Ex Rifleman No. 63282 Jawahar ... vs Union Of India & Others
2021 Latest Caselaw 40 UK

                                               Reserved Judgment

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

         Writ Petition No. 123 of 2017 (S/S)

Ex Rifleman no. 63282 Jawahar Singh .....                Petitioner

                              Versus

Union of India & others                        .....   Respondents

Mr. C.S. Rawat, Advocate for the petitioner.
Mr. Atul Bahuguna, Central Government Standing Counsel for
respondent nos. 1 to 4.

Hon'ble Lok Pal Singh, J.

Petitioner has filed instant writ petition seeking a writ, order or direction in the nature of mandamus commanding and directing the respondents to grant him disability pension since the date of his discharge from services of the Assam Rifle.

2) Brief facts, leading to filing of the writ petition, are that the petitioner was initially inducted as Rifleman in Assam Rifles on 23.08.1957. Petitioner had rendered 06 years 09 months and 22 days service with the Assam Rifles. Petitioner was discharged from Assam Rifles in the month of August 1964 on the ground of disability. He was sanctioned gratuity after his discharge in the year 1965. Respondent no. 3 in his letter dated 25.09.1965 mentioned that the petitioner is not entitled for invalid pension as per the C.S.R. Rules. After receiving the said letter dated 25.09.1965, petitioner approached the higher authorities, but the authorities concerned did not paid any heed on the request of the petitioner. It is averred that after

the discharge of petitioner from the Assam Rifles, his mother fell seriously ill and her life could not be saved after considerable medical treatment which went on several years due to which the petitioner came under mental trauma. It is further averred that after the death of her mother the petitioner left his family and denounced the society and started living in a shack of the forest of District Chamoli. Thereafter, he lost connection with the society and the outside world.

3) It is further averred that in the year 2016, the petitioner completed about 80 years of his life and now is not in a position to sustain his livelihood. Ultimately, petitioner contacted the Ex Soldier Organization, Assam Rifles, Gairsain, Chamoli and approached respondent no. 2 through the said Organization seeking disability pension. The Assam Rifles Ex Servicemen Association Centre, Chamoli vide letter dated 01.03.2016 forwarded the application of the petitioner to the respondent no. 2. In reply, respondent no. 3 issued a letter dated 06.05.2016 categorically mentioning that all the old service records in respect of personnel of Assam Rifles, who were retired / discharged from service on various grounds, had already been destroyed. However, it was mentioned that at the time of discharge the petitioner was paid Rs.492/- as retirement gratuity. After receiving the said letter, petitioner moved a representation to respondent no. 2 mentioning the details of his service tenure. The petitioner mentioned that he suffered injury on his left leg during digging of trench and he was

hospitalized in the Unit Hospital and thereafter referred to Victoria Medical College, Agartala for further treatment, where his left leg was amputated, and he was discharged from Assam Rifles on medical ground.

4) It is alleged that the respondent department did not grant any pensionary benefits to the petitioner which was being granted to the other disabled ex soldiers. The petitioner came to know about said fact when a camp was organized by the Assam Rifles at Dehradun and officers of the Assam Rifles supplied a brochure in regard to disability pension. It has been mentioned in said brochure that - "(a) Disability pension is granted in addition to service element for medically boarded out disability cases with attributability to or aggravated by service. Declared 01% and above (b) Disability pension is granted @ 30% of pay for 100% disability, for lesser reduced proportionately. (c) LMC personnel discharged at their own request or proceeding on retiring / superannuation pension or claiming after five years of disablement are not eligible."

5) It is contended that at the time of induction in Assam Rifles, the petitioner was physically and medically fit. It was during the course of his service with Assam Rifles that the petitioner was declared disabled which was purely attributable to his service as Rifleman. It is also contended that though the writ petition is being preferred after about 50 years and the respondents

authorities finally issued the rejection letter in the year 2016, but the pension claim of the petitioner is a recurring cause and, as such, the claim of the petitioner is genuine and he had served with Assam Rifles for more than 06 years and the disability suffered by him were during the course of employment in Assam Rifles.

6) Counter affidavit has been filed by respondents stating therein that the petitioner was enrolled in the Assam Rifles on 23 August 1957 and was posted with 6 Assam Rifles. He was invalided out from service on medical grounds w.e.f. 15 May 1964 after having rendered a total of 06 years 08 months and 23 days service. It is stated that the sheet roll and other service documents of the petitioners have already been destroyed by the department after retraining them till permissible time limit as prescribed in GFR-289. It is also stated that as per the extract of brief sheet available on record, the petitioner was sanctioned invalid gratuity of Rs.492.75. However, the petitioner was not granted invalid pension as he had not completed mandatory 10 years service. It is further stated that as per Rule 3(a) and Rule 9(3) of Central Civil Service (Extra Ordinary Pension) Rules the disability of the person should be attributable to or aggravated due to service conditions with 60% or above disablement for grant of disability pension. The petitioner does not met the above criteria, therefore, he was not entitled to any kind of pension from Assam Rifles. In reply to para 13 of the writ petition, it is stated that the petitioner was

discharged from service on medical grounds and was sanctioned service gratuity amounting to Rs.492.75. Petitioner was not granted invalid pension or disability pension as he was not entitled for the same. It is stated that the statement of the petitioner that he sustained injury and his left leg was amputated as a boulder fell on it and disability was attributed in Assam Rifles service cannot be admitted in absence of medical history sheet, related documents and corroborative evidence as all the service document have been weeded out. In reply to para 14 of the writ petition, it is stated that the brochure referred by the petitioner has been printed by the respondent authority for information of the pensioners as a welfare measure. A preliminary objection has been raised regarding maintainability of writ petition before this Court and it is stated that the writ petition is liable to be dismissed on the ground of jurisdiction alone as no cause of action or any material part thereof arose with the territorial jurisdiction of this Court. Lastly, it is stated that the writ petition is not maintainable under law of limitation and suffers from delay and laches.

7) Rejoinder affidavit has been filed on behalf of the petitioner. The contents of paragraph no. 3 of the counter affidavit were denied as false except to the extent that the petitioner was sanctioned invalid gratuity. It is stated that petitioner is entitled to disability pension in terms of Rule 3(a) and Rule 9(3) of Central Civil Services (Extra-ordinary Pension) Rules which provide for grant of disability pension,

inasmuch as the petitioner suffered loss of left leg (limb) while in service and such loss amounts to 100% disability. The contents of paragraph nos. 4 and 5 of the counter affidavit are denied as false and incorrect. It is submitted that Hon'ble Apex Court in Civil Appeal no. 8569 of 2013, Tej Singh Mehta Vs Union of India & others, has categorically held that in matters such as of the petitioner the High Court of Uttarakhand will have territorial jurisdiction. It is further submitted that disability pension is a continuing and recurring cause of action and does not get defeated by limitation. The contents of paragraph nos. 5 and 6 of the writ petition are reiterated and reaffirmed. It is submitted that the petitioner having suffered loss of left leg i.e. 100% disability while being in service is entitled for disability pension. It is further submitted that the petitioner having suffered 100% disability cannot be denied disability pension on the pretext that he had not put in required 10 years of service essential for grant of invalid pension. It is contended that it is the duty of the Central Government to grant disability pension to the petitioner which was denied to him for the last five decades.

8) Heard learned counsel for the parties and perused the counter affidavit, rejoinder affidavit & other documents brought on record.

9) Learned counsel for the petitioner would submit that from a bare perusal of the discharge book it is clearly evident that the petitioner had

been invalided out / discharged by the Assam Rifles on medical ground and his claim falls in the 3(a) &

(b) and, as such, the petitioner is entitled to get disability pension. Learned counsel would further submit that the Central Civil Services (Extra- ordinary Pension) Rules are applicable to a member, who entered into service under the Central Government on or after 01.04.1937 and the disability has been received by the petitioner during the course of his service with Assam Rifles and on the ground of permanent disability the petitioner was discharged from Assam Rifles on medical ground, as such, the petitioner is entitled to get disability pension as per the rules and regulations which were in existence at that relevant point of time.

10) Learned counsel appearing on behalf of the petitioner drew attention of this Court towards a judgment rendered by Hon'ble Apex Court in Civil Appeal no. 8569 of 2013 (arising of SLP (C) no. 11449 of 2013), Tej Singh Mehta Vs Union of India & others, decided on 27th September 2013. It is vehemently argued that in said case the Hon'ble Apex Court categorically held that High Court of Uttarakhand has jurisdiction to entertain the writ petition. The same reads as under:

"Leave granted.

The appellant a retired employee moved before the High Court for Grant of Disability Pension. The Union of India was also impleaded as party respondents. The High Court of Uttarakhand at Nainital by its Order dated 19th December, 2012 dismissed the writ petition on the ground of lack of jurisdiction as the appellant was posted at Nagaland where the whole cause of action had arisen and the respondents are also

situated within the jurisdiction of the Gauhati High Court.

We have heard learned counsel for the parties and perused the record.

Admittedly, the appellant is a retired Lance Naik and is residing in Pithoragarh in Uttarakhand. He has prayed for Grant of Disability Pension from the Union of India. The rest of the respondents are the authorities who have been empowered by Union of India to pass one or the other order.

Under the circumstances, we hold that the High Court of Uttarakhand at Nainital has also jurisdiction to entertain the writ petition.

Accordingly, we set aside the impugned order dated 19th December, 2012 and remit the case-Writ petition Service No. 979 of 2006 in the High Court for consideration on merit.

The appeal is allowed with aforesaid observation."

11) The contention of learned counsel for the Union of India that this Court has no jurisdiction to entertain the writ petition is misconceived in view of aforementioned judgment and order dated 27.09.2013, passed by Hon'ble Supreme Court. Thus, it is abundantly clear that this Court has ample jurisdiction to entertain the writ petition filed by the petitioner.

12) Hon'ble Apex Court in catena of judgments has held that the principles underlying continuing wrongs and recurring / successive wrongs have been applied to service laws disputes. A 'continuing wrong' refers to a single wrongful act which causes a continuing injury. 'Recurring / successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action [Ref: Union of India Vs Tarsem Singh (2008) 8 SCC 648]. In Balakrishna S.P. Waghmare Vs Shree Dhyaneshwar Maharaj

Sansthan (AIR 1959 SC 798), Hon'ble Supreme Court explained the concept of continuing wrong (in the context of Section 23 of Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963) and observed as under:

"31....It is very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."

13) Thus, it can be safely be construed that the principle of continuing wrong and recurring wrongs is fully applicable in the context of present case. In other words, 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. It is true that the petitioner denounced the world, but it is equally true that such continuing wrong creates a continuing source of injury to the petitioner.

14) Learned Senior counsel for the petitioner placed reliance in the case of Dharamvir Singh Vs Union of India and others, (2013) 7 SCC 316 in support of his contention. Relevant paragraph nos. 18, 19, 23, 31, 32, 33 of said judgment are excerpted hereunder:

"18. A disability is 'attributable to or aggravated by military service' to be determined

under the "Entitlement Rules for Casualty Pensionary Awards, 1982', as shown in Appendix- II. Rule 5 relates to approach to the Entitlement Rules for Casualty Pensionary Awards, 1982 based on presumption as shown hereunder:

"5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions:

Prior to and during service

a) member is presumed to have been in sound physical and mental condition upon entering except as to physical disabilities noted or recorded at the time of entrance.

b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service."

From Rule 5 we find that a general presumption is to be drawn that a member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. If a person is discharged from service on medical ground for deterioration in his health it is to be presumed that the deterioration in the health has taken place due to service.

19. "Onus of proof" is not on claimant as is apparent from Rule 9, which reads as follows:

"Rule 9. ONUS OF PROOF- The claimant shall not be called upon to prove the conditions of entitlements. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in field/afloat service cases."

23. The Rules to be followed by Medical Board in disposal of special cases have been shown under Chapter VIII of the "General Rules of Guide to Medical Officers (Military Pensions) 2002. Rule 423 deals with "Attributability to service" relevant portion of which reads as follows:

"423(a)For the purpose of determining whether the cause of a disability or death resulting from disease is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a Field Service/Active Service area or under normal peace conditions. It is however,

essential to establish whether the disability or death bore a casual connection with the service conditions. All evidence both direct and circumstantial will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt for the purpose of these instructions should be of a degree of cogency, which though not reaching certainty, nevertheless carries a high degree of probability.

In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his/her favour, which can be dismissed with the sentence "of course it is possible but not in the least probable" the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of the doubt could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas.

(c) The cause of a disability or death resulting from a disease will be regarded as attributable to Service when it is established that the disease arose during Service and the conditions and circumstances of duty in the Armed Forces determined and contributed to the onset of the disease. Cases, in which it is established that Service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in Service if no note of it was made at the time of the individual's acceptance for Service in the Armed Forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service.

(d) The question, whether a disability or death resulting from disease is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officer who signs the Death Certificate. The Medical Board/Medical Officer will specify reasons for their/his opinion. The opinion of the Medical Board/Medical Officers, in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant

circumstances can be accepted as attributable to/aggravated by service for the purpose of pensionary benefits will, however, be decided by the pension sanctioning authority."

31. In the present case it is undisputed that no note of any disease has been recorded at the time of appellant's acceptance for military service. The respondents have failed to bring on record any document to suggest that the appellant was under treatment for such a disease or by hereditary he is suffering from such disease. In absence of any note in service record at the time of acceptance of joining of appellant it was incumbent on the part of the Medical Board to call for records and look into the same before coming to an opinion that the disease could not have been detected on medical examination prior to the acceptance for military service, but nothing is on the record to suggest that any such record was called for by the Medical Board or looked into it and no reasons have been recorded in writing to come to the conclusion that the disability is not due to military service. In fact, non-application of mind of Medical Board is apparent from Clause (d) of paragraph 2 of the opinion of the Medical Board, which is as follows:

(d) In the case of a disability under (c) the Board should state what exactly in their opinion is the cause thereof.

YES

disability is not related to military service."

32. Paragraph 1 of 'Chapter II' - "Entitlement :

General Principles" specifically stipulates that certificate of a constituted medical authority vis-à- vis invalidating disability, or death, forms the basis of compensation payable by the Government, the decision to admit or refuse entitlement is not solely a matter which can be determined finally by the medical authorities alone. It may require also the consideration of other circumstances e.g. service conditions, pre- and post-service history, verification of wound or injury, corroboration of statements, collecting and weighing the value of evidence, and in some instances, matters of military law and dispute. For the said reasons the Medical Board was required to examine the cases in the light of etiology of the particular disease and after considering all the relevant particulars of a case, it was required to record its conclusion with reasons in support, in

clear terms and language which the Pension Sanctioning Authority would be able to appreciate.

33. In spite of the aforesaid provisions, the Pension Sanctioning Authority failed to notice that the Medical Board had not given any reason in support of its opinion, particularly when there is no note of such disease or disability available in the service record of the appellant at the time of acceptance for military service. Without going through the aforesaid facts the Pension Sanctioning Authority mechanically passed the impugned order of rejection based on the report of the Medical Board. As per Rules 5 and 9 of 'Entitlement Rules for Casualty Pensionary Awards, 1982', the appellant is entitled for presumption and benefit of presumption in his favour. In absence of any evidence on record to show that the appellant was suffering from "Genrealised seizure (Epilepsy)" at the time of acceptance of his service, it will be presumed that the appellant was in sound physical and mental condition at the time of entering the service and deterioration in his health has taken place due to service."

15) Thus, it is abundantly clear that a member of an armed / paramilitary force is presumed to have been in sound physical and mental condition upon entering except as to physical disabilities noted or recorded at the time of entrance. Furthermore, as per Rule 9 of the Central Civil Service (Extra Ordinary Pension) Rule speaks about 'ONUS OF PROOF'. It says that the claimant shall not be called upon to prove the conditions of entitlements. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in field/afloat service cases. Thus, from a bare perusal of Rule 9 it is clear that a member, who is declared disabled from service, is not required to prove his entitlement of

pension and such pensionary benefits to be given more liberally to the claimants.

16) In view of the foregoing discussion, the writ petition deserves to be allowed. The same is hereby allowed. A writ of mandamus is issued directing the respondent no. 2 to grant disability pension to the petitioner from the date of his moving representation i.e., 29.02.2016, before said authority. As it has come on record that no service records of the petitioner were available with the respondents, therefore, in absence of any service record the percentage of disability of the petitioner is assessed at 100%. The same shall be the criteria for computing the disability element forming part of the benefits to which the petitioner shall be entitled. It is further directed that the entire arrears of the disability pension along with interest at the rate of 6 per cent per annum shall be paid to the petitioner within a period of three months from the date of production of certified copy of this order before said authority.

17)          No order as to costs.



                                     (Lok Pal Singh, J.)


Dt. January 06, 2021.
Negi