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Ex Sep Chain Singh Thr Lr. Dhaneshwari ... vs Union Of India on 11 December, 2017

Bench: A.K. Sikri, Ashok Bhushan

                                                               1


                                          IN THE SUPREME COURT OF INDIA
                                          CIVIL APPELLATE JURISDICTION


                                      CIVIL APPEAL No(s).      /2017
                           (ARISING OUT OF CIVIL APPEAL Diary No(s). 30073/2017




     EX SEP CHAIN SINGH THR LR. DHANESHWARI DEVI                                      APPELLANT(s)



                                                              VERSUS



     UNION OF INDIA & ORS.                                                            RESPONDENT(s)




                                                        O R D E R

Delay condoned.

Appeal admitted.

The appellant was enrolled in the Territorial Army on 12.06.1997. He was discharged on 22.06.2003 on account of Low Medical Category (Seizure). The Release Medical Board has taken place on 06.05.2003. The appellant filed first appeal against the refusal to grant disability pension. Vide order dated 29.12.2006, the appeal was rejected on the ground that the Invaliding Board has rightly rejected that the Generalized Tonic Clonic Seizure was neither attributable to nor aggravated by military service and thus Signature Not Verified Digitally signed by ASHWANI KUMAR Date: 2017.12.13 he was held not to be entitled to disability pension. The appellant 16:55:10 IST Reason:

filed second appeal which was also disallowed as early as on  2 14.11.2009. The appellant after more than 7 years has filed an O.A. No. 156/2017 for grant of disability pension along with an application (MA No. 139/2017) for condonation of delay of 2555 days. No reasons have been given for the same except the prescription slips/card of private Doctors from whom he is allegedly getting the treatment. M.A. No. 696/2017 ws filed for referring to a larger Bench the question whether pension is a recurring cause. M.A. No. 787 was filed seeking leave to appeal to the Supreme Court.

The Tribunal vide impugned judgment dated 16.05.2017 rejected the said O.A. No. 156 of 2017 filed by the appellant for the grant of disability pension. The main ground for rejecting the said O.A was that the appellant had approached the Tribunal belatedly and there was no sufficient cause for condonation of delay.

After hearing the arguments of the parties, we are of the opinion that the aforesaid approach of the Tribunal is clearly erroneous. It was a matter of pension, that too disability pension, which was claimed by the appellant and in a case like this it would be a continuous cause of action simply because of the reason that if pension is due and payable to the appellant, the appellant would be entitled to receive the same every month. At the most, the appellant could be denied the benefit of past pension beyond the period of three years. Even otherwise, in cases of pension the Tribunal should not have taken a such hyper technical view.  3 However, we have gone through the merits of the case. We find that the law is in favour of the appellant and his case is squarely covered by a decision of this Court in “Ex.Gnr. Laxman Ram Poonia (D) through Lrs. vs. Union of India & Ors.”, (2017) 4 SCC 697. We, accordingly, set aside the judgment of the Armed Forces Tribunal and allow this appeal and hold that the appellant shall be entitled to disability pension. His pension shall be calculated within a period of three months and arrears shall be paid to him. However, the arrears would be limited to the period of three years from the date when the Original Application was filed. The appeal is accordingly disposed of.

......................J. [A.K. SIKRI] ......................J. [ASHOK BHUSHAN] NEW DELHI;

DECEMBER 11, 2017.

ITEM NO.9                  COURT NO.6               SECTION XVII

                S U P R E M E C O U R T O F      I N D I A
                        RECORD OF PROCEEDINGS

CIVIL APPEAL Diary No(s). 30073/2017

(Arising out of impugned final judgment and order dated 16-05-2017 in OA No. 156/2017 and order dated 11.07.2017 in M.A. No. 787/2017 passed by the Armed Forces Tribunal, Principal Bench, New Delhi ) EX SEP CHAIN SINGH THR LR. DHANESHWARI DEVI Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s) (IA No.115683/2017-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.115681/2017-APPLICATION FOR SUBSTITUTION and IA No.115682/2017-CONDONATION OF DELAY IN FILING SUBSTITUTION APPLN. and IA No.115679/2017-CONDONATION OF DELAY IN FILING APPEAL and IA No.115680/2017-CONDONATION OF DELAY IN REFILING and IA No.115673/2017-LEAVE TO APPEAL U/S 31(1) OF THE ARMED FORCES TRIBUNAL ACT, 2007) Date : 11-12-2017 This matter was called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ASHOK BHUSHAN For Petitioner(s) Mr. Naresh Ghai, Adv.

Mr. Naresh Kumar, AOR For Respondent(s) Mr. A.K. Sanghi, Sr. Adv.

Ms. Manjula Gupta, Adv.

Ms. Deep Shikha Bharti Devi, Adv.

Mr. M.K. Maroria, Adv.

UPON hearing the counsel the Court made the following O R D E R Delay condoned.

Appeal admitted.

The appeal is allowed in terms of the signed order. Pending application(s), if any, stands disposed of accordingly.

(ASHWANI THAKUR)                               (MALA KUMARI SHARMA)
COURT MASTER (SH)                                  COURT MASTER
                (Signed order is placed on the file)