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2019 DIGILAW 373 (GAU)

Lalnghinglova v. Union of India

2019-03-25

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Vanlalnghaka, the learned counsel for the petitioner and Ms. Zairemsangpuii, the learned CGC appearing for all the respondents. 2. The petitioner, who claims to be the son of late Ex-NK Hmingthanga is before this Court claiming family pension on account of being a mentally disabled person and dependent upon the late Ex-Serviceman. 3. The case of the petitioner in brief is that his late father, who was a Naik in the Army Medical Corps (AMC) was discharged from service on 03.07.1947. After he was discharged, he was receiving his pension under Pension Payment Order No. 16 Pt-IV dated 22.01.1948 till he expired on 04.04.1971. On his death, family pension was given to his wife i.e., the petitioner's mother Smt. Rokungi vide Pension Payment Order No. F/NA/PRE-64/13366/89. The petitioner's mother Smt. Rokungi, also expired on 03.12.2008 where after, the petitioner claimed for family pension through the office of the Zilla Sainik Welfare and Resettlement (Sainik Welfare). Against the efforts made by the Sainik Welfare to enable the petitioner get disability pension, the AMC Record Office asked for various documents which included photocopies of the Pension Paper Order, Discharge Certificates, Pension Pay Book etc. The same was furnished by the Deputy Director, Sainik Welfare, Aizawl, vide Communication dated 25.05.2009. Thereafter, vide communication dated 09.06.2009, the AMC Record Office further asked for the original copy of the Birth Certificate of the petitioner, original copy of Disability Certificate, Monthly Income Certificate, Marital Status Certificate, Employment/Unemployment Certificate, Guardianship Certificate and the details of the children of the deceased employee, who are below the age of 25 years, if any. Against the said communication, the Deputy Director, Sainik Welfare, vide his letter dated 30.07.2009, wrote back to the AMC Record Office by furnishing the documents that were asked for. Thereafter, a series of letters were sent to the respondent No. 2 requesting for an early settlement of the pension of the petitioner. The respondent No. 2 also on 19.01.2012 made the "publication of part-II order" giving the details of the petitioner. As per the said order, the date of birth of the petitioner and his relationship with his father and the N.E series part-II order number were quoted. However, despite the petitioner furnishing of all the details, the respondent authorities did not consider the case of the petitioner. As per the said order, the date of birth of the petitioner and his relationship with his father and the N.E series part-II order number were quoted. However, despite the petitioner furnishing of all the details, the respondent authorities did not consider the case of the petitioner. Finally, vide the impugned Communication dated 12.7.2017 (Annexure-12), his claim for family pension was rejected. The ground for the rejection was that the petitioner was declared to be physically handicapped by the Medical Authority on 28.01.2009 whereas, his parents expired much before the date he was declared to be disabled and therefore, the dependency of the petitioner upon his parents being not established grant of family pension did not arise. Aggrieved with the same, the petitioner is before this Court. 4. Mr. Vanlalnghaka, the learned counsel for the petitioner submits that as per Rule 54 of the CCS Pension Rules, 1972, more particularly, the second proviso to Sub-Rule(6) of Rule 54, the son or daughter of the Government servant suffering from any disorder or disability of mind including mental retardation or being physical handicapped or disability which render him or her unable to earn a living, even after attaining the age of 25 years will be entitled to family pension for life, subject of the satisfaction of the authority concerned upon being certified by a Medical Board. The learned counsel by referring to the prescription given by the Psychiatrist concerned on 21.10.2003 (Annexure-4) and the remarks given in the OPD Card of the petitioner (Annexure-14) submits that the petitioner indeed is suffering from Schizophrenia since 1977 and for which, he was given treatment in the year 1978 at Durtlang Hospital. The OPD card, which is dated 12.10.2017 also shows that the petitioner is still under his treatment and he requires medication for life. He therefore submits that merely because the petitioner claimed for family pension after the death of his mother on 03.12.2008 and on account of the medical certificate showing his disability being made on 28.01.2009, the respondents cannot deprive him of family pension. The learned counsel by referring to para Nos. 13 and 14 of the writ petition further submits that the petitioner is unable to take care of himself and after the death of his mother, he is being looked after by his married sister, who is also taking care of her own family besides the petitioner. The learned counsel by referring to para Nos. 13 and 14 of the writ petition further submits that the petitioner is unable to take care of himself and after the death of his mother, he is being looked after by his married sister, who is also taking care of her own family besides the petitioner. He submits that the petitioner's sister Smt. C. Lalhmingliani represents the petitioner as his legal guardian in the present writ petition. He submits that the petitioner, since the death of his mother, has made all efforts to get family pension as may be entitled to him under the relevant pension Rules. The respondents have however rejected his claim solely on the ground that he failed to establish dependency on his parents. Hence, the petitioner is before this Court. 5. Mr. Vanlalnghaka, the learned counsel for the petitioner, by referring to the case of Bhagwanti Mamtan Vs. Union of India & Ors., reported in 1995 Supp (1) SCC 145 submits that in so far as pension or family pension is concerned, especially by a mentally disabled dependent, delay in making a claim for pension is not fatal. The petitioner, in the present case initiated his claim for family pension through the Sainik Welfare Establishment immediately after his mother's expired in the year 2008 but it was only after quite some time on 12.07.2017 that his claim was rejected. Therefore, delay is only attributed to the respondent authorities and not the petitioner. 6. Ms. Zairemsangpuii, the learned CGC, appearing for the respondents at the outset submits that the writ petition is not maintainable, inasmuch as, there is an alternative remedy available to the petitioner. By referring to section 2(2) of Armed Forces Tribunal Act, 2007, the learned CGC submits that there is a Tribunal constituted for the purpose at Guwahati and the petitioner should approach the Tribunal instead under the Armed Forces Tribunal Act, 2007. 7. The learned CGC by referring to the medical certificate submitted by the petitioner submits that the petitioner was declared to be physically handicapped by the medical authority on 28.01.2009. However, his father expired on 04.04.1971 and his mother on 03.12.2008 and therefore, the petitioner has clearly failed to show his dependency upon his parents. As such, the respondent authorities rightly rejected his claim vide the Impugned notification dated 12.07.2017. However, his father expired on 04.04.1971 and his mother on 03.12.2008 and therefore, the petitioner has clearly failed to show his dependency upon his parents. As such, the respondent authorities rightly rejected his claim vide the Impugned notification dated 12.07.2017. She further submits that the medical certificate annexed by the petitioner at Annexure-14 of the writ petition was issued only on 12.10.2017 and therefore, the same cannot be the basis to establish that the petitioner was dependent upon his parents during their life time. She therefore submits that under the facts and circumstances besides there being an alternative remedy, the petitioner does not have any legitimate grievance and the writ petition should be dismissed. 8. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 9. As may be noticed, the claim of the petitioner is for family pension as his late father was discharged from the AMC on 03.07.1947 in the rank of Naik where after, he and his wife were given pension and family pension respectively by the respondent authorities so long as they were alive. When both expired on 04.04.1991 and 03.12.2008 respectively, the petitioner, on account of being mentally handicapped, claimed for the family pension. 10. Before adverting to the claim of the petitioner on merits, the objection made by the respondent on the maintainability of the writ petition, may first be looked into. Sub-section (2) of Section 2 of the Armed Forces Tribunal Act, 2007 (Act of 2007) provides that the Act is applicable to retired personnel subject to the Army Act, 1950 or the Navy Act, 1957, or the Air Force Act, 1950, including their dependants, heirs and successors, in so far as it related to their service matters. Chapter-III of the Act of 2007 provides for the jurisdiction, powers and authority in service matters. Sub-section (1) of Section 14 provides that save as otherwise expressly provided in this provision Act, the Tribunal shall exercise from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all Courts (except the Supreme Court or a High Court exercising jurisdiction under Article 226 & 227 of the Constitution) in relation to all service matters. It is a settled position in law that writ petitions are ordinarily filed when the aggrieve party concerned has exhausted all the alternative remedy available to mitigate his or her grievance. However, it is also a settled position in law that availability of alternative remedy by itself will not debar the High Court from entertaining the writ petition. For the purpose of the present writ petition, Section 14 (1) of the Act of 2007 also speaks for itself. The writ petitioner, after the death of his mother on 03.12.2008, was pursuing his case to get family pension as entitled to him under the relevant pension rules. Rejection of his claim came only by way of the impugned Communication dated 12.07.2017. The petitioner being aggrieved filed the writ petition on 28.11.2017 where after, the respondents have filed their affidavit-in-opposition on 21.11.2018 contending inter alia that the writ petition was not maintainable for want of alternative remedy besides the rebuttal on merit Considering the facts and circumstances in the case and the pendency of the writ petition since November 2017, I am not inclined to dismiss the same at this stage solely on the ground of there being an alternative remedy under the Act of 2007. 11. Proceeding on with the merit of the case, it may be seen that the petitioner to substantiate his disability presented a medical certificate issued by the competent medical board admittedly on 28.01.2009. The said medical certificate appears to have not been accepted by the respondent authorities, on the ground that it was not in the prescribed format Thereafter, the petitioner, through the Office of the Sainik Welfare, furnished a medical certificate, issued by a competent authority to the respondents for considering his case for granting him family pension in view of his mental disability. From a perusal of the impugned Communication dated 12.07.2017, it appears that the respondent authorities were of the view that the claimant was declared to be physically handicapped by the medical authority, only on 28.01.2009 while his father and his mother both expired on 04.04.1971 and 03.12.2008 respectively. According to them, in view of such belated issuance of medical certificate, the dependency of the petitioner upon his parents was not established and therefore, denied family pension to the petitioner on this ground. 12. According to them, in view of such belated issuance of medical certificate, the dependency of the petitioner upon his parents was not established and therefore, denied family pension to the petitioner on this ground. 12. However, on perusal of the medical prescription issued by the Psychiatrist on 21.10.2003, which is annexed as Annexure-4 of the writ petition and also the history and summary of the disability of the petitioner given in the OPD card dated 12.10.2017, which is annexed as Annexure-14 to the writ petition, it is seen that the petitioner was suffering from mental illness since 1977. He took medical treatment at Durtlang Hospital in 1978 and the Psychiatrist certified that the petitioner requires medication and treatment for life. Although the medical prescription and the OPD card may not have been the documents placed before the respondent authorities for considering the claim of the petitioner for family pension, but at the same time, the medical Certificate dated 28.01.2009, submitted by the petitioner cannot be considered to be a date from which the petitioner became physically handicapped, as reflected in the impugned Communication dated 12.07.2017. Rule 54(6)(iv) of the CCS Pension Rules, 1972, also provides that the satisfaction of the authority concerned about disability of the person concerned can be evidenced by a certificate obtained from a medical board comprising a medical Superintendant or a Principle or a Director or Head of Institution or his nominee as Chairman and 2 (two) other Members, out of which at least one shall be a specialized in the member area of mentally or physically disability, including mentally retardation setting out, in so far as possible the exact mental or condition of the child. 13. The petitioner, in the present case no doubt, is already past his prime age but the fact remains that there are materials available on record to show that his mental disability dates back to 1977. If that be so, the petitioner surely deserves to be considered for grant of family pension by the respondent authorities. It is also a well settled position in law that pension is not a bounty but it is an amount to sustain the retired employee or his dependants after the employee concerned, is no longer in active service. If that be so, the petitioner surely deserves to be considered for grant of family pension by the respondent authorities. It is also a well settled position in law that pension is not a bounty but it is an amount to sustain the retired employee or his dependants after the employee concerned, is no longer in active service. The question of sustenance would surely be more crucial when the family member of the retired employee has physical or mental disability such as the present petitioner. 14. Upon considering the case in its entirety, I am of the considered view that the respondent authorities are not justified in rejecting the case of the petitioner, as reflected in the impugned Communication dated 12.7.2017 (Annexure-12) and as such, the same is set aside. The respondents shall reconsider the case of the petitioner for grant of family pension afresh, as per the relevant provisions of the CCS Pension Rules, 1972. The respondents will however be at liberty to get the petitioner medically re-assessed by the competent medical board including the State Medical Board, which is within the reach of the petitioner. The entire process of re-consideration of the eligibility of the petitioner for family pension should be done expeditiously and preferably, within the outer limit of 8 (eight) weeks from the date of receipt of a certified copy of this order. 15. It is made clear that if by finding by the medical board or otherwise, the petitioner is found to be suffering from mental disability, the respondent authorities will process and grant family pension to the petitioner, without any further delay. 16. With the above observation and direction, the writ petition stands disposed of. No cost.