Meghalaya High Court
Smti Parbati Thapa vs . Union Of India & 3 Ors. on 19 September, 2022
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 372 of 2016
Date of Decision: 19.09.2022
Smti Parbati Thapa Vs. Union of India & 3 Ors.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. H.L. Shangreiso, Sr. Adv. with
Mr. A. Syiem, Adv.
For the Respondent(s) : Dr. N. Mozika, DSG. with
Ms. S. Rumthao, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER
1. The lis between the parties has seen a chequered history with the central theme being the demand or claim of the petitioner for family pension in the account of her deceased husband, (L) Lal Bahadur Thapa who had expired sometime in the year 2010. The deceased husband admittedly was a personnel of the Assam Rifles who was enrolled as a Rifleman on 15.10.1940 and was discharged on 15.05.1951.
2. The brief factual background of this case is that the deceased husband of the petitioner during his service was deployed to the 1 battlefields during the Second World War and due to heavy bombardment and explosions of bombs in the battlefield, his inner hearing system was seriously damaged for which he was untimely retired from service on 15.05.1951 after rendering 10 years 7 months and 1 day of service. It is also said that during the period of his service he was promoted to the rank of Lance Naik.
3. The deceased husband of the petitioner on being discharged was granted invalid gratuity amounting to ₹ 228.15 per month, but was never granted pensionary benefits.
4. The deceased husband of the petitioner then went back to his native place at Nepal and settled there permanently. However, in the year 2008, the deceased husband of the petitioner was pleasantly surprised to know that a team known as DGAR pension search team came to Nepal to identify and to extend pensionary benefits to ex-servicemen of Assam Rifles and the respondent No. 4 vide his letter dated 02.02.2009 has requested the Indian Embassy, Pension Paying Office, Pokhra, Nepal to submit details documents for granting pension to the deceased husband of the petitioner. However, all related papers are with the Gorakhpur Treasury, Upper Pradesh and the said Treasury office was burnt by fire causing loss of all records therein. The deceased husband of the petitioner then died on 21.08.2010.
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5. The petitioner then took up the matter with the authorities and when no positive response was forthcoming, having no further option, has filed a writ petition before the Shillong Bench of the Gauhati High Court (as this Court then was) being W.P.(C) No. 419(SH) of 2010 with a prayer for the respondents to pay the gratuity of ₹ 228.15 till that day, together with interest @ 12%. p.a. The High Court while disposing of the said petition, had vide order dated 02.06.2011 directed the respondent authorities to ascertain the relationship of the deceased with the petitioner and then to pay the dues within four months.
6. The respondent authority then filed a Review petition before this Court for review of the order dated 02.06.2011, but the same was rejected on 22.03.2013.
7. The respondent authority has also filed a Misc. Case No. 139 of 2013 in COP No. 33 of 2012 before this Court with a prayer to accept compliance of judgment dated 02.06.2011 as regard the payment of gratuity to the deceased husband of the petitioner, which application is in response to the contempt application filed by the petitioner before this Court and this Court vide order dated 21.11.2013 has accepted the compliance report and has disposed of the Misc. Case No. 139 of 2013, including the contempt matter.
8. Being aggrieved by the order dated 21.11.2013 passed by this Court in Misc. Case No. 139 of 2013 contending that the same was passed 3 on the assumption that the respondents have complied with the judgment dated 02.06.2011 which was not the case, the petitioner has approached the Hon'ble Supreme Court by way of a Special Leave Petition (C) CC No. 8783 of 2014, but the same was dismissed vide order dated 08.07.2014 and a review petition filed against the said order was also dismissed vide order dated 03.11.2015.
9. The respondents then issued the impugned order No. 50928/AR/UPAO/FS(PG Cell)/2014/254 dated 13.10.2014 (Annexure-16 of the writ petition) informing the petitioner that since her deceased husband was discharged from service on 15.05.1951 having less than 10 years of qualifying service, he is therefore not entitled to receive any pension and further that the petitioner is also not entitled to family pension under Rule 49(2) of the Central Civil Services (CCS) Pension Rules of 1972.
10. Inspite of several representations, the respondents have maintained their stand that the petitioner is not entitled to family pension as her deceased husband having got himself enrolled in the Assam Rifles at the age of 17 years and though factually having served for more than ten years following which he was discharged on health grounds, since the qualifying age of entering service is 18 years, therefore at the time of his discharge, he has not completed 10 years of qualifying service. 4
11. The petitioner then preferred a writ petition before the Hon'ble Supreme Court being Writ Petition Civil No 637/2015 assailing the legality of various letters of the respondents, however vide order dated 29.08.2016, the Apex Court allowed the petitioner to withdraw the said writ petition with liberty to seek appropriate remedies before the appropriate authorities. Hence this petition.
12. Heard Mr. H.L. Shangreiso, learned Sr. counsel along with Ms. P. Biswakarma, learned counsel for the petitioner who has submitted that the rules which will govern the case of the petitioner will be the Central Civil Services (Extraordinary pension) Rules, 1939 read with the Guidelines thereof which also form part of the said rules.
13. In this regard, the learned Sr. counsel has submitted that the application of the CCS Pension Rules, 1972 would not be applicable to the case of the petitioner as her deceased husband was in service from the year 1940 till he was retired on grounds of invalidity in the year 1951 and the said Rules of 1972 not being applied retrospectively, the contention of the respondents that the mandatory qualifying period of 10 years' service would not apply to his case.
14. Coming to the Rule of 1939(supra), the learned Sr. counsel has submitted that these rules have been called Extraordinary Pension Rules only for the fact that they will apply to cases of those Central Government employees who have entered service on or after the 1st April 1937 and who 5 have suffered injury or physical disability during service on account of their performance of their duties as such employees.
15. As far as the case of the deceased husband of the petitioner is concerned, the relevant rule applicable would be Rule 3-A, (1) (a) (i) of the CCS (Extraordinary Pension) Rules, 1939 which reads as follows:
"3-A. Disablement/Death. -(1) (a) Disablement shall be accepted as due to Government service provided that it is certified that it is due to wound, injury or disease which,-
(i) is attributable to Government service, or..."
That the case of the deceased husband of the petitioner having been rendered disabled due to his participation during the Second World War for which he suffered complete deafness and was discharged from service on this ground. This is evident from the brief sheet/service particulars of destroyed service book issued by the Director General Assam Rifles in the case of the deceased husband of the petitioner, annexed as Annexure-I in this petition, at serial No. 5, where it is noted that the cause of discharge is 'invalid gratuity categorised'.
16. Having established the fact that the deceased husband of the petitioner was discharged from service on ground of invalidity, the learned Sr. counsel has led this Court to Rule 12 of the said 1939 Rules to say that on the death of her husband, she is entitled to the family pension as provided under these rules.
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17. Coming to the procedure for fixing the family pension, the learned Sr. counsel has referred to Rule 13 which provides that awards under the rules are subject to any procedure rules relating to ordinary pensions. Rule 13(4) has been pointed out as applicable to the case of the petitioner, the said rule reads as follows:
"13(4) When a claim for any disability pension or family pension arises, the Head of the Office or the Department in which the injury or the deceased Government servant was employed will forward the claim through the usual channel to the Government of India with the following document:
(i) A full statement of circumstances in which the injury was received, the disease was contracted or the death occurred.
(ii) The application for disability pension in Form 'A' or as the case may be, the application for family pension in Form 'B' of the Format set forth in Schedule IV.
(iii) In the case of an injury of Government servant or one who has contracted a disease a medical report in Form 'C' of the Forms set forth in Schedule IV. In the case of a deceased Government servant a medical report as to the death or reliable evidence as to the actual accorrence of death if the Government servant lost his life in such circumstances that a medical report cannot be secured.
(iv) A report of the Accounts Officer concerned as to whether an award is admissible under the rules and, if so, of what amount."
18. In support of his submission, the learned Sr. counsel has cited the case of Indu Bhushan Bali v. Union of India (UOI) & Ors: 2008(2) SLJ 241, where the Hon'ble Jammu and Kashmir High Court in a case similar to the case of the petitioner herein has allowed disability pension 7 to an Army personnel who during his service fell sick which was detected to be a case of Paranoid Schizophrenia and was eventually discharged from service. On the issue of entitlement to disability pension, the Hon'ble High Court considering all factors has directed that the petitioner therein be given the same as provided under the Central Civil Services (Extraordinary Pension) Rules. Relevant paragraphs of the ruling has been cited, being para 6, 9 and 12, the same which reads as under:
"6. On notice, respondents have filed counter in which it has been admitted that the after passing of the judgment by this court dt. 30th March 01, the respondents arranged another medical examination of the petitioner at Safdarjang hospital, New Delhi on 14th July 01 and the medical board opined that the petitioner is still suffering from Paranoid Schizophrenia, and it was thereafter the order impugned came to be passed which was given retrospective effect from 18th of Aug 2000. In para 4 of the counter, it has been pleaded as under:
...The petitioner has rendered total service of 6 years and 26 days, which is less than, 10 years. So far, following payments have been made to petitioner:
(1) Terminal gratuity Rs. 10,6201- sent vide DD/No. 1073/028978 dt. 31.10.2001.
(2) GPF final payment Rs. 35,617/- sent vide DD No. 1073/027836 dt. 10.9.01.
(3) Leave encashment Rs. 2181 sent vide DD No. 558910 dated 4.12.2k.
(4) Bill No. 316 dated 26.12.2k of CGEGIS payment for Rs. 2808/ sent to DACS for payment. Reminder already sent as the payment not yet received. (5) Vide letter No. 3305 dated 4.9.2k of AO Poonch, Sh IB Bali was asked to submit application for Rs.
15000 assistance for medical invalidation from SSB welfare fund, if found fit by Board, but he has not responded yet for that.
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9. A perusal of the aforesaid rules shows that the said rules do not prescribe any limit of minimum service to enable an army personnel to become entitled for invaliding pension. Even if an army personnel suffers from a disability after few days of his joining the service, which disability is on account of stress and strains of army service, he is entitled to disability pension under the aforementioned rules. Reliance in this regard can be placed on MANU/JK/0036/2004 Kaushalya Devi v. Union of India and Ors. In the present case, the petitioner suffered from Paranoid Schizophrenia which disease is held to be a disease on account of stress and strain of army service. In Harjit Singh v. Union of India 1998(4) SCT 88, the army personnel suffering from Schizophrenia was held entitled to disability pension. The Karnataka High Court in the case of Ex. Naik M.S. Pemmaiah v. Union of India 1998 (3) SCT 755, had allowed the disability pension where the concerned employee was suffering from Schizophrenia. In the said case the reasoning given was that if a person was not suffering from the disease when he joined the service and when there was no entry that the person was suffering from any disorder or disability, then it is to be presumed that the disease had occurred on account of stress and strain of army service and the same is attributable to military service. Therefore, the petitioner is held entitled to disability pension. The disability pension is to be assessed by the respondents under Central Civil Services (Extraordinary Pension) Rules as amended by G.I. M.F., O.M No. F.23(15)-E.V(A)/73-Main & Pt. I, dated 20th January, 1978 as per the assessment made by the medical board.
12. For the reasons mentioned above, this petition is accepted. Petitioner shall stand invalidated out of service w.e.f. 30th July 01 and is also held entitled to disability pension under the Central Civil Services (Extraordinary Pension) Rules, referred to above as per the assessment made by the medical board. Let the disability pension be released in his favour within a period of two months from the date a copy of this order is made available to respondents by the petitioner. The petitioner is also held entitled to the cost of petition.
Disposed of accordingly."
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19. Yet another case was cited by the learned Sr. counsel for the petitioner being the case of Union of India & Ors v. Tarsem Singh:
(2008) 8 SCC 648, wherein at para 6 the Hon'ble Supreme Court has cited the relevant paragraphs of the case of Shiv Dass v. Union of India: (2007) 9 SCC 274 which reads as follows:
"6. In Shiv Dass v. Union of India, 2007 (9) SCC 274, this Court held: (SCC p. 277, paras 8 & 10) "8. ...The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition ... If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years."
20. Dr. N. Mozika, learned Deputy Solicitor General (DSG) appearing for the respondents/Union of India has submitted that in view of the reliance of the petitioner on the provisions of the 'The Central Civil Services (Extraordinary Pension) Rules, 1939', the respondents would say that this petition has been preferred at a very belated stage if the date of 10 discharge of the deceased husband of the petitioner is to be taken, that is, 15.05.1951 and as such, any claim for award of any kind including family pension under the said 1939 Rules would be hit by the provision of Rule 6 which stipulates that no award shall be made in respect of an injury sustained for more than five years before the date of the application or death which occurred more than seven years after the injury due to violence or accident was sustained. Therefore, the issue of limitation has to be considered as far as the petition of the petitioners is concerned.
21. It is also the further submission of the learned DSG that since all the service records of the deceased husband of the petitioner could not be located, therefore it could not be ascertained as to how or what is the exact reasons for prematurely retiring him from service.
22. The last submission made by the learned DSG is that admittedly, the deceased husband of the petitioner was injured during the Second World War when he was in the services of the Assam Rifles and was also discharged from service on 15.05.1951 and as such, the petitioner by coming to this Court after seventy years or more cannot be given family pension on account of delay and laches in preferring this petition.
23. Having heard the argument advanced by the learned Sr. counsels for the parties, the facts which was not controverted and has even been admitted is that the petitioner is the wife of Ex. No. 50928 Lance Naik Lal Bahadur Thapa who was enrolled into the Assam Rifles on 15.10.1940 11 and was discharged from service on medical grounds with invalid gratuity on 15.05.1951.
24. The respondents has also stated that since all the relevant service records of the individual have been destroyed after the permissible time limit, therefore nothing could be ascertained as to why the deceased was not getting pension after being discharged.
25. Though, a stand was taken by the respondents that the deceased was in service for about 10 years and 7 months, however being enrolled in the Assam Rifles at the age of 17 years, his qualifying service of 10 years cannot be counted from the date of his joining the force, but the same has to be counted only when he has attained the age of 18 years and as such, it is found to be short of 10 years length of service at the time of his discharge. Hence, he does not qualify for pension or for that matter for family pension to the petitioner herein.
26. As far as the stand of 10 years qualifying service taken by the respondent, the same has been abandoned as the parties at the hearing have resorted to take shelter under the CCS (Extraordinary Pension) Rules, 1939 and the provisions of the CCS (Pension) Rules, 1972 have not been relied upon by both parties.
27. On the issue of limitation and delay while referring to Rule 6 of the 1939 Rules from the narrative of the petitioner's case as noted above, what can be seen is that the deceased husband of the petitioner on being 12 discharged in the year 1951 perhaps due to his simplicity and being ignorance of the Rules had left for his home town and has permanently resided in Nepal. It was only in the year 2008 at the initiative of the respondent Assam Rifles who had sent a team to Nepal to inquire about the payment of pension to ex-servicemen of Assam Rifles that the deceased husband of the petitioner came to know of the matter and had requested the respondent authorities to trace out the original payment order from the records, but apparently all available records were destroyed when the Gorakhpur Treasury was burned by fire. Since 2009 till his death on 21.08.2010, the petitioner has taken over the case of her deceased husband and has approached the authorities as well as this Court and even the Hon'ble Supreme Court in course of her quest for justice. Even in the normal understanding of the principle of the law of limitation, the case of the petitioner cannot be said to be pursued belatedly, but for the attending reasons cited above. The provision of Rule 6 of the 1939 Rules, in the opinion of this Court will not be applicable in this case.
28. Again, since the deceased husband of the petitioner has been confirmed invalid for which reason he was prematurely discharged from service, he is therefore entitled to invalid pension and by extension, his wife who is the petitioner herein is now entitled to family pension according to the relevant rules under the said 1939 Rules. 13
29. The only and main objection of the respondents is that the deceased husband of the petitioner has not completed the qualifying period of ten years' service, but considering the fact that there is no such prescription of time limit under the 1939 Rules, he is therefore entitled to invalid pension.
30. Having opined that the petitioner is entitled to family pension on account of the services of her deceased husband, considering the fact that the issue of entitlement to pension arose only in the year 2008 and eventually this petition was filed in the year 2016, taking a cue from what was held in the case of Shiv Dass v. Union of India & Ors: (2007) 9 SCC 274 at para 11 of the same wherein, under the facts and circumstances of the case, the Hon'ble Supreme Court has held that if it is found that a claim for disability pension is sustainable in law, relief to the petitioner may be granted, but it should not exceed three years from the date of presentation of the petition, the same principle is made applicable to the case in hand.
31. In this instant case, this Court is of the opinion that the petitioner may be given the family pension for a period of three years from the date of presentation of the petition, that is, from the year 2016.
32. Accordingly, to the extent indicated above, this petition succeeds and the petitioner is found entitled to family pension for which the respondent Assam Rifles shall cause payment to be made, albeit for a period of 3(three) years from the year 2016. The respondent Assam Rifles 14 is also directed to calculate the pension due and payable and to make payment within a period of 4(four) months from the date of this order.
33. With the above, this petition is disposed of. Parties to bear their own costs.
Judge Meghalaya 19.09.2022 "D. Nary, PS"
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