Jammu & Kashmir High Court
Mani Ram vs Union Of India (Uoi) And Ors. on 8 September, 2003
Equivalent citations: 2003(3)JKJ652
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT
1. Petition is admitted to hearing and taken up for final disposal with the consent of the learned counsel for the parties.
Petitioner, who was enrolled in Indian Army on 22.2.1947 came to be discharged on 24.8.1954 on medical grounds as a case of Leprosy mixed- 30) 100% disability. Vide PPO No. JKA/ 126/S dated 6.9.1955. Disability pension was granted in his favour. However, the same was stopped after some time as is averred in the writ petition. It is the case of the petitioner that after the Kargil War and on the decision of the Ministry of Defence vide Circular PCDA (P) Allahabad Circular No. Tech-395 dated 30.9.1999 his case was recommended by the Army Authorities on 28.6.2002 wherein it is stated that the pension of the petitioner was stopped for the reasons not known to him. The grant extension to the petitioner vide PPO Dated 6.9.1955 was also admitted in this communication.
2. It appears that the matter was considered by the authorities and another communication dated 24.7.2002 was issued by J&K Rifles, Jabalpur (MP) wherein it is stated that the dis-ability pension claimed in favour of the petitioner was forwarded to PCDA (P) Allahabad vide J&K SF Record Office Letter No. C-2/637/84 dated 13.9.1958, but the same was rejected by them vide their letter No. Stats/111/1789/JAK of 18/24 Oct 1958. It is further stated in this letter that the factual position of the case has been communicated to the individual several times and lastly vide letter No. SR/15125/183/DP dated 9.3.1999.
3. It is under these circumstances the petitioner has approached this Court seeking dis-ability pension on the ground that the petitioner suffered dis-ability of 100% due to stress and strain of the active army service and he was boarded out on medical grounds. Accordingly he is entitled to the disability pension under law. He is seeking quashing of letter No. C-2/637/84 dated 13.9.1958 and further direction to pay the disability pension to the petitioner.
4. Objections have been filed to the writ petition, wherein it is stated that the petitioner was enrolled in the erstwhile J&K State Force on 22nd Feb 1947. He was transferred to 9 Kashmir Infantry with effect from 13th April, 1947. His invaliding medical board was carried out at Military Hospital at Delhi Cantt for invaliding disability "Leprosy Mixed (30)". Petitioner was considered unfit for further military service. The Medical Board was approved by DDMS Delhi Area on 3rd May, 1954. Accordingly the petitioner was invalided out from service w.e.f. 24th Aug, 1954. The fact of the grant of disability pension at the rate of Rs. 11/- PM w.e.f. 24th Aug 1954 to 10th Feb 1955 vide CDA (P) Allahabad Pension Payment Order No. JKA/ 126/D dated 6th Sept 1955 under the J&K State Force Pension Regulation has been admitted. According to the respondents, the matter was taken up for clarification with CDA(P) Allahabad. As per rules in vogue at the relevant time the dis-ability pension was granted to the individual and J&K State Force Pension Regulation is permanent for life and no re-assessment of disability was required. The case of the petitioner was then referred to the Accountant General, J&K Srinagar vide letter dated 13th Dec. 1955 for clarification of procedure. According to the respondents the case was then forwarded to the Government of India, Ministry of Defence for further decision. The Ministry of Defence, Govt of India vide letter dated 15.12.1956 decided the matter on the basis of opinion of Medical Board under the pre-war entitlements criterion. The matter was again referred to the duly constituted Medical Board, which opined -
"(a) The disability is not attributable to military service;
(b) The disability arose in peace station (J&K area).
Based upon the medical opinion the case was again taken up with CDA (P) Allahabad and was rejected vide their letter dated 18/24 Oct 1958. The sum and substance of the reply is that the petitioner is not entitled to dis-ability pension under the said rules as the invaliding dis-ability is not attributable nor aggravated by Military service. It is further mentioned that the amount of pension paid to the petitioner from 24th August 1954 to 10th Feb 1955 at the rate of Rs. 11/- per month on the authority of PPO dated 6.12.1955 has been recovered from the legitimate claim of the petitioner. Petitioner is stated to have preferred a petition dated 22nd July 1959 for grant of disability pension which was replied vide letter dated 8th Aug 1959. Similarly, another petition was, preferred on 4.3.1975 after 15 years for grant of disability pension. He was again informed of the rule and factual position. It is stated that the present petition has been filed after a period of 49 years.
5. After giving the background of the case and the correspondence on the subject, it is finally stated that the respondents have no reasonable ground for grant of any type of pension to the petitioner.
The questions that needs consideration by this Court are -
(i) Whether the petitioner is entitled to disability pension after the lapse of more than 49 years;
(ii) Whether the dis-ability on the basis of which the petitioner was invalided out on medical ground is attributable or aggravated by Army Service.
I have heard the learned counsel for the parties.
QUESTION No. 1As regards the question of delay in seeking grant of dis-ability pension is concerned Mr. Qureshi, learned counsel for the petitioner has relied upon number of judgments. In Union of India v. Rattan Lal, 1999 (2) SCT 39, Hon'ble Division Bench of this Court held as under:
"In the present case, there is nothing on the record to indicate that the writ petitioner-respondent was suffering from the ailment at the time of entry into service. It is also not the case of the appellant-Union of India that the ailment was such which could not be detected at the time of entry to service. Therefore, from the judicial precedents referred to above, it can safely be concluded-
(i) that in case mention is not made regarding the disease or disablement at the time of entry in service, then, it is to be presumed that the disability occurred during the course of service;
(ii) that disability would be on account of stress and strains of army service;
(iii) if competent authority is to disagree with the finding recorded by the medical board vis--vis the disability or the percentage thereof, the matter should be referred to the Medical Board;
(iv) as there is no finding recorded that the respondent-writ petitioner was suffering from a disease which could not be detected at the time of entry into service, the appellant-Union of India cannot take a summersault and come to a contrary conclusion;
(v) delay in approaching the Court is irrelevant.
In H.S. Grewal v. Union of India, 1999 (1) SCT 348, High Court of Punjab and Haryana, held as under:
"Learned counsel for the respondent further argued that the disability pension was stopped from 1957 and the petitioner approached this Court only on 2.7.1997. Therefore, petitioner is not entitled to relief on disability pension after such a long period of nearly 40 years. Retired Army personnel who has incurred any disability during the tenure of their service in Military are entitled to disability pension granted under the rules and it furnishes a continuing cause of action every month when the disability pension becomes payable. Though the petitioner is not entitled to disability pension from 1957 onwards, he is certainly entitled to the arrears of disability pension which are within the period of limitation. For recovery of money, a suit can be filed within three years from the date when the money becomes payable. Therefore, petitioner is entitled to recover the pension for a period of three years, two months (two months being notice period for filing suit under Section 80 of the Code of Civil Procedure) prior to the filing of the writ petition i.e. 27.7.1997 and he is entitled to disability pension in accordance with rules there-after."
In S.R. Bhanrale v. Union of India and Ors., AIR 1997 SC 27, the Hon'ble Supreme Court of India held as under:
"The amounts now paid to the appellant admittedly fell due to him much before his retirement. The same was wrongfully withheld. It was to say the least, improper on the part of the Union of India to plead the bar of limitation against such claims of its employees. When it had defaulted in making the payments promptly when the same fell due. It is not as if the appellant had woken up after a decade to claim his dues. He has been asking the department to pay him his dues both while in service and after superannuation also but to no avail. In these circumstances, it ill behoved the Union of India to plead bar of limitation against the dues of the appellant. We need say no more about it because better sense has prevailed and claim of the appellant has now been settled and payment made to him."
6. In view of the law laid down by the Apex Court and this Court in Rattan Lal's case (Supra), I hold that the ground of delay and latches cannot be pressed into service by the respondents to deny the dis-ability pension to the petitioner.
QUESTION NO. 2Again Division Bench of this Court in Rattan Lal's case (Supra) held as under;
(i) that in case mention is not made regarding the disease or disablement at the time of entry in service, then, it is to be presumed that the disability occurred during the course of service;
(iv) as there is no finding recorded that the respondent-writ petitioner was suffering from a disease which could not be detected at the time of entry into service, the appellant-Union of India cannot take a summersault and come to a contrary conclusion;
7. It is not the case of the respondents that the petitioner was suffering from Leprosy at the time of his entry into service. He served the Army right from 1947 to 1954. Therefore, it is presumed that the disease was detected during the service and is attributable to the Army Service. As far as the disability is concerned, the petitioner was boarded out with 100% dis-ability. Under these circumstances, this petition is allowed with the direction to the respondents to determine and pay the dis-ability pension to the petitioner right from the date of his discharge on medical ground. Since according to the respondents' own stand the dis-ability pension given to the petitioner for the period from 24.8.1954 to 10.5.1955 has been recovered from him, the petitioner is entitled to the dis-ability pension right from the date of his discharge from the Army Service on medical grounds.