Punjab-Haryana High Court
Kewal Singh vs Union Of India And Ors on 27 September, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:128440-DB
CWP-18553-2021 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-18553-2021
Reserved on: 16.09.2024
Pronounced on: 27.09.2024
Kewal Singh .....Petitioner
Versus
Union of India and Others .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Navdeep Singh, Advocate
for the petitioner.
Ms. Anita Balyan, Advocate
for the respondent - UOI.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioner herein
prays for setting aside the relevant part of the order dated 03.10.2019
(Annexure P-1) read with order dated 28.02.2020 (Annexure P-2), as
passed by the learned Armed Forces Tribunal concerned, whereby the
arrears of disability pension have been restricted to three years from the
date of filing of the Original Application, by the petitioner.
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Factual Background
2. The applicant was enrolled in the Army on 01.09.1993 and
was invalided out from service on 15.06.2003 on the premise of his
falling in the low medical category S1H1A1P2(P)E1. At the time of his
invalidation, he was brought before the Release Medical Board,
whereins, his disability "Generalised Tonic Colonic Seizure-67" was
assessed @ 20% permanent i.e. for life and the said disability was
declared to be aggravated by military service owing to physical stress
and strain of service, but the administrative authority interfered in the
matter and declared his disabilities neither being attributable nor being
aggravated by military service and therebys the espoused disability
pension was denied to him.
3. Aggrieved from the afore, the petitioner filed application
before the learned Armed Forces Tribunal concerned, for grant of
disability pension. The said O.A. was disposed of vide order dated
03.10.2019, with a direction to the respondents to process applicant's
claim for disability element of disability pension in terms of the
judgement rendered by the Hon'ble Supreme Court in Civil Appeal
No.164 of 1993 titled as Ex Sapper Mohinder Singh Vs. Union of India,
with effect from 16.06.2003 @ 50% as against 20% for life along with
the benefit of rounding off in terms of judgement rendered by the
Hon'ble Supreme Court in case Civil Appeal No. 418 of 2012 titled as
Union of India and others v. Ram Avtar, decided on 10.12.2014 and on
verification of the facts, if he is found entitled to the same.
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4. Further, the learned Tribunal held that since the applicant
has come to the Court/Tribunal after a gap of about 16 years after his
retirement, thereupon, the arrears became restricted to three years from
the date of filing of this Original Application i.e. 10.04.2019.
5. Aggrieved from the afore part of the relevant order,
whereby the arrears of disability pension have been restricted to three
years from the date of filing the application, thereupon, the petitioner
has filed the instant writ petition.
Submissions of the learned counsel for the petitioner.
6. The learned counsel for the petitioner submits, that an
erroneous information regarding the disability of the petitioner was
provided to him, whereas, his disability had been declared as
'aggravated by service' at 20 % by a duly constituted medical board.
The said information was obtained by him under the RTI Act vide letter
No. 10198565L/SR/RTI/NE (Cord) dated 27.02.2019 (Annexure A-2).
7. The learned counsel for the petitioner further submits that,
in the instant case, despite their existing a vested right qua the
petitioner, 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 respondents. In such cases, the
Hon'ble Supreme Court has held that arrears cannot be restricted and
the respondents cannot be allowed to take the benefit of their own
wrong. In support of his arguments, the learned counsel for the
petitioner places reliance upon a judgment rendered by the Hon'ble
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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."
Submissions of the learned counsel for the respondent.
8. The learned counsel for the respondents submit, that the
present case appertains to the endowment of disability pension and the
same was validly rejected in the year 2004 rather through a
communication becoming forwarded to the petitioner and since he had
a right to promptly file an appeal against the said rejection order.
However, since the apt available remedy to make an appeal against the
rejection order became omitted to become promptly recoursed,
therebys, the omission (supra) rather makes the rejection order to
assume finality. Therefore, the present writ petition is required to be
dismissed on the ground that it is barred by time.
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9. The learned State counsel has placed reliance upon a
judgment rendered by the Hon'ble Supreme Court in case titled as State
of Uttar Pradesh and Others Vs. Arvind Kumar Srivastava and
Others, reported in 2014 (3) Apex Court Judgments (SC) 598. The
relevant paragraphs whereof, are extracted hereinafter.
23. The legal principles which emerge from the reading of the
aforesaid judgments, cited both by the appellants as well as the
respondents, can be summed up as under:
(1) Normal rule is that when a particular set of employees is
given relief by the Court, all other identically situated persons need to
be treated alike by extending that benefit. Not doing so would amount
to discrimination and would be violative of Article 14 of the
Constitution of India. This principle needs to be applied in service
matters more emphatically as the service jurisprudence evolved by this
Court from time to time postulates that all similarly situated persons
should be treated similarly. Therefore, the normal rule would be that
merely because other similarly situated persons did not approach the
Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized
exceptions in the form of laches and delays as well as acquiescence.
Those persons who did not challenge the wrongful action in their cases
and acquiesced into the same and woke up after long delay only
because of the reason that their counterparts who had approached the
Court earlier in time succeeded in their efforts, then such employees
cannot claim that the benefit of the judgment rendered in the case of
similarly situated persons be extended to them. They would be treated
as fence-sitters and laches and delays, and/or the acquiescence, would
be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where
the judgment pronounced by the Court was judgment in rem with
intention to give benefit to all similarly situated persons, whether they
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approached the Court or not. With such a pronouncement the
obligation is cast upon the authorities to itself extend the benefit
thereof to all similarly situated person. Such a situation can occur
when the subject matter of the decision touches upon the policy
matters, like scheme of regularisation and the like (see K.C. Sharma &
Ors. v. Union of India (supra). On the other hand, if the judgment of the
Court was in personam holding that benefit of the said judgment shall
accrue to the parties before the Court and such an intention is stated
expressly in the judgment or it can be impliedly found out from the
tenor and language of the judgment, those who want to get the benefit
of the said judgment extended to them shall have to satisfy that their
petition does not suffer from either laches and delays or acquiescence.
10. The expostulations of law, as set forth in the above
extracted paragraphs, is that, in case the relevant challenge is hit by the
vices of delay and laches, thereupon, thus, the further inference
therefroms, is that, the aggrieved thus acquiescing to the validity of the
rejection order. Resultantly in the wake of the above, the espoused
claim became amenable to become partly dismissed.
Inferences of this Court.
11. Before proceeding to decide the instant lis, it is necessary
to refer 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, since the filing of the time barred petition, and it
is also further necessary to determine, whether the case of the petitioner
falls in any of the exceptions theretos, if any.
12. Initially, for rendering an answer to the above, a reference
is required to be made to paragraphs No. 5 and 6 of the verdict rendered
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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
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
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writ petition, whichever was lesser. It ought not to have granted interest
on arrears in such circumstances."
13. A reading of paragraph No. 5 of the verdict (supra) clearly
underscores the fact that in case any delay or claim is hit by 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.
14. 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
arrears of pension covering a period of 16 years and that too with
interest.
15. 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.
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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.
16. Be that as it may, the instant case does not fall in the
category wherebys, despite a truthful communication becoming made
vis-a-vis the encumbrance of the relevant disability, qua the defence
personnel, yet the petitioner herein delaying his making an espousal
thereagainst.
17. Contrarily to the considered mind of this Court, since an
evident mis-communication or an untruthful communication became
made to the petitioner about his dis-entitlement to disability pension, on
the ground that the same was neither attributable nor aggravated by
military service. Moreover, since on the making of the said mis-
communication to the petitioner, he chose not to make any motion
thereagainst before all concerned. Therefore, when only in the event,
qua upon an evident truthful communication becoming made to him,
but yet there being a delay on the part of the present petitioner to make
a motion thereagainst. Resultantly, therebys may be the appositely
reared delayed motion may become construable to be hit by the vices of
delay and laches. Moreover, therebys an order for, thus restricting the
arrears for three years but would be construable to be an aptly recorded
order.
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18. Be that as it may, since at the very inception, an evidently
completely untruthful communication became rendered to the
petitioner. 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 petitioner, through his
obtaining information on 27.02.2019 (Annexure A-2), 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 aggravated or being attributable to
active military service.
19. Conspicuously the sequel therefroms but, is that, the earlier
mis-communication or untruthful communication, when became
subsequently unmasked, through the petitioner 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
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2019, 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.
20. Conspicuously the respondent 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.
21. Emphatically since therebys, there is an absolute incurrings
of financial detriment to the petitioner, 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
medical board, therefore, the instant petition is required to be allowed.
Final Order of this Court.
22. For all the reasons aforesaid, this Court finds merit in the
writ petition and the same is allowed. The relevant part of the impugned
order qua restricting the arrears of pension upto three years since the
filing of the petition, is quashed and set aside.
23. The petitioner is declared to become entitled to the fullest
complement of disability pension from the date whereons the same
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accrued to him, but in terms of the opinion of the medical board,
alongwith with interest @ 7% per annum.
23. Since the main case itself has been decided, thus, all the
pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
27.09.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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