Union of India and Others v. Ex Hav Jarnail Singh and Another

SURESHWAR THAKUR , J .

¶1Through the instant writ petition, the petitioner herein-Union of India, prays for the setting aside of the order dated 07.03.2019 (Annexure P-7), as passed by the learned Armed Forces Tribunal concerned, wherebys, the claim of respondent No. 1 for the grant of disability pension was allowed. Factual Background

¶2Respondent No. 1 was enrolled in the Indian Army on

31.03.1988 in a fit state of health and was discharged from service on

30.11.2007 before completion of terms of engagement at his own request on extreme compassionate grounds. During the course of his service, he incurred the disability of 'Sensori Neural Hearing Loss B/L-H90' which was assessed by the Release Medical Board as less than 20% for life and was also declared to become aggravated by rendition of military service.

¶3The disability element claim of the respondent was rejected by the Competent Authority, thus on the ground that the supra disability was assessed as less than 20%.

¶4Respondent No. 1 submitted first appeal dated 07.07.2008 which was rejected by the Department vide letter dated 11.12.2008.

¶5Thereafter, after a lapse of six years, respondent No.1 filed O.A., before the learned Armed Forces Tribunal concerned, wherebys he cast a challenge to the afore said rejection order. The said O.A., became allowed vide order dated 07.03.2019. The operative part of the said order is extracted hereinafter. "Moreover, the question has been answered by the Hon'ble Supreme Court in Sukhwinder Singh's case (supra). The relevant Para 11 of which are as follows :- "Thirdly, there appear to be no provisions authorising the discharge or invaliding out of service where the disability is below 20 percent and seems to us to be logically so. Fourthly, whenever a member of the Armed Forces is invalided out of service, it perforce has to be assumed that his disability was found to be above 20%. Fifthly, as per the extant Rules/Regulations, a disability leading to invaliding out of service would attract the grant of 50 percent disability pension." On the basis of the above case law of the Hon'ble Supreme Court, we are of the opinion that the disability which has been assessed by the RMB at less than 20% (i.e 11-14%) can be deemed to be 20% and rounded off to 50%. Now the question arises as to from which date the applicant is entitled to the disability pension on the basis of the above rate. In this reference it is to be seen as to on which date his right to get disability pension @ at less than 20% was recognized. His right was recognized or accrued on the date pronouncement of judgement by the Hon'ble Supreme Court in Sukhwinder Singh's case (supra) which was decided on 25.06.2014. Hence, in our view the starting point of cause of action being entitled to get broad-banding of the disability percentage came to be recognized by judicial pronouncement made by the Hon'ble Supreme Court in Sukhwinder Singh's case (supra) which was decided on 25.06.2014. Therefore, in our view, the applicant is entitled to the arrears of disability pension @ 50% w.e.f. 25.06.2014 on which date right was accrued to him by virtue of the pronouncement made by the Hon'ble Supreme Court in the case of Sukhwinder Singh's case (supra).

¶6Feeling aggrieved from the aforesaid order as passed upon the O.A. (supra), by the learned Armed Forces Tribunal concerned, the petitioner-Union of India has filed thereagainst the instant writ petition before this Court. Submissions of the learned counsel for the petitioners.

¶7The learned counsel for the petitioners submits, that the learned Tribunal failed to appreciate that respondent No. 1 was never invalided out of service on account of medical disability but was KAVNEET SINGH discharged from service, on his own request but on extreme compassionate grounds, thus the provisions of Regulation 173 of the Pension Regulation for the Army, 1961 were not favourably attracted and as such, respondent No. 1 was not entitled to grant of disability pension. "173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed 20 per cent or over. ........

¶8Consequently, it is argued that the reliance placed by the learned Tribunal upon the verdict rendered by the Apex Court in case titled as Sukhwinder Singh Vs. Union of India and Ors., to which Civil Appeal No. 5605 of 2010 became assigned, was a mis-placed reliance thereons, as the expostulation of law made thereins, was bestowable only in case the soldier was invalided from service but was not applicable in case the soldier was discharged from service on compassionate grounds/domestic difficulties. Inferences of this Court.

¶9For the reasons to be assigned hereinafter, the above argument does not appeal to the judicial conscience of this Court and is rejected. Initially, for the reason since the disability (supra) assessed by the Release Medical Board was less than 20 %, but when became declared to become aggravated by military service. Therefore, even though, in Sukhwinder Singh's case (supra) an expostulation of law is made that if a soldier is invalided from service on account of the release medical board declaring the said entailed disability being less than the required 20 %, therebys, yet on invaliding the soldier from service, the said percentum is deemed to be 20 %. Secondarily, though therebys, it is imperative that on account of the disability (supra) entailed upon the soldier, thus he is unfit for being retained in the Army, wherebys, he is required to be invalided. Resultantly and reiteratedly, thus the invaliding of the soldier from service, but was the pre-requisite for the invalided soldier earning disability pension.

¶10Be that as it may, even if the soldier is not invalided from service, but when the entailment of a disability, upon him, has been declared to become aggravated by rendition of military service, therebys, even though the said disability is less than 20 %. Therefore, as but a natural corollary thereto, the said percentum of disability is deemed to be upto 20 %, but irrespective of no order of invaliding the soldier from service being recorded. As such, irrespective of no order of invaliding the soldier from service rather being recorded, yet when the disability entailed upon him has been pronounced by the Release Medical Board to be less than 20 % whereupon, in terms of the expostulation of law (supra) made in Sukhwinder Singh's case (supra), rather therebys the said disability is deemed to be upto 20 % wherebys, the soldier was required to be imperatively invalided from service, but enigmatically, he has not been so invalided from service.

¶11Nonetheless, in the larger interest of justice, if ultimately he has been permitted to be released from service, thus on compassionate grounds, therebys, the said release from service, thus on compassionate grounds, rather than his being invalided from service perforce, yet does not render the expostulation of law (supra) made in Sukhwinder Singh's case (supra), to be inapplicable to him, as upon making the supra expostulation of law, to be ineffective to the present soldier, therebys gross injustice would become perpetuated vis-a-vis the present respondent. The reason for so stating becomes aroused from the factum, that if otherwise the soldier was unfit to be retained in service, therebys, he was naturally required to be bestowed the benefit of disability pension. The further reason for so concluding becomes also sparked, from the factum that since no adverse remarks became awarded to the present respondent, during the term of his serving in the Army, whereupons, on the said disability becoming entailed upon him during his rendering service in the Army, thus, he would not have been released, but yet merely on compassionate grounds he has been released. Contrarily, rather an order qua his being invalided from service, but was required to become rendered. Therefore, when the Army has released him from service, even merely on compassionate grounds, thus, not on account of his not being an able soldier, rather has so done, upon the Army untenably accepting his release merely on compassionate grounds, therebys, the said release on compassionate grounds, is construable to his being invalided from service, even without an order to the said effect becoming recorded.

¶12Now, in case the above inference is not recorded thereupon, in the garb of the Army authorities accepting the espousal of the present respondent for being released from Army, merely on compassionate grounds besides this Court also validating the same. Resultantly therebys, despite his entailing supra disability, which is declared to be attributable to military service and despite the fact that it is less than 20 %, besides despite the fact that the said percentum of disability is required in terms of the supra expostulation of law, to be construable to be upto 20 %, wherebys, an order of his being invalided from service but was required to be passed. Therefore, the Army Authorities have yet ill chosen to untenably seek theirs becoming relieved from the apposite onerous obligation, thus cast upon them, qua upon a soldier becoming entailed with disability (supra), thus his being bestowed with disability pension, through theirs rather than proceeding to make the imperative invalidings of the present respondent from service, theirs thus untenably accepting the soldier's plea for his release on compassionate grounds. In sequel, it appears that, the acceptance of the plea (supra), has ensued from the Army Authorities, reiteratedly untenably escaping the onerous statutory obligation cast upon them, to award to the present respondent the disability pension, which otherwise in terms of the supra expostulation of law, he became entitled to

¶13Furthermore, a perusal of impugned order reveals, that the applicant was held entitled to the arrears of disability pension @ 50 % w.e.f. 25.06.2014, which is date of the pronouncement of the verdict by the Apex Court in Sukhwinder Singh's case (supra).

¶14Though the judgment passed by the Hon'ble Apex Court in case titled as Sukhwinder Singh Vs. UOI and others (supra) was passed on 25.06.2014. However, prima facie, though the benefits thereof cannot be denied to the present respondent merely on the ground that it has only prospective effect and that it has no retrospective effect. The reason being that even if assumingly no explicit retrospective effect became assigned to the verdict (supra), whereins, in para No. 11 thereof, para whereof has been extracted above, a declaration of law is made to the effect, that even if the solider is discharged on account of the assessed percentum of disability being below 20 %, yet the said per centum of disability being construable to be @20% and further the same being rounded off to 50%. Resultantly the beneficent effect of the said declaration of law, thus though is also prima facie, to be endowed to the soldiers, irrespective of the date of pronouncement of the said judgment. If the said endowment is not made, thereupons, prima facie, to the considered mind of this Court, an arbitrary cut off date would become employed inter-se those soldiers who became discharged prior to the making of the verdict (supra), thus with those soldiers who became discharged subsequent to the passing of the verdict (supra).

¶15It appears that it was even not the intrinsic tenor and spirit of the supra declaration of law passed by the Apex Court in the verdict (supra), as such, the declaration of law is required to be employed even vis-a-vis the present petitioner.

¶16Even otherwise since the declaration of law made in verdict (supra) makes the said declaration to be an expostulation of law in rem, therebys, the expostulation of law in rem, as made in verdict (supra) also makes the thereunders conferred benefits vis-a-vis the defence personnel concerned, to, prima facie, also entitle the concerned, thus to at any time seek the granting of the endowments as made thereunders, and that too, in the fullest complement, as spelt thereunders, besides irrespective of the bar, if any, of delay and laches.

¶17Be that as it may, owing to the non making of any challenge to the afore at the instance of respondent No. 1, besides his also not seeking a declaration, that in terms of the supra in rem expostulations of law made in Sukhwinder Singh's case (supra), thus he be bestowed the benefits thereof. Resultantly, this Court is constrained to after dismissing the writ petition uphold the verdict made by the Tribunal concerned, wherebys, the arrears of disability pension have been restricted to the applicant w.e.f. 25.06.2014.

¶18The impugned order, as passed by the learned Tribunal concerned, is maintained and affirmed.

¶19Disposed of alongwith all pending application(s), if any.

(SURESHWAR THAKUR) JUDGE

(SUDEEPTI SHARMA)

27.11.2024 JUDGE

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. CWP-14751-2024 Reserved on: 18.11.2024 Pronounced on: 27.11.2024 UNION OF INDIA AND ORS. .....Petitioners Versus EX HAV JARNAIL SINGH AND ANR. Respondents CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR HON'BLE MRS. JUSTICE SUDEEPTI SHARMA Argued by: Mr. Dharm Chand Mittal, Advocate for the petitioners/UOI. Mr. Rajesh Sehgal, Advocate for respondent No. 1. ****