Jammu & Kashmir High Court
Khajoor Singh vs U.O.I. And Ors. on 16 July, 2016
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 2491/2001
Date of Order: 16.07.2016
Khajoor Singh. Vs. Union of India & ors.
Coram:
Appearing Counsel:
For the Petitioner(s): Ms. Surinder Kour, Sr. Advocate with
Ms. Vandana Sharma, Advocate.
For the Respondent(s): Mr. Danish Bhatt, CGSC.
i/ Whether to be reported : Yes
ii/ Whether to be reported in : Yes
Digest/Journal-Net
1. The writ petition is of the year 2001, admitted on 16.10.2001.
2. A preliminary objection has been raised that the discharge of the petitioner is of the year 1973 and the writ petition has been filed after a long period of time and, therefore, there is delay and laches.
3. Considering the nature of grievance of the petitioner, who was working in General Reserve Engineering Force Government Service (GREF) working in Border Areas at the time of Indo Pak War and subsequently in other high altitudes, high security zones and had suffered injury in the course of employment which rendered him medically unfit, this Court does not accept the plea for dismissal on the ground of delay and laches. This Court 2 opines that in the facts of the present case on the plea of delay, the petitioner should not be non-suited. The preliminary objection is, therefore, overruled.
4. Writ petitioner was appointed in GREF as Pioneer in Company 1625 on 31st July, 1965 in the pay scale of 55-1-70 and was discharged from service on 3rd November, 1972 as he was found medically unfit for GREF services in Medical category IV. This is supported by discharge certificate/subordinate personnel GREF dated 07.01.1973 which gives the details of petitioner as:
Name : Khajoor Singh, working in Unit:-1625 Pioneer Coy (GREF), which is a substantial post and his last drawn pay -
Basic 50/- DP 47/- DA 10/- IR 22/- per mensum in scale of pay of 55-1-70. The assessment and conduct of the employee is recorded as very good. He was discharged on the basis of certificate issued by 10 Air Force Hospital Board proceedings and the reason is stated is on medical ground recording that he is unfit for GREF services and this was on account of injury that was suffered during the course of his duties.
5. Petitioner states that he was initially appointed in GREF as Pioneer at the age of 18. He was asked to discharge certain duties during the Indo-Pak War in the year 1965. He was transferred to Pathankote and from there shifted to Leh during 1965 Indo-Pak war. He was assigned the job in construction work and maintaining and repairing of the road in all weather. In the year 1967, he was posted at Mizoram Aizwal Deema, Girt, Chanpai and full swing in the border areas of Burma. During 1971 Indo Pak war, he was posted in Silliguri Poorvi Pakistan and he was posted at Singara Thana in 1617 PNR GREF in December, 1971.
3He was assigned duty of construction of Bridges, roads, buildings, etc including the duty of controlling the Bridge Singra Thana. On 20 January 1972, at about 11 hours the petitioner was on duty at Singra Thana Bridge, 17 km away from Bangladesh Border, he was assigned duty as Sentary and was manning the gate at the time of movement of Trucks and goods across the bridge. According to petitioner, bridge was weak and when he was on duty, he had to close the bridge with iron girder barrier. When he was manning said bridge and operating the iron barrier, the barrier fell on his right hand and he sustained injury. His right hand sustained severe injury and he was taken to Singra Thana Hospital for treatment. He was granted 60 days leave and thereafter he reported back to his unit. Consequent to the injury he suffered illness but still continued to discharge his duties at the Company in Bhutan 1625 PNR in Coy GREF and in the M. I. Room of Naga regiment he was treated for illness which is annexure-B to the writ petition. Thereafter he was admitted to 10 AIR Force Hospital and discharged from hospital on 3.11.1972. He was examined by the Medical Board of 10 Air Force Hospital HAS C/o 99 APO, was placed under medical category IV and was declared unfit for GREF services. His disability was assessed at 40%. These documents are part of writ petition and not in dispute. It is also not in dispute that certain amount was paid which includes compensation. That record has been produced by the counsel for the respondents.
7. Ms. Kour, Sr. Advocate has stepped into the case on change of Vakalatnama to give succor to this writ petitioner and assist him in getting appropriate relief through Court for grant of 4 invalid pension on the ground that the petitioner is entitled to pension under Rule 38 of the Central Civil Services (Pension) Rules, 1972 which reads as follows:
"38. Invalid pension - (1) Invalid pension may be granted if a Government servant retires from the service on account of any bodily or mentally infirmity which permanently incapacitates him for the service.
(2) A Government servant applying for an invalid pension shall submit a medical certificate of incapacity from the following medical authority namely:-
(a) a Medical Board in the case of Gazetted Government servant and of non-Gazetted Government servant whose pay, as defined in Rule 9 (21) of the Fundamental Rules, exceed [two thousand and two hundred rupees] per mensem;
(b) Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases."
8. On 26th March 1995, Office Commander considered the request of petitioner and called upon the unit 1625 Coy to give details of the injuries suffered so as to sanction exgratia compensation. Series of communication were exchanged between the authorities. However, it is evident that compensation in a sum of Rs.3920/- has been paid. Reference to payment of exgratia compensation has been made by the competent authority in Annexure -D/Annexure -F which are all official communications between the authority. Petitioner also made a representation for grant of disability /invalid pension that was first declined by the Section Officer of the Deputy Secretary to Government of India in a memorandum dated 2nd March, 1977 which reads as follows:
5"MEMORANDUM Subject:- Representation regarding grant of disability pension.
With reference to his representation dated 15.04.1977 on the above subject, Shri Khajoor Singh is hereby informed that since he was not holding any substantive appointment in the GREF at the time of his discharge, no pension is admissible to him under the existing rules.
(CL Kago) Section Officer For Dy.Secy. to the Govt. of India"
9. From this it is evident that only point taken was he was not holding a substantative post in GREF. However, representation for grant of disability pension has been rejected on 4th September, 1977 giving reference to letter dated 2nd March, 1977. Another letter (Annexure J) dated 8th June 1978 states that GPF, compensation, gratuity, arrears of pay etc has been paid over to the petitioner but his claim for disability pension was not acceded stating as follows (Annexure J):
" Record Office GREF
Dighi Camp
Ex-G/87881/30/NR(Mede)
Khajoor Singh (Ex-G/87881 Pnr)
Vill: Deora, P.O. -FURHA MANHASAN
Teh.-Akhnoor
Distt-Jammu (J&K)
APPEAL /REPRESENATION :EX GREF PERSONNEL
Reference your representation dated Jan 78.
2. The following dues have been claimed and paid to you:-
1. GPF
2. Compensation
3. Gratuity
4. Arrears of Pay and allowances
5. GREF Benevolent Fund 6
3. As regards disability pension you are humbly informed that you have not succeeded for a permanent appointment or put a qualifying service 10 years of more at the time of invalidment from this department. Hence under rules, you are not entitled disability pension as such you are advised not to represent for disability pension in future.
(SN Banthiyal) CO II Record Officer Officer Incharge Records"
10. It says that petitioner is not in permanent appointment and does not have 10 years of service to qualify for pension. In this, no specific details are given as to why petitioner is not treated as permanent appointee and which rule states that 10 years service is pre requisite for grant of invalid pension. This was followed by other proceedings (Annexure K) dated 13 August, 1979 by the Commandant Officer reiterating the earlier stand taken in letter dated 8th June, 1978 thereby declining the claim for invalid pension stating that he is not in permanent employment and that he does not fulfill the conditions of 10 years of service. The petitioner approached the then Hon'ble Prime Minister and the Defence Minister. However, it did not evoke any response and therefore petitioner has approached this Court.
11. Learned counsel for the petitioner would rely upon Rule 38 of the Central Civil Services (Pension) Rules 1972 insofar as the claim for invalid pension is concerned. The respondents have filed their objections reiterating the stand taken in the impugned proceedings stating that petitioner is not holding substantive post in GREF at the time of discharge and therefore no pension is permissible. Reliance is placed upon the Pension Rules 1972 to say that unless he completes 20 years of service, modified as 10 years subsequently, petitioner will not be eligible for invalid pension. On the contrary the petitioner has rendered service of 7 years 4 months and therefore, not entitled. The further plea taken 7 is that for the 40% of the medical disability, he has been paid compensation. Therefore, the main objection is that the petitioner was not serving in a substantive post and he has not completed 10 years of service.
12. First of all, factually the first objection that the petitioner was not holding substantive post is a misconception because even from the discharge certificate, it is clear that he held a substantive post of Pioneer Coy GREF and his pay has been fixed in a substantive post. He was found medically unfit for GREF services under Medical Category IV by 10 Air Force Hospital Board proceedings and, therefore, by the authority of the General Reserve Engineering Forces, the discharge certificate is granted to the subordinate personnel namely Khajoor Singh writ petitioner herein. Therefore, the first reason has no legal or factual basis. In any event, except stating that he is not holding substantive post, there is no material to substantiate the said plea in the proceedings of 2nd May, 1977 or in the subsequent post. Mere statement that he is not holding substantive appointment would not suffice. Nevertheless from the discharge certificate it is evident that petitioner was subordinate personnel in 1625 Coy GREF and his grade scale of pay was 55-1-70. Therefore, even on the basis of documents of the respondents, it is clear that the petitioner was holding a substantive post.
13. The next issue is whether the petitioner will be entitled to invalid pension or not. The plea that the petitioner did not complete 10 years or 20 years, as the case may be, would not apply in case of where the Rule 38 applies. Invalid pension only provides that if a Government servant retires from the service on account of any bodily or mentally infirmity, which incapacitates him from 8 service and if he submits a medical certificate of the competent authority, he would be entitled to invalid pension. Therefore, in this Rule there is no reference to any period of service. This is an independent provision providing pension on account of incapacity to perform services on account of infirmity of the body or the mind. The compensation referred to earlier is exgratia compensation as is evident from the correspondence.
14. From the rule provision it is clear that the authorities have not considered the claim on the basis of the applicable provision. Regular Pension should not be confused with invalid pension. Respondents' counsel is not in a position to point out to this Court any rules to the contrary. Infact the respondents conceded that the authority did not consider the issue in terms of Rule 38.
15. Therefore, authority is bound to consider the case of petitioner for grant of invalid pension in terms of Rule 38 which does not bar a claim of the employee, who had been medically discharged prior to 29th January, 1976.
16. In this view of the matter, the writ petition is allowed on the above terms.
( Ramalingam Sudhakar) Judge Jammu:
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