Ex. Sep. Hari Ram vs Union Of India (Uoi), Through Its ...
2003 Latest Caselaw 158 Del

JUDGMENT

Vijender Jain, J.

1. A short question is involved in this writ petition. Counsel for the petitioner has contended that petitioner joined Army on 6th July,1941 and he was discharged on account of demobilisation on 14th May, 1947. Thereafter the petitioner was again recruited in the defense Security Force from 4th July, 1960 and he superannuated on 5th July, 1969. It was contended before us by counsel for the petitioner that the petitioner rendered in all 14 years 10 months and 15 days service and he is entitled for pension in terms of Rule 124 and 125 of Pension Regulations as well as the letter of the Army Head Quarter dated 10/16 February, 1976.

2. On the other hand, learned counsel for the respondent has contended that the petition suffers from delay and laches as the petitioner has approached this Court after 30 years and in the army the record is destroyed after 25 years. In support of his contention, learned counsel for the respondent has also cited a judgment of Division Bench of this Court in the case of Hans Ram Vs. Union of India .

3. We have given our careful consideration to the arguments advanced by learned counsel for both the parties. The argument of learned counsel for the respondent that the records are not available and, therefore, the petitioner cannot be granted any pension, is not tenable in view of the long roll maintained by the Record Office of the respondent, which has been filed before us along with counter affidavit. From the perusal of the extracts from the long roll, which is at page 15 of the paper-book, against column no.9 which deals with former service, two years 177 days have been mentioned, whereas in the next column, i.e. column no.10 dealing with pension/gratuity, the following has been mentioned :

"Admitted service gratuity to the extent of Rs.935/-for the service from 4.7.1960 to 5.7.1969 and former service from 6.7.1941 to 14.5.1947."

4. In view of the aforesaid admitted fact that the petitioner has served the respondent from 6th July, 1941 to 14th May, 1947, grant of two years 177 days towards former service is patently erroneous. The service which ought to have been counted in view of the extract from the long roll is from 6th July, 1941 to 14th May, 1947 which would come to five years three months and eight days. Taking that service into consideration along with the service rendered by the petitioner in defense Security Force from 4th July, 1960 to 6th July, 1969 it would be approximately fourteen years and ten months.

5. Supreme Court in S.K. Mastan Bee Vs. The General Manager, South Central Railway & Anr. had held as under :-

"We notice that the appellant's husband was working as a gangman who died while in service. It is on record that the appellant is an illiterate who at that time did not know of her legal right and had no access to any information as to her right to family pension and to enforce her such right. On the death of the husband of the appellant, it was obligatory for her husband's employer, viz., railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. The very denial of her right to family pension as held by the learned single Judge as well as the division bench is an erroneous decision on the part of the railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution. The factum of the appellant's lack of resources to approach the legal forum timely is not disputed by the railways. Question then arises on facts and circumstances of this case, the appellate bench was justified in restricting the past arrears of pension to a period much subsequent to the death of appellant's husband on which date she had legally become entitled to the grant of pension? In this case as noticed by us herein above, the learned single judge had rejected the contention of delay put forth by the railways and taking note of the appellant's right to pension and the denial of the same by the railways illegally considered it appropriate to grant the pension with retrospective effect from the date on which it became due to her. The division bench also while agreeing with the learned single judge observed that the delay in approaching the railways by the appellant for the grant of family pension from a date on which the appellant issued a local notice to the railways i.e. 1.4.1992. We think on the facts of this case inasmuch as it was an obligation of the railways to have computed the family pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact her husband was only a gangman in the railways who might not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate. The learned single judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of her husband. Consequently, we are of the considered opinion that the division bench fell in error in restricting that period to a date subsequent to 1.4.1992."

6. Following the ratio laid down in S.K. Mastan Bee's case (supra), we direct the respondent to sanction and pay immediately the pension from the date of his entitlement i.e. 6th July, 1969. The residual shortfall for the purpose of computation of said pension is approximately less than two months in the present case. Normally we would not have condoned the shortfall for the purpose of computation of pension and would have referred the matter to the competent authority for condensation in terms of their own policy of condensation. However, in view of the fact that the petitioner is 81 years old and in view of the guidelines of the Government of India on the subject for condensation of deficiency in service for grant of pension dated 10/16th February, 1996 and in the facts and circumstances of the case, we condone the aforesaid deficiency and direct the respondent to grant the pension to the petitioner within a period of two months taking into consideration the qualifying service to be 15 years.

7. With these observations, writ petition is allowed. Rule is made absolute.