Ex. Gnr J.J. Xavier Vs. Cda (Pensions) and Oic Army Air Defence Records - Court Judgment

Excerpt:
service - disability pension - entitlement of 20 per cent disability pension - regulation 173 of pension regulations for the army, 1961 - petitioner had filed a writ petition challenging validity and legality of an order passed by second respondent denying petitioner 20 per cent disability pension - high court set aside impugned order passed by respondent and remitted matter for fresh consideration - respondent-competent authority again passed order denying disability pension to petitioner - hence, the present petition - held, second respondent committed an error and material irregularity in proceeding to pass impugned order contrary to relevant original records that are made available - further, in spite of specific direction issued by court in earlier round of litigation, second.....ordern.k. patil, j.1. petitioner questioning the legality and validity of the impugned speaking order dated 27th april 2006 bearing no. aad/14307769/dp/132/pg/(lc) vide annexure c passed by lt. col. of second respondent herein, has presented the instant writ petition. further, petitioner has sought for a direction, directing the competent authority to grant 20% disability pension to the petitioner.2. the undisputed facts of the case are that, petitioner had earlier filed a writ petition in w.p. no. 37492/2002 (s-r), assailing the correctness of the order passed by first respondent therein vide annexure b in the said writ petition. further, petitioner had also sought for grant of disability pension of 20% so that he can peacefully spend the remaining days of his life. the said writ.....

Judgment:
ORDER

N.K. Patil, J.

1. Petitioner questioning the legality and validity of the impugned speaking order dated 27th April 2006 bearing No. AAD/14307769/DP/132/PG/(LC) vide Annexure C passed by Lt. Col. Of second respondent herein, has presented the instant writ petition. Further, petitioner has sought for a direction, directing the competent authority to grant 20% disability pension to the petitioner.

2. The undisputed facts of the case are that, petitioner had earlier filed a writ petition in W.P. No. 37492/2002 (S-R), assailing the correctness of the order passed by first respondent therein vide Annexure B in the said writ petition. Further, petitioner had also sought for grant of disability pension of 20% so that he can peacefully spend the remaining days of his life. The said writ petition had come up for consideration before this Court on 13th June 2005. This Court after hearing both sides, had set aside the impugned order therein passed by the competent authority and the matter stood remitted back for re-decision with reference to Regulation 173 read with Appendix II and with reference to judgments of this Court in Writ Petition No. 32721/1998 disposed of on 23rd January 2002 and Writ Petition No. 23149/2002 disposed of on 30th March 2005; and the judgment of the Delhi High Court in C.W.P. No. 5364/1998 disposed of on 6th March 2003 and to pass orders in accordance with law.

3. After the disposal of the earlier writ petition filed by petitioner, the Senior Record Officer for OIC Records has sent a communication dated 16th November 2005 to Brig. M.K. Krishnamurthi (Rtd), who is the counsel appearing for petitioner, stating that, the matter is under consideration before the competent authority and therefore, some more time is anticipated in finalisation of the case in consultation with the other agencies involved. Thereafter, the second respondent has proceeded to pass the impugned order on the basis of the relevant material available on file by his order dated 27th April 2006 vide Annexure C stating that, it is regretted to inform the petitioner that he is not eligible for grant of disability pension and accordingly, his claim in the said regard is rejected being untenable. Being aggrieved by the impugned order passed by second respondent vide Annexure C, petitioner herein felt necessitated to present the instant writ petition, seeking appropriate relief as stated supra.

4. I have heard learned Counsel appearing for petitioner and learned Central Government Counsel appearing for respondents, for considerable length of time.

5. After careful evaluation of the entire records available on file, threadbare, including the original records that are made available by Sri. M. Narayana, learned Central Government Counsel appearing for respondents as well as the speaking order passed by second respondent vide Annexure C, it is manifest on the face of the relevant material available on file that, the second respondent has committed an error and material irregularity in proceeding to pass the impugned order contrary to the relevant original records that are made available by the Central Government Counsel and that were very much available on his file. It is significant to note that, on going through the confidential original records made available by Sri. Narayana, learned Central Government Counsel, it emerges that, the confidential Part-IV under the heading 'ROLL OF JCO/OR/NC (E) SAILORS/ MWO/ WO/ AIRMAN, (proposed to be invalided), at Sl. No. 21 of the printed format, under the 'information required' category, to the question whether invalid or Disability Pension is recommended, the answer is stated by the competent authority as 'Invalid Pension'. The said information is duly filled in by the then Captain, OC Artillery Depot Regiment at Nasik Road Camp on 11th May 1976, which is duly certified and attested by Dr. S. Ramachandran, Lt. Col. AMC. Further at internal page. 7 of the Confidential Part IV, the same is sanctioned by the Major, Officiating OC. Artillery Depot Regiment (Commanding) at Nasik Road Camp on 3rd May 1976. When this confidential report consisting of the recommendation as well as sanction by the competent authority was very much available on file, merely placing reliance on the Medical Board Report, the second respondent has proceeded to pass the impugned speaking order contrary to the relevant material available on file. On this ground alone, the impugned speaking order cannot be sustained. Further, it is pertinent to note that, this Court, in the earlier round of litigation, had issued a specific direction to the respondents to reconsider the grievance of the petitioner with reference to Regulation 173 read with Appendix II and with reference to the judgments of this Court as well as the Delhi High Court, referred above and thereafter to pass orders in accordance with law. In spite of the said specific direction issued by this Court in the earlier round of litigation, the second respondent has proceeded to pass the impugned speaking order, without conducting proper enquiry, without assigning valid and cogent reasons and without recording a specific finding as to how petitioner is not entitled to 20% disability pension under the Pension Regulations for the Army 1961(Part-I). The second respondent, discharging his duties under the statute, has proceeded to pass the non speaking order. After critical evaluation of the impugned speaking order passed by second respondent, it can be seen that, the same does not contain any reasons or finding for arriving at such a conclusion, which is very much contrary to the relevant material available on his file as well as the relevant Regulation, as referred above.

6. In the light of the facts and circumstances of the case, as stated above, I am of the considered view that, at any stretch of imagination, the impugned order passed by the second respondent cannot be sustained and the same is liable to be set aside and the matter is required to be reconsidered afresh on the basis of the relevant material available on file, especially the one referred in the preceding paragraphs.

7. For the foregoing reasons, the writ petition filed by petitioner is disposed of with the following directions:

I] The writ petition filed by petitioner is allowed in part;

II] The impugned speaking order dated 27th April 2006 bearing No. AAD /14307769/ DP/132/PG (LC) vide Annexure C passed by second respondent is hereby set aside;

III] Matter stands remitted back to respondents to reconsider the matter afresh and to take appropriate decision in accordance with law, in the light of the direction issued by this Court in the earlier round of litigation in W.P. No. 37492/2002(S-R) disposed of on 13th June 2005 and with reference to the original confidential records available on the file of the authorities and dispose of the same, as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this order.