N. Subbaiah, [Ex-sepoy – I.D.Card No.Ap.0049231-asc(Mt)-6549632] Vs. Union of India Rep. by Its Secretary (Defence), South Block, New Delhi and Others - Court Judgment

(Order of the Tribunal made by Justice ACA Adityan)

Leave granted.

2. It is an unfortunate case, in which an octogenarian, who has longed in the corridors of the Honourable High Court of Andhra Pradesh from 2006 by filing W.P.No.4275 of 2006 for his legitimate claim for disability pension, is fortunate to live till today to see the following order in his favour. The said Writ Petition has been transferred to this Regional Bench of Armed Forces Tribunal in accordance with Section 34 of the Armed Forces Tribunal Act, 2007 and reassigned T.A.No.91 of 2009.

3. The short facts as narrated in the affidavit to the petition sans irrelevant particulars are as follows:- The petitioner has challenged the impugned order of the third respondent vide proceedings No.6984/T-V/SP dated 20.04.2005 rejecting his invalid pension/disability pension on the ground that the petitioner has not rendered 15 years of minimum qualifying service. After completing his SSLC, the petitioner was enrolled as a Sepoy in the Indian Army on 26.09.1947 at the age of 16 years. The petitioner was put under boys category and given training since he was only 16 years of age at that time. After successful completion of training, he was recruited as Sepoy in the Indian Army and was attached to Army Supply Core (MT) and posted in different places till 28.02.1953. During the said period, he served in different places and was exposed to severe cold and hot conditions. The petitioner was finally posted at Bhatinda and attached with 95-staging station. While so, in the year 1952, the petitioner fell sick and was referred to Military Hospital, Delhi. The concerned Doctor diagnosed and found that he has got mild heart problem. Hence, he was advised to go on leave for a period of one month. Accordingly, the concerned authority sanctioned leave.

3(a)After availing the leave, again the petitioner joined duties. After completion of 9 months service, he again suffered with heart disease and referred to Military Hospital, Delhi, again where the concerned doctor after examination has confirmed that he has been suffering with Mild Congenital Heart Disease (Patent Intraverticular Septum) (30% disability). Based on that recommendation, he was discharged from duties on the ground of Medical Invalidation under Category-B on 27.02.1953 and the authorities have issued a certificate to that effect and the petitioner was further informed that he will be called back after some time. But, the petitioner was never called back to his Unit. In spite of repeated request by the petitioner to consider his case for alternate job, if the authorities felt that he is not fit for the post of Sepoy like in the clerical cadre. But, there was no response from the authorities concerned. Further, the petitioner tried to get a job in the Civil lines and though he was selected in all respects, he was not appointed due to the medical certificate issued by the Military authorities. For example, the petitioner attended an interview and selected for the post of a Clerk in Central Bureau of Investigation in the year 1956, but he was not given appointment letter after verifying the military discharge certificate. As such, the petitioner could not get any job.

3(b)Thereafter, the petitioner was making continuously representations to the concerned competent authorities for grant of pensionary benefits. Finally, the third respondent in his letter No.6621/Gen/T-IV/NERL, dated 31.10.2003 intimated that since the petitioner has no qualifying service of 15 years for pension, he is not entitled to the same. The petitioner made another representation to the Senior Records Officer, Sena Seva Corps Abhilekh (Dakshin) through the Zilla Sainik Welfare Officer, Vijayawada, Krishna District, Andhra Pradesh, explaining that there are several persons who were sanctioned with pension though they were retired on medical grounds even they did not complete 5 years of service. The Zilla Sainik Welfare Officer, Vijayawada, (Fourth Respondent herein) has forwarded the same to the 3rd respondent with a request to sanction the disability pension on sympathetic consideration. But, unfortunately the third respondent rejected the plea of the petitioner for disability pension vide his letter No.6984/T-V/SP dated 20.04.2005 stating that the petitioner is not having the minimum qualifying service of 15 years for grant of pension. Even the respondents have failed to sanction the contributory monetary benefits under the Ex-servicemen Contributory Health Scheme. The petitioner had approached the Honourable Central Administrative Tribunal, which had returned the petition for want of jurisdiction. Hence, challenging the orders of the third respondent vide letter No.6984/T-V/SP dated 20.04.2005 rejecting the claim of the petitioner for disability pension, the petitioner has come forward with this petition.

4. The respondents in their joint counter would contend that the relevant service documents pertaining to the petitioner No.6549632 Ex Sep/MT Nitta Subbaiah has already been destroyed on expiry of mandatory retention period of 25 years being a non pensioner as per Para 595 of Regulations of the Army, 1987. However, as per discharge certificate obtained from the petitioner, he was enrolled in the Army on 26.09.1947 and discharged from service with effect from 27.02.1953 after rendering 5 years 5 months and 1 day of service on medical grounds. As per Para 132 of the Pension Regulations of the Army, Part-II, 1940, the minimum qualifying service to earn pension is 15 years. The petitioner being discharged after rendering 5 years 5 months and 1 day service is not entitled for service pension. As per Para 173 of Pension Regulations of the Army, 1961, Part-I, for entitlement of Disability Pension the disability should have been attributable to or aggravated by military service and assessed at more than 20%.

4(a)The fact that the petitioner is not in receipt of disability pension clearly proved that the disability of the petitioner was neither attributable to military service nor aggravated by military service and the same was assessed at more than 20%. Therefore, the disability pension claim was rejected by the Pension Sanctioning Authority i.e, Controller of Defence Accounts (Pension), Allahabad. Due to destruction of service documents, the factual position cannot be ascertained at this belated stage ie., after more than 50 years. The Honourable Supreme Court in the case of Aligarh Muslim University and others Vs. Vinay Engineering Enterprises (P) Ltd and other [1994(4) SCC 710] has held that the residence of the petitioner cannot give jurisdiction under Article 226/227 of the Constitution of India. Therefore the present petition is liable to be dismissed for want of territorial jurisdiction.

4(b)In so far as Service documents of the petitioner are concerned, the documents pertaining to the petitioner are destroyed on expiry of mandatory retention period of 25 years being a non-pensioner as per Para 595 of Regulations of the Army, 1987. In the similar circumstances, the Honourable Delhi High Court in W.P.No.(c)20125 of 2005 filed by Ex.Sep.Hema Ram against Union of India and others, has held that_

“the petitioner was discharged from Army on medical grounds on 25.05.1965. There is nothing to show in the discharge certificate that he had suffered from any disability. The petitioner has filed this petition after a lapse of 40 years suffers from inordinate laches and accordingly the writ petition dismissed.”

In the present case also the petitioner filed the present petition after a lapse of 53 years and the same is liable to be dismissed on the ground of laches and inordinate delay. The Honourable Delhi High Court in C.M.No.2063 of 1993 and C.W.No.1267 of 1993 (Hans Ram Vs. Union of India and others), while dismissing the petitions, has observed as follows:-

“the respondents have stated on oath that the service records of the petitioner is not available to verify the correct facts and place the same before the Court. It is also submitted that if such petitions are entertained it would tantamount to opening a Pandoras box creating serious financial and other complications. It is true that ordinarily in matter relating to the pension the writ courts do not deny the relief on account of delay merely. Sympathetic and liberal view is always taken indulgence is invariably shown”

In Bachan Kaur Vs. Union of India (W.P.No.621 of 1989) the Division Bench of the Honourable High Court of Andhra Pradesh has taken the view that a writ petition claiming pension if the claim be otherwise just and legal may be entertained and allowed limiting the same to a period of three years before the date of filing of petition. In the present case the petitioner has on the account of culpable delay and laches extending over a period of 25 years himself created a situation which disentitled him to any relief.

4(c)The Government of India, Ministry of Defence, vide letter No.B/39042/AG/PS-4 (a and c)/1331/C/D/(Pen/Ser) dated 29.12.2000 has sanctioned exgratia pension of Rs.600/- plus dearness relief applicable from time to time to reservists who were discharged prior to 01.04.1968 after completion of 15 years of service and had opted for lump sum amount of Rs.750/- in lieu of reservist pension provided they did not avail the benefit of rehabilitation assistance granted by the Government and not in receipt of any other pension. The petitioner being an Exserviceman is very much entitled to Ex-servicemen Contributory Health Scheme. He should have approached the concerned Station Head Quarters along with the application duly completed and a demand draft of Rs.1,800/- on account of one time non-refundable subscription towards Controller of Defence Accounts, Secunderabad. On receipt of the application and Bank Draft, the concerned Station Headquarters would have issued the petitioner with smart card so that he along with his dependents obtain treatment from polyclinic authorized under the scheme. Hence, the petition is liable to be dismissed.

5. We heard the learned counsel for the petitioner as well as the learned Senior Central Government Standing Counsel appearing for the respondents and considered their respective submissions.

6. Now the point for determination in this petition is whether the impugned order of the third respondent vide letter No.6984/T-V/SP, dated 20.04.2005 is liable to be set aside and whether the petitioner is entitled to any other pension / invalid pension as prayed for?

7. POINT:- As admitted by the respondents in their counter, the petitioner was discharged from service on 27.02.1953 on medical ground after rendering 5 years 5 months and 1 day of service. Even though in the counter the respondents have not specifically stated that under which provision of law the petitioner was discharged, it is seen from the discharge certificate produced by the petitioner that the petitioner was discharged on medical ground under Army Act Rule 13(3)(III)(iv), which reads as follows:-

Category

Grounds of discharge

Competent authority to authorize discharge

Manner of discharge

Persons enrolled under the Act who have been attested

III (iv)At his own request before fulfilling the conditions of his enrolment

Commanding Officer

The Commanding Officer will exercise the power only when he is satisfied as to the desirability of sanctioning the application and the strength of the unit will not thereby be unduly reduced.

Absolutely there is no material placed before this Tribunal to show that the petitioner was discharged on his own request before fulfilling the conditions of his enrolment. Under such circumstances, We are of the considered view that the discharge of the petitioner under Army Rule 13(3)(III)(iv) is illegal and cannot stand for scrutiny even for a moment. As admitted by the respondents in their counter, the petitioner was discharged on medical ground as also seen from the endorsement in the Discharge Certificate. So, the relevant provision of law applicable to the petitioner for discharge on medical ground is Rule 13(3)(III)(iii), which reads as follows:-

Category

Grounds of discharge

Competent authority to authorize discharge

Manner of discharge

Persons enrolled under the Act who have been attested

III (iii)Having been found medically unfit for further service

Commanding Officer

To be carried out only on the recommendation of an invaliding Board.

So, it is clear that if any Army personnel is discharged under Army Rule 13(3)(III)(iii) on medical ground, before discharge he ought to have been referred to Invaliding Medical Board. But, unfortunately, in this case the petitioner was not referred to Invaliding Medical Board for obtaining its opinion as to the fact whether the disability under which the petitioner was suffering and discharged is attributable to or aggravated by military service or whether the disability is constitutional in nature. So, the discharge of the petitioner itself is null and void in the eye of law. 7(a)From the endorsement in the Discharge Certificate it is seen that through the Rajya Sainik Board, the petitioner was sanctioned a sum of Rs.400/- for August 2009 and another sum of Rs.600/- from monthly grant for months of February and March 2005 (Rs.300/- per month) vide DSM MOD M No.14747/14745/8697/MFA/2005, dated 21.03.2005. The claim of the petitioner for grant of exgratia pension was also rejected on the ground that the petitioner has not completed the minimum 15 years qualifying service. Since the discharge of the petitioner itself is per se illegal, We are of the considered view that the petitioner is entitled for his service pension, construing that the discharge is made after minimum qualifying service of 15 years, and the monetary benefits is to be restricted to three years prior to the filing of this petition. Point is answered accordingly.

8. In fine, the petition is allowed and the impugned order of the third respondent is set aside and the petitioner is entitled to his service pension. Monetary benefits shall be given only from three years prior to the date of filing of this petition (W.P.No.4275 of 2006) ie., from 02.03.2003. The petitioner is entitled to the cost of Rupees five thousand to be paid by the Respondents. Since the petitioner is an octogenarian, time for compliance three months. In case of failure in compliance, the petitioner is entitled to interest at the rate of 12% pa for the arrears of pension till it is paid to him.