UNION OF INDIA Vs. BHAGWANT SINGH

JUDGEMENT

(1.) In this appeal by the Union of India, appellant, from the order, datrd January 29, 1962, of Shamsher Bahadur J., the facts are not a matter of controversy between the parties.

(2.) The respondent, Bhagwant Singh, was enrolled in the Army on August 1, 1939. He was on field service in Singapore Area between September 26, 1945, and January 30, 1946. He developed diabetes during his service in Singapore. On compassionate grounds he was brought back sometime in February 1946, He was holding the rank of Subedar. In April 1946 he was admitted in hospital for treatment. On June 27, 1946, the Specialist expressed this opinion in regard to his condition "He is suffering from Diabetes Mellitus-Urine sugar controlled with diet and insulin and he has put on weight 4 1bs. In the last 2 weeks- general condition quite good. the has completed his anti-syphilitic treatment and is on suveillance). He refuses any further treatment. To be invalided Gate E". The respondent was then examined by the Medical Board on September 17, 1946, and was declared unfit for further service on account of diabetes mellitus, assessed at 50 percent, incapable of improvement. The Board recommended that the disease, which manifested itself in September 1945 in Singapore and progressively became worse, was aggravated by war service. This recommendation of the Board having been accepted, a provisional disability pension of Rs. 88/8.00 per mensern was sanctioned by the Controller of Military Accounts (Pension) with effect from Novembers, 1946-Annexure A. Subsequently the respondent's claim for disability pension was finally accepted, though the pension was reduced to Rs. 82/8.00per mensom for life, with effect from the very date stated in the provision order-Annexure C. lie continued to draw his pension till May 31, 1954. He was re-employed as a civilian clerk in the Air Force-C. 0. D., Delhi, with effect from September 25, 1950, and it was in consequence of his re-empioyment that his case came to be reviewed. He was again examined by the Medical Board on September 30, 1954, when his disabilty was reasssssed at 20 per cent, with effect from September 25, 1950. It was then considered that the disability--Diabetes Mellitus-was of a constitutional nature, generally not attributable to war service. This was done pursuant to Army Instructions 388'50, issued on December 9, 1950, in regard to modification of permanent disability pension when the disability changes in characater or degree. The instractions say :--

(3.) A return was made to the petition by way of an affidavit of an Tender Secretary of the Ministry of Defence in which it was first stated that the appeal on the respondent having been rejected o April 10, 1956, the petition made on March 3,1958, was delayed and should be dismissed on this account. Then it was pointed out that diabetes mellitus is a disability of constitutional nature and is generally not accepted as due to service, and the Resurvey Medical Board having re-assessed the respondent's disability at 20 per cent final, incapable of improvement, with effect from September 25, 1950, the Controller of Defence Accounts (Pensions.) became suspicious. On that he made reference to the pension file of the respondent and found that the Medical Adviser (Pensions) had advised the rejection of the claim of the respondent, but the disability pension was sanctioned to him under some misapprehension or mistake. The return did not go into the details of the misapprehension or mistake nor did it reproduce the form of the advice given by the Medical Adviser (Pensions). The last position taken was that the grant of pension to the respondent is under administrative reeulations-pension Regulations for the Army in India, Part II, 1940 and not under any statutory rule or regulation, it is a grant in the nature of bounty, and the appellant has full and complete power to withdraw it when misapprehension or mistake in the grant of the same is discovered at a later date as has been the case in regard to the pension granted to the respondent. It was also said that the pension granted to the respondent is not properly or right in property, obviously with the approach that Article 131 (1) of the Constitution has no application to this case. It was pointed out that claim to pension under the said Army Pension Regulation is not as of right and as it savours of a gift or a bounty by the State so the respondent has no right which he can pursue in a petition under Article 226, the apppellant having compete and absolute right to withdraw the pension at any time and without assigning any reasons. IT the circumstance there was no question of violation of any principles of natural justice and there was no occasion which called for- anv opportunity to the respondent to say anything before the order of cancellation of his pennon was made. The further position taken was that this Court in a petition like the present could not possibly sit in appeal against the order made by the proper authority cancelling the pension of the respondent. This was followed by an application bv the respondent savins? that the averment of the Under Secretary in the affidavit that the Medical Adviser (Pensions) had advised rejection of the respondent's claim to pension and that the disability pension was sanctioned to him under some misapprehension or mistake could not have been made by the deponent from personal knowledge and that this averment was absolutet y incorrect. The respondent further said that the deponent should have filed a copy of the report of the Medical Adviser (Pensions) and should have at least stated in the affidavit that the averment in this behalf in it was based on such a report. After that the Under Secretary filed a second affidavit pursuant to an order oi tins Court made on November 17, 1958. It was in this affidavit that the Under Secretary explained that when in March 1956 the appeal of the respondent was considered in the Ministry of Defence, all the relevant service and medical documents were obtained from the individual's Record Officer and the Controller of Defence Accounts (Pensions), Allahabad. These documents contained the original case file of the Controller of Defence Accounts (Pensions), Allahabad in which the claim to disability pension was decided by him. This case file also contained one note-sheet, on which the original medical report, referred to in my previous affidavit filed in C. W. 98-D/58, was recorded." Then he averred that after the disposal of the appeal of the respondent, all the documents were returned to the Record Officer, Army ordinance Corps, Secunderabad, by the Ministry of Defence on January 28, 1957, and further said-"Presumably, the note- sheet on which the original medical report was recorded, was also sent along with the above-mentioned documents. Afterwards on the 13th September 1958 these documents were again forwarded by the Record Office to the Controller of Defence Accounts (Pensions), Allahabad, for considering the individual's gratuity claim." After the order of this Court of November 17, 1958, when an effort was made to trace the note-sheet on which was the medical report, it was not available either with the Controller of Defence Accounts (pensions), Allahabad, or in the Record Office, or the records of the Ministry of Defence. The Under Secretary proffers an opinion that the note-sheet has eithar been misiaid or lost while it was with the Ministry of Defence or in transit the Ministry of Defence to the Record Office, Secunderabad, or from the Record Office to the office of the Controller of Defence Accounts (pensions), Allahabad. The affidavit then refers to office noting, a copy of which was filed with the affidavit and is at page 43 of the paper-buok, made at the time of the review of the pension case of the respondent. It is pointed out that at that time the dealing Assistant L. D. Chopra. mad- a note that the Medical Adviser (pensions) had made this report on the pension case of the respondent- "No W/S factor has aggravated this constitutional I/D." The copy of the noting by this officer shows that he was of the opinion that while the form of the origin lireport of the Medical Adviser (Pensions) was as he had reproduced in the shape as above, but it was misread by somebody as-"The W/S factor 11.13 aggravated this constitntion I/D." It is stated in the affidavit of the under Secretary that this noting by the dealing Asistant was secrutinized by the then concerned under Secretary. It appears that this ingenious change of the word 'The' into 'No', has been the undoing of the respondent. The original report, a piece of paper, obviously has now been missed. At the hearing it has not been actually suggested but there was a tendency towards considering that the respondent might have been responsible for the removal of that paper; however, that seems to be not quite possible because all the time the record remained either with the Ministry of Defence or in the Record Office or with the Controller of Defence Accounts (Pensions). This was the most crucial document in the case and it is surprising that it should be found missing, when the basis of the order of cancellation is that very report of the Medical Adviser (Pensions). It is at this stage that thus an explanation is rendered about what is meant by misapprehension and mistake under which the pension was granted to the respondent and which led to the cancellation order, as referred to in the first affidavit of the Under Secretary. It is not quite clear why the o***** out this information from the Officer of the appellant. The original report not having been produced in this Court, I am not convinced that copy of the office noting of the dealing Assistant is any material that is helpful in this respect or is a sufficieut explanation in support of the order cancelling the pension of the respondent.