Ammu v Union of India and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` WEDNESDAY, THE 16[TH] DAY OF AUGUST 2023 / 25TH SRAVANA, 1945 WP(C) NO. 21292 OF 2023 ``` ``` AGAINST THE ORDER DATED 19.05.2023 IN OA NO.63/2023 OF ARMED FORCES TRIBUNAL,REGIONAL BENCH,KOCHI ``` ## **`PETITIONER/APPLICANT IN O.A:`** ``` AMMU, AGED 73 YEARS W/O K.V.C BALAN ( LATE)(EX. NK 8003536-Y) DSC RECORDS, KANNUR, RESIDING AT VATTILANVEETIL HOUSE, P.O PUTHOOR, PANOOR, KANNUR - 670692 BY ADVS. B.HARISH KUMAR ANJALY JOSEPH ``` ## **`RESPONDENTS/RESOPONDENTS IN O.A:`** ``` 1UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT(DEFENCE), MINISTRY OF DEFENCE NEW DELHI - 110011 2CHIEF RECORD OFFICER, DSC RECORDS, MILL ROAD, KANNUR, KERALA - 670013 3THE DIRECTOR GENERAL, CONTROLLER OF DEFENCE ACCOUNTS, (PENSION), ALLAHABAD, U.P - 210014 ``` ## **`OTHER PRESENT:`** ``` SRI. A.K.HARIDAS-CGC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.** ## **========================================** ## W.P.(C). No. 21292 of 2023 _[arising out of the impugned final order dated 19.05.2023 in O.A. No.63/2023 on the file of the AFT, Kochi]_ **==============================** Dated this the 16[th] day of August, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** The aforecaptioned writ petition (civil), instituted under Article 226 of the Constitution of India, is directed against the impugned Ext.P2 final order dated 19.05.2023, rendered by the Armed Forces Tribunal (AFT), Regional Bench Kochi (hereinafter referred to as ‘the Tribunal’), in O.A. No.63/2023, whereby the second service pension was granted to the deceased husband of the applicant and the consequent family pension to the applicant (widow of the original claimant), but the benefit thereof has been curtailed for a period of three years prior to the filing of the O.A. The petitioner herein is the applicant in the O.A. and the respondents herein are the respondents in the O.A. The instant O.A. No.63/2023 has been filed on 22.03.2023 by the petitioner herein before the Tribunal. 2. The petitioner/applicant is not challenging the impugned verdict of the Tribunal, at Ext.P2, to the extent that it has partially allowed the prayers in the O.A., but the present O.P. is mainly directed W.P.(C)No.21292 of 2023 ..2.. against the said impugned verdict of the Tribunal to the extent that it has limited the grant of the benefit of the second service pension for a period of three years prior to the filing of the O.A. The prayers in the instant Ext.P1 O.A. No.63/2023, filed by the petitioner herein before the Tribunal, are as follows:- - _“1. To direct the respondents to sanction and disburse the applicant the second service pension of the applicant's husband after condoning the shortfall of 9 days of qualifying service in accordance with Pension Regulation 1961 & 2008 with effect from the date of discharge till the date of his death._ _2. To direct the respondents to sanction and disburse the applicant the family pension with all attended benefits from the date of his death itself._ _3. Any other appropriate order or direction as this Hon'ble Tribunal deem fit in the interest of justice and award cost of this Original application.”_ 3. The Tribunal, after hearing both sides, has rendered the impugned Ext.P2 verdict on 19.05.2023, disposing of the above O.A., with the following directions, the operative portion of which is contained in para No.10 thereof, reads as follows:- _“10. In the result, the Applicant's husband's deficiency of 9 days to complete the qualifying service of 15 years would stand condoned. The Respondents 2 and 3 are directed to Issue PPO granting family pension to the Applicant for the second spell of service of her husband in the DSC and pay the arrears for three years prior to the date of filing of this Original Application as there is an inordinate delay of more than 29 years in filing this Original Application, at the earliest, at any rate, within a period of four months from the date of receipt of a copy of this order, failing which, the unpaid amount would carry interest at 9% p.a.”_ 4. As mentioned above, the petitioner is challenging Ext.P2 verdict to the extent that it has restricted the abovesaid benefits for a W.P.(C)No.21292 of 2023 ..3.. period of three years prior to the filing of the O.A. 5. Heard Sri. B. Harish Kumar, learned counsel appearing for the petitioner and Sri.A.K. Haridas, learned Central Government Counsel, appearing for the respondents herein. 6. In the instant case, the husband of the original applicant entered the second service on 09.08.1978 and was, discharged from the said second service in the Army on 31.07.1993 and he died on 01.08.2010. Since the husband of the applicant has died on 01.08.2010, by virtue of the reliefs granted by the Tribunal, in para No.10 of Ext.P2, the applicant, who is the widow, will get arrears of family pension in respect of the second service pension only for the period from 22.03.2020, which is the three year period prior to the filing of the O.A. on 22.03.2023. 7. The petitioner's counsel would strongly urge that, going by the dictum laid down by the Full Bench of the Armed Forces Tribunal, as per the verdict rendered on 01.10.2019 in O.A.No.1238/2016 & connected cases as well as Ext.P3 verdict of the Principal Bench (Division) of the Tribunal, rendered on 14.10.2020 in O.A. No.1238/2016, as well as the rulings of the Apex Court in cases as in _**Union of India** v._ _**Surender Singh Parmar**_ [2015 (3) SCC 404] _**,**_ once the short fall is condoned, as W.P.(C)No.21292 of 2023 ..4.. per the norms, then the second service army pension is payable from the date of discharge from the second service in the Army, etc. The petitioner's counsel would place reliance on Para Nos.45 (d) & (e) of the verdict of the Full Bench of the Tribunal rendered on 01.10.2019 in O.A.No.1238/2016 & connected cases, which reads as follows: |_“_<br>_Para 45._|_xxx_||_xxx_||_xxx_| |---|---|---|---|---|---| ||_(a)_|_xxx_|_xxx_|_xxx_|| ||_(b)_|_xxx_|_xxx_|_xxx_|| ||_(c)_|_xxx_|_xxx_|_xxx_|| _(d) There is another reason for defence personnel, their widows and their familles not applying for time or approaching Courts and Tribunals for their benefits, and that is, lack of knowledge about various schemes of the Government and their subsequent interpretation by Courts. To add to the problem, most of the times the decisions rendered by Courts are not implemented by the Instrumentalities of the State for all similarly placed employees or pensioners and there is also no way of knowing about the same or even beneficial letters issued by the Government from time to time by the affected parties. Though it may be stated by the Respondents that such policies are now now circulated widely on the internet and in various offices but the practical reality of the affected parties not having access to such information or decisions due to the reason of distance, education, age or other disabling factors cannot be lost sight of. In fact, the Hon'ble Rajasthan High Court in Phoola Devi v Union of India (2007 (2) SCT 700) made very pertinent observations In this regard:_ _…..It has often come to the notice of the court that welfare measures taken by the Government 41 for the Ex- Servicemen/their dependents and War Widows etc. do not reach the concerned persons as they live in remote areas and are not even aware about their welfare measures. There must be given wider publicity in local newspapers and Door Darshan Channels in regional languages so that the persons concerned can avail the benefits of these measures. In the instant case, the son of the petitioner went missing in 1986 and could only apply for the benefit of the Scheme issued in 1992 by the Government of India in 1997 even though there were similar Schemes in operation previously. The respondents are thus, directed to issue regular news updates on these measures commencing March, 2007 on a monthly basis, as mentioned above, with coples to be made available with the Tehsildars with whom a list of dependents of ExServicemen and Ex-Servicemen should be kept who may avail these benefits..._ W.P.(C)No.21292 of 2023 ..5.. _(e) It is well known that the Hon'ble Courts have held that the concept of limitation does not apply at all to continuing wrongs and to recurring causes of action such as pension and pay fixation. A “time limit” or the notion of limitation or delay & laches can only be invoked in matters which may affect third party rights in issues such as a promotion etc. or one-time causes of action such as a challenge to a dismissal from service, thereby leading to stale claims upsetting settled rights of other parties. Reference in this regard can be made to the decisions of the Hon'ble Supreme Court in Union of India v. Tarsem Singh (2008) 8 SCC 648, MR Gupta v. Union of India (1995) 5 SCC 628, SR Bhanrale v. Union of India 1996 (10) SCC 172 and Madhukar v. State of Maharashtra (2014) 15 SCC 565. Of course, at times the Courts may mould the relief and there can be no straitjacket formula in that regard, for example, when the relief is not strictly by way of entitlement by existing rules and flows from legal interpretation, then the arrears can be restricted to three years prior to initiation of litigation, an example would be Tarsem Singh (supra), whereas when the entitlement is by way of an existing or vested right or a claim illegally held back then full arrears can be directed to be paid [See Mastaan Bee (supra), Three Judge Bench decision in Civil Appeal 3086/12 Balbir Singh Vs Union of India (C.A.No.3086 of 2012 decided on 08.04.2016) and Giridhar Vs State of Maharashtra (2019) 5 SCC 230]”_ _(emphasis supplied) (sic)_ 8. After hearing both sides, we note that the above said aspects, borne out from the aforesaid Full Bench verdict of the Tribunal as well as the Division Bench verdict of the Tribunal at Ext.P3 and the afore quoted Apex Court rulings may not have been effectively considered and adverted to by the Tribunal in the instant impugned Ext.P2 verdict. Accordingly, we are of the view that the matter will have to be reconsidered by the Tribunal and hence, the matter would warrant a remit. We are justified in doing so as such a course of action has been taken by us in the judgment dated 27.07.2023, rendered in W.P.(C) No.21916/2023, in the case of a similar claimant. W.P.(C)No.21292 of 2023 ..6.. 9. In that view of the matter, it is ordered that the impugned Ext.P2 verdict of the Tribunal, rendered on 19.05.2023 in O.A.No.63/2023, to the limited extent that it has confined the grant of relief only for a period of three years prior to the filing of the O.A., will stand set aside and remitted to the Tribunal for consideration of decision afresh. It is made clear that Ext.P2 verdict, to the extent that it has allowed the main plea of the petitioner for grant of second service army pension, is not, in any manner, interfered with by this remit. 10. Accordingly, the Tribunal will consider those limited aspects afresh, after taking due note of the contention of the petitioner, based on the aforesaid Full Bench verdict of the Tribunal, Ext.P3 Division Bench verdict of the Tribunal as well as the decision of the Apex Court in _**Surender Singh Parmar’**_ **s case (supra) [2015 (3) SCC 404]** and, after hearing both sides, may render decision thereon, without much delay, preferably within a period of two to three months from the date of receipt of a copy of this judgment or within such reasonable time limit, that may be appropriately fixed by the Tribunal, taking due note of the interest of the administration of justice. In that regard, it is also made clear that all contentions available to both sides, with regard to the above said remit issues, are left open to be raised and decided in the abovesaid W.P.(C)No.21292 of 2023 ..7.. remit proceedings before the Tribunal. 11. The learned counsel appearing for the petitioner has also placed reliance on certain other decisions of the Apex Court in cases as in _**S.K. Mastan Bee v. The General Manager, South Central Railway and Anr.**_ [(2003) 1 SCC 184], (para No.6) etc. 12. It is for the petitioner to urge those aspects before the Tribunal. 13. The Registry may forward a copy of this judgment to the Registry of the Armed Forces Tribunal, Regional Bench, Kochi, which dealt with Ext.P2 O.A.No.63/2023, for necessary information and further action. With these observations and directions the above original petition will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **C. JAYACHANDRAN, JUDGE** Skk//18082023 W.P.(C)No.21292 of 2023 ..8.. ## **`APPENDIX OF WP(C) 21292/2023`** ## **`PETITIONER'S ANNEXURES:`** ``` ANNEXURE A1A TRUE COPY OF THE DISCHARGE CERTIFICATE OF THE APPLICANT DATED 30/07/1993 ISSUED BY THE SECOND ``` - `ANNEXURE A2 A TRUE COPY OF DEATH CERTIFICATE DATED 28/08/2010 ISSUED BY THE GOVERNMENT OF KERALA` - `ANNEXURE A3 A TRUE COPY OF IDENTITY CARD DATED 02/12/2011 ISSUED BY THE ARMY OFFICIAL` - `ANNEXURE A4 A TRUE COPY OF EXTRACT FORM OF ADMISSION REGISTER OF THE APPLICANT'S SCHOOL PUTHOOR L.P. SCHOOL DATED 17/09/2014` ``` EXHIBIT P1O.A. NO. 63/2023 ALONG WITH ANNEXURE A1 TO A4 AND CONDONATION PETITION AS M.A. NO.242/2023 DATED 22/3/2023 ``` - `EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 19/05/2023 IN O.A.NO.63/2020 PASSED BY THE ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI` ``` EXHIBIT P3A TRUE COPY OF THE ORDER DATED 14/10/2020 IN O.A. NO. 1238/2016 IN SMT. SHAMA KAUR VS UNION OF INDIA & OTHERS PASSED BY THE PRINCIPAL BENCH OF THE HON'BLE ARMED FORCES TRIBUNAL, NEW DELHI ```