period of three months from the date of receipt of this judgment.