RSA No.1906 o”
1. IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH Date of Decision:
25. 07.2013 RSA No.1906 of 1999 Ex. Constable Gurdev Singh …Appellant Versus Union of India & others …Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1 Whether Reporters of local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the Digest?. Present: Mr. Ashok Giri, Advocate, for the appellant. Mr. Maharaj Kumar, Advocate, for the respondents. HEMANT GUPTA, J.The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for declaration that the plaintiff is entitled to disability pension including arrears of such pension & allowances therefrom was dismissed. The plaintiff served in the Border Security Force from 09.10.1966 to 19.05.1973, when he was invalidated out of service on medical grounds. The Release Medical Board put the plaintiff into low medical category ‘EEE’ (Permanent) on account of suffering from ‘left ear complete deafness, loss of hearing right ear, chronic, dits media, perforation of drum and dimirutiar of hearing’. The assertion of the plaintiff-appellant is that he has suffered disability during the active service of the Border Security Force, therefore, he is entitled to disability/invalid pension in terms Kumar Vimal 2013.07.26 16:33 I attest to the accuracy and integrity of this document Chandigarh RSA No.1906 o”
2. of Central Civil Services (Pension) Rules 1972 and the Border Security Force Rules as applicable to the members of the Border Security Force. In reply, the defendants pleaded that the suit is time barred, as the plaintiff was discharged from service on 19.05.1973, whereas the suit has been filed on 16.07.1994. The plaintiff served as Constable from 09.10.1966 to 19.05.1973 and was discharged on medical grounds being category EEE (Permanent). Since the plaintiff did not complete the minimum required qualifying service for earning pension as per Central Civil Services (Pension) Rules 1972, therefore, the plaintiff is not entitled to disability pension, as the disability was not directly attributable to the service. From the pleadings of the parties, the following issues were framed:
“1. Whether the plaintiff is entitled for the grant of disability/invalid pension and other connected relief?. OPP 2.Whether jurisdiction of this Court is barred u/s 4 of the Pension Act, 1871?. OPD 3.Whether notice served on the defendants is not legal and valid?. OPD 4.Whether the suit is time barred?. OPD 5.Whether this Court has no jurisdiction to try the suit?. OPD 6.Whether the plaintiff is entitled for declaration?. OPP 7.Relief.”
. In order to prove his case, the plaintiff appeared as his own witness as PW-1 and proved copy of discharge certificate Ex.P/1; copy of Medical Board proceedings Ex.P/2; copy of medical certificate Ex.P/3 and Certificate issued by the Medical Board dated 13.05.1993 Ex.P/4 apart from proving other documents. On the other hand, the defendants did not produce any evidence in spite of several opportunities. Kumar Vimal 2013.07.26 16:33 I attest to the accuracy and integrity of this document Chandigarh RSA No.1906 o”
3. After going through the record of the case, learned trial Court dismissed the suit, inter alia, on the ground that it is barred by time, as the plaintiff was discharged on 19.05.1973 and the plaintiff was required to file suit within three years from the discharge, when he was denied the disability pension. Therefore, the suit is barred by limitation. Such decree granted by the trial Court on 19.04.1996 was affirmed in appeal as well. The first Appellate Court did not find any merit in the argument raised by the appellant that the claim for pension is a recurring right and, therefore, it cannot be said to be barred by limitation. Before this Court, the appellant has claimed the following substantial questions of law: “(i) Whether the claim for pensionary and other monetary benefits is a continuing wrong which gives rise to recurring cause of action every month and is therefore, not barred by limitation?. (ii) Whether the suit of the plaintiff is liable to be decreed especially when all the other issues were decided in his favour except Issue No.4 regarding limitation?.”. However, after hearing learned counsel for the parties, I find that the following substantial question of law also arises for consideration: “(iii) Whether the opinion of the Release Medical Board that the disease was neither attributable or aggravated by service can be interfered with by the Civil Court?.”. Learned counsel for the appellant in support of his argument that the claim for pension and other monetary benefits is a recurring cause of action relies upon the judgments of Hon’ble Supreme Court reported as Shiv Dass Vs. Union of India & others (2007) 9 SCC 27.and Union of India & others Vs. Tarsem Singh (2008) 8 SCC 648.Shiv Dass’s case (supra) is a case pertaining to invocation of writ jurisdiction of the High Court, which was dismissed by for the reason of Kumar Vimal 2013.07.26 16:33 delay and laches, but the Hon’ble Supreme Court observed that unexplained I attest to the accuracy and integrity of this document Chandigarh RSA No.1906 o”
4. delay coupled with the creation of third party rights is an important factor, which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. It was held that in the case of pension, the cause of action actually continues from month to month and still that cannot be a ground to overlook delay in filing the petition. The Court observed as under:
“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.”
. In Tarsem Singh’s case (supra) again the Hon’ble Supreme Court was examining an order passed in exercise of the jurisdiction under Article 226 of the Constitution of India, but it was observed that one of the exceptions to the rule of delay is the cases relating to continuing wrong. The Court held that there is exception to the said exception as well. It was observed that if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. It was observed as under:
“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 Kumar Vimal 2013.07.26 16:33 I attest to the accuracy and integrity of this document Chandigarh RSA No.1906 o”
5. 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.”
. In terms of the aforesaid judgments, I find that the claim of the appellant cannot be summarily rejected on the ground that he has filed the suit claiming disability pension after more than 20 years. Therefore, the suit could not be dismissed on the ground of limitation alone. The first question of law is answered accordingly in favour of the appellant. In respect of the third question of law, it may be noticed that a perusal of the proceedings of the Medical Board Ex.P/2 shows that it was found that the disability was contracted in service and also that it was contracted in circumstances over which he had no control. But it was also opined that it is not directly attributable to conditions of service. The history of disability was said to be that in 1970 the appellant suffered pain and discharge from both ears for which he was operated at ‘VJ’ Hospital, Amritsar, but could not improve. The relevant opinion of the Medical Board is as under:
1. Was the disability contracted in service?. : Yes 2. Was it contracted in circumstance over which : Yes he had no control?.
3. Is it directly attributable to conditions of : No service?.
4. If so what specific condition?. : N.A. Kumar Vimal 2013.07.26 16:33 I attest to the accuracy and integrity of this document Chandigarh RSA No.1906 o”
6. 5. If not directly attributable to service was it : N.A. aggravated thereby and if so, by what specific condition?.
6. Medical Category Recommended : ‘EEE’ A perusal of the record shows that the appellant has worked with the respondent for less than seven years and got the disability in the year 1970. Neither there is any assertion or evidence that the disability in the ears was consequent or related to his service with the Border Security Force. The Medical Board has categorically opined that the disease was not attributable to conditions of service and that it was not aggravated by the service. Thus, the categorical opinion of the Medical Board is that the disease is neither attributable or aggravated by service. The Hon’ble Supreme Court in another recent judgment reported as Union of India & another Vs. Talwinder Singh (2012) 5 SCC 48.set aside the order of this Court granting relief of disability pension to the respondent on account of the injuries received on annual leave. The Release Medical Board has opined that the disability is neither attributable not aggravated by Military Service. The Court observed as under:
“9. The issue involved herein is no more res integra. It is not in dispute that in case the injury suffered by military personnel is attributable to or aggravated by military service after discharge, he becomes entitled for disability pension. It is also a settled legal proposition that opinion of the Medical Board should be given primacy in deciding cases of disability pension and the court should not grant such pension brushing aside the opinion of the Medical Board. (See: Union of India & Anr. v. Baljit Singh, (1996) 11 SCC 315.Union of India & Ors. v. Dhir Singh China, Colonel (Retd.), (2003) 2 SCC 382.Controller of Defence Accounts (Pension) & Ors. v. S. Balachandran Nair, AIR 200.SC 4391.Union of India & Ors. v. Keshar Singh, (2007) 12 SCC 675.and Union of India & Ors. v. Surinder Singh Rathore, (2008) 5 SCC 747).
10. In The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 201.SC 1285.this Court while placing reliance upon a large number of earlier judgments including Kumar Vimal 2013.07.26 16:33 I attest to the accuracy and integrity of this document Chandigarh RSA No.1906 o”
7. Constitution Bench judgment in The University of Mysore v. C.D. Govinda Rao & Anr., AIR 196.SC 491.held that ordinarily, the court should not interfere with the order based on opinion of experts on the subject. It would be safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be.
11. This Court recently decided an identical case in Union of India & Ors. v. Jujhar Singh, AIR 201.SC 2598.and after reconsidering a large number of earlier judgments including Secretary, Ministry of Defence & Ors. v. A.V. Damodaran (dead) through L.Rs. & Ors., (2009) 9 SCC 140.Baljit Singh’s (supra); Regional Director, ESI Corporation & Anr. v. Francis De Costa & Anr., AIR 199.SC 432.came to the conclusion that in view of Regulation 179, a discharged person can be granted disability pension only if the disability is attributable to or aggravated by military service and such a finding has been recorded by Service Medical Authorities. In case the Medical Authorities records the specific finding to the effect that disability was neither attributable to not aggravated by the military service, the court should not ignore such a finding for the reason that Medical Board is specialized authority composed of expert medical doctors and it is a final authority to give opinion regarding attributability and aggravation of the disability due to the military service and the conditions of service resulting in the disablement of the individual. A person claiming disability pension must be able to show a reasonable nexus between the act, omission or commission resulting in an injury to the person and the normal expected standard of duties and way of life expected from such person. As the military personnel sustained disability when he was on an annual leave that too at his home town in a road accident, it could not be held that the injuries could be attributable to or aggravated by military service. Such a person would not be entitled to disability pension. This view stands fully fortified by the earlier judgment of this Court in Secretary, Ministry of Defence & Ors. v. Ajit Singh, (2009) 7 SCC 328.(…emphasis supplied) 13. The instant case is squarely covered by the ratio of the aforesaid judgment in Jujhar Singh (supra).
14. We are of the view that the opinion of the Medical Board which is an expert body must be given due weight, value and credence. Person claiming disability pension must establish that the injury suffered by him bears a causal connection with military service. In the instant case, as the injury suffered by the respondent could not be attributable to or aggravated by the military service he is not entitled for disability pension.”
. Kumar Vimal 2013.07.26 16:33 I attest to the accuracy and integrity of this document Chandigarh RSA No.1906 o”
8. In view of the aforesaid judgment, I find that there is no circumstance on record to show that the disease was attributed to or aggravated during service. The opinion of the Medical Board, an expert body, cannot be interfered with in exercise of the power of judicial review more so when there is no evidence to doubt the correctness of such opinion. Even if the delay is to be ignored for granting benefit of pensionary benefits, but in the absence of any evidence that the opinion of Release Medical Board that the disease was neither attributable to or aggravated by service with Border Security Force, the appellant cannot be granted the disability pension. Thus, the third question of law is answered against the appellant. As a consequence thereof, the second question of law has to be answered against the appellant. In view of the above, the findings of the Courts below on issue No.4 are set aside. The claim of the plaintiff could not be declined only for the reason that suit has been filed after three years. However, the findings on issue Nos.1 & 6 are also set aside in view of the decision on question Nos.3 & 2 above. The suit is, thus, dismissed for the reason that the opinion of the Release Medical Board cannot be rejected only for the reason that at the time of enrollment the disease was not detected. Dismissed. (HEMANT GUPTA) JUDGE 25 07.2013 Vimal Kumar Vimal 2013.07.26 16:33 I attest to the accuracy and integrity of this document Chandigarh