Delhi High Court
Ex Jwo Krushna Chandra Mahapatra vs Union Of India & Ors. on 2 February, 2024
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: February 02, 2024
+ W.P.(C) 11036/2023
(3) EX JWO KRUSHNA CHANDRA MAHAPATRA ..... Petitioner
Through: Dr. D. K. Sharma , Mr. O.S. Punia
and Mr. Ashish, Advocates
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Anshuman, SPC with Mr.
Jitendra Kr. Tripathi, Advocate
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE SAURABH BANERJEE
V. KAMESWAR RAO, J. (ORAL)
CM APPL. 42803/2023 & CM APPL. 42804/2023
Exemption allowed subject to all just exceptions.
Applications are disposed of.
W.P.(C) 11036/2023
1. The challenge in this petition is to an order dated May 31, 2023
passed by the Armed Forces Tribunal in OA No. 186/2022, whereby the
Tribunal has rejected the OA filed by the petitioner herein, on the ground of
delay by holding, in paragraphs 15 and 16, as under:-
"15. Noting that the applicant is approximately 63 years o ld
at present, it is highly improbable for the medical experts to
assess the accurate percentage of the disability which could
be held attributed to or aggravated by the Air Force Service
and an accurate medical opinion is not possible in this case,
we find it relevant to observe that the beneficial provisions of
the statutes or legislations which have been brought in for the
benefit and welfare of armed forces cannot be used as a tool
to propagate unnecessary litigation after such unreasonable
delay, without any reasonable and justifiable explanation to
that effect and just because a beneficial provision exists in a
statute, it cannot be taken refuge of by the applicant
disregarding his own responsibility and duty behind the veil of
such beneficial provision and therefore the Tribunals should
itself from interfering in such cases.
16. In view of the aforesaid analysis, we are of the
considered opinion that the relief asked for by the applicant is
unsustainable on the grounds of unreasonable delay, and
consequently, the O.A. 186/2022 is dismissed."
2. The submission of the learned counsel for the petitioner is that the
Tribunal could not have rejected the OA on the ground of delay as pension
is a continuous cause of action and moreover, in view of the judgment in the
case of Union of India & Ors. vs. Tarsem Singh in Civil Appeal No.5151-
5152 /2008, wherein, the Supreme Court in paragraph no.5, has held as
under; the OA was maintainable.
"5. To summarise, normally, a belated service related claim
will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation (where
remedy is sought by an application to the Administrative
Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service related claim
is based on a continuing wrong, relief can be granted even if
there is a long delay in seeking remedy, with reference to the
date on which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury. But
there is an exception to the exception. If the grievance is in
respect of any order or administrative decision which related
to or affected several others also, and if the re-opening of the
issue would affect the settled rights of third parties, then the
claim will not be entertained. For example, if the issue relates
to payment or re-fixation of pay or pension, relief may be
granted in spite of delay as it does not affect the rights of third
parties. But if the claim involved issues relating to seniority or
promotion etc., affecting others, delay would render the claim
stale and doctrine of laches/imitation will be applied. In so far
as the consequential relief of recovery of arrears for a past
period, the principles relating to recurring/successive wrongs
will apply. As a consequence, High Courts will restrict the
consequential relief relating to arrears normally to a period
of three years prior to the date of filing of the writ petition."
3. On the other hand, learned counsel for the respondents tried to justify
the order of the Tribunal by stating that the claim of the petitioner was
rejected by the respondents in the year 2000 and the OA having been filed in
the year 2023 was hit by delay and laches.
4. We are in agreement with the submissions made by the counsel for
the petitioner for the reason that the Tribunal while allowing M.A. 265/2022
had condoned the delay in filing the OA. If the delay in filing the OA was
condoned, the Tribunal should have actually considered the claim of the
petitioner for grant of the disability pension on merits and decided the same
in accordance with law.
5. Having not done that, we set aside the order passed by the Tribunal
and remand the matter back to the Tribunal to consider the claim of the
petitioner for disability pension in accordance with law. For this purpose, we
list the OA 186/2022 before the Tribunal on March 4, 2024.
6. The petition is disposed of.
V. KAMESWAR RAO, J
SAURABH BANERJEE, J
FEBRUARY 2, 2024/rr..
