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2019 DIGILAW 2679 (ALL)

Din Bandhu Ram v. Union of India

2019-12-02

RAJEEV MISRA, SUDHIR AGARWAL

body2019
JUDGMENT : 1. Heard Col. Ram Achal Pandey, Advocate for applicant and Sri S.K. Rai, Advocate for respondents. 2. This writ petition under Article 226 of the Constitution of India has arisen from judgment and order dated 26.10.2018 whereby petitioner's Transfer Application No. 1187 of 2010 has been dismissed by Armed Forces Tribunal, Regional Bench, Lucknow (hereinafter referred to as “Tribunal”). 3. It appears that petitioner, who was enrolled in Indian Army on 02.05.1979, suffered some problem diagnosed as "Schizophrenia” on account whereof he was medically held invalid from service w.e.f. 18.03.1980 under Rule 13(3)(IV) of Army Rules, 1954 and was discharged. His request for disability pension was declined by Principal Controller of Defence Account (Pension), Allahabad vide order dated 17.01.1981 on the ground that medical disability suffered by petitioner was neither attributable nor aggravated to military service. Said order attained finality as petitioner did not challenge the same by filing any appeal. It is only in 2003 he filed Writ Petition No. 49882 of 2003 seeking following reliefs: “(i) to issue a writ order or direction in nature of certiorari to quash the impugned order dated 17.1.81 passed by P.C.D.A. (Pension) (Respondent No. 2), through his letter No. G3/80/8846/VI which is not served to the petitioner till the date of filing and the order dated 3.3.1993 passed by Record Officer, the Maratha Light Infantry, Belgaum-9. (ii) to issue a writ order or direction in nature of mandamus directing the respondents to take any decision for petitioner's rehabilitation/ disability pension/ financial assistance. (iii) to issue a writ order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case. (iv) to award the cost of the writ petition to the petitioner.” 4. After enactment and enforcement of Armed Forces Tribunal, aforesaid writ petition was transferred to Tribunal and renumbered as Transfer Application No. 1187 of 2010. Tribunal has found that petitioner was enrolled in Indian Army in 1979. He was diagnosed for suffering of Schizophrenia on 07.11.1979, i.e., almost within six months from the date of enrollment in military service. Consequently he was declared invalid for military service by medical board on 19.03.1980. Tribunal has found that petitioner was enrolled in Indian Army in 1979. He was diagnosed for suffering of Schizophrenia on 07.11.1979, i.e., almost within six months from the date of enrollment in military service. Consequently he was declared invalid for military service by medical board on 19.03.1980. In these facts and circumstances Tribunal found that there was nothing to show that petitioner's medical invalidity was either on account of rendering service in army nor there was anything to show that it was aggravated due to Military Service for the reason that he has worked only for almost six months when aforesaid disease was discovered and that too while he was undergoing basic recruitment training at Maratha Light Infantry Regimental Centre, Belgaum and not even posted for active service at any hard place. Tribunal, therefore, rejected the same. 5. Besides the fact stated by Tribunal in the impugned judgment, we also find that petitioner was invalidated in 1980. His claim for disability pension was rejected on 17.01.1981. He did not challenge aforesaid order dated 17.01.1981 before any appropriate forum for more than 22 years and this delay and laches has not been explained by petitioner either before Tribunal or before this Court. 6. Undue delay and laches are relevant factors in exercising equitable jurisdiction under Article 226 of the Constitution of India. Following the cases of Government of West Bengal Vs. Tarun K. Roy and others 2004(1) SCC 347 and Chairman U.P. Jal Nigam and another Vs. Jaswant Singh and another 2006(11) SCC 464 , the Apex Court in New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993 , it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330 = 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423 . 7. In C. Jacob vs. Director of Geology and Mining and another, 2008(10) SCC 115 Court observed that Courts and Tribunals proceed on the assumption that every citizen deserves a reply to his representation. It also observed that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the exemployee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex employee files an application/ writ petition, not with reference to the original cause of action may be of 10 or 20 years back but by treating the order of rejection passed after a decade or two or more from the date of original cause of action, as a fresh cause of action. In such cases normally a prayer is made for quashing of order of rejection of representation and they further to grant relief as claimed in representation. The Tribunals/ Courts routinely entertain such applications/ petitions ignoring the huge delay preceding the representation and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. The Tribunals/ Courts routinely entertain such applications/ petitions ignoring the huge delay preceding the representation and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. Deprecating it and holding that such order passed on representation will not furnish a fresh cause of action and revive a stale or dead claim, Supreme Court in para 10 said as under: “10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.” 8. In Union of India and others vs. M.K. Sarkar, 2010(2) SCC 58 Court said that a belated representation with regard to statutory or dead issue if considered or decided, in compliance with a direction by Court/ Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the 'dead' or time barred issue. Issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a Court's direction. Neither a Court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. 9. The petitioner is admittedly guilty of undue delay and laches which has not been explained at all. For granting relief under Article 226 of the Constitution of India, laches is an important factor disentitling a litigant for any relief, as discussed above. 10. Even otherwise, order of Tribunal non suiting petitioner on merits also cannot be said to be faulty. The circumstances in which, within six months of his recruitment, petitioner was found suffering from ailment of Schizophrenia, we do not find that petitioner satisfies the requirement of disability pension. 10. Even otherwise, order of Tribunal non suiting petitioner on merits also cannot be said to be faulty. The circumstances in which, within six months of his recruitment, petitioner was found suffering from ailment of Schizophrenia, we do not find that petitioner satisfies the requirement of disability pension. Hence we find no merit in writ petition. 11. Dismissed accordingly.