SARAVAN Vs. UNION OF INDIA

JUDGEMENT

(1.) IN the instant case the petitioner is seeking benefit of pension. According to him, he had served the Indian Army from 12.2.1942 to 10.4.1946. But thereafter, he was discharged from the services on account of becoming medically unfit due to injuries sustained by him during service. Since he was medically boarded out, hence, he was entitled to get disability pension. During service he had received numbers of medals and stars. The disability was occurred during service, while he was doing parade. His left knee and left elbow were injured. He was taken to the Military Hospital for treatment by the Army Personnel viz. Mr. Bhabhuti (No. 2931625), Mr. Mathalli S/o Mr. Chiman Gurjar, the Naik (No. 23245). Both were of 8th Unit of Punjab Regiment. In support of this fact the petitioner has enclosed affidavits of these two persons. The petitioner has further submitted that he was medically treated for about 3 months in Military Hospital, Lahore. The percentage of disability sustained by him was 34%. He is still handicapped by left leg. Though he was boarded out on the basis of recommendation of the Military Hospital, yet report of the Board was not supplied to him, in spite of request. He had submitted number of representations, but no relief was paid to him. Per contra, the respondents disputed the facts of the writ petition and have raised objection that in view of Section 4 of the Pension Act, 1871 (for short 'the Act of 1871') which has been adopted by the Army Authorities, pension cannot be litigated in Court of law, Civil Courts have no jurisdiction to pass any decree or order affecting liability of Government to pay any pension. Under these circumstances, the petitioner has got no right to invoke the extra ordinary jurisdiction of this Court by filing the present writ petition in respect of pension. Since the writ petition was filed after 44 years, hence liable to be dismissed on the ground of gross delay. His claim could not be considered in absence of record, which was destroyed long back, keeping in view of para 595 of Regulations for the Army Volume -II. The petitioner was not granted disability pension, as his disability must have been assessed less than 20% by the medical authorities. Principally, respondents have submitted that in absence of any material, it cannot be said that petitioner was discharged on account of disability, which was attributable to or aggravated by Military service.

(2.) I have heard learned Counsel for both the parties at length and considered the Regulations as referred in the foregoing paras.

(3.) MR . Sanjay Pareek, learned Counsel appearing for respondent -Union of India, has incongruously submitted that the petitioner cannot be granted disability pension, as he has relied upon rules, which are not applicable to him and he has not submitted medical board proceedings to establish that his disability was assessed 20% or above. The facts mentioned by the petitioner cannot be relied upon in absence of any material document or record, as the record had already been destroyed keeping in view of provisions contained in para 595 of Regulations for the Army. He has also relied upon various rulings of the Hon'ble Apex Court and this Court, viz. Controller of Defence Accounts (Pension) v. Section Balchandran Nair : 2005 (107) FLR 910 (SC) : 2005 (35) AIC (SC) Union of India v. Dhir Singh China : 2003 (96) FLR 916 (SC) Union of India v. Baljeet Singh : (1996) 11 SCC 315 Union of India v. Bhoora Rain. 2006 (5) WlC (Raj.) 28.