Delhi High Court
Ex Jwo Kewal Krishan Vij vs Union Of India And Ors on 8 September, 2020
Equivalent citations: AIRONLINE 2020 DEL 1258
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 8th September, 2020
+ W.P.(C) 6093/2020
EX JWO KEWAL KRISHAN VIJ .... Petitioner
Through: Mr. Bharat Singh, Adv.
Versus
UNION OF INDIA & ORS. ...Respondents
Through: Mr. Abhay Prakash Sahay, CGSC
with Ms. Indira Goswami and Ms.
Mannu Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
CM No.21897/2020 (for exemption).
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
W.P.(C) 6093/2020.
3. The petition impugns the order dated 17th March, 2020 of the Armed
Forces Tribunal, Principal Bench, Delhi (AFT), of dismissal of OA
No.1051/2018 filed by the petitioner (impugning the order dated 5 th January,
2018, rejecting the claim of the petitioner for disability pension) and seeking
mandamus to the respondents Indian Air Force (IAF) to award disability
pension, from 1st April, 1979 onwards to the petitioner, along with interest at
12% per annum.
W.P.(C) No.6093/2020 Page 1 of 12
4. This petition under Article 226 of the Constitution of India has been
preferred, relying on Balkrishna Ram Vs Union of India (2020) 2 SCC 442.
5. The AFT has dismissed the OA preferred by the petitioner solely on
the ground that the challenge therein, made/filed in the year 2018, to the
order dated 7th June, 1979, was belated and could not be considered. It was
held that the petitioner was informed as far back as on 7th June, 1979, that the
claim of the petitioner for disability pension, after having been invalidated
out of the Air Force on 31st March, 1979 (owing to low medical category),
had been rejected and the appellant was also informed of the remedy of
appeal thereagainst but had not preferred any appeal and allowed the order to
attain finality and could not be permitted to challenge the same after more
than 38 years.
6. Though no error can be found in the reasoning given by the AFT in
the impugned order and we do not consider this to be a fit case, also, for
going into the question of maintainability of a writ petition in this Court
owing to the provisions of Sections 30 and 31 of the Arms Forces Tribunal
Act, 2007, but the counsel for the petitioner has based his claim before this
Court solely on the order dated 13th May, 2019 of the AFT in OA
No.721/2017 titled Ex-Gunner Vasant Mokashi Vs. Union of India
whereby the claim of the petitioner therein, who had also been invalidated
out on 28th August, 1978, for disability pension, made in the year 2017, was
allowed, though with effect from three years prior to the institution of that
petition in the AFT. The contention of the counsel for the petitioner is that
though Ex-Gunner Vasant Mokashi supra, similarly placed as the petitioner
herein, has been granted disability pension inspite of the same being highly
W.P.(C) No.6093/2020 Page 2 of 12
belated but the case of the petitioner, who was a Junior Warrant Officer
(JWO), has been rejected.
7. The claim of the petitioner before the AFT was, that (i) the petitioner
was enrolled in the IAF in a medically and physically fit condition; (ii) a
member of the IAF is to be presumed to be in sound physical and mental
condition upon entering service, if there is no note or record to the contrary
at the end of the entry and in the event of his subsequently being invalidated
out from service on medical grounds, any deterioration in his health is to be
presumed due to service conditions; (iii) the petitioner was under stress and
strain due to the rigours of service conditions "which may have led to the
occurrence of disability"; (iv) the action of the respondents IAF of denying
disability pension to the petitioner is illegal; reliance is placed on Dharamvir
Singh Vs. Union of India (2013) 7 SCC 316 and on Union of India Vs.
Rajbir Singh (2015) 12 SCC 264; (v) for the purpose of determining
attributability of disease to military service, what is material is whether the
disability was detected at the time of enrolment and if no disability was
detected at that time, then it is presumed that disability arose while in
service; and, (vi) therefore the disability of the petitioner is to be considered
attributable to or aggravated by service and the petitioner is entitled to get
disability pension.
8. The case of the respondents IAF before the AFT, as recorded in the
impugned order was, that (a) medical documents of the petitioner had been
destroyed after expiry of retention period and no information about the
assessment and durability of the disability was available; (b) however the
available records showed that the petitioner‟s disability was considered as
W.P.(C) No.6093/2020 Page 3 of 12
neither attributable to nor aggravated by military service; (c) the petitioner
was informed about the rejection of his disability pension vide order dated
7th June, 1979 and was advised to prefer appeal against the rejection of the
claim, if was not satisfied with the rejection; however the petitioner did not
prefer any appeal; and, (d) thereform, it can be presumed that the petitioner
was satisfied with the rejection of the disability pension claimed.
9. The AFT has dismissed the OA No.1051/2018 preferred by the
petitioner, reasoning that (i) the only question that needed to be answered
was whether the decision could be taken of the attributability or aggravation
of disease, whose medical documents had been destroyed; (ii) the records
showed that the petitioner was enrolled on 11 th December, 1964 and was
invalidated out after rendering 24 years and six months of service; (iii) the
petitioner has been granted service pension; however disability pension
claim was rejected by the competent authority and the petitioner was advised
to prefer appeal, if not satisfied; (iv) the petitioner did not prefer appeal and
instead kept quite; (v) the documents of the petitioners had been destroyed
on expiry of retention period and whatever limited information was available
in the long roll, indicated that the petitioner‟s disability was considered as
neither attributable to nor aggravated by service; (vi) Supreme Court in C.
Jacob Vs. Director of Geology and Mining Indus. Est. (2008) 10 SCC 115
has held that a dead or stale claim is not permitted to be revived and a person
who sleeps over his right is not entitled for any indulgence; (vii) in the
instant case, the petitioner was advised by the respondents IAF vide order
dated 7th June, 1979 to prefer appeal if he was not satisfied with the rejection
of disability pension; (viii) the act of the petitioner of not preferring any
appeal and remaining silent gave rise to a presumption that he was satisfied
W.P.(C) No.6093/2020 Page 4 of 12
that he was not entitled to disability pension; (ix) moreover, the respondents
IAF having destroyed the medical documents in accordance with the policy
on preservation of service documents, the opinion of the Medical Board on
why the disability was held to be neither attributable to nor aggravated by
service could not be known and without knowing the same, the same could
not be overruled; (x) moreover, the law on the importance of the opinion of a
Medical Board is well settled in Union of India Vs. Ex. Rfn Ravinder
Kumar (2015) 12 SCC 291, holding that opinion of medical board should
not be overruled judiciously unless there is a very strong medical evidence to
do so; it was held that opinion of Medical Board should be given primacy in
deciding cases of disability pension and the Court should not grant such
pension brushing aside the opinion of the medical authorities recording a
specific finding to the effect that the disability was neither attributable to nor
aggravated by military service; the Court should not ignore such a finding,
for the reason that the Medical Board is a specialized authority composed of
expert medical doctors and is the final authority to give opinion regarding
attributability and the aggravation of the disability due to military service
and the conditions of service resulting in displacement of the individual; and,
(xi) since the medical documents of the petitioner had been destroyed, no
decision could be taken in vacuum on attributability or aggravation of the
disability, without perusing the reasons based on which the original Medical
Board had decided to consider the disability as neither attributable nor
aggravated by service.
10. The petitioner, in this petition, in addition to what is already recorded
in the impugned order of the AFT, has pleaded that (a) the petitioner was
found medically fit in his entire service period of 23 years, in the annual
W.P.(C) No.6093/2020 Page 5 of 12
medical checkups; (b) the petitioner was suddenly diagnosed with
Generalized Epilepsy - 345; (c) mere weeding out of the medical documents
cannot disentitle the petitioner to disability pension; (d) the petitioner is 84
years old who is living in penury, not having sound monetary condition, due
to various liabilities and his medical condition is deteriorating day-by-day;
(e) the petitioner has not been treated equally as Ex-Gunner Vasant
Mokashi supra; (f) at the time of recruitment, a recruit goes through a
rigorous medical examination and if any injury / disability is found then a
note is endorsed by a medical officer and thereafter he has to go for yearly
medical check-up; in that situation, if any disability occurs, then it amounts
to attributable and aggravated by military service, as held in Dharamvir
Singh supra; (g) even otherwise, a claimant is not to be called upon to prove
the conditions of entitlement and has to receive the benefit of any reasonable
doubt; thus, if the documents are weeded out by the respondents IAF, the
benefit of doubt is to be given to the petitioner and not to the respondents;
(h) a claim for disability pension can never be stale; (i) Union of India Vs.
Tarsem Singh (2008) 8 SCC 648 on continuing wrongs is invoked; (j) in
Angad Singh Titaria Vs. Sukhvinder Singh (2015) 12 SCC 257 and in other
judgments, the opinion of the Medical Board has been overruled and thus
Ravinder Kumar supra stands diluted; (k) the petitioner is bearing the
maintenance of his divorced daughter and her children who are not getting
any maintenance; (l) the daughter-in-law of the petitioner is also dumb and
deaf; (m) the petitioner has rendered four war services during his entire
service and the highly tense war environment led and caused the disease of
Generalized Epilepsy - 345; (n) the said disease was detected only in
November, 1978, after the petitioner had served for 23 years and 11 months;
W.P.(C) No.6093/2020 Page 6 of 12
(o) the petitioner was downgraded to Category-E by the Medical Board and
which at that time amounted to 100% disability; and, (p) on 31 st March,
1979, the petitioner was invalidated out from service without any disability
element.
11. The documents filed by the petitioner before the AFT and copies of
which have been filed before this Court include, (i) a certificate dated 9th
November, 1978 of the President of the Invalidating Board to the effect that
the petitioner was fit for suitable employment in civil; (ii) the
communication dated 27th October, 2014 of the respondents IAF to the
Directorate of Air Veterans on the subject of grant of invalid disability
pension to the petitioner and stating that in the absence of service medical
documents, the case of the petitioner could not be examined; (iii) the
response dated 16th October, 2015 to the query under Right to Information
Act, 2005, to the effect that the documents pertaining to the petitioner have
been destroyed after retention for stipulated period; (iv) a representation
dated 5th November, 2015 of the petitioner to the Minister of Defence, for
grant of disability pension in view of the judgment of the Supreme Court; (v)
the communication dated 15th December, 2015 of the respondents IAF to the
petitioner, rejecting the representation dated 5th November, 2015 of the
petitioner to the Minister of Defence; (vi) communication dated 19 th
September, 2017 of the petitioner, again for disability pension; and, (vii)
profile of the petitioner showing the date of birth of the petitioner as 27 th
November, 1936 and wherefrom it transpires that the petitioner, at the time
of being invalidated out, was about 40-41 years of age and was being paid
pension of Rs.36,068/- per month and was having four daughters and had not
incurred any wounds or disability in any of the war services and was
W.P.(C) No.6093/2020 Page 7 of 12
performing the duties of an Engine Fitter and was having qualifications of
Diploma in Technology (Aeronautics) and Diploma in Mechanical
Engineering.
12. The aforesaid documents reveal, that (a) though the petitioner from 7th
June, 1979 till 2014 was satisfied with the finding returned by the Medical
Board and the Invalidating Board to the effect that the Generalized
Epilepsy-345, for the reason whereof the petitioner was invalided out, was
not attributable to or aggravated by service, but on pronouncement of
Dharamvir Singh supra decided to make a claim for disability pension; (b)
though the petitioner started representing in this regard from the year 2014
onwards and each of which representations was rejected immediately, but the
petitioner still waited for nearly six years for approaching the Court; (c) the
petitioner is a educated technical person but not a combatant and though
participated in the wars but only rendering technical services of an Engine
Fitter; (d) the petitioner, at the time of invalidating out, was about 40-41
years of age and had been found fit for suitable civil employment and must
have enjoyed civil employment for about 20 years after being invalidated out
and of which no particulars have been given; and, (e) the petitioner is already
getting pension of more than Rs.36,068/- per month.
13. As far as the action of the petitioner, of having started claiming
disability pension in the year 2014, on pronouncement of Dharamvir supra,
after more than 34 years of being invalidated out, all that can be said is that
the judgment of a Court though can furnish a cause of action for an appeal or
other remedies thereagainst but cannot be a cause of action for another,
unless similarly placed. To gauge, whether the petitioner can be said to be
W.P.(C) No.6093/2020 Page 8 of 12
similarly placed as Dharamvir Singh supra, we have perused the said
judgment and find, (i) the petitioner therein to be a Sepoy who was boarded
out after rendering nine years of service and on the ground of 20%
permanent disability, upon being found to be suffering from Generalized
Seizure (Epilepsy); (ii) the petitioner therein to have sought his remedies
against denial of disability pension, without any undue delay; (iii) the matter
to have been decided, applying the Entitlement Rules for casualty Pensionary
Awards, 1982, the Guide to Medical Officers (Military Pension), 1980 and
the General Rules of Guide to Medical Officers (Military Pensions), 2002,
all promulgated after the petitioner was invalidated out on 31 st March, 1979;
and, (iv) the Division Bench of the High Court to have decided against the
petitioner therein, applying Union of India Vs. Keshar Singh (2007) 12
SCC 675. The said facts do not place the petitioner at par with Dharamvir
Singh supra, for pronouncement of Dharamvir Singh supra to furnish any
cause of action to the petitioner. The petitioner, who has challenged the
findings of Medical Board, after decades of delay and after all records have
been weeded out in accordance with law and after all legal and statutory
parameters have changed, cannot equate himself with Dharamvir Singh
supra and cannot seek application of the principles and Rules which have
since come into force. Not only so, there is also a difference between the
duties performed by Dharamvir Singh supra and the duties which the
petitioner was performing and which has a vital impact on the test of
causation of the disease, even if suffered by Dharamvir Singh supra and the
petitioner, were to be the same.
W.P.(C) No.6093/2020 Page 9 of 12
14. As far as the reliance by the petitioner on Ex-Gunner Vasant
Mokashi supra is concerned, though he also had approached belatedly, after
39 years and after his medical records had been destroyed but he was
invalidated out due to "neurosis" and which in the case of a Gunner was held
by the AFT to be attributable to service. A reading of the order of the AFT
does not show the said aspect to have been controverted also by the
respondents therein. The relief of grant of disability pension with arrears
since three years prior to the institution of the petition, was granted, literally
unopposed and cannot constitute a precedent even for AFT, in the case of the
petitioner whose claim was opposed. Not only so, the disease from which
Ex-Gunner Vasant Mokashi supra was found to suffer and the disease from
which the petitioner was found to suffer, are entirely different and there is
nothing to show that Epilepsy can be said to be attributable to service or
aggravated by service as a educated Machine Fitter in the respondents IAF.
A Machine Fitter in the respondents IAF is likely to work at the base and not
be at the war front, to suffer from any anxieties leading to Epilepsy, as
pleaded by the petitioner. In fact the petitioner has not pleaded or shown that
Epilepsy can at all be caused or aggravated by tense environment as pleaded
by the petitioner. Moreover the petitioner, before the AFT, did not even cite
or refer to the order in Ex-Gunner Vasant Mokashi supra.
15. There is another aspect of the matter. The petitioner, by delaying the
filing of this petition by more than 38 years has not only lead to a situation of
the respondents IAF‟s record being weeded out in accordance with Rules
therefor but the medical condition of the petitioner also, in the last 38 years
must have changed drastically and no independent assessment even is
possible today after such long lapse of time.
W.P.(C) No.6093/2020 Page 10 of 12
16. As far as the contention of the counsel for the petitioner, of the
petitioner being entitled to equality with Dharamvir Singh supra and Ex-
Gunner Vasant Mokashi supra is concerned, we have already hereinabove
held the petitioner to be not similarly placed as Dharamvir Singh supra. As
far as the aspect of delay is concerned, no doubt in Ex-Gunner Vasant
Mokashi supra, the AFT condoned the said delay confining the claim for
arrears to three years preceding the filing of the petition but from a reading
of the order, it appears that there was no serious opposition thereto inasmuch
as there is no discussion on the said aspect. On the contrary, the petition
filed by the petitioner before the AFT was opposed, by filing a reply
including on the ground of delay. The order of condonation of delay is a
discretionary order and exercise of discretion to condone the delay in one
case in which there is no or not much opposition, does not form a precedent
for condonation of delay in another case, though generally, same parameters
have to be applied by the Court in all cases. However in exercise of
jurisdiction under Article 226 of the Constitution of India, it cannot be said
that the discretion exercised by the AFT in the impugned order, to not
condone the delay of 38 years, has been exercised illegally or perversely, to
invite interference by this Court. The claim for disability pension cannot be
equated to a claim for pay / emoluments in accordance with Rules or claim
for other recurring payments which if not in accordance with law or contract
can be claimed at any time. Disability pension, though payable month-by-
month, payment thereof is dependent on a finding of disability attributable to
or aggravated by service and in the absence of a finding of disability
attributable to or aggravated by service, there can be no claim for disability
pension; such finding is a finding of fact and not of law or contract, claim
W.P.(C) No.6093/2020 Page 11 of 12
wherefor even if highly belated can be made at any time and granted with
arrears for the period within limitation; on the contrary finding, even if
erroneous, of "no disability attributable to or aggravated by service" if not
challenged within reasonable time attains finality and a claim for disability
pension cannot be made at any time, after decades, claiming the same to be a
recurring payment. The counsel for the petitioner is misapplying Tarsem
Singh supra.
17. We therefore do not find any ground to entertain the petition.
18. Dismissed.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. SEPTEMBER 08, 2020 „PP/gsr‟..
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