Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 537 (JK)

Union of India v. Kartar Chand

2016-10-18

B.S.WALIA, R.SUDHAKAR

body2016
JUDGMENT : 1. Union of India is in appeal challenging the order of learned Single Judge dated 24.10.2005. The respondent/writ petitioner sought the pension on account of disability which he suffered while on duty in terms of the Pension Regulations for the Army, 1961. 2. His claim was declined by the CCDA, Pension Allahabad, UP i.e. Respondent No. 2, that was challenged before the learned Single Judge and the learned Single Judge on considering the provisions of the Pension Regulations for the Army, 1961 set aside the order of Respondent No. 2 and the writ petition was allowed vide order dated 24.10.2005 holding as follows:- The petitioner is, thus, held to be suffering from disability not less than 20% and is entitled to pension under Rules governing the grant of disability pension. Shri Tashi Rabstan has raised yet another objection that the disability of the petitioner, which had been assessed at 30% was only for two years and thereafter he has been assessed co be having invalidity below 20%. In support, he has referred to Annexure-C, i.e., No. G-3/95/35/4-99, dated 27th July, 1999, in which his disability beyond two years has been assessed as less than 20%. To what extent the disability was less than 20% was a query, which remained unanswered during the course of hearing. By reference to the document aforesaid, Shri Tashi submitted that it was less than 0.1%. Even if one were to consider this shortfall in the disability of 20%, the shortfall was so negligible that it was required to be ignored by the authorities operating the rules and regulations (Emphasis supplied). Pension Rules and Regulations governing the field, are required to be operated, interpreted and constructed in such a way that requisites meaning, as contemplated, by the farmers of the Rules, is ascribed to carry the intention of the framers of the Rules and Regulations. It cannot be countenanced that the Army Authorities had intended such a strict construction of the Rules, as is projected by Shri Tashi Rabstan. Pension Rules and Regulations are required to be interpreted so that these Rules advance the cause for which these have been framed. It cannot be countenanced that the Army Authorities had intended such a strict construction of the Rules, as is projected by Shri Tashi Rabstan. Pension Rules and Regulations are required to be interpreted so that these Rules advance the cause for which these have been framed. The golden thread which runs through these Rules and Regulations suggests providing of sustenance to those who, after having spent their lives for the defence of the country, become otherwise invalid, to continue their resolve to serve the country, are provided means to sustain themselves. The respondents, have, thus, omitted to have a pragmatic view of the case of the petitioner, which has been rejected on grounds, which are irrelevant and unjustified. That apart, there is another angle from which the case of the petitioner was required to be looked into. The petitioner has been invalided out at a young age of 27 years. Regulation 181 of the Pension Regulations for the Army, 1961 prescribes that recruits and young soldiers and Boys, shall be eligible for disability pension at the rates and under the conditions applicable to a sepoy of the lowest group. Petitioner's case was, thus, required to be looked into from the stand point of Regulation 181 of the Pension Regulations too. In this view of the matter, the order impugned in the writ petition is set aside and quashed. All those orders on the basis of whereof the impugned order has been issued, are against Rules and Regulations. These shall not, therefore, come in the way of the respondents in considering the case of the petitioner for the grant of disability pension in view of what has been held hereinabove. The petitioner, who has been denied disability pension, shall be entitled to interest on the arrears of pension. The respondents shall, therefore, pay interest @ 6% per annum, too, to the petitioners while releasing the arrears of pension. The respondents are, therefore, commanded to consider the grant of disability pension to the petitioner and pass appropriate order thereon, in the light of what has been held in this petition, within a period of eight weeks from the date of this judgment. The arrears payable to the petitioner shall be paid along with interest @ 6% per annum. The petition is, thus, allowed with costs assessed at Rs. 2000/-". 3. The arrears payable to the petitioner shall be paid along with interest @ 6% per annum. The petition is, thus, allowed with costs assessed at Rs. 2000/-". 3. Aggrieved by order dated 24.10.2005, appeal has been filed by the Union of India. 4. It appears that the respondent is suffering from CNS (INS) Seizure. The disability based on records has been accepted by the learned Single Judge at around 20% less 0.1%, which according to learned Single Judge is negligible and should be ignored. 5. The other disability is relating to fracture of Proximal Phalanx and it is caused due to some scuffle between the respondent and his brother. That was not taken into consideration. 6. The appeal is filed stating that the order of learned Single Judge is contrary to Regulation 173 of the Pension Regulations for the Army, 1961. 7. At the time of hearing of the appeal, learned counsel for the appellant fairly pointed out that the disability suffered by the respondent qualifies to be a disability, and it satisfies the requirement of Regulation 173 of the Pension Regulations for the Army, 1961. 8. In the instant case, the respondent is suffering from CNS (INS) Seizure. In the case of Union of India & Ors. v. Manjeet Singh, the case of a person suffering from Neurotic Depression and Generalised Tonic Clonic Seizure disability was assessed at 20%. 9. The Hon'ble Supreme Court came to the conclusion that on the basis of medical report that it was not for the person suffering from disability to prove the disability that he suffered is in the course of employment. It held that it is for the department/Army Authority to establish, that the disability did not arise during the course of employment. While holding so, it held that the provisions for payment of disability pension is a beneficial one and ought to be interpreted liberally so as to benefit those who have been boarded out from service, even if they have not completed their tenure. 10. The decision in Manjeet Singh's case relied upon, the principles enunciated in case Union of India & Ors. v. Rajbir Singh (Civil Appeal No. 2904/2011) and Dharamvir Singh v. Union of India, reported as 2013 (7) SCC 316 . Relevant extract of Manjeet Singh's judgment is reproduced hereunder :- "25. 10. The decision in Manjeet Singh's case relied upon, the principles enunciated in case Union of India & Ors. v. Rajbir Singh (Civil Appeal No. 2904/2011) and Dharamvir Singh v. Union of India, reported as 2013 (7) SCC 316 . Relevant extract of Manjeet Singh's judgment is reproduced hereunder :- "25. The last in the line of the rulings qua the dissensus has been pronounced in a batch of Civil Appeals led by Civil Appeal No. 2904 of 2011; Union of India & Ors. v. Rajbir Singh in which this Court on an exhaustive and insightful exposition of the aforementioned statutory provisions had observed with reference as well to the enunciations in Dharamvir Singh v. Union of India 2013 (7) SCC 316 , that the provision for payment of disability pension is a beneficial one and ought to be interpreted liberally so as to benefit those who have been boarded out from service, even if they have not completed their tenure. It was observed that there may indeed be cases where the disease is wholly unrelated to Army service but to deny disability pension, it must affirmatively be proved that the same had nothing to do with such service. It was underlined that the burden to establish disability would lie heavily upon the employer, for otherwise the Rules raise a presumption that the deterioration in the health of the member of the service was on account of Army service or had been aggravated by it. True to the import of the provisions, it wassheld that a soldier cannot be asked to prove that the disease was contracted by him on account of Army service or had been aggravated by the same and the presumption continues in his favour till it is proved by the employer that the disease is neither attributable to nor aggravated by Army service. That to discharge this burden, a statement of reasons supporting the view of the employer is the essence of the rules which would continue to be the guiding canon in dealing with cases of disability pension was emphatically stated. As we respectfully, subscribe to the views proclaimed on the issues involved in Dharamvir Singh (supra) and Rajbir Singh (supra) as alluded hereinabove, for the sake of brevity, we refrain from referring to the details. As we respectfully, subscribe to the views proclaimed on the issues involved in Dharamvir Singh (supra) and Rajbir Singh (supra) as alluded hereinabove, for the sake of brevity, we refrain from referring to the details. Suffice it to state that these decisions do authoritatively address the issues seeking adjudication in the present appeals and endorse the view taken by us. 26. In the wake of the above, we hereby sustain the impugned judgment and order. The appeals are dismissed. No costs." 11. In the present case as in the case of Manjeet Singh's case, the respondent is suffering from CNS (INS) Seizure and the medical board has certified it to be 20%. 12. Learned Single Judge has already recorded the percentage of disability at 20% and that has already been highlighted in the earlier portion of this judgement and, therefore, the requirement of Regulation 173 stands satisfied. 13. In view of the decision in Manjeet Singh's case (Civil Appeal Nos. 4357-4358 of 2015) following the earlier decisions in cases 'Union of India & Ors. v. Rajbir Singh and 'Dharamvir Singh v. Union of India', the learned Single Judge was correct in directing the authority to grant disability pension in terms of the Pension Regulations for the Army, 1961. 14. Respondent-authority thereby inclined to comply with the directions of the learned Single Judge following the aforesaid decisions. Disposed of Appeal stands dismissed. No cost.