Punjab-Haryana High Court
Hav C.L. Piara Singh vs Union Of India on 25 May, 2000
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. The petilioner was enrolled as Sepoy in Indian Anny on 31st January, 1942. Asa result of his performing duties well to the satisfaction of all the concerned, he was promoted as Havaldar. However, he was discharged and invalidated out of the military service on medical ground with a disease known as "Corneal Opacities" recorded to be uncur-abte eyes disease on 9th October, 1945. Thepetitioner was granted disability pension of Rs. 10/- per month from 9.10.1945 to 31.10.1945 and Rs. 15/- per month with effect from 1.11.1945 for life under the amended provisions. This order was issued on 15th December, 1947, Annexure P/2 to the writ petition.
2. On 25.8.1952, Medical Board of a single doctor assembled at Jalandhar Cant and he reduced the disability less that 20%. Resultantly, vide order dated 19.12.1952, the disability pension was stopped with effect from 1.1.1952. Thereafter, the petitioner sent various representations and letters even by registered post addressed to the President of India being the Supreme Commander of the armed forces. The petitioner was taking steps at various stages and at various levels of hierarchy in the Indian army and the Government of India but of no avail. After his representation to the President dated 4th June, 1993, on 16th September, 1993, the case of the petitioner was referred to respondent No. 1 for consideration. Vide order dated 17th March, 1994. the claim of the petitioner for gram of disability pension was rejected, Thereafter, the petitioner has been making various representations for holding re-survey medical board to assess the extent of his disability but no action has been taken by the respondents for all this period, resulting in filing of the present petition under Articles 226/227 of the Constitution of India, where the petitioner has prayed that the order dated 10th September, 1953 be quashed and the respondents be directed to consider the case of the petitioner on the basis of the original medical board determining the disability of the petitioner being more than 20% and consequence grant of disability pension with effect from 1.1.1952.
3. Upon notice, the respondents filed a detailed reply. Objection was taken to the very maintainability of the petition and it was stated that the petition suffers from unexplained delay and laches. It was stated that the original record has been destroyed as that related to a period more than 30 years old. However, copies of some documents whatever were available with the current file of the petitioner were produced on record,
4. There is no doubt that the present petition suffers from the defect of laches and delay, which have not been properly explained. I low ever, it is clear from the averments made in the writ petition and which arc supported by documents on record that the petitioner had been pursuing his case before the authorities concerned till the institution of the present writ petition. But no explanation has been rendered on record as to what steps the petitioner took from 8.7.1964 to 10.9.1993. which period certainly was crucial as far as the claim of the petitioner was concerned. It has been held repeatedly that claim to pension is a recurring cause of action, therefore, would not be strictly hit by the principle of limitation or laches shnplicitor. It am of the considered view that the relief to the petitioner cannot be denied merely on this ground, if he was found to be entitled to the relief otherwise. Furthermore, grant of pension can always be restricted, thus, not permitting the petitioner to take advantage of his own wrong for causing delay over the period in question.
5. Reverting back to the merit of the case, there is no dispute to the fact that the petitioner was granted dis-abilily pension as disability was found to be more than 20% and he actually received pension till 1,1.1952. The medical board was conducted, which declared the disability of the petitioner to be less than 20%. On the basis of the medical report of this Board, disability pension payable to the petitioner was discontinued by orderd dated 25.8.1952 with effect from 1.1.1952. The petitioner challenges the very constitution and validity of the findings recorded by the medical board. The basic facts are not disputed by the respondents, but they justify that the medical board was constituted in ac-cordance with the relevant provision governing the terms of the employment oft he petitioner at the relevant time.
6. During course of hearing, learned counsel appearing for the respondents was not able to justify on any valid reasoning the action of the respondents in deny-ing the pension with retrospective effect. In the counter-affidavit, there are no averments, which would explain the validity to this extent, Resultantly, 1 have no hesitation in holding that the alleged communication to the petit ioner dated 19.12.1952, based upon the finding of the medical board dated 25.8.1952, in so far it operates retrospectively, is liable to be set aside. As far as prospectivity of this rder is concerned, there cannot be much of dispute h :ause the petitioner was certainly subjected to re-survey medical board on 25.8.1952 and his disability was found to be less than 20%. The petitioner did not challenge the finding of the medical board before the appellate medical board under the rules. The said opinion attained finality only when the findings are recorded and orders are passed by the competent authority in furtherance thereto, Thus, the obvious result of the above reasoning is that the impugned order dated 19.12.1952 could be operative at best prospectively and not retrospectively. To that extent the order is liable to be quashed.
7. As far as the question of the impugned order in its entirety is concerned, I am of the view that the petitioner is not entitled to this relief as prayed. The medical board was constituted, which found the petitioner having disability to be less than 20% as he was informed by the letterdated 19.12.1952. Finally the case of the petitioner for grant of disability pension was rejected on 10.9.1953, The petitioner claims that he had requested the respondents for constitution of re-survey medical board on 8.7.1964, which means the petitioner took no steps and maintained complete silence for a period of 11 years from the date of the order when his representation dated 9.2.1953 was rejected. The petitioner again kept silent and didn't approach any Court of competent jurisdiction till 1995 when he again requested for constitution of re-survey medical board to assess the extent of disability and consequently grant of the disability pension to the petitioner. This aspect of the matter necessarily would lead to some inference being drawn against the petitioner by the Court, at least prima facie. The findings of the medical board dated 25.8.1952 are in force and this Court would not be competent to sit over the judgment of the medical board which can only be challenged before the appellate medical board and such other authorities as provided under the rules and regulations.
8. It is settled principle of law that expert's opinion of specially constituted medical board normally would not be subject matter of a judicial review unless there was extra-ordinary special circumstances like opinion of other medical competent authority to the contrary. However, the claim of the petitioner that he should be subjected to re-survey medical board for determination of his present percentage of disability and his consequential entitlement to disability pension has merits and deserves to be accepted, more particularly when the petitioner was originally granted disability pension for livelihood. Thus, the respondents are obliged to subject the petitioner to re-survey medical board in accordance with existing rules for the above purpose.
9. For the reasons afore-stated, this writ petition is allowed limited to the extent that the petitioner would not be entitled to disability pension till December, 1952. He shall be paid interest on that pension at the rate of 12% per annum. Furthermore, the respondents are hereby directed to subject the petitioner the re-survey medical board within two months from the date of this order.
With the observations, the writ petition stands disposed of.
10. Petition a/lowed.