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2023 DIGILAW 1914 (BOM)

Major Piyush Shandilya v. Union of India

2023-09-12

B.P.DESHPANDE, M.S.SONAK

body2023
JUDGMENT/ORDER M.S.SONAK, J. - Heard Mr Sawaikar, learned Counsel appearing under the Legal Aid Scheme on behalf of the Petitioner and Mr Somnath Karpe, Central Government Standing Counsel, who appears along with Mr Abhishek Sawant, for the Respondents. 2. By our order dtd. 19/7/2023, we had clarified that this petition would be disposed of at the admission stage. Accordingly, we issue Rule and make the Rule returnable immediately. 3. The Petitioner, a retired Major in the Indian Army, is now being made to run from pillar to post by the Respondents for availing the benefit of a disability pension @ 30% for life. This involves the issue of a pension payment order (PPO), based upon which the Petitioner not only gets the pension but further, and most importantly, the Petitioner can secure medical treatment from Military establishments. This benefit is being denied to the Petitioner, even though the Armed Forces Tribunal (AFT), by its order dtd. 22/12/2022, issued clear directions to the Respondents to issue such PPO within four months from the date of the order. 4. The Petitioner instituted OA No.32/2018 along with Misc. Application No.123/2022 before the AFT Original Bench at Mumbai seeking inter alia directions to the Respondents to grant him disability pension @ 30% for life and other benefits. 5. The AFT disposed of the Original Application and the Miscellaneous Application after granting the Respondents and their Counsel due opportunity of being heard by order dtd. 22/12/2022, which reads as follows:- < WXY>"Form No. 4 {See rule 11(1)} ORDER SHEET ARMED FORCES TRIBUNAL, REGIONAL BENCH, MUMBAI CIRCUIT BENCH AT GOA 14. O.A. No. 32 of 2018 with M.A. No. 123 of 2022 Maj. Piyush Shandilya By Legal Practitioner for the Applicant Applicant Versus Union of India and Others By Legal Practitioner for the Respondents Respondents Notes of The Registry Orders of the Tribunal 22/12/2022 Hon'ble Mr. Justice Umesh Chandra Srivastava, Member (J) Hon'ble Vice Admiral Abhay Raghunath Karve, Member (A) Heard Mr. A. Ojha, Ld. Counsel for the applicant and Mr. B.K. Ashok, Ld. Counsel for the respondents. It is submitted by the Ld. Counsel for the applicant that as per direction of this Tribunal dtd. 12/4/2022 the RSMB of the applicant was held on 24/9/2022 wherein applicant was declared disabled @30% for life. However, no Pension Payment Order has been issued yet. In reply, the Ld. B.K. Ashok, Ld. Counsel for the respondents. It is submitted by the Ld. Counsel for the applicant that as per direction of this Tribunal dtd. 12/4/2022 the RSMB of the applicant was held on 24/9/2022 wherein applicant was declared disabled @30% for life. However, no Pension Payment Order has been issued yet. In reply, the Ld. Counsel for the respondents submits that steps are being taken up for issuance of Pension Payment Order. In view of the above, the Original Application is disposed off with direction to the respondents to issue Pension Payment Order for the grant of disability pension @30% for life from three years prior to filing of the Original Application with benefit of broad banding of @50% for life with effect from 1/1/2016 within a period of four months from the date of the order. Default will invite interest @8% per annum. Misc. Application(s), pending if any, shall be treated to have been disposed of.</ WXY> 6. Despite the expiry of the four-month time period, there was no compliance by the Respondents. The Respondents neither challenged the above order of AFT nor complied with the directions issued by the AFT. This forced the Petitioner, a retired Major in the Indian Army, to institute a Miscellaneous Application before the AFT despite his age and medical condition, seeking enforcement of the order dtd. 22/12/2022. The Petitioner stays in Goa, and the AFT bench is in Mumbai. 7. The Respondents, after a delay of 2 months and 15 days, filed an application before the AFT seeking leave to appeal to the Hon'ble Supreme Court in the context of the AFT's order dtd. 22/12/2022. The Respondents, though belatedly, also applied for an extension of time to comply with the AFT's order dtd. 22/12/2022. 8. All the above applications were taken up for consideration by the AFT on 26/4/2023. The delay in seeking leave to appeal was condoned. However, the AFT dismissed the Respondents' application under Sec. 31 of the Armed Forces Tribunal Act 2007 by observing that there was no point of law of general public importance involved and, therefore, no leave to appeal could be granted. 9. By the same order dtd. 26/4/2023, however, the AFT granted some sort of an extension to the Respondents but directed the Respondents to comply with the order expeditiously and preferably before the next date, which was to be 17/7/2023. 10. 9. By the same order dtd. 26/4/2023, however, the AFT granted some sort of an extension to the Respondents but directed the Respondents to comply with the order expeditiously and preferably before the next date, which was to be 17/7/2023. 10. At this stage, the Petitioner instituted the present petition because, according to the Petitioner, the order dtd. 26/4/2023 extending the time for compliance was vulnerable, particularly because the same contained no reasons. Accordingly, prayer clause (I) of this petition seeks quashing of AFT's order dtd. 26/4/2023, granting additional time till 17/7/2023 to the Respondents to implement AFT's order dtd. 22/12/2022. 11. Mr Karpe, learned Standing Counsel, objects to the entertaining of this petition on the ground that the Petitioner has an alternate and efficacious remedy available before the AFT. He relies on the Union of India (UOI) and Ors. Vs. Shri Kant Sharma and Ors., (2015) 6 SCC 773 and Anil Kumar vs. Union of India and Ors., 2016 (1) BomCR 824 decided by the Division Bench of this Court. However, he fairly submitted that the powers of judicial review of this Court are intact and have not been taken away. 12. Insofar as the challenge to the AFT's order dtd. 26/4/2023 extending the time for compliance is concerned, that relief has by now become infructuous because the additional time granted up to 17/7/2023 has long passed. Still, however, the Respondents have not complied with the Tribunal's order dtd. 22/12/2022. 13. The Petitioner's second relief in prayer clause (II) only seeks direction to the Respondents to immediately issue the PPO and take all necessary steps to provide immediate medical treatment to the Petitioner's operational injury sustained during active duty in Operation Rhino as per the documents of Service/Re-assessment Medical Board Proceedings dtd. 24/9/2022. 14. Mr Karpe submits that Petitioner's injury was not sustained due to operational injuries. However, at least the AFT did not find so. Even the Respondents stated before the AFT that they were taking steps to issue PPO to the Petitioner. Yet today, without even challenging AFT's order and seeking and securing an extension to comply with the same, this contention is raised before us. Incidentally, the AFT's order was based on the Resurvey Medical Board's report. This RSMB was constituted on the directions of the AFT to have the Petitioner medically examined. Yet today, without even challenging AFT's order and seeking and securing an extension to comply with the same, this contention is raised before us. Incidentally, the AFT's order was based on the Resurvey Medical Board's report. This RSMB was constituted on the directions of the AFT to have the Petitioner medically examined. We are sorry to say that this should not be the way to treat the veterans. 15. Mr. Sawaikar learned Counsel for the Petitioner (under L.A.S.) submitted that the Petitioner was placed in a helpless situation. On one hand, he had a favourable order from the Tribunal, but on the other hand, the Respondents were neither challenging the said order nor complying with the same. Mr Sawaikar pointed out that the Petitioner was in need of urgent medical treatment, which was also, however, denied for want of the PPO. Mr Sawaikar pointed out that the Petitioner was staying in Goa after his retirement, and access to the AFT at Mumbai was not easily possible, particularly considering the Petitioner's age, medical condition and the necessity of immediate medical treatment. Mr Sawaikar pointed out that ultimately, the Petitioner, on 17/7/2023, had to withdraw the Execution Application before the AFT after the Tribunal members explained to him that he could maintain proceedings either before the AFT or the High Court. 16. Considering the submissions made by Mr Sawaikar and the fact that we had to make a detailed interim order on 19/7/2023 directing the Respondents to provide immediate medical treatment to the Petitioner, we think that the objection based on an alternate remedy cannot be sustained. This is not a case where we are seeking the exercise our jurisdiction under Article 227 of the Constitution of India and interfering with the AFT's order. 17. Instead, this is a case where we are exercising our jurisdiction under Article 226 of the Constitution to assist the Petitioner complaining of the violation of his fundamental right under Article 21 of the Constitution. We are constrained to exercise this jurisdiction because the Petitioner, a retired Major in the Indian Army, has suffered 30% disability on account of injuries sustained by him whilst on active duty and was being made to run from pillar to post despite the categorical directions of the AFT favouring him. We are constrained to exercise this jurisdiction because the Petitioner, a retired Major in the Indian Army, has suffered 30% disability on account of injuries sustained by him whilst on active duty and was being made to run from pillar to post despite the categorical directions of the AFT favouring him. We are constrained to exercise this jurisdiction because the Petitioner was in need of urgent medical treatment, which was being resisted despite AFT's orders and without even challenging AFT's orders. Requiring the Petitioner, under such circumstances, to once again go to the AFT at Mumbai did not appeal to us. 18. In Union of India vs. (UOI) vs. Parashotam Dass, 2023 SCC OnLine 314. a Three-Judge Bench of the Hon'ble Supreme Court considered its earlier decision in Shri Kant Sharma (supra) and held that jurisdiction of the High Court under Article 226 was intact, being a part of the basic structure of the Constitution. The Hon'ble Supreme Court held that, that being the position, the embargo imposed upon the High Court from exercising its jurisdiction under Article 226 would not apply. 19. As noted earlier, the Tribunal, by its order dtd. 22/12/2022, clearly directed the Respondents to issue PPO for grant of disability pension @ 30% for life from three years prior to filing of the Original Application with the benefit of broad banding @ 50% for life with effect from 1/1/2016 within four months from the date of the order. The Tribunal clarified that any default will invite interest @ 8% per annum. 20. If the Tribunal's order dtd. 22/12/2022 is perused, it is apparent that the same was made based upon the submission of the learned Counsel for the Respondents that steps were being taken up for issuance of the Pension Payment Order. Mr Karpe, no doubt, on instructions, now contends that such a statement was never made. 21. This Court cannot countenance such a belated contention. After the order was made on 22/12/2022, no steps were taken by the Respondents with regard to such a statement, which is recorded in the order. Even the order dtd. 26/4/2023 does not suggest that any such grievance was made before the Tribunal. Instead, an application was filed by the Respondents seeking an extension of time to comply with the order dtd. 22/12/2022. Even the order dtd. 26/4/2023 does not suggest that any such grievance was made before the Tribunal. Instead, an application was filed by the Respondents seeking an extension of time to comply with the order dtd. 22/12/2022. Even after the extension was granted, the Respondents have not bothered to comply with the Tribunal's order dtd. 22/12/2022. This means that the Respondents are neither challenging the Tribunal's order nor are they complying with it. As a result, the Petitioner, a retired Major who was in need of immediate medical treatment, was virtually made to run from pillar to post to even secure compliance with the Tribunal's favourable order. And after all this, the main defence in this Petition was that the Petitioner has an alternate remedy before the AFT. 22. At this age and in this position, requiring the Petitioner to once again approach the Tribunal would not be appropriate. In fact, by refusing to entertain this petition, we would have again assisted the Respondents in making the Petitioner run from pillar to post to secure the benefits of the order made in his favour by the Tribunal. In a case involving the fundamental rights of the Petitioner and looking at his plight and the nature of urgent relief sought by him, we did not deem it appropriate to add to the Petitioner's woes. 23. Even in this petition, neither was there any compliance with the Tribunal's order nor was the Petitioner being given the medical benefits. As a result, we were constrained to make an interim order on 19/7/2023 directing the Respondents to extend medical treatment to the Petitioner at the earliest. There was some resistance to this, but Mr Karpe says that ultimately. the Petitioner is now being treated at the Military establishment. 24. Our order dtd. 19/7/2023 reads as follows:- < WXY>"1. Heard the Petitioner who appears in person. 2. On 10/7/2023, we had granted time to the Respondents because the Petitioner was pressing for urgent interim relief for medical treatment, which, according to the Petitioner, was being denied to him, even though the Armed Forces Tribunal, Mumbai had ordered the Respondents to issue the pension payment order for grant of disability pension @ 30% for life from three years prior to filing of the original Application with other benefits as stated in the order. The Petitioner pointed out that without the issue of such an order, he was not being medically treated in the Military hospital for his disability injuries. 3. Today, Mr Karpe, the learned Standing Counsel for the Central Government, seeks time by pointing out that the Respondents are in the process of filing an SLP against the Tribunal's orders dtd. 12/4/2022 and 22/12/2022 before the Hon'ble Supreme Court. This means that to date, the Respondents have neither implemented nor challenged the Tribunal's orders and secured any interim relief. 4. The record bears out that the Tribunal, by its order dtd. 12/4/2022, directed the Respondents to constitute an RSMB (ReSurvey Medical Board) and consider the Petitioner's case of disability afresh. Based on this order, RSMB examined the Petitioner and reported that the Petitioner had suffered disability @ 30% for life. 5. Based on the RSMB report, the Tribunal made the following order: 6. The Respondents applied for leave under Sec. 31 of the Armed Forces Tribunal Act, 2007 to appeal against the Tribunal's orders to the Hon'ble Supreme Court. This Application was filed after a delay of 2 months and 15 days. The Tribunal condoned the delay but declined to grant the leave since in their opinion, no point of law of general public importance was involved. This order was made on 26/4/2023. 7. Despite the above developments, the Respondents have not bothered to issue a pension payment order as directed by the Tribunal to the Respondents. The Petitioner pointed out that in the absence of the pension payment order, he does not get any treatment from the Military Hospital. As such, by way of interim relief, this Court may direct the Respondents to provide medical treatment for his injury (under ECHS) at a suitable medical facility in Goa. 8. Considering the above circumstances and as the Petitioner presses for limited interim relief, a case is made out for a grant of the same. Without securing any interim relief, the Respondents cannot refuse or delay the implementation of the Tribunal's orders and deny medical treatment to the Petitioner. By our order dtd. 10/7/2023, we had granted the Respondents time to file a response even though the Petitioner was pressing for interim relief. Mr Karpe admitted that the Tribunal's orders bind the Respondents until set aside or stayed. By our order dtd. 10/7/2023, we had granted the Respondents time to file a response even though the Petitioner was pressing for interim relief. Mr Karpe admitted that the Tribunal's orders bind the Respondents until set aside or stayed. Therefore, we saw no point in postponing the motion for interim relief, more so since it concerned the medical treatment of an ex-service person. 9. Accordingly, by way of interim relief, we direct the Respondents to provide the Petitioner with immediate medical treatment (under ECHS) at a suitable medical facility in the State of Goa. The Petitioner states that such a facility is very much available in Goa. This order must be complied with within a week from today because the medical treatment cannot be delayed based on prima facie bureaucratic delay. 10. At the request of Mr Karpe, two weeks' time is granted to file a reply on the main Petition. A copy of the reply must be furnished to the Petitioner in advance. 11. Upon receiving the reply, if the Petitioner wishes to file a rejoinder, he may do so before the next date. An advance copy of the rejoinder must be furnished to the learned Counsel for the Respondents. Subject to time constraints, an endeavour would be made to dispose of this Petition at the admission stage. 12. Stand over to 21/8/2023. 13. All concerned to act on an authenticated copy of this Order."</ WXY> 25. Mr Karpe pointed out that pursuant to our interim order, medical treatment is being given to the Petitioner. Mr Sawaikar, the learned Counsel for the Petitioner, accepts this position. Mr Sawaikar, however, pointed out the difficulties faced by the Petitioner for want of a formal PPO. Mr Sawaikar pointed out that for want of PPO, even other benefits to which the Petitioner is entitled were being denied. 26. Mr. Karpe tried to point out how the Petitioner was not entitled to the reliefs which the Tribunal had granted to the Petitioner. In the context of compliances or processing the matter for challenge to the AFT's orders, Mr Karpe, no doubt on instructions, submitted that "... these things take time..." He pointed out how there are procedural delays involved by submitting that some civilians are working in the Ministry of Defence as if to suggest that it is the civilians who are responsible for the delay. 27. All these arguments cannot be countenanced. these things take time..." He pointed out how there are procedural delays involved by submitting that some civilians are working in the Ministry of Defence as if to suggest that it is the civilians who are responsible for the delay. 27. All these arguments cannot be countenanced. The Respondents, to date, have neither challenged the Tribunal's order made way back on 22/12/2022 nor are they ready to implement the order. Even the leave to appeal was rejected on 26/4/2023. After that, the Respondents themselves asked for an extension of time to comply. This extension was granted. Still, the Respondents refused to comply on the ground that they are still contemplating a challenge to the Tribunal's order dtd. 22/12/2022. 28. The Respondents undoubtedly have the right to challenge the Tribunal's order by applying for condonation of delay. However, considering the timeline, the Respondents cannot simply refuse to implement the Tribunal's order, particularly because the order concerns an extremely sensitive issue where a retired Major in the Indian Army is seeking disability benefits, which include medical treatment in the facilities or establishments of the Respondents. A greater amount of sensitivity is expected from the Respondents in such matters. 29. Accordingly, we direct the Respondents to comply with the Tribunal's order dtd. 22/12/2022 in its entirety, including by way of issuing a Pension Payment Order to the Petitioner within two weeks from today. A compliance report must be filed by the Officiating Administration Officer on or before 26/9/2023. Mr Karpe is requested to immediately communicate this order to the Respondents. In any case, the order is dictated in the open Court in the presence of Captain Puja Goel, Officer Incharge. 30. The above directions dispose of the petition. The Rule is made absolute. We refrain from awarding any costs on this occasion. 31. We thank Mr Sawaikar, learned Counsel who appeared under the Legal Aid Scheme on behalf of the Petitioner, for his efforts and assistance. The Goa Legal Services Authority must pay the legal fees to Mr Sawaikar in terms of the rules. His fees are in addition to the gratitude we express to Mr. Sawaikar for his assistance and efforts. 32. All concerned to act on an authenticated copy of this order. 33. Civil Application urging action for contempt does not survive and is disposed of.