Punjab-Haryana High Court
Union Of India And Orders vs Ex Rect/Na Mohinder Singh And Another on 24 October, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
Neutral Citation No:=2024:PHHC:141063-DB
CWP-18289-2024 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-18289-2024
Date of Decision on: 24.10.2024
UNION OF INDIA AND OTHERS .....Petitioners
Versus
EX RECT/NA MOHINDER SINGH AND ANOTHER .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE ALOK JAIN
Argued by: Ms. Sonia Sharma, Senior Panel Counsel
for the petitioners/UOI.
Mr. Arshit Goel, Advocate
Mr. Ajay Sheoran, Advocate
for respondent No. 1.
****
SURESHWAR THAKUR, J. (ORAL)
1. Through the instant writ petition, the petitioner herein-
Union of India prays for the setting aside of the order dated 09.03.2016
(Annexure P-1) as passed by the learned Armed Forces Tribunal
concerned, whereby the petitioners herein were directed to process the
case for grant of disability pension to respondent No. 1.
Factual Background.
2. Respondent No. 1 was enrolled in the Army on 28.05.1984
and was invalided out from service w.e.f. 21.12.1985. The invalid
Medical Board of respondent No. 1 was held on 18.10.1985 in which
his disability "Cogestive Cardio Mypothy (425)" was considered as
'Attributable to but not aggravated by Military Service' and was
assessed @ 40 % for two years. The claim for disability pension to
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respondent No.1 was forwarded to PCDA Allahabad vide letter dated
20.01.1986, however, the same was rejected vide letter dated
20.03.1986. Thereafter, respondent No. 1 filed an Original Application
No. 661 of 2015 before the Tribunal concerned, for grant of disability
pension @ 40 % w.e.f. 22.12.1985 to 31.12.1995 and thereafter
rounding off the same to 50 % w.e.f. 01.01.1996. The said application
became allowed vide order dated 09.03.2016 (Annexure P-1). The
operative part of the said order is extracted hereinafter.
" The learned counsel for the respondents has no
objection for the aforesaid request, therefore, against the
aforesaid facets the matter is disposed of with the direction
to the respondents to process the case of the petitioner for
the grant of disability pension in the light of the letter
aforesaid if he found entitled."
3. In view of the aforesaid orders, the petitioners issued PPO
No. D/0175/2016 by granting disability element of disability pension to
respondent No. 1 w.e.f. 21.12.1985 by restricting the arrears of service
element w.e.f. 03.07.2012 i.e. three years preceding to the date of filing
of OA.
4. Thereafter, respondent No. 1 filed an MA (E) No. 1540 of
2018 in OA No. 661 of 2015 before the Ld. Armed Forces Tribunal
concerned for execution of the order dated 09.03.2016 (Annexure P-1),
as passed by the Tribunal concerned in O.A. No. 661 of 2015.
Subsequently, the MA (E) came up for hearing and the ld. Tribunal
directed the petitioners as to why the arrears for grant of disability
pension to respondent No. 1 have been restricted.
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5. It is the above posed query by the learned Tribunal during
the pendency of the execution petition, which has led the petitioners
herein to file the instant writ petition.
Submissions of the learned counsel for the petitioners.
6. At the outset, the learned counsel for the petitioners-Union
of India refers to the rendition(s) of various judgments by the Hon'ble
Apex Court, wherebys, there has been a restriction of the apposite
arrears for a period of three years. He further submits that in view of
the expostulations of law made thereins, the learned Tribunal concerned
should have restricted the grant of arrears to the respondent for three
years.
7. Initially, a reference is required to be made to paragraphs
No. 5 and 6 of the verdict rendered by the Hon'ble Apex Court in case
titled as Civil Appeal No. 5151-5152 of 2008 (Arising out of SLP (C)
Nos. 3820-3821 of 2008 titled as Union of India and Others Vs.
Tarsem Singh, decided on 13.08.2008. The said paragraphs No. 5 and 6
become extracted hereinafter.
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
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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/limitation 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.
6. In this case, the delay of 16 years would affect the consequential
claim for arrears. The High Court was not justified in directing
payment of arrears relating to 16 years, and that too with interest. It
ought to have restricted the relief relating to arrears to only three years
before the date of writ petition, or from the date of demand to date of
writ petition, whichever was lesser. It ought not to have granted interest
on arrears in such circumstances."
8. A reading of paragraph No. 5 of the verdict (supra) clearly
underscores the fact that in case any claim is hit by the vices of delay
and laches, thus ultimately affecting the apposite invested indefeasible
right qua the army personnel, but relating only to payment or re-fixation
of pay or pension, therebys, the said delayed claim, rather than
becoming straightway rejected, thus, is required to be allowed, but with
a fetter that the arrears of pension being restricted upto a period of three
years prior to the date of filing of the writ petition.
9. In the said case in paragraph No. 6 thereof, the Apex Court
declared that the High Court was not justified to direct the release of
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arrears of pension covering a period of 16 years and that too with
interest.
10. The said view also appears to have been accepted in a
judgment bearing Civil Appeal No. 274 of 2007 (Arising out of SLP
(Civil) No. 881 of 2006) titled as Shiv Dass Vs. Union of India and
Others, decided on 18.01.2007. The relevant paragraphs whereof are
extracted hereinafter.
9. In the case of pension the cause of action actually
continues from month to month. That, however, cannot be
a ground to overlook delay in filing the petition. It would
depend upon the fact of each case. If petition is filed
beyond a reasonable period say three years normally the
Court would reject the same or restrict the relief which
could be granted to a reasonable period of about three
years. The High Court did not examine whether on merit
appellant had a case. If on merits it would have found that
there was no scope for interference, it would have
dismissed the writ petition on that score alone.
10. In the peculiar circumstances, we remit the matter to
the High Court to hear the writ petition on merits. If it is
found that the claim for disability pension is sustainable in
law, then it would mould the relief but in no event grant
any relief for a period exceeding three years from the
date of presentation of the writ petition. We make it clear
that we have not expressed any opinion on the merits as to
whether appellant's claim for disability pension is
maintainable or not. If it is sans merit, the High Court
naturally would dismiss the writ petition. The appeal is
disposed of accordingly without any order as to costs.
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Submissions of the learned counsel for the respondent.
11. The learned counsel for respondent No. 1 submits that, in
the instant case, despite their existing a vested right qua respondent No.
1, thus, under the then existing rules, wherebys he was entitled to
receive a particular statutory benefit, yet the same became illegally held
back or became rejected by the petitioners. In such cases, the Hon'ble
Supreme Court has held that arrears cannot be restricted and the
authorities cannot be allowed to take the benefit of their own wrong. In
support of his arguments, the learned counsel for the respondent places
reliance upon a judgment rendered by the Hon'ble Apex Court in case
titled as 'Balbir Singh Vs. Union of India and Others' to which Civil
Appeal No. 3086 of 2012 became assigned, decided on 08.04.2016.
The relevant paragraph of the said judgment is extracted hereinafter.
"The Tribunal was therefore justified in restoring the
service element of the pension in favour of the appellant.
The question however is whether the arrears could have
been restricted to three years only. The Tribunal in our
view need not have done so. That is because the appellant
had a right to receive service element of the pension in
light of Regulation 186 (supra), which right was valuable
and ought to have been protected. The fact that the
appellant had approached the Tribunal for redress
belatedly was in the peculiar circumstances of the case,
no reason for the Tribunal to reduce the payment of
arrears to three years only."
12. Further, the learned counsel for respondent No. 1 refers to
the recommendations made by the Invaliding Medical Board vis-a-vis
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respondent No. 1, held on 18.10.1985, recommendations whereof are
extracted hereinafter.
" The disease is post infective in origin which individual
contracted while in service and declared the same as
attributable to military service."
13. Thereafter, the claim for grant of disability pension of
respondent No. 1 was forwarded to PCDA (P) Allahabad, who however,
altered the findings of the release medical board, without physically
examining respondent No. 1 and accordingly vide letter dated
20.03.1986, rather rejected the claim for grant of disability pension to
respondent No. 1. The said alteration made by the MAP PCDA (P) is
against the settled position of law as the opinion given by the medical
board, who is an expert body has to be given weightage, than to the
opinion rendered by the Pension sanctioning authority. Therefore, the
instant writ petition requires dismissal.
Inferences of this Court.
14. Be that as it may, since at the very inception, an evidently
completely untruthful communication became rendered to the
respondent. In sequel, when he believed the truth of the said rendered
mis-communication to him, and/or thus did not promptly raise a motion
thereagainst. Nonetheless, when upon falsity of the said earlier made
communication becoming unmasked by the respondent, through his
obtaining information on 10.03.2015 under the RTI Act, wherebys he
discovered that as a matter of fact, the disability as became encumbered
upon him, was a sequel of the medical board, declaring the said
disability being attributable to active military service.
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15. Conspicuously the sequel therefroms but, is that, the earlier
mis-communication or untruthful communication, when became
subsequently unmasked, through the respondent receiving the said
information, whereafters, he promptly availed his lawful remedies.
Therefore, the judgments (supra) restricting the arrears of pension upto
three years on account of the relevant delay emerging to the forefront, is
not applicable to the facts at hand. The said judgments were only
applicable when initially, thus evidently correct or truthful information
was provided and despite the initially correct or truthful communication
becoming purveyed to the defence personnel, yet the latter being
indolent or his slumbering over his invested indefeasible rights, if any.
However, when reiteratedly the initial information was ridden with
complete falsity and when the said falsity became unmasked in the year
2015, whereafters, he promptly accessed the Tribunal concerned.
Therebys, reiteratedly the ratio decidendi propounded in the judgments
(supra), are not applicable to the facts at hand.
16. Moreover, it is also extremely alarming that though the
opinion of the medical board, thus evidently falls within the domain of
an expert opinion, wherebys, it may be impermissible to be reviewed.
Moreover, when therebys an indefeasible right became vested in the
respondent, to claim the fullest complement of the disability pension.
However, again and that too enigmatically, the apposite expert opinion
was discarded. Contrarily, the opinion of the Medical Advisor (Pension)
was accepted, wherebys, he declared that the disability entailed upon
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the present respondent was not attributable to military service. The
acceptance of the opinion of the Medical Advisor (Pension) when he is
not shown to be an expert, whereas, the expert opinion rather was the
opinion of the medical board, which assessed the disability of the
present respondent being attributable to military service, wherebys, he
became conferred with an indefeasible right to receive the fullest
complement of the disability pension. Therefore, the petitioner,
accepting an unacceptable review by the Medical Advisor (Pension), of
the otherwise revereable opinion, as became formed by the medical
board concerned. In consequence, the initially made declining order by
the petitioners, is required to be interfered with.
17. Conspicuously the petitioners through, evidently practicing
the vices of Suggestio Falsi, and Suppressio Veri, that too at the very
inception, rather cannot subsequently encumber vis-a-vis the defence
personnel, the ill factor of estoppel, as, therebys the subsequent
emergence(s) of untruth of the earlier communication, rather would not
only give premium to falsity, but would also ill bar the defence
personnel.
18. Emphatically since therebys, there is an absolute incurrings
of financial detriment to the respondent, despite his holding an
indefeasible right to become the able recipient of disability pension,
thus in terms of the relevant rules besides to the fullest complement. As
such, the opinion of the medical board is required to revered, especially
when no challenge thereto is made nor also when this Court in exercise
of its powers of judicial review, can overcome the opinion of the expert
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medical board, therefore, the instant petition is required to be
dismissed.
Final Order of this Court.
19. In aftermath, this Court finds no merit in the writ petition
and with the observations aforesaid, the same is dismissed. The
impugned order is maintained and affirmed.
20. Since the main case itself has been decided, thus, all the
pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(ALOK JAIN)
24.10.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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