High Court
Case Details
Court No. - 39 Case :- WRIT - A No. - 6269 of 2022 Petitioner :- Ex Reet Vishnu Prashad Gautam Respondent :- The Union Of India And 7 Others Counsel for Petitioner :- Shiv Kant Pandey Counsel for Respondent :- A.S.G.I. Hon'ble Attau Rahman Masoodi,J. Hon'ble Neeraj Tiwari,J.
Legal Reasoning
Heard learned counsel for the petitioner and Sri Manoj Kumar Pandey, who has put in appearance on behalf of Union of India. By means of this petition, the petitioner has assailed the judgment and order dated 23.11.2021 passed by the Armed Forces Tribunal Regional Bench, Lucknow in O.A. No. 356 of 2021 whereby the O.A. was dismissed. The operative part of the order reads as under:-
Decision
"In view of the above, we are unable to decide the case in vacuum after a prolonged gap of more than 31 years from the date of invaliding out from service. Original Application is devoid of merit and is liable to be dismissed. It is accordingly, dismissed. Pending misc. applications, if any, are disposed off. No order as to costs." Learned counsel for the petitioner at the first instance has argued that the Armed Forces Tribunal at the time of institution of the proceedings was pleased to admit the O.A., therefore, rejection of O.A. merely on the ground of laches is erroneous, therefore, the judgment impugned here in this petition suffers from a patent error apparent on the face of the record. We have carefully considered the submission put forth by the learned counsel for the petitioner. The record reveals that O.A. was admitted by order dated 22.7.2021 by passing a detailed order. There is no doubt that the O.A. was admitted whereafter it ought to have been adjudicated upon on merit. Pleadings were exchanged in the proceedings, thereafter the O.A. appears to have come up for hearing on 12.10.2021. The O.A. was argued by Sri R. Chandra, Advocate, who is an associate of petitioner's counsel and this position is evident from the order passed on the said date i.e., 12.10.2021 and the same is extracted hereinunder:- "Heard Shri R. Chandra, Advocate holding brief of Shri Shiv Kant Pandey, Ld. Counsel for the applicant and Shri Namit Sharma, Ld. Counsel for the respondents. The Original Application has been filed for grant of disability pension with delay of 30 years, 01 Month and 13 days. Submission of learned counsel for the applicant is that it is a pensionary matter in which bar of limitation is not applicable. His further submission is that delay in filing Original Application is not deliberate, but for the reasons stated in affidavit filed in support of application. Per Contra, learned counsel for the respondents submits that explanation of delay offered by the applicant is not sufficient as he has failed to offer day to day explanation of delay. Considering that in pensionary matters bar of limitation is not applicable and grounds stated in affidavit filed in support of delay condonation application are genuine and sufficient, delay is liable to be condoned. Accordingly, delay in filing application is condoned. Delay condonation application stands decided accordingly. O.A. No. 356 of 2021 Counter affidavit filed by the respondents is taken on record. Heard Shri R. Chandra, Advocate holding brief of Shri Shiv Kant Pandey, Ld. Counsel for the applicant and Shri Namit Sharma, Ld. Counsel for the respondents. Original Application is dismissed. For order, see our judgment passed on separate sheets. Misc. Application, if any, pending for disposal, shall be treated to have been disposed of." Detailed reasons were thereafter recorded in the order passed same day on the separate sheets, which is impugned herein this writ petition. The Tribunal while considering the issue on merit was again faced with the difficulty of laches. This difficulty was faced more on account of non-availability of relevant material, which the petitioner had failed to disclose before the Tribunal. The cause of invalidation from service was never agitated by the petitioner for all these years and the record in relation thereto was also not maintained. The Union of India while filing the counter affidavit before the Tribunal clearly took up a stand that the petitioner was not a pensioner, as such, any record relating to his invalidation from service in the year 1989 after putting in a total service of 1 year and 17 days was weeded out and could not be retained beyond 25 years as per guidelines. The fact remains that the order of invalidation passed on 7.8.1989 has remained unchallenged. This apart, the petitioner before issuance of legal notice dated 26.2.2021 did not make any attempt to obtain any medical papers relating to his invalidation from service nor did he ever apply for the same. To say that the petitioner was not supplied any medical papers relating to invalidation cannot be accepted at this stage particularly, when the petitioner himself has remained indolent during all these years about the cause i.e. invalidation from service. It is only after communication of the reply to the legal notice dated 26.2.2021 by means of an order dated 16.5.2021 that the O.A. was filed before the Armed Forces Tribunal Regional Bench, Lucknow that too without any basis and while the invalidation order remained intact. The case set up before the Tribunal was to the effect that the petitioner had incurred some disability while in training, therefore, he is entitled to the disability pension. The fact as to whether the disability was incurred while under training or not is a question, which was relevant for the purposes of determination of pensionary rights before the Tribunal. The Tribunal for want of any papers filed by the petitioner and in view of the stand adopted by the opposite parties being tenable in the eye of law, has rightly observed that the material on the basis of which a lis was agitated was incapable of being adjudicated upon for want of any material in this regard. We are also not taken through any such record or basis whereupon this Court may enter into adjudication of a lis between the parties relating to pension, therefore, we have restricted ourselves to look into the procedural pleas to see whether the tribunal had observed the rule of opportunity. The argument put forth before this Court that the O.A. could not be dismissed on the ground of laches after it was admitted by order dated 22.7.2021, in our humble consideration is misconceived. A cause of pension is a continuing cause only when the entitlement is not in dispute, but where the very disentitlement is settled on account of invalidation from service, to contend that the cause was nevertheless a continuing one, in our humble view, is wholly misconceived and untenable. The next submission put forth by the learned counsel for the petitioner to the effect that he was not afforded opportunity before concluding the hearing of the case on 12.10.2021 is also fallacious for the reason that the order extracted above clearly indicates that one Mr. R. Chandra had appeared on behalf of the petitioner, who was heard and the arguments were concluded. It is only after the hearing Mr. R. Chandra, learned counsel that the matter was decided finally by the Tribunal. In the review application filed before the Tribunal, we do not find that any affidavit was filed by Mr. R. Chandra, advocate disputing his readiness to argue before the Tribunal or any prayer for adjournment made due to the non-availability of his Senior Counsel. Therefore, the petitioner has failed to demonstrate clearly and substantiate the ground of denial of opportunity before the Tribunal. The Tribunal has rejected the application for review by passing a separate order on 23.11.2021 and we do not see any illegality in the order so passed. We are constrained to observe that the judgments of the Apex Court relied upon in support of the contentions cannot be weighed and applied in a case where the petitioner himself has failed to agitate the cause on the basis of any tangible material and approached the Tribunal after 31 years that too without making any efforts to obtain the relevant papers during all these years. The indolence on the part of petitioner to challenge invalidation not entitling him for pension has rather defeated the cause of pensionary right. The delay alone is not construed to be the reason of prejudice, but the indolence on his part to assail the invalidation. In the totality of circumstances, this Court does not find any good reason to interfere with the judgment impugned here in this petition. The writ petition devoid of merit and is accordingly, dismissed. Order Date :- 27.4.2022 Junaid Digitally signed by JUNAID AHMAD Date: 2022.05.05 17:00:41 IST Reason: Location: High Court of Judicature at Allahabad