Union of India & Ors Vs. Dhir Singh China, Colonel (Retd.) [2003] Insc 48 (4 February 2003)
N. Santosh
Hegde & B.P. Singh. B.P.Singh, J.
This
appeal by special leave is directed against the judgment and order of the High
Court of Punjab and Haryana, Chandigarh dated 24th January, 2001 in LPA No. 216
of 2001 whereby the appellate Bench dismissed the appeal preferred by the
appellants- Union of India and others upholding the claim of the respondent to
disability pension under Regulation 53 of the Pension Regulations.
Earlier
a learned Single Judge of the High Court had allowed the writ petition of the
respondent herein upholding his claim for disability pension under the
aforesaid Regulation 53 as also under Rule 4 of the Entitlement Rules for
Casualty Pensioners Awards, 1982 (hereinafter referred to as 'the Entitlement
Rules'). The learned Judge accordingly directed the appellants to release the
disability pension of the respondent according to Rules and Regulations.
The
facts of the case are that the respondent was commissioned in the Indian Army
in May, 1964. He served the Indian Army for many years and ultimately
superannuated from service on 31st August, 1994
holding the rank of Lieutenant Colonel. The respondent suffered a heart attack
on 11th August, 1994 and had to undergo a bye-pass
surgery. He also suffered from Open Angle Glaucoma in both eyes. In these
circumstances, on 3rd September, 1997 he claimed disability pension which was
rejected by the appellants compelling him to file a writ petition before the
High Court for a direction to the appellants to pay him, in addition to his
service pension, disability pension to which he claimed to be entitled in
accordance with the Rules. It is also not in dispute that the respondent was
examined by a Medical Board consisting of three members on 31st August, 1994. The Board found that the
respondent had suffered disability to the extent of 60% on account of (1) IHD
(Angina Pectoris) (40%) and (2) Primary Open Angle Glaucoma in both eyes (20%).
The Medical Board was also of the opinion that neither of these diseases were
either attributable to or aggravated by military service and that the diseases
were constitutional in nature.
Regulation
53 of the Regulations provides as follows :- "Officers compulsorily retired
on account of age or on completion of tenure.
53. An
officer compulsorily retired on account of age or on completion of tenure, if
suffering on retirement from a disability attributable to or aggravated by
military service and recorded by service medical authority may at the
discretion of the President, be granted in addition to retiring pension
admissible, a disability element as if he/she had been retired on account of
disability, according to accepted degree of disablement at the time of
retirement." Rule 4 of the Entitlement Rules reads as follows :- "4.
Invaliding from service is a necessary condition for grant of disability
pension. An individual who, at the time of his release under the Release
Regulations, is in a lower medical category than that in which he was recruited
will be treated as invalidated from service. JCO/OR and equivalents in other
services who are placed permanently in a medical category other than 'A' and
are discharged because no alternative employment suitable to their low medical
category can be provided, as well as those who having been retained in
alternative employment but are discharged before the completion of their
engagement will be deemed to have been invalided out of service." The
learned Single Judge who heard the writ petition accepted the contention of the
respondent that apart from Regulation 53, under Rule 4 of the Entitlement
Rules, an individual, who at the time of his release under the release
regulations, is in a lower medical category than that in which he was
recruited, is treated to be invalidated from service. He, therefore, held that
the moment an officer is reduced to the inferior category in the medical chart,
it automatically amounts to invalidation and consequently he would be entitled
to disability pension in addition to the regular service pension.
We may
observe that this finding of the learned Judge has not been approved by the
Division Bench in appeal, but the Division Bench was of view that in any event
the respondent was entitled to disability pension under Regulation 53. Even
before us the claim of the respondent was not sought to be justified on the
basis of Rule 4 of the Entitlement Rules. We have also considered the aforesaid
Rule 4 of the Entitlement Rules and we are also of the view that in the facts
and circumstances of the case, the said Rule was not applicable to the case of
the respondent.
That
leaves for consideration Regulation 53. The said Regulation provides that on an
officer being compulsorily retired on account of age or on completion of
tenure, if suffering on retirement from a disability attributable to or
aggravated by military service and recorded by service medical authority, he
may be granted, in addition to retiring pension, a disability element as if he
had been retired on account of disability. It is not in dispute that the
respondent was compulsorily retired on attaining the age of superannuation. The
question, therefore, which arises for consideration is whether he was
suffering, on retirement, from a disability attributable to or aggravated by
military service and recorded by service medical authority. We have already
referred to the opinion of the Medical Board which found that the two
disabilities from which the respondent was suffering were not attributable to
or aggravated by military service. Clearly therefore, the opinion of the
Medical Board ruled out the applicability of Regulation 53 to the case of the
respondent. The diseases from which he was suffering were not found to be
attributable to or aggravated by military service, and were in the nature of
constitutional diseases. Such being the opinion of the Medical Board, in our
view the respondent can derive no benefit from Regulation 53. The opinion of
the Medical Board has not been assailed in this proceeding and, therefore, must
be accepted.
Learned
counsel for the respondent sought to sustain the order of the High Court on the
ground that the President, in the meantime, has been pleased to decide and hold
that the disabilities suffered by the respondent, which he was found to be
suffering at the time of his release from service, be regarded as attributable
to military service, and the degree of disablement has been assessed at 60%.
The issue has therefore become academic. This submission is misconceived.
Annexure P-2 is a communication addressed to the Chief Controller of Defence,
Accounts (Pensions), Allahabad by the Under Secretary to the
Government of India and is dated 18th October, 2000. The letter refers to the order of
the High Court of Punjab and Haryana dated 10th July, 2000 and proceeds to state that the
President has sanctioned the implementation of the above said order of the High
Court. The authority was accordingly requested to work out the amount involved
during the period of award and intimate the same to the Ministry so that
ex-post-facto sanction may be accorded.
Paragraph
4 of the communication clearly states that the sanction under the letter was,
however, without prejudice to the final out come of the LPA to be filed before
the Division Bench of the High Court. It would thus appear from Annexure P-2
that after the judgment and order of the learned Single Judge the President was
pleased to sanction payment of disability pension to the respondent with a view
to implement and in obedience to the order of the High Court, and accordingly
directions were issued to work out the amount involved during the period of
award. The sanction was, however, without prejudice to the final out come of
the Letters Patent Appeal to be filed before the Division Bench. The sanction
clearly appears to be tentative and without prejudice. Even the relevant part
of the final order passed, which is Annexure R-1, dated 17th November, 2000 states as follows :-
"Accordingly,
Col. Dhir Sngh Chhina IC-21830-K is sanctioned subject to usual condition the
disability element of pension @ Rs.450/- (Rs. Four hundred fifty only) P.M. for
60% disablement w.e.f. 31.8.94 till further order." It would, thus appear
that the disability element of pension has been sanctioned till further order.
This again makes it quite clear that the sanction is tentative and subject to
the pending proceedings. A reading of Annexure R-1 and Annexure P-2, therefore,
leaves no room for doubt that in view of the order passed by the High Court,
tentative sanction was granted for payment of disability element of pension but
the same was without prejudice to the final out come of the Letters Patent
Appeal. It was only in obedience to the order of the Court that such a sanction
was granted, but without prejudice to the rights and contentions of the
appellants who had challenged the order of the Court. We, therefore, cannot
accept the contention of the counsel for the respondent that in view of the
decision of the President of India sanctioning the disability pension, nothing
remains to be considered by the Court. The sanction clearly is tentative and
till further order. This was necessary since the proceedings were still pending
before the Court and the appellants could not predict the out come of the legal
proceedings.
In
these circumstances we find no substance in the contention of the respondent
that he was entitled to disability pension under Regulation 53. We accordingly
allow the appeal, set aside the order of the learned Single Judge as affirmed
by the Division Bench in LPA No. 216 of 2001 and hold that the respondent is
not entitled to disability pension under Regulation
53.
However, in the facts and circumstances of the case any payment made by way of
disability pension shall not be recovered from the respondent. In the facts of
the case there shall be no order as to costs.
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