ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL
BENCH AT CHANDIMANDIR
-.OA 981 of 2012
Gurbachan Singh
Vs
Union of India and others
For the Petitioner (s) :
For the Respondent(s) :
……
Petitioner(s)
……
Respondent(s)
-.Ms Balwinder Kaur , Advocate
Ms. Renu Bala Sharma, CGC.
Coram: Justice Rajesh Chandra, Judicial Member.
Air Marshal (Retd) Naresh Verma, Administrative Member.
-.ORDER
19.02.2014
-.-
This petition has been filed by the petitioner under Section 14
of the Armed Forces Tribunal Act, 2007 seeking the following reliefs:(i)
The impugned order dated 24.4.2000 passed by the
respondents whereby the petitioner has been denied the
disability/service pension for injury/disease suffered
while on duty may be set aside/quashed.
(ii)
grant of disability/invalid pension with all consequential
relief & benefits with interest or any other order or
direction, to the respondents which this Hon‟ble Tribunal
may deem fit and proper in the facts and circumstances
of the case inter alia on the grounds mentioned in the
petition.
The brief facts, as averred in the petition, are that the petitioner
was enrolled in the Army (Corps of Signals) on 10th March 1953 and
invalided out of service w.e.f. 21st August 1964 under Army Rule 13 III (v)
of the Army Rules 1954, on medical grounds after completion of 11 years
and 165 days of service. At the time of entry into service, he was found
medically fit in all respects. During service in the month of December,
1961, the petitioner, while performing his duties, fell down in the bath room
and sustained head injury. He was admitted in the Military Hospital, where
he was diagnosed as a case of “old head injury effect” and
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was recommended to be down-graded to low Medical Category CEE (T) for
a period of one year, which was subsequently made permanent. Consequent
upon his placement in Medical Category CEE (Permanent), he was
recommended to be discharged from service on medical grounds. At that
time, although the petitioner requested the authorities for giving him some
sheltered alternative employment, compatible with his low medical
category, yet he was discharged by the competent authority.
Before
discharge, no opportunity to show cause was given to the petitioner, which
was mandatory under the Rule. He made repeated representations to the
authority concerned including the CCDA (P), Allahabad, for grant of
disability/invalid pension, as he had completed more than 10 years of
service, but to no avail.
The petitioner, in response to his petition dated 7-03-2000,
received a letter No. 5304/DP-4/NER dated 24-04-2000 (Annexure A-4),
issued by Signals Records, Jabalpur, in which it was stated that since the
petitioner was discharged from service under Rule 13 (iii) (v), Army Rules,
he was not eligible for any kind of pension. This fact was alleged to be
totally against the factual position. Not even a single red ink entry was
recorded in his record. During total tenure of service, he was never involved
in any disciplinary case warranting his discharge on the ground “services no
longer required”. This entry was alleged to have been recorded in his
service only because the authorities did not want to retain him in service.
He had submitted number of applications, but the authorities chose not to
reply to the same. The petitioner also submitted an application dated 13-032000 through H.Q. 11 Corps for grant of disability pension. Though the
said authority vide its letter dated 03-05-2000 strongly recommended the
case of the petitioner to the CDA (P), Allahabad, but the Records Signal
denied to process the case on the ground of delay. Thereafter he served a
Legal Notice dated 05-12-2001 (Annexure A-5) which failed to evoke any
response from the respondents till date.
Faced with the situation and having no other alternative, he has
filed the present petition claiming the aforesaid reliefs.
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On notice having been issued, the reply has been filed on behalf
of the respondents, wherein certain preliminary submissions have been
made apart from the reply on merits.
In para 1 of the preliminary submissions, it is stated that as per
Long Roll maintained by the respondents, Ex. Naik Gubachan Singh was
enrolled in the Army (Corps of Signals) on 10th March 1953 and discharged
from service on 21st of August 1964 under Army Rule13 III (v) of Army
Rules, 1954 after rendering only 11years and 165 days of service. The
service documents concerning the petitioner were destroyed after the expiry
of stipulated period of retention as per Para 595 of Regulations for the
Army 1987 (Revised Edition) being a non-pensioner case. In para 2,
thereof, it is stated on scrutiny of Long Roll Register maintained by the
Signal Records, it was noticed that the petitioner was paid a sum of Rs.
623.35 Ps. on account of service Gratuity. Copy of Long Roll has been
annexed as Annexure R-3 with the reply. The petitioner was not granted
any kind of pension at the time of his discharge. However, the individual
was discharged from service on administrative grounds being service no
longer required as per copy of discharge book. The records having been
destroyed, there is no evidence showing that he was in low medical
category at the time of his discharge. In the preliminary
submissions,
objection regarding limitation has also been raised stating that the present
OA having been filed after lapse of 47 years is highly barred by time and as
such it is liable to be dismissed on ground of „delay and latches‟.
On merits, the main plea of the respondents is that the petitioner
having enrolled on 10th March 1953 was discharged from service w.e.f. 2108-1964 and he was not invalided out from service as averred by the
petitioner. It is pleaded in the reply that as per Long Roll maintained by
Signals Records, the petitioner was discharged under Army Rule 13 (iii) (v)
which deals with all other classes of discharge in which Brigade/Sub Area
Commander is empowered to sanction the discharge after issue of show
cause notice. There is no record held in the Long Roll regarding his low
medical category. However, according to the discharge book produced by
the petitioner, there is no mention regarding his disability. The photocopies
of the record as produced by the petitioner could not be verified at such a
-4belated stage as his service record has already been destroyed.
The
documents produced by the petitioner do not contain any remarks providing
the downgrading of his medical category. Since as per Long Roll, the
petitioner was not invalided out or discharged on medical grounds,
therefore, his case does not fall under Regulations 173 of Pension
Regulations for the Army, 1961 for grant of disability pension. On these
pleas, the respondents have prayed for the dismissal of the petition.
We have heard the counsel for the parties and have perused the
documents placed on record.
The respondents have only placed on record the Extract of Long
Roll Corps of Signals (Annexure R-III) maintained in respect of the
petitioner while his other service record has since been destroyed according
to Para 595 of Regulations for the Army, 1987 (Revised Edition) which
runs as under:“595. Retention of Pension Documents:- (a) The
following documents in regard to the grant of pensions and
gratuities to JCOs, WOs, OR and Non-combatants (Enrolled)
will be retained by the units and formations concerned for a
period of period of 50 years in the case of a pensioner and for
twenty five years in the case of other cases from the date an
individual becomes non-effective:-
(iii)
(i)
Sheet Rolls and Service Books.
(ii) Register containing details of pensioners.
Admission and discharge books of Military
Hospitals.
(iv) Medical Board proceedings.
(b)
The following documents will be filed with the sheet roll
for retention:(i)
Sanctions by audit officers to counting of former
Service.
(ii) Enrolment forms.
(iii) Primary Medical Examination Report (AFMSF2A).
(iv) Service and Casualty Forms (IAFF-958)
(v) Details of field or foreign service with orders
thereon.
(vi) Certificates of election to come under any
particular pension rules.
(vii) Injury reports, statements of witnesses.
(c)
Part II Orders will be treated like other pension and
retained for twenty five years.
-5(d)
In addition to the documents mentioned above all
important correspondence regarding pensions, gratuities
will be retained for ten years.
(e)
Medical documents (including constituents thereof) will
be retained for a period of seven years from the date he
individuals of under mentioned categories becomes noneffective:(i)
(ii)
JCOs/OR/NCs (E) dismissed from service.
Deceased JCOs/OR/NCs (E) in whose case family
pension claims have been sanctioned.
Note
Such documents of JCOs/OR/NCs (E) transferred to
pension establishment in medical category „A‟ and also of
those who were discharged from service without any
pensionary benefits will be retained by Record Offices
upto the date on which individual attain the age of 65
years.”
All the documents by Army Units in respect of the petitioner are not
preserved for eternity. Service documents of the petitioner have since been
destroyed after having exceeded the stipulated period of retention in
accordance with para 595 of Regulations for the Army, 1987 (Revised
Edition) being a non-pensioner case. The documents have been destroyed as
per the Regulations for the Army and since the petitioner did not make any
prayer for disability/service pension earlier, he cannot take any benefit of
the fact that the documents have been destroyed. In the absence of any
record there is nothing on file to show that the petitioner was invalided out
on account of any disability and the disability was attributable to or
aggravated by military service and was 20% or more.
A similar issue came up for consideration before this Bench in OA
No. 1525 of 2011 (Gurdeep Singh vs Union of India & others), decided on
06-03-2011, which was dismissed in view of the decision of the Hon‟ble
Delhi High Court dated 28-03-2011 rendered in CWP No. 1285 of 2001),
wherein it has been held that where service records of petitioner is not
available and no steps were taken for a period extending over 25 years, in
such cases, no relief for pension could be granted merely as a charity or
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bounty in the absence of relevant facts being determinable and relevant
documents available.
The extract of Long Roll reveals that the petitioner was discharged
under Army Rule 13 (III) (V) on 21-08-1964 on administrative grounds
being services no longer required. Same reason has been assigned in the
copy of Discharge Book of the petitioner. These two documents do not
show that the petitioner was discharged on account of any disability which
was attributable to or aggravated by military service and was at 20% or
more. Thus ingredients of Regulation 173 of the Pension/Regulations for
the Army,1961 Part-I are not made out and the petitioner is not entitled for
disability pension.
The petitioner has also claimed invalid pension on the ground that he
served he Army for more than 10 years and as such he is entitled to the
benefit to Regulations 197 and 198 of Pension Regulations for the Army.
We have considered over this argument as well and we are satisfied
that it does not contain any water. For entitlement to invalid pension twin
conditions are required to be proved (a) there was disability and (b) the
petitioner was invalided out on account of disability. Both these conditions
are missing in this case. The petitioner was not discharged on account of
any disability but on administrative grounds being services no longer
required and secondly that he was not having any disability.
We have also gone through the documents filed by the petitioner.
Annexure A-1 (running page 16 of the record) is a document dated
23.11.1963 from MH Jullandhar wherein it has been mentioned that the
petitioner had sustained injury in the year 1961 and was admitted in MH
Lucknow as a case of head injury after falling down in bath room and was
placed in medical category CEE for one year. It is also mentioned in this
document that at present he is complaining that he cannot see with his left
eye and is having constant headache and vertigo. There is no note in this
document nor there is any other document to show that the petitioner was
placed in low medical category permanent. From the said document it
cannot be ascertained that any court of inquiry was held with regard to said
head injury and such & such were the findings. Mere falling in bath room
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and sustaining injury does not mean that the injury is related to military
service causal connection between the two has to be established which is
missing in this case. Again the said injury was not permanent. There is no
evidence to establish that any disability due to this head injury existed at
the time of discharge. The documents filed by the petitioner do not make
out a case of disability or invalid pension.
We are not entering into the question as to whether the petition is
barred by limitation or not as in our opinion even on merits no case of
disability /invalid pension is made out.
In view of the above entire discussion we are satisfied that the petition
is liable to be dismissed and is accordingly dismissed.
(Justice Rajesh Chandra)
(Air Marshal (Retd) Naresh Verma)
19 .02.2014
„dls
Whether the judgment for reference to be put on internet – Yes/No.