Punjab-Haryana High Court
Union Of India And Others vs Darshan Kumar on 26 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:057369
2024:PHHC:057369
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
212 RSA-383-2021 (O&M)
Decided on : 26.04.2024
UNION OF INDIA AND OTHERS
. . .appellants
Versus
DARSHAN KUMAR
. . . Respondent
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
PRESENT: Mr. S. K. Sharma, Advocate for the appellants.
Ms. Ekjot Sandhu, Advocate for the respondent.
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HARSIMRAN SINGH SETHI, J. (Oral)
In the present regular second appeal, the challenge is to the
judgment and decree of the Courts below by which, the respondent-plaintiff
has been held entitled for invalidated pension and direction has been given
to the appellants-defendants to release the arrears alongwith interest @ 6 %
per annum.
Learned counsel for the appellants argues that keeping in view
the judgment of Hon'ble Supreme Court of India in Union of India and
another v. Bashirbhai R. Khiliji, (2007), 6 SCC 16, in case, the employees
concerned has suffered the disability before completion of minimum period
of 10 years of service, invalidated pension cannot be granted to such
employees which judgment has been ignored by the Courts below while
granting the said benefit to the respondent-plaintiff and hence, the judgments
and decree of the Courts below are perverse to the settled principle of law as
settled by Hon'ble Supreme Court of India in Bashirbhai R. Khiliji's case
(supra).
Learned counsel for the respondent-plaintiff on the other hand
submits that the judgment in Bashirbhai R. Khiliji's case (supra) is
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reconsidered by the Hon'ble Supreme Court of India while deciding the
special SLP (civil) No. 20339 of 2011 titled as Union of India and others v.
P. A. Thomas, decided on 14.03.2019 and expressed doubt upon the views
in Bashirbhai R. Khiliji's case (supra), after which, an amendment has been
carried out in the Central Civil Services (Pension) Rules, 1972 vide
notification dated 04.01.2019 to grant the invalidated pension to the disabled
employees even if, the disabled employees, sought to be retired, is entitled
for invalidated pension, even if he/ she has not completed 10 years of service.
Learned counsel for the respondent-plaintiff further submits that
after the amendment in Pension Rules, 1972 the Hon'ble Madras High
Court while passing judgment in W. P. No. 26318 of 2009 titled as R.
Gunasekaran v. The officer-in-charge, Bureau of Naviks, Cheetah Camp,
Mankhund, Mumbai-88 and others. decided on 24.02.2020, held that the
said amendment in Central Civil Services (Pension) Rules 1972, is only a
clarification for the reasons that prior to the amendment to the Rules 2019,
as per settled principle of law, in case, an employee was found fit at the
time of recruitment and suffered disability during the service career is
entitled for the invalidated pension even in the absence of 10 years of
service, hence, the judgments and decrees of the Courts below are perfectly
in-consonance with the settled principle of law.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
The only argument which has been raised by learned counsel
for the appellant is that the judgments and decree of the Courts below are
perverse to the judgment of the Hon'ble Supreme Court of India in
Bashirbhai R. Khiliji's case (supra). From the fact which has been stated
above, the correctness of the said judgment has already been doubted by
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the Hon'ble supreme Court of India while passing orders in Civil appeals
No. 20339 of 2011 titled as Union of India and others v. P. A. Thomas,
decided on 10.05.2018.
The relevant order dated 10.05.2018 is as under:-
"The issue arising in this case is with regard to the
correctness of either of the views expressed in
Union of India vs. Bashirbhai R. Khiliji1, and C.
Jacob vs. Director of Geology & Mining & Anr.2
We have heard the learned counsels for the
parties.
Insofar as the concerned employee in the
present case is concerned, it is stated by Shri Aman
Lekhi, learned Additional Solicitor General that all
benefits, as claimed, have been conferred to him.
A larger question arises in the case besides
the one with regard to the correctness of either of
the views expressed in Union of India vs.
Bashirbhai R. Khiliji (supra) and C. Jacob vs.
Director of Geology & Mining & Anr. (supra). Rule
38 of the Central Civil Services (Pension) Rules,
1972 has been amended on 30.09.2016. By virtue of
the amendment made persons who suffer
disabilities while in service, if given the benefit
under Section 47 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (for short, 'Disabilities
Act') would henceforth be governed under the
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provisions of Section 47 of the Disabilities Act
subject to production of a disability certificate from
the competent authority as prescribed under the
Act. However, Rule 38(2), as amended, provides
that if such employees to whom the provisions of
Section 47 of the Disabilities Act are not applicable
and such person retires from service on account of
bodily or mental infirmity which permanently
incapacitates him for service, he may be granted
invalid pension or service gratuity in accordance
with Rule 49 of the Pension Rules depending upon
the length of his qualifying service on the date of
retirement. The matter needs clarification and in
our considered view, by the Government. If on 3
sustaining incapacity while in employment
alternative employment under Section 47 of the
Disabilities Act is guaranteed in cases of
permanent incapacity should grant of invalid
pension be contingent on completion of any
particular length of service. Rather would such
length of service be relevant for computation of
quantum of invalid pension. The learned Additional
Solicitor General has submitted that the matter may
be adjourned for a period of three months to enable
the concerned authority in the Union of India to
deal with the matter and pass appropriate
orders/clarifications as may be considered
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necessary. List the matter after three months.
(NEETU KHAJURIA)
COURT MASTER (ASHA SONI)
BRANCH OFFICER"
Thereafter, the 1972 Rules have been amended vide notification
dated 04.01.2019 to say that invalidated pension will be admissible to the
disabled employees even before the completion of the 10 years of service,
in case, the disease is suffered by employee concerned in the course of the
employment.
Further, the said amendment to 1972 Rules has already been
taken into consideration by the Hon'ble Madras High Court to hold that the
said amendment is only a clarification in nature keeping in view the fact
that prior to the said amendment, as per the settled principle of law as settled
by the Hon'ble Supreme Court of India in various judgments, an employee
who suffered disability on account of service condition, is entitled to
invalidated pension in case the said employee was found fit at the time of
recruitment even if the said employee has not completed 10 years of
service at the time of invalidation from service.
Learned counsel for the appellants has not been able to
dispute the said principle of law as settled by the Hon'ble Supreme Court
of India. By taking into consideration the fact stated herein before and
principle of law and the amendment done by the Union of India in the rules
itself, it cannot be said that judgments and decrees of the Courts below are
perverse to the settled principle of law.
At this stage, learned counsel for the appellants submits that
while granting the relief to the respondent-plaintiff, it has not been
mentioned by the Courts below that while calculating the entitlement of the
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respondent-plaintiff for the invalidated pension for the day of invalidation,
the amount already paid, will be adjusted.
Learned counsel for the respondent-plaintiff submits that
while implementing the relief granted by the Courts below, the appellants
can adjust the amount already paid to the respondent-plaintiff. That being
so, the judgment and decrees of the Courts below are upheld only with
the modification that while calculating the arrears admissible to the
respondent-plaintiff, the amount already paid to him will be adjusted.
As no perversity in the judgments and decrees of the Courts
below is pointed out by the learned counsel for the appellants, no
ground is made out for any interference in the present regular second
appeal, hence, the same stands dismissed.
Pending civil miscellaneous application, if any, stands disposed
of.
(HARSIMRAN SINGH SETHI)
JUDGE
26.04.2024
Riya
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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