Bachan Kanwar vs Union Of India & Ors.
1994 Latest Caselaw 341 Del

JUDGMENT

Anil Dev Singh, J.

Rule D.B.

1. By this writ petition, the petitioner seeks direction to the respondents to pay the Special Family Pension including the arrears with effect from October 17, 1953, the date of the death of her husband Naik Ram Singh and his disability pension from the date of discharge from military viz. March 1, 1944 to October 17, 1953.

2. The facts on the basis of which the petitioner claims relief are as under :

The petitioner claims to be the wife of late Naik Ram Singh, who was enrolled in Sedum Light Infantry on August 10, 1939. he was posted on active service to Iraq, for which purpose he embarked from India on October 21, 1941 and disembarked at Iraq on October 27, 1941. He was posted on active service to Iraq, for which purpose he embarked from India on October 21, 1941 and disembarked at Iraq on October 27, 1941. he served at Zubair, Shaiba and other filed areas from January 10, 1942 onwards. During the course of active service in filed areas at the aforesaid places, the petitioner's husband was struck with Pleurisy. As a result of this he was evacuated from Iraq on September 17, 1943 and admitted in Indian Base General Hospital, Kirkee (Maharashtra) India. Since he was inflicted by Pleurisy he was prematurely discharged from the army on March 1, 1944 and ultimately died on October 17, 1953. After his premature discharge he was not paid any disability pension. Even no family pension was paid to the petitioner after his death. On February 2, 1993, the petitioner addressed a Petition to the President of India for seeking Special Family Pension including arrears with effect from October 17, 1953 and dues on account of the disability pension from March 1, 1944 to October 17, 1953 Along with interest @ 19% (Annexure P-3 to the writ petition). Thereupon respondent No. 3, Officer-in charge Records, Rajput Regiment, Fatehgarh vide his letter dated December 27, 1993 asked for further details from the petitioner. The petitioner in response thereto on January 10, 1994 furnished the requisite information. Thereafter the petitioner did not hear anything from the respondents which led to the filling of the present petition under Article 226 of the Constitution.

3. Learned Counsel Mr. B. P. Ojha, appearing for the petitioner submitted that the petitioner's husband was entitled to disability pension from March, 1, 1944 to October 17, 1953 under Regulation No. 173 of the pension Regulations for the Army Part I, 1961 (Reproduction of 1940 Edition) read with Appendix II thereto.

4. According to the learned counsel the petitioner's husband was invalidated from service on account of disability which was attributable to military service. He further claimed that the petitioner was entitled to Special Family Pension with effect from October 17, 1953 and was also entitled to arrears with appropriate interest.

5. Learned counsel appearing for the respondent submitted that the petition is highly belated and no relief can be granted to the petitioner at this late stage. On merits, learned counsel contended that the disability pension was not payable to the petitioner's husband as disability was not attributable or aggravated military service. With regard to the payment of Special Family Pension, it was submitted that there is nothing to show that the death of the petitioner's husband was due to or hastened by the disease which was attributable to military service. Learned counsel also contended that the name of the petitioner was not found recorded in the long roll and there was no evidence to show that the petitioner was the wife of late Naik Ram Singh.

6. We have considered the respective submission of the learned counsel for the parties. The undisputed facts which emerge from the pleadings are :

1. Naik Ram Singh was enrolled in the army on August 10, 1939;

2. He was discharged from service on March 1, 1944 due to a disease (See para 1 of the counter-affidavit).

3. He was not granted any type of pension at the time of discharge from the army service.

7. Now in the light of the aforesaid facts can we accede to the request of the petitioner for issuing a direction to the respondent No. 1 to grant disability pension to the petitioner's husband posthumously and direct payment of arrears on account of the same to the petitioner and also family pension to her, is the question which has been raised before us.

8. Disability pension is governed by Regulation No. 173 and Appendix II thereto. The said Regulation and the Appendix II in so far as they are relevant read as under.

"173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalidated from service on account a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over.

9. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in appendix II"

APPENDIX II

5. x x x x x - this benefit will be given more liberally to the claimant in case occurring on active service as service in the Army/Air Force Act. x x x - x x x

7. In respect of diseases, the following rules will be observed :

 

 (a) x   x   x   x   x   x   x   x   x   x   x   x   x   x   X
 

 (b) A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no notice of it was made at the time of the individual's acceptance for military service  
 

 (c) x     x     x     x     x     x     x     x     x     x     x    x
 

(d) in considering whether a particular disease is due to military service, it is necessary to relate the established facts, in the a etiology of the disease and of its normal development to the effect that conditions of service e.g. exposure, stress, climate etc. may have had on its manifestation. Regard must also be had to the time factor (Also see Annexure).

 x       x       x       x       x       x       x       x       x
 

 ANNEXURE - Classification of Diseases;  
 

 A. disease affected by climatic conditions  
 

                         x x x x x x x x x x
 

                               Pleurisy
                       

x x x x x x x x x  x x x x
 

10. Applying the aforesaid regulation to the facts it may be possible to say that the disease which led to the discharge of Ram Singh from army may have arisen in service, because if he had been suffering from any disease earlier to his entry in the military service he would not have been enrolled in the army. But this alone cannot entitled the petitioner to claim disability pension as according to the above regulation the disability attributable to the military service should be 20% or above. Sitting in writ jurisdiction, we cannot assessed the extent of the disability with which Ram Singh was afflicted as a result of the decease contacted by him while in service though there is a strong possibility that the disease was serious in nature and the disability must be above 20% as otherwise he would not have been discharged from service. This, however, is a matter for determination of the respondents.

11. The other question whether or not the petitioner would be entitled to special family pension under Regulation No. 213 cannot be resolved by us for the same reason. It is no doubt correct that Ram Singh was discharged on March 1, 1944 due to disease and died on October 17, 1953 i.e. within nine years of his discharge from service, but it is not for us to decide whether this fact by itself is enough to show that his death was due to or hastened by a disease which was attributable to the military service. Again this is matter which the respondents alone are competent to determine. The respondents should have considered and disposed of the petition moved by the petitioner before them especially when the discharge certificate of Ram Singh sought by respondent No. 3 vide letter dated December 27, 1993 was furnished by the petitioner by her letter dated January 10, 1994. Since the pension is not a bounty or gratuitous payment or a matter of grace dependent upon the will and caprice of the employer but is a valuable right and property in the hands of the retiree, the same can surely be claimed at any point of time subject to the rules governing them and also subject to the claim being restricted to three years from the date of the writ petition or demand for payment of the same in case of delay in asking for such payment. It is a continuous obligation of the employer to pay pension to the retiree or family pension to the family members of the deceased retiree in consonance with the rules. The plea of laches normally in such matters cannot be entertained as the obligation of the employer to pay the pension continues till the death of the retiree. Similarly obligation of the employer to pay family pension to the family members of the deceased retiree in accordance with rules continues till the death of the family members entitled to family pension. therefore if the right to family pension exists in favor of the petitioner such a right will ensure till he death. The matters covered by the writ petition lie in the domain of the respondents for their determination. Therefore the petition filed before them should have been decided.

12. In this view of the matter, we are of the opinion that the petition of the petitioner dated February 2, 1993 which was filed before respondent No. 1 with copies to respondents 2 and 3 for suitable action should be considered and decided on merits within a period of three months from the receipt of this order by them. The petitioner may file such material, as he considers appropriate in support of her claim including copies of the wirt petition and annexures accompanying it before the respondent No. 1 with copies to respondents 2 and 3 within three weeks from today. it will also be open to the respondents to verify the claim of the petitioner that she is the wife of deceased Naik Ram Singh.

13. Accordingly the writ petition succeeds to the extent indicated above with no order as to costs.