Col. Opendra Kumar Verma (Retd.) vs Union of India & Ors

Heard learned counsel for the parties.

These appeals have been filed against the judgment of the Armed Forces Tribunal dated 21.11.2017 by which the original application (O.A.), filed by the appellant claiming disability pension, has been rejected on the ground that he has filed the petition after 20 years and he cannot be allowed to rake up stale claim without giving any cogent or acceptable explanation.

The brief facts of the case necessary to be noticed for deciding these appeals are:

The appellant was commissioned in the Indian Army on 25.12.1965. Appellant, after 1966, has served in different areas, including operational areas/high altitude areas and active field areas. In 1991, when the appellant was posted at Banbasa, a small military garrison on west Nepal border, he was diagnosed as suffering from disability. On 01.02.1997, before superannuation the appellant was put through a Release Medical Board and medical board assessed the disability of the appellant as aggravated by service and appellant was recommended for disability pension @ 30% life-long disability for IHD CABG DONE (411).

On 01.06.1997, appellant was superannuated in Shape-2 medical condition. Despite the disability, which was considered to be 30%, the appellant was not granted disability pension. The appellant's claim for disability pension was rejected by an order dated 16.07.1998. At the time of rejection of his claim, the appellant did not have the copy of the Release Medical Board, therefore, he believed the ground for rejection and in the year 2017 when he obtained copy of the Release Medial Board by RTI application he came to know that Medical Board has opined that disability was aggravated by military service. He filed a second appeal on 26.07.2017, which was rejected on 12.10.2017. Feeling aggrieved of his rejection of claim, he filed O.A. No.1915 of 2017, which was dismissed by the Tribunal.

Learned counsel for the appellant submits that the appellant was not aware that Medical Board has recommended his disability to be aggravated by military service and he came to know the same only in the year 2017, hence he filed the second appeal and thereafter the O.A. He submitted that now the disability pension, in the facts of the present case, ought to have been accepted.

Learned counsel for the Union of India submitted that the appellant had been communicated rejection of his claim by letter dated 16.07.1998 and he kept silent for a long period of about 20 years. Such inordinate delay was not explained and Tribunal did not commit any error in rejecting the claim on the ground of delay.

We have considered the submissions of learned counsel for the parties and perused the record.

The rejection, which was communicated to the appellant on 16.07.1998, has been brought on the record as Annexure A-2. It is useful to extract the said communication, which is to the following effect:

"Addl. Dte. Gen Pers Services

Adjutant General's Branch

Army Headquarters

DHQ, PO, New Delhi-110011. No.52334/Col/Ic-16720/Org-9(d)/35/97/05-4(d) 16 July 1998

Col Opendra Kumar Verma (Retd.)

F-48, Kirti Nagar,

New Delhi-15

CLAIM TO DISABILITY PENSION IN RESPECT OF IC-16720 RANK Col NAME Opendra Kumar Verma

Having examined your case in accordance with the existing medical and administrative provision, it has been decided that you are not entitled to disability pension since the ID(s) as recorded in release medical board held at the time of your release from service have been found to be neither attributable to nor aggravated by military service.

In case you are not satisfied with the above decision you may prefer an appeal against the decision within six months from the date of receipt of this letter. The appeal may please be addressed to the Under Secretary, D (Pen-A&AC), Ministry of Defence, Room No.207, A Wing, Sena Bhawan, DHQ PO, New Delhi-110011.

Sd/-

(Manjit Singh)

CSO

DAAG/PS-4

For Adjutant General"

The Release Medical Board was held on 01.02.1997, which was subsequently approved. Opinion of the Medical Board has been brought on the record and it is useful to extract part of the paragraph 2 of the recommendation, which are as follow:

"2(a) In respect of each disability the Medical Board on the evidence before it will express its views as to whether:

(i) It is attributable to service during peace or under field service conditions: or

(ii) It has been aggravated thereby and remains so; or

(iii) It is not connected with service.

The Board should state fully the reasons in regard to each disability on which its opinion is based.

Disability

A

B

C

IHD CABG DONE (411)

NO

YES

NO

(b) In respect of each disability shown as attributable under A, the Board should state fully the specific condition and period in service which caused the disability. NA

(C) In respect of each disability shown as aggravated under B, the Board should state fully:

(i) The specific condition and period in service which aggravated the disability.

Aggravated due to stress & strain of service due to prolonged service in ops, ops overseas, and High altitude area in varying periods between 15 Jan. 1966 to Nov.1988.

(ii) Whether the effects of such aggravation still persist.

(iii) If the answer (ii) if the affirmative, whether effect of aggravation will persist for a material period."

The rejection order dated 16.07.1998, as communicated to the appellant, indicates that Release Medical Board held that disability is neither attributable nor aggravated by military service. Such communication obviously gave impression to the appellant that Medical Board having found disability neither attributable nor aggravated, there may not be any sufficient cause to pursue the matter any further. However, when he came to know about the opinion of the Medical Board which clearly opined that disability was aggravated by military service, he chose to file second appeal thereafter O.A. We are satisfied that the explanation given by the appellant for filing the O.A. with delay was justifiable and could not have been a ground to throw out the entire petition. Learned counsel for the appellant has relied on two orders of this Court, which have considered the issue of delay in claiming disability pension. The Two-judge Bench order in Union of India & Ors. vs. Tarsem Singh Civil Appeal Nos.5151-5152/2018, this Court was dealing with the case here also there was a delay in claiming the disability pension to the extent of 16 years. This Court in paragraphs 5, 6 and 7 laid down following:

"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 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 this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances.

In view of the above, these appeals are allowed. The order of the Division Bench directing payment of disability pension from the date it fell due, is set aside. As a consequence, the order of the learned Single Judge is restored."

Another Two-judge Bench order of this Court, in which one of us (Ashok Bhushan, J.) was party, in Ex Sep Chain Singh Thr Lr. Dhaneshwari Devi vs. Union of India & Ors. C.A. No.22965/2017 also had considered the similar issue of delay in filing O.A. for disability claim. This Court allowed the claim in following words:

"After hearing the arguments of the parties, we are of the opinion that the aforesaid approach of the Tribunal is clearly erroneous. It was a matter of pension, that too disability pension, which was claimed by the appellant and in a case like this it would be a continuous cause of action simply because of the reason that if pension is due and payable to the appellant, the appellant would be entitled to receive the same every month. At the most, the appellant could be denied the benefit of past pension beyond the period of three years. Even otherwise, in cases of pension the Tribunal should not have taken a such hyper technical view.

However, we have gone through the merits of the case. We find that the law is in favour of the appellant and his case is squarely covered by a decision of this Court in "Ex.Gnr. Laxman Ram Poonia (D) through Lrs. vs. Union of India & Ors.", (2017) 4 SCC 697.

We, accordingly, set aside the judgment of the Armed Forces Tribunal and allow this appeal and hold that the appellant shall be entitled to disability pension. His pension shall be calculated within a period of three months and arrears shall be paid to him. However, the arrears would be limited to the period of three years from the date when the Original Application was filed.

The appeal is accordingly disposed of."

There has been consistent view of this Court that in event disability pension is claimed with delay, the claimant is not entitled for pension for the earlier period except for a period of 3 years prior to the date of filing the claim. Following the above judgments of this Court, we are also of the view that in the present case the claim of the appellant could not have been altogether rejected. We, thus, hold that appellant is entitled for disability pension which shall be computed w.e.f. the period of 3 years prior to the date of filing the OA in the Armed Forces Tribunal.

If the appellant is entitled to compute his 30% disability as 50%, as per law, it shall be open for the respondent(s) to consider and take appropriate decision in the above regard.

The appeals are allowed to the above extent.