Government of India Ministry of Defence rep. by its Defence Secretary South Block, New Delhi 110011 v. Pachammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02.02.2009CORAM:THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR. JUSTICE K.K. SASIDHARANWrit Appeal No.335 of 20081. Government of India Ministry of Defence rep. by its Defence Secretary South Block, New Delhi 110011.2. Chief of the Army Staff AHQ Sena Bhavan New Delhi – 110 011.3. Office Commanding Army Air Defence Records Nasik Road Camp Nasik Road, Maharashtra 422 202... Appellantsvs. Pachammal.. Respondent Writ Appeal against the order dated 08.01.2007 passed in WritPetition No.3767 of 2001 on the file of this Court. Petition filedunder Article 226 of the Constitution of India to issue a writ ofmandamus directing the Respondents to pay a compensation of Rs.10Lakhs for causing the death of petitioner/husband on account ofpremature discharge from service and award disability pension topetitioner husband for the period upto his death (i.e) from 23.5.1970to 24.7.73 and family pension to petitioner from the date of hisdeath till date with all the arrears payable to petitioner.For Petitioner : Mr.V.Balasubramanian Sr. Counsel for Central Govt.For Respondent : Mr.S.P.IlangovanJ U D G M E N T(Judgment of the Court was delivered by PRABHA SRIDEVAN,J.)This matter was argued in full on the last date of hearing viz.,29.01.2009. https://hcservices.ecourts.gov.in/hcservices/

2. The respondent is the wife of Sepoy Munusamy No.1283657, whodied on 11.06.1973. He was enrolled in the Indian Army on13.12.1965, after duly undergoing all the tests. He was foundphysically and medically fit until 22.05.1970. On 23.05.1970, he wasadmitted to Military Hospital, Panagarh and he was diagnosed asObstructive Jaundice. He was transferred to Command Hospital,Calcutta for re-categorisation. The Command Hospital discharged himon 17.06.1970, placing him in the low medical category CEEtemporarily for one year. He was discharged from Army Service witheffect from 12.12.1970, vide Disability Certificate No.134700 dated25.03.1971. On that date, he had completed 4 years and 364 daysservice. The claim of the husband of the respondent for disabilitypension did not yield result. He died on 11.06.1973, leaving behindhim surviving the respondent herein, a disabled son and unmarrieddaughters. He was not paid pension during his life time, afterdischarge and no family pension was also paid to him. According tothe respondent, as per the procedure available in the Army, he oughtto have been reviewed by the Medical Board on completion of one yearperiod and if he had been upgraded, he would have been taken back tothe main stream. On the other hand, if he was downgraded, theMedical Board could have been recommended for disability pensionbased on his disability. Since he was not reviewed, the husband ofthe respondent was neither recommended for disability pension nor washe observed in the main stream. The respondent's case is that, tocover up the lapses of the authorities, her husband was hastilydischarged and the disability pension, to which he was entitled to,was denied to him. During his life time, her husband appealed tovarious authorities and his application for disability pension wasforwarded by Army authorities, vide Memo dated 07.09.1972, but yetpension was not granted. The respondent had been appealing tovarious authorities and she was only able to get meagre sums of moneyas financial assistance from Army Welfare Funds, vide ArtilleryRecords, Nasik Road Camp letter No.1283657/FP/D-iv/NB, dated09.08.1986. Her last appeal is dated 15.04.1995. Having no otherrecourse, she filed Writ Petition No.3767 of 2001, for mandamus topay a compensation of Rs.10 lakhs for causing the death of herhusband on account of premature discharge and to award disabilitypension.3. A counter has been filed. It is stated therein that theservice documents of the husband of the respondent viz., Ex GunnerMunuswamy have been destroyed after expiry of retention period i.e.25 years, in terms of Para 595 of Regulations for the Army 1987.But, from the Long Roll maintained by Air Defence Artillary Records,it is seen that the said Munusamy was enrolled on 13.12.1965 anddischarged from service with effect from 12.12.1970 under Army rule13(3) item iii(v) since his service was no longer required.According to the appellants, as per Regulation 132 of the PensionRegulations for the Army 1961, minimum 15 years qualifying service isrequired to earn service pension. Since the late Munusamy had https://hcservices.ecourts.gov.in/hcservices/ rendered only 4 years 364 days of service, he was not eligible forservice pension. It is also stated that after he was discharged fromservice with effect from 12.12.1970, he had not made any request forservice pension or disability pension and after 28 years, therespondent has approached this Court, which must be dismissed forlatches. According to Section 4 of the Pension Act, 1871, CivilCourts are also not authorised to entertain any suit. It is alsostated that the late Munusamy was dismissed not on medical grounds,but on the ground that his services were no longer required andtherefore grant of disability pension or family pension would notarise. 4. The learned single Judge on consideration of the materials onrecord, directed the appellants herein to pay a disability pension tothe deceased from 23.05.1970 till the date of his death i.e.11.06.1973 and to pay Special Family Pension as per the PensionRules. Aggrieved by this, the present writ appeal has been filed.5. The learned counsel for the Central Government StandingCounsel submitted that the writ petition must fail on the ground oflatches and that the writ petitioner viz., the respondent herein doesnot satisfy any of the criterion for grant of pension. No recordshave been produced that the deceased had suffered on account of thearmy service condition. On the other hand, the records onlydisclosed that he was discharged as his services were no longerrequired and not on medical grounds. It was submitted that withoutany record, the learned single Judge had come to the conclusion thatthe death of Munusamy was due to medical disability. 6. The learned counsel appearing for the respondent submittedthat this is a pathetic case, the respondent comes from an extremelypoor family and she is only a cattle grazer and she had been makingtireless efforts to get pension and the records would also show thatthe matter was under consideration by the authorities and thereafter,suddenly for want of records, for which the respondent is not toblame, her case for pension was rejected. Learned counsel submittedthat the learned Single Judge had rightly allowed the writ petitionand the order did not deserve to be interfered with.7. Learned Senior Counsel for Central Government also producedthe Army Regulations applicable to the period when this matter arose.As per the Army Order 146/77 Medical Categorisation of servingJCOs/OR;"1. Serving JCOs/OR of the Army will be medicallycategorised in accordance with the schedule of physicalstandards and instructions given in Appendix 'A' tothis order.Explanatory notes on low Medical Category Personnel https://hcservices.ecourts.gov.in/hcservices/

2. All personnel who are placed in categories B or C,whether temporary or permanent, are fit for employmenton suitable duties. However, in deciding theemployability of such personnel, any specificrestrictions laid down by medical authorities will bekept in view. They should not be required to attenddaily sick parades as a routine.3. Category 'C' embraces all personnel who are not fitfor active service with units/formations HQ involved inactual fighting, but are fit for such duties which donot involve severe strain.4. ....5. ....6. After categorisation, all individuals in categories'B' and 'C' will be returned to their respectiveunits/formations, or Regiment/Corps Centre/Depot,depending upon the employability restrictionsrecommended by the medical board. Services of lowcategory personnel returned to units will be utilisedas best as possible. If it is not found possible toutilise the services of any individual in his unit, hewill be returned to his Regt/Corps/Centre/Depot.7. ...Special instructions for Medical Boards/RMOs regardingcategorisation of JCOs/OR:11. The medical category of an individual can bedowngraded only by a duly constituted medical board.However, in the case of individuals placed in temporarylow medical categories, upgradation of category orcontinuation of award of the existing temporary lowmedical category, either on a temporary or a permanentbasis, can be done by the officer-in-medical-charge oftroops.12. ...13. Before placing an individual in a temporarycategory, the medical board should carefully considerwhether the individual is likely to show adequateimprovement within the maximum permissible period ofone year, to warrant his upgradation to the next highercategory. If the medical board do not consider itlikely, the individual should be awarded a permanentlow medical category straightaway.14. ...15. Record of medical categorisation of personnel,will be completed on form AFMSF-15, in duplicate, by https://hcservices.ecourts.gov.in/hcservices/ medical board/officer-in-medical-charge of troops.Approval of ADMS is not necessary. One copy of thisform will be sent to the individual's unit and theother copy to his Record Office, by the authorityexamining/categorising the individual.16. When a JCO/OR, who is in permanent low medicalcategory 'B' or 'C', reports to hospital for medicalboard, consequent to issue of orders for hisdischarge/release from service, in accordance with theprescribed policy, the medical board will ensure thatthe individual is examined for release purpose only andhis existing medical category is not changed.17. While placing a JCO/OR in a low medicalcategory, the medical board will ensure compliance withfollowing requirements:- (a) they must clearly state in the board proceedingswhether or not the disease/disability of the individualis attributable to service. They will also bring outaggravation, if any. In formulating opinion aboutattributability or non-attributability, all medicalofficers comprising the medical boards and theapproving authorities must follow the guidelines givenby the Government in the publication "ENTITLEMENT TOCASUALTY PENSION, ASSESSMENT OF DISABILITY; A GUIDE TOMEDICAL OFFICERS AND MEDICAL BOARDS."Note: Details of any disability or defects oflocomotion will be invariably recorded in the man'smedical history sheet for reference in case of futurepension claims. This record is of the utmostimportance both to the man and the state.(b) they must record, in clear and precise terms,their recommendation, in part II of AFMSF-15, regardingrestrictions to be observed in the employment of theindividual owing to his disease/disability, for theguidance of OC unit. The employment restrictions willalso be entered in IAB-64 of the individual by the MOwho has handled the case."8. The copies of the discharge slips also produced, which showthat the deceased Munusamy had been transferred to Command Hospital,Calcutta for re-categorisation, as he had been diagnosed as"Obstructive Jaundice". Then, on 17.06.1970, he had been placedunder low medical category "CEE" temporarily for one year with coinlesion ante-tubercular treatment for one year. Then, he had beendischarged on 12.12.1970, as unsuitable for further Military serviceunder Army Rule 13, item (v). The records show that his characterhad been very good and that he was enrolled at the age of 18 and itsays that he is unsuitable for Military service. From the extract ofthe Army Orders above, it is seen that individuals in categories Band C will be returned to their respective regiment depending upon https://hcservices.ecourts.gov.in/hcservices/ the employability restrictions recommended by the medical board andif it is not found possible to utilise their services, they will bereturned to their regiment. Then, a constant watch has to be kept ontheir medical categorisation. It is seen from paragraph 16 of theSpecial Instructions extracted above, the persons, who are in apermanent low medical category, consequent to issue of orders fordischarge in accordance with a policy, the Medical Board will ensurethat he is examined for release purpose and his existing medicalcategory is not changed. Guidelines also have been given as to theMedical Board to state whether or not the disease/disability of theindividual is attributable to service and the entitlement of casualtypension should also be made.9. In 1972, the late Munusamy made a claim for pension. Thiswas forwarded for an early necessary action. It must be rememberedthat this was at a time when the records were available, whereas atpresent, the appellants plead that the records have been destroyed asper the policy of destruction. It will be appropriate for us topresume in this case that if the late Munusamy's case was one ofrejection outright, then the contemporaneous order would haveindicated it. Whereas the order dated 07.09.1972 shows that hispetition has been forwarded for early necessary action. Therefore,we will presume that he was entitled to pension. Thereafter, in1986, they rejected his case stating that his service was no longerrequired and therefore, he was discharged, because he had notachieved permanent classification. If he had been placed undertemporary medical category, as can be seen from the discharge slipsproduced before us, it was for the authorities to produce him beforethe Medical Board to enable the Medical Board to examine him and dothe re-categorisation. For what they had failed to do, the pensionerand his family cannot suffer.10. For Junior Commissioned Officers and Other Ranks and Non-combatants (enrolled), to which the late Munusamy belongs, the Rule113 provides that while any individual, who is dismissed, isineligible for pension or gratuity and an individual, who isdischarged, remains eligible for pension or gratuity. DisabilityPensionary Awards provides that disability pension may be granted toan individual depending on the percentage of disability and Rule 175states that if the disability of an individual is wholly or partly,due to his serious negligence or misconduct, the amount of disabilitypension may be reduced. Unless the negligence is proved, theauthorities are liable to pay disability pension in full. It may bereduced only if they proved that it is wholly or partly due toserious negligence or misconduct. It shows that duty to prove lieson the authorities. It is also seen that refusal to undergo medicaltreatment is another ground for reducing or withholding thedisability pension. Detailed directions have also been given withregard to disposal of TB/Leporsy cases and Appendix 'A' to Army Order150/75, which deals with Medical Treatment and disposal of Armed https://hcservices.ecourts.gov.in/hcservices/ Forces Personnel and their families suffering from PulmonaryTuberculosis/Leprosy, provides that unless who are discharged fromservice will be deemed to have been invalidated out of service fromthe date of discharge from service for the purpose of grant ofdisability pension on the basis of the recommendation of theinvalidating medical board.11. In this case, the records also show that the deceasedMunusamy was recommended for coin lesion ante-tubercular treatmentfor one year. This order is dated 17.06.1970. Therefore, he shouldhave been given treatment at least till 16.06.1971 until the MedicalBoard had re-assessed his condition. On the other hand, he wasdischarged on 12.12.1970 without his completing one year treatmentand more importantly, just one day short of the 5 years period, whichwould have given him the category of permanent classificationeligible to benefits and privilege to be treated in MilitaryHospital. It is very important to note that on the date ofdischarge, he had completed 4 years and 364 days. We will not denythe respondent her relief merely because the appellants plead thatthe records have been destroyed, when we have contemporaneous recordshowing that gunner's case even when he was alive had beenrecommended for early action. If the deceased Munusamy had beengranted his disability pension at that time, then the respondentherein would have been automatically entitled to family pensionwithout any controversy. Moreover, the deceased was discharged in1972. The Rules provide that the records should be destroyed after25 years. Then the records could have been destroyed only after 1997.By this time, he had made a claim for pension. The State must befair in its action. We are unable to see why, Munusamy had to beurgently discharged just one day before he completed 5 years ofservice. We are unable to see why the authorities had discharged himbefore the completion of one year period of treatment. We are unableto see any reason other than medical reason for terminating him unfitfor Military Service. Therefore, we have no option but to hold thatthe action is arbitrary.12. In Union of India vs. Neki Ram (AIR 2004 SC 1235), a Sepoy,who had been discharged on the ground of permanent disability, fileda suit for grant of disability pension. The trial Court found thatthere is no evidence to rebut the presumption that the plaintiff haddeveloped the disease in the course of his service. It was contendedon behalf of the Union of India that in the absence of proof ofinjury or the illness developed due to Military service, there cannotbe a decree to pay him disability pension and for this purpose, itrelied on the decision of the Supreme Court in Union of India vs.Baljit Singh (1996 (11) SCC 315). But, the Supreme Court rejectedthis contention on the basis of the factual findings and theyobserved the fact that the respondent was hale and hearty when hejoined service and could not have taken ill of the kind complainedunless it be in the course of service or aggravated due to the https://hcservices.ecourts.gov.in/hcservices/ service, was relevant and therefore, dismissed the civil appeal filedby the Union of India. 13. In this case, while we are not granting disability pension,it may not be out of place to point out that there are records toshow that the writ petitioner's husband was hale and hearty when hejoined service and developed coin lesion ante-tubercular only afterhe joined service.14. It is the case of the writ petitioner that she is a cattlegrazer without knowledge of law or access to legal remedy and it isin these circumstances that she had come to this Court after apassage of time. The facts show that the deceased army man had beendischarged one day short of five years period, which would have givenhim the category of permanent classification eligible to benefits andprivilege to be treated in Military Hospital, though there was nourgency for the discharge since the records show that his case shouldcome up for review after 12 months' period and that 12 months had notelapsed and these facts indicate that there had been some arbitraryand unfair action on the part of the State, which severely prejudiceda poor woman, who is bereft of her husband, who has a disabled boy,who deserves substantive and real justice and not indifference whichviolates her right to life as enshrined in Article 21 of theConstitution of India. 15. An almost identical matter came before the Supreme Court inS.K.Mastan Bee vs. General Manager, South Central Railway (2003 (1)SCC 184). The appellant before the Supreme Court was the widow of arailway employee, who died in harness on 21.11.1969. Because ofignorance and lack of legal assistance, she did not make her claimuntil 12.03.1991. Her claim was rejected by the Railways on theground that her husband on the date of death was not in the serviceof the Railways, who had been earlier medically invalidated. Thiscontention of the railways was rejected by the learned Judge of theAndhra Pradesh High Court, who allowed the writ petition and issueddirection for payment of family pension with arrears from the date ofdeath. The Division Bench also agreed with the learned single Judgewith regard to the right to receive family pension and the objectionregarding alternate remedy before the Central AdministrativeTribunal, but confined the retrospective effect to a periodsubsequent to 1.4.1992 i.e. the date on which the legal notice wasgiven by the appellant on the ground of latches. The Supreme Courtset aside this restriction. The relevant paragraph of the saidjudgment reads as follows:"6. We notice that the appellant's husband wasworking as a Gangman who died while in service. It is onrecord that the appellant is an illiterate who at thattime did not know of her legal right and had no access toany information as to her right to family pension and toenforce her such right. On the death of the husband of https://hcservices.ecourts.gov.in/hcservices/ the appellant, it was obligatory for her husband'semployer viz. the Railways, in this case to have computedthe family pension payable to the appellant and offeredthe same to her without her having a make a claim orwithout driving her to a litigation. The very denial ofher right to family pension as held by the learned SingleJudge as well as the Division Bench is an erroneousdecision on the part of the Railways and in factamounting to a violation of the guarantee assured to theappellant under Article 21 of the Constitution. Thefactum of the appellant's lack of resources to approachthe legal forum timely is not disputed by the Railways.The question then arises on facts and circumstances ofthis case, was the Appellate Bench justified inrestricting the past arrears of pension to a period muchsubsequent to the death of the appellant's husband onwhich date she had legally become entitled to the grantof pension? In this case as noticed by us hereinabove,the learned Single Judge had rejected the contention ofdelay put forth by the Railways and taking note of theappellant's right to pension and the denial of the sameby the Railways illegally considered it appropriate togrant the pension with retrospective effect from the dateon which it became due to her. The Division Bench alsowhile agreeing with the learned Single Judge observedthat the delay in approaching the Railways by theappellant for the grant of family pension was not fatal,in spite of the same it restricted the payment of familypension from a date on which the appellant issued a legalnotice to the Railways i.e. on 1.4.1992. We think on thefacts of this case inasmuch as it was an obligation ofthe Railways to have computed the family pension andoffered the same to the widow of its employee as soon asit became due to her and also in view of the fact thather husband was only a Gangman in the Railways who mightnot have left behind sufficient resources for theappellant to agitate her rights and also in view of thefact that the appellant is an illiterate, the learnedsingle Judge, in our opinion, was justified in grantingthe relief to the appellant from the date from which itbecame due to her, that is the date of the death of herhusband. Consequently, we are of the considered opinionthat the Division Bench fell in error in restricting thatperiod to a date subsequent to 1.4.1992."Therefore, in this case the Supreme Court in fact held that thepension ought to be paid right from the date of death.16. In the present case, the Sepoy Munusamy died in 1973. Hisapplication for disability pension was not granted and this was alsonot pursued. We would also have granted the same, but for the fact https://hcservices.ecourts.gov.in/hcservices/ that in this case there are no records to show the circumstancesunder which he was discharged from service and further he wasdischarged one day short of five years, which would have given himthe category of permanent classification eligible to benefits andprivilege to be treated in Military Hospital. The employee thuscould not complete 15 years of service, which would give him theright of service pension. The learned counsel for the appellantsubmitted that there are no records to prove the entitlement of theappellant and the appellant cannot grant her anything immediately onthe basis of conjecture. The learned counsel for the writ petitionersubmitted that the misery undergone by the writ petitioner is so muchthat even a limited relief would be welcomed. It is in thesecircumstances, we have decided to grant the relief only from the dateof the writ petition.17. One of the grounds pleaded is laches. In the circumstancesof the case, when the authorities had sat on the representation givenby the deceased Munusamy without disposing it expeditiously, we donot think, we in our exercise of jurisdiction under Article 226,should hold that the respondent's prayer suffers from the defect oflaches. However, we have to balance the equity since thejurisdiction under Article 226 is entirely discretionary. We,therefore, feel that in this case instead of allowing the writpetition as prayed for, we will make this modification. Theappellants shall calculate the family pension as payable to therespondent had they paid the disability pension for the deceasedMunusamy after he was discharged. However, the commencement of thefamily pension will be only from the date of filing of the writpetition. The respondent will not be entitled to any arrears ofpension right from the date of discharge viz., 12.12.1970 or from thedate of late Munusamy's death. The arrears of family pension shallbe calculated from the date of the writ petition and the entireamount shall be paid within three months from today. If the paymentis delayed, thereafter the amount shall bear interest @ 9% per annumtill the date of payment. The writ appeal is partly allowed. Nocosts. Consequently, M.P.No.1 of 2008 is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATR https://hcservices.ecourts.gov.in/hcservices/ To1. The Defence Secretary, Government of India Ministry of Defence South Block, New Delhi 110011.2. The Chief of the Army Staff AHQ Sena Bhavan New Delhi – 110 011.3. The Office Commanding Army Air Defence Records Nasik Road Camp Nasik Road Maharashtra 422 202.+ 1 CC to Mr.T.Arulraj,Advocate,SR.4711+ 1 CC to Mr.V.Balasubramanian,Advocate,SR.4788 W.A.No.335 of 2008SSR(CO)EM/3.3.09