UNION OF INDIA (UOI) Vs. BHAGWANT SINGH

JUDGEMENT

(1.) IN this appeal by the Union of India, Appellant, from the order dated 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 the and insulin and he has put on weight 4 lbs. in the last 2 weeks -general condition quite good. (He has completed his ant -syphilitic treatment and is on surveillance). 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 per cent, 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 -0 per mensem was sanctioned by the Controller of Military Accounts (Pension) with effect from November 8, 1946 - -Annexure A. Subsequently the Respondent's claim for disability pension was finally accepted, though the pension was reduced to Rs. 82 -8 -0 per mensem for life, with effect from the very date stated in the provisional order Annexure C. He continued to draw his pension till May 31, 1954. He was re -employed as a civilian clerk in the Air Force -C.O.D., Delhi, with effect from September 25, 1950, and it was in consequence of his re -employment that his case came to be reviewed. He was again examined by the Medical Board on September 30, 1954, when his disability was reassessed 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 character or degree. The instructions say - -

(3.) THE learned Single Judge following ex parte Huggins, In re Huggins (1882) 21 Ch. D. 85, came to the conclusion that the pension granted to the Respondent is 'property' and so he has a fundamental right under Article 31(1) of the Constitution of not being deprived of the same save by authority of law, and consequently he can maintain the - petition under Article 226 for the protection of that right. With regard to the! argument on the side of the Appellant that the Respondent had no statutory right to receive pension in view of Army Instructions 388/50, revising regulation 374 of the Pension Regulations for the" Army in India, Part II, 1940, the learned Judge observed that those instructions could not apply to the present case because the Respondent was in enjoyment of the pension as a matter of 'tight, a right which according to old regulations, as stood before July 28, 1948, could not even be modified. The learned Judge also repelled the objection on the side of the Appellant in regard to the delay in the making of the petition following Bashershar Nath v. Commissioner of Income tax : A.I.R. 1959 SC. 149. In the result the learned Judge accepted the petition and quashed the order cancelling the pension of the Respondent. It is against this order that the Appellant has come in appeal under clause 10 of the Letters Patent.