Karnataka High Court
Sri.K. Narasimhamurthy vs Union Of India on 23 January, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
W.P. NO.45106/2017 (S-RES )
BETWEEN:
SRI. K. NARASIMHAMURTHY,
S/O LATE. KADURAPPA,
AGED ABOUT 53 YEARS,
RESIDING AT BIDARAKERE VILLAGE,
RANGENAHALLI POST,
HIRIYUR TALUK,
CHITRADURGA-577 545.
... PETITIONER
(BY SRI. SRINIVASA K, ADVOCATE)
AND:
1. UNION OF INDIA
REPRESENTED OFF BY ITS
SECRETARY,
MINISTRY OF HOME AFFAIRS,
M.H.A. NORTH BLOCK,
NEW DELHI-110 001.
2. THE DIRECTOR GENERAL,
CENTRAL RESERVE POLICE FORCE,
C.G.O. COMPLEX,
LODHI ROAD,
NEW DELHI-110 001.
3. THE INSPECTOR GENERAL OF POLICE
KARNATAKA AND KERALA SECTOR,
CRPF CAMPUS,
YELAHANKA,
BENGALURU-560 064.
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4. DEPUTY INSPECTOR GENERAL
OF POLICE, CRPF,
GROUP CENTER, YELAHANKA,
BENGALURU-560 064.
5. THE COMMANDANT,
77 BATTALION, CRPF,
PONAMMALLEE,
CHENNAI-600 056.
...RESPONDENTS
(BY SRI. K.S.BHEEMAIAH, ADVOCATE FOR R1 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED COMMUNICATION DATED
31.10.2013 ISSUED BY RESPONDENT NO.5 AT ANNEXURE-J
AND THE REPLY DATED 14.08.2007 ISSUED BY
RESPONDENT NO.3 AT ANNEXURE-L TO W.P. AS ARBITRARY,
UNJUST AND ILLEGAL AND ETC.,
THIS WRIT PETITION COMING ON FOR FURTHER
ARGUMENTS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Matter was heard and the order was dictated on 25.7.2019. Before signing the order dated 25.7.2019, suo moto the matter was taken for 'Being Spoken To' on 22.1.2020 seeking for certain clarification from the petitioner in view of the Supreme Court decision reported in (2015) 10 SCC 460 in the case of Union of India and Others Vs. Vijay Kumar No.3989606 3 P.Ex.Naik. Hence, the order dated 25.7.2019 is recalled.
2. The matter was heard from time to time and parties were permitted to produce various documents. In this backdrop, it was heard afresh at length.
3. In the instant petition, petitioner has sought for the following reliefs:
1. Issue a writ of certiorari quashing the impugned communication dated 31.10.2013 bearing No.P.III.1/2013 EC-
IV/77 issued by the 5th respondent, vide Annexure-J and the reply dated 14.08.2017 bearing No.J.II-3/2017 KKS- Legal issued by the 3rd respondent vide Annexure-L to the writ petition as arbitrary, unjust and illegal.
2. Issue a writ of mandamus directing the respondents to consider the representations of the petitioner dated 27.04.2013, vide Annexure-F and 4 consequently to sanction the disability pension to the petitioner.
3. Pass any other appropriate order, orders or directions as this Hon'ble Court may deem fit to pass under the facts and circumstances of this case."
4. Petitioner while in service was invalidated on 12.4.2000 in view of the fact that he met with an accident on 21.4.1996. Feeling aggrieved for invalidating him from service, he preferred writ petition No.12421/2000 and it was allowed on 18.8.2000. Respondents feeling aggrieved by the order of the learned Single Judge dated 18.8.2000 preferred Writ Appeal No.7821/2000. Division Bench of this Court affirmed the order of the learned Single Judge on 03.02.2003. Being aggrieved by the orders of the learned Single Judge and Division Bench, respondents preferred an appeal before the Apex Court in S.L.P. No.6379/2003.
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5. During pendency of the SLP, petitioner was taken back to duty in the year 2003. Respondents suffered order before the Apex Court on 11.8.2011 in SLP No. 6379/2003. Thus, insofar as invalidating the petitioner, it has been held to be bad. In this backdrop, once again petitioner was invalidated on 13.3.2012 with reference to the very same alleged incident. The petitioner is tired of approaching the Court once again in questioning the validity of invalidation and it has attained finality.
6. In this backdrop, petitioner submitted an application to extend the invalidated disability pension on 27.4.2013. Based on the petitioner's application respondents have issued necessary forms so as to entertain the petitioner's requisition for disability pension. The petitioner has completed all the formalities for the purpose of claiming disability pension.
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7. When things stood thus, the respondents have issued an endorsement stating that petitioner has not fulfilled one of the condition stipulated under the Central Civil Services Extraordinary Pension Rules, 1939 (for short Rules 1939). Thus, petitioner has questioned the validity of rejection of his claim for disability pension.
8. Learned counsel for the petitioner submitted that petitioner had taken permission on 21.4.1996 being Sunday and applied for a casual leave on 22.4.1996 when he was working at Chennai (H/q). Permission and Casual Leave on Sunday and Monday was in connection with his personal work in Bengaluru. He had traveled from Chennai to Bengaluru on 21.4.1996 the day on which he met with an accident at Bengaluru. Due to which, he suffered injuries. In this backdrop, 'whether petitioner is entitled for disability pension or not?' is the issue.
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9. Learned counsel for the petitioner submitted that when respondents have permitted him to avail the permission on 21.4.1996 being a Sunday, such permission amounts duty or not is required to be taken into consideration with reference to Annexures N and P. Annexures N and P have been placed for want of records of the petitioner since respondents have destroyed the Petitioner records. Annexures N and P would demonstrate leave cum duty certificate. Sunday being the General Holiday to leave the Head Quarters, permission would be granted. Consequently, it will be treated as leave cum duty r/w permission on a General Holiday in both the petitioner's case as well as in Annexure-L of one Shri K. Narasimhamurthy relating to Sunday. Learned counsel for the petitioner distinguished the Supreme Court decision in the case of Vijay Kumar cited supra that the aforesaid decision is not with reference to the Rules, 1939 whereas the Supreme Court had an occasion to deal with the provisions of 8 Pension Regulations for the Army, 1961. Therefore, the cited decision does not apply to the petitioner's case.
10. Per contra, learned counsel for respondents resisted the petitioner's contention and submitted that undisputed facts are that petitioner has availed permission on 21.4.1996 being the Sunday and applied leave on 22.4.1996 and he was traveled from Chennai to Bengaluru since he was working at Chennai and accident took place on 21.4.1996 in Bengaluru on which date, respondents had granted permission to leave the Head Quarters. Such permission does not amount to on duty. Learned counsel for the respondents submitted that relevant documents in respect of grant of permission to petitioner on 21.4.1996 and permitting him to avail leave on 22.4.1996 are not available and in terms of establishment of Manual of CRPF 1976 para 5.17. Such certificate has been prepared on 2.2.2006 vide Annexures R13 r/w Annexure-R12 at 9 item No.223 and relates to the petitioner, wherein date of accident has been recorded. In other words, page Nos.1 to 67 is stated to have been destroyed.
11. Learned counsel for the respondents further submitted that when the petitioner was not on duty, question of extending the invalidated pension/disability pension do not arise in view of the conditions stipulated under Rules, 1939.
12. Learned counsel for the respondents relied on following two decisions:
(i) Union of India and others Vs. Vijayak Kumar No.3989606 P. Ex.-Naik, reported in (2015) 10 SCC 460.
(ii) Madan Singh Shekhawat Vs. Union of India & Ors. reported in (1999) 6 SCC
459.
13. Heard learned counsel for the parties. 10
14. Undisputed facts are that petitioner while he was on duty at Chennai in the year 1996, he had submitted permission and leave application for the dates 21.4.1996 and 22.4.1996 in order to meet his personal work. He had traveled from Chennai to Bengaluru on 21.4.1996 the day on which respondents had given permission since it was a Sunday, the day on which, he met with an accident resulted in suffering certain grievous injuries. Petitioner had been paid salary for the day on 21.4.1996. In this backdrop, he was invalidated on 12.4.2000 i.e. almost after four years from the date of accident. Petitioner aggrieved by the order of invalidation, questioned before this Court and Writ Petition was allowed and in Writ Appeal decision in Writ Petition was affirmed. The matter was taken up to the Apex Court where respondents suffered order. In other words, invalidation of the petitioner was held to be bad. Consequently, petitioner was taken back to duty during the pendency of the matter before Apex 11 Court in the year 2003. Thereafter, once again petitioner was ordered to be invalidated and it has attained finality. In this backdrop, 'whether petitioner is entitled to invalidated pension/disability pension or not?'
15. The petitioner submitted application and it was processed. Ultimately it was rejected on the score that accident and suffering injuries is not while he was on duty. Therefore, he is not entitled for disability pension in accordance with Rule 4 of the Rules, 1939. In all fairness, respondents should have kept the petitioner's record intact in view of the pendency of the litigation. In fact, petitioner's records were destroyed in the year 2006 as on that date litigation was pending consideration before the Apex Court since SLP No.6379/2003 was decided on 11.8.2011. Consequently, petitioner had relying on two documents relating to leave cum duty certificate Annexures- N and P which are re-produced hereunder:
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ANNEXURE - N LEAVE CUM DUTY CERTIFICATE (NO EXTENSION WILL BE GRANTED) 04 day's C/L No. 045143396 CT/GD B. Nagamalleshwara rao of R/Blr CRPF is proceeding on 04 day's C/L w.e.f.
11/11/2019 to 15/11/2019 w/p to avail 09/11/2019,16/11/2019-Saturday & 10/11/2019,17/11/2019-Sunday, 12/11/2019 (GH) Individual should report at Range HQr on 17/11/2019 (Evening Roll Call) Dated:08/11/2019 Place: Bangalore ANNEXURE -P EXTENSION WILL NOT BE GRANED 180 DAYS / CCL THE CENTRAL RESERVE POLICE FORCE LEAVE AND DUTY CERTIFICATE 13 NO. 940880295 RANK: HC/GD(M) NAME:
A.JAYANTI IS PROCEEDING ON LEAVE / DUTY FORM 03.01.2019 TO 02.07.2019 Station: BLR Date: Dor 02.07.2019 Signature: sd/-
Designation; OFFICER COMMANDING 240BN, CRPF MGITBF/MYS/75/CRPF/BNG/2011-12 3000 FORMS Reading of Annexures N and P, it is crystal clear it is leave cum duty certificate. In case of Annexure-
N dated 08.11.2019 Sunday (general holiday) consequently, the entire period from 11.11.2019 to 15.11.2019 the official was permitted to avail leave.
In this backdrop, one has to draw inference that even though petitioner was on permission on 21.4.1996 and leave on 22.4.1996, official- respondents must have issued permission or grant on leave cum duty certificate. For want of petitioner's leave cum duty certificate, this Court is compelled to rely on Annexures- N and P so as to consider contents of the 14 format. If the permission on 21.4.1996 - Sunday, he is treated as duty in view of Annexure - N Format and its general contents. The contention of the respondents that he was not on duty cannot be appreciated and one has to draw inference such a permission on 21.4.1996 r/w leave on 22.4.1996 and date of accident on 21.4.1996 itself to be treated as leave cum duty certificate for both days. Therefore, respondents contention that on 21.4.1996 cannot be treated as duty since his leave application was granted only on 22.4.1996 and permission was granted for general holiday on 21.4.1996 cannot be appreciated.
16. Learned counsel for the respondents relied on two decisions. Both the decisions do not assist the respondents for the reason that in the case of Vijay Kumar stated supra Regulations relied on interpreted entirely different namely Pension Regulations of the Army, 1961. Whereas in the present case, Rules 1939 in the case of Madan Singh 15 Shekhawat general observation was made and it is not with reference to interpretation of Rules, 1939 r/w the format and general contents like leave cum duty certificate. The respondents have not appraised this Court relating to definition of permission on a general holiday. In other words, is there any provision which distinguished permission granted on general holiday is on official capacity or personal capacity. Even such definitions are available still for want of petitioner's record relating to grant of permission and availing leave on 21.4.1996 and 22.4.1996 were not made available. There are lapses on the respondents in not keeping the records of the petitioner when the matter was sub judice before the Apex Court as on 2.2.2006 the date on which petitioner's records have been destroyed. In view of these facts and circumstances, petitioner's case is required to be reconsidered for extending the benefit of disability pension since this Court declared that petitioner's availing permission on 21.4.1996 r/w 16 22.4.1996 are treated as leave cum duty in view of Annexures N and P contents and format, wherein authorities have taken note of Sunday (general holiday) and treated as leave cum duty certificate for that particular date.
17. Accordingly, Annexure-J is set aside. Concerned respondent is hereby directed to reconsider the grievance of the petitioner that as if he was on duty on 21.4.1996 the date of permission r/w the date of accident and pass a speaking order in extending disability pension with all arrears. Arrears shall be calculated and disbursed within a period of three months from the date of receipt of this order.
18. At this stage, learned counsel for the respondent insisted for consideration of Rule 3-A(1)(a) of CCS (EOP) Rules, 1939 which reads as under:
Disablement shall be accepted as due Government service, provided that it is certified that it is due to wound, injury or disease which:-17
i) is attributable to Government service, or
ii) existed before or arose during Government service and has been and remains aggravated thereby.
(2) There shall be a caused connection between:-
a) disablement and Government
service.
Further, para-1(4)(b) guidelines for
conceding attributability of
disablement under EOP Rules
stipulates that:-
b) A person subject to the disciplines code of the Central Armed Police Battalions, is on duty.....
i) When performing a official task or a task, failure to do which would constitute an offence, triable under the disciplinary code, applicable to him.
ii) When moving from one place of duty to another place of duty 18 irrespective of the method of movement.
iii) During the period of participation in re recreation, organized or permitted by service authorities, and during the period of traveling in a body or single under organized arrangements.
iv) When proceeding from his duty station to his leave station on returning to duty from his station at public expenses, that is, on Railway warrant , on cash TA(irrespective of whether Railway warrant, on cash TA is admitted for the while journey or for a portion only), in Government transport or when road mileage for the journey.
19. The aforesaid contention of the petitioner would apply for a different situation for the purpose of consideration whether petitioner was on permission on leave cum duty is required to be taken 19 note of with reference to the permission/leave granted to the petitioner on 21.4.1996 and 22.4.1996. Annexures - N and P contents and format would make it clear that if CRPF personnel avails any leave for a particular period which includes general holiday, how it is required to be decided is evident from Annexures-N and P whether Sunday being the general holiday has been treated as leave cum duty.
Consequently, the aforesaid situation is different from the present one. Principle laid down in the cited decisions on behalf of Respondents could be distinguished in view of the Supreme Court decision in the case of T. Beermasthan vs. Nair Service Society reported in (2009) 5 SCC 545 and relevant Para No.48 reads as under:
"48. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and 20 different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block."
20. In view of the aforesaid principle, cited decisions on behalf of respondents are not relevant to the present case in terms of format and contents of Annexures N and P. Accordingly, writ petition stands allowed.
Sd/-
JUDGE BS