Raj Dayal Rai v. UOI & Ors

* IN THE HIGH COURT OF DELH! AT NEW DELHI + W.P.(C) No.1050/2012 Date of decision: October, 2012 RAJ DAYAL RAI PETITIONER Through Mr.Deb Nandan Rajak, Adv. Versus UOI & ORS RESPONDENTS Through Mr.Sunil Kumar, Adv. with Mr. Rajiv Ranjan Mishra, Adv. CORAM: HON-BLE MS. JUSTICE GITA IVIITTAL HON'BLE MR. JUSTICE J.R. MIDHA GITA jN/tlTTAL, 1 (Oral) *

¶1This writ petition was filed by Shri Raj Dayal Rai (since deceased) who while serving as a Constable, retired from the Border Security Force w.e.f. 15^^ March, 2002. Shri Raj Dayal Rai suffered a spinal injury during the course of his training which rendered him unfit. As per the discharge certificate issued to soldier on 15'^ December, 1981 and recommendations of the Medical Board dated 28"^ October, 1981, he had been put in ^E' medical category.

¶2Aggrieved by the failure of the respondents to give any compensation or any benefit on account of his disablement resulting in his release from the Border Security Force, Shri Raj Dayal Rai served a legal notice dated 20*^^ July, 2009 to the respondents calling upon them to make payment of all benefits with interest on account of his disability. The legal notice though termed as notice demand "compensation" clearly suggests that the petitioner was clearly seeking disability pension.

¶3The respondents rejected the notice demand by their communication dated 31®' December, 2009 holding that the claim made by the notice was generally time barred and against the rules made in this regard. P. Aggrieved thereby, the petitioner assailed the order dated 31"' December, 2009 passed by the respondents by way of a writ petition before the High Court of Judicature at Allahabad which did not entertain the same on grounds of want of territorial jurisdiction.

¶5Thereafter, Shri Raj Dayal Rai filed the present writ petition seeking issuance of a writ of certiorari quashing the communication dated 31"^ December, 2009 and a writ of mandamus to the respondents to pay compensation and disability pension to him in accordance with rules. The respondents appeared in the matter on advance notice. Even without filing counter affidavit, the respondents have issued an order dated 29'" May, 2012 for releasing disability pension to the respondents. A perusal of the order would show that the competent authority had sanctioned release of "disability pension" instead of "invalid pension" to Shri Raj Dayal Rai. It is, therefore, evident that the respondents have accepted the entitlement of i disabilitypension winich inad been wronglydenied to the petitioner.

¶6Unfortunately,during the pendency of the writ petition, the petitioner Raj Dayal Rai expired on 19'^ March, 2012. An application being CM No.8706/2012 filed by his heirs under Order 22 Rule 3 of the CPC was allowed on the 27'^ July, 2012. From that date, the present writ petition is being pursuedby the widow, son and daughterof the deceasedpetitioner.

¶7The above narration would manifest the fact that Shri Raj Dayal Rai was wrongly denied the disability pension which accrued to him by the -respondents. Even the legal noticeissued by him in this behalfdid not result ^ in the respondentscorrectingtheirwrongfulaction. On the contrary,astand was taken that the claim of Shri Raj Dayal Rai was barred by limitation which was legally incorrect. Payment of disability pension was the responsibilityof the respondentswhich they failedto discharge.

¶8The respondentsvide their order dated 29''" May, 2012 have assessed the entitlementof disability pension to the deceased pensionerw.e.f. 16^" March, 1982 payable till his death on 19'^ March, 2012.

¶9The deceased petitioneris representedby legal heirs who are unable ^ to place beforethis courtthe amountwhich was paid by the respondents. It is also not clear from a reading of the order dated 29''^ May, 2012 as to whetherany invalid pensionwas paid to Late Shri Raj Dayal Rai.

¶10The petitioner has also prayed for interest as well as costs of the presentlitigation.There is substancein the prayermade by the petitioner.

¶11In view of the above, it is directed as follows:-

(i) The order dated 3r' December, 2009 is set aside and quashed.

(ii) The respondents are directed to compute the pension including the invalid/disabilitypension which was admissible to Late Shri Raj Dayal Rai upto his death on 19"" March, 2012.

(iii) The computation in this behalf shall be communicated to widow of the deceased as well as learned counsel representing him within a period of four weeks from today.

(iv) The respondentsshall also computethe family pension and give it to the widow Smt. Parvati Devi who is the legallywedded wife of the deceased ^Shri Raj Dayal Rai w.e.f. 19'' March, 2012. The computationin this behalf shall also be communicated to her as well as counsel for the petitioner within a period of four weeks from today.

(v) The respondentsshall ensure that payments of amounts due, either towards pension including disabilitypension to Shri Raj Dayal Rai or family pensionto Smt. Parvati, are paid withina periodto his widow Smt. Parvatiof eight weeks from today.

(vi) We directthat the respondentsshall pay interest at the rate of 12% on % amounts which are found due and payable to Shri Raj Dayal Rai and his widow with effect from the date from which the amount became due.

(vii) Month by month pension shall be released to the widow of the deceased Shri Raj Dayal Rai on or before the tenth day of each English calendar month.

(viii) The respondents shall pay costs of litigation which are assessed at Rs.25,000/- to Smt. Parvati Devi, widow along with the payment of pension to her on the next date of hearing.

(ix) This writ petition is allowed in the above terms.

(x) The matter shall be listed on lO''^ December, 2012 to report compliance of the above order. Dasti. OCTOBER 01, 2012 aa (Gll^ MifTAL) IDGI (J.R. MIDHA) JUDGE