RAJAN Vs. SECRETARY MINISTRY OF DEFENCE

JUDGEMENT

(1.) The W.P.(C) is filed for direction to the respondents to grant disability pension to the petitioner who was released from the Army after he lost two fingers of the left hand in an accident while in service. The petitioner joined Indian Army as a driver on 2-1-1964 and while driving, the Army truck driven by the petitioner from Pathankott to Srinagar capsized leading to injury and amputation of index and middle fingers of the left hand of the petitioner. Even though date of accident is not known, petitioner s case is that the accident was in 1968 and he was treated in the Udhampur Military Hospital. After the accident, petitioner was declared low medical category and was posted in the Army Unit 56 APO where he worked for 9 months. Thereafter petitioner was transferred to Army Supply Core (Records) at Aurangabad which was a unit that was being closed. Petitioner was released from the Army on 15-4-1969 after he completed 5 years, 3 months and 13 days service by stating that his service is no longer required. Petitioner s case is that even though he does not qualify for regular pension for want of required service of 15 years, he is entitled to disability pension for which papers were forwarded. Even though petitioner was not given any communication about the grant of pension, respondents have produced Ext. R1(a) which shows that petitioner was granted pension at the rate of Rs. 126/- with effect from 1-2-1980. It is seen from Ext. R1(a) that besides the pension, petitioner is granted DCRG of Rs. 2,034.80. Pension Payment Order No. S/l139/80 is also mentioned in Ext. R1(a). Petitioner s case is that inspite of grant of pension with effect from 1-2-1980, he was never paid pension. According to the petitioner, he could not pursue the matter and he was earning livelihood as an agricultural worker. However, though belaterdly, petitioner approached this Court for justice because at old age he is not able to work and earn. After initially hearing the matter on 26-6-2008, this Court felt that the stand taken by the respondents is rather conflicting because they cannot simultaneously contend that petitioner was not released on account of disability which entitles him for disability pension and that he was released from the Army as his service was not required. Admittedly, there is no provision for release of an Army personnel on account of closure of office or unit where he was working. Undoubtedly petitioner was released from service on account of disability and the same is evident from the pension granted to him vide Ext. R(a). Even though one opportunity was granted to furnish additional counter affidavit to the respondents, they have filed an additional counter affidavit on 5-8-2008 wherein the only statement is that records are not retained beyond 25 years. The contention is obviously incorrect because respondents produced Ext. R1(a) granting pension to the petitioner 28 years back i.e. from February 1980 onwards. Therefore, non-availability of records is not a ground for denying pension benefits to the petitioner, more so because petitioner is a person who suffered injury and disability while in the service of the Army.

(2.) During the posting on 17-10-2008, Standing Counsel for the Central Government appearing for the respondents namely, Mr. Thomas Mathew Nellimoottil submitted in court that he is asked to withdraw from the case and accordingly he was permitted to withdraw from the case.

(3.) From the counter affidavit and the records produced in court, i find that the respondents have virtually conceded the claim of the petitioner that he is entitled to disability pension. However, the only question to be considered is whether petitioner can be declined benefit on account of delay in filing the writ petition. I do not think delay should be treated as fatal; to the claim of the petitioner for more than one reason. In the first place, the petitioner is a person who worked in the Army in formidable conditions and suffered injury leading to amputation of two fingers resulting in partial permanent disability which was certified by the Army Medical Board at 20% and he had over 5 years of service prior to his termination from service. Secondly, his eligibility for disability pension is approved and he is granted pension vide Ext. R1(a) by the respondents. Lastly, the petitioner not being a well educated man and an agricultural worker after retirement, cannot be expected to fight the Army and he has come to this Court only because of further weakness on account of age. Above all, since right to receive pension is available till death of the claimant, the grievance is continuous one so long as pension remains unpaid. Therefore, I condone the delay in filing the W.P. and direct the respondents 1 and 4 to release the arrears of pension in terms of Ext. R1(a) order and subsequent increments but without interest, within three months from date of receipt of a copy of this judgment. Regular pension thereafter will be paid on due dates.