-1- Civil Writ Petition No.11110 of 2007. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: February 28,2008. No.3156941 Ex. Sepoy Sher Singh ... Petitioner VERSUS Union of India and others .. Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. R.A. Sheoran, Advocate, for the petitioner. Mr.S.K. Sharma, Advocate, for the respondents. -.- MOHINDER PAL, J. The only question involved in this petition filed under Articles 226/227 of the Constitution of India is - whether the petitioner is entitled to benefits which are admissible to an -2- Civil Writ Petition No.11110 of 2007. army personnel who has been invalidated out of service or not. In the instant case, the petitioner joined the Army on January 01, 1966. He participated in the war against Pakistan. He was invalidated out from Military service with effect from December 03, 1972 on account of disability `Multiple Injuries (Lt.) Palm' having been brought before the duly constituted Invalidating Medical Board held on August 30, 1972 at Command Hospital (Eastern Command) Calcutta. The Invalidating Medical Board assessed his disability at 30 per cent. The petitioner has prayed for issuance of a direction to the respondents to release his disability pension, consisting of both the elements i.e service and disability element. In the written statement filed by the respondents, it has been pleaded that the petitioner was invalidated out from service in the year 1972 but he filed the present petition in the year 2007 i.e after a lapse of 33 years. As such, his claim is liable to be rejected on account of delay and latches. It has further been pleaded that as the disability suffered by the petitioner was neither attributable to nor aggravated by military service, his claim for disability pension was rejected by the P.C.D.A (P) Allahabad vide letter No.G-3/73/3840/IV dated July 23/24, 1973. However, it has been admitted that the petitioner was invalidated out from Military service with effect from December 03, 1972 on account of disability `Multiple Injuries (Lt.) Palm' and he was granted Invalid Gratuity amounting to -3- Civil Writ Petition No.11110 of 2007. Rs.1,295.75. We have heard Mr. R.A. Sheoran, Advocate, appearing for the petitioner and Ms.Ranjana Shahi, Advocate, appearing for the respondents and have gone through the records of the case. So far as delay in filing the present writ petition is concerned, it is now well-settled that in such matters the question of delay would not be material and it cannot be used to defeat the rights of the petitioner to get pension. Regulation 179 of the Pension Regulations for the Army, 1961 (for short `the Pension Regulations) deals with the controversy at hand. It reads as under:- “179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalidated out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 per cent or more, and service -4- Civil Writ Petition No.11110 of 2007. element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be. 2. The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease. A perusal of the above provisions of Regulation 179 of Pension Regulations leaves no room for doubt that the petitioner was invalidated out of service. The petitioner sustained injury/disability when he was on duty. Regarding the injury suffered by the petitioner, tt has been stated by the respondents in their written statement as under:- “ It is evident from petitioner's statement contained with Invalidating Medical Board Proceedings that he sustained injury in his left hand during head to head fight with -5- Civil Writ Petition No.11110 of 2007. two assailants on 23-02-1972.” It has further been stated in the written statement that: “ That the copy of injury report initiated in the matter has been forwarded to PCDA (P), Allahabad and no more copy of the said document available with records The JAT Regiment. The occurrence regarding sustaining injury seems to be recorded in his service documents but the same has been washed out and therefore not legible.” In this view of the matter, we have no hesitation in holding that the petitioner was invalidated out of service and is entitled to disability pension as is admissible to defence personnel who are invalidated out of service. Resultantly, the petitioner is held entitled to 30% disability pension, consisting of both the elements i.e service and disability element. His pension will be calculated as per the rates fixed by the Central Government from time to time from the date the petitioner was invalidated out of service i.e with effect from December 03, 1972. However, arrears of pension, so calculated, shall be restricted to three years and -6- Civil Writ Petition No.11110 of 2007. two months preceding the filing of this writ petition. The respondents are directed to disburse the arrears to the petitioner within three months from the date of receipt of a copy of this order. In case the arrears are not disbursed within the said period, the entire arrears will carry interest at the rate of nine per cent per annum from the date of expiry of three months till the date of payment. This writ petition is allowed in the above terms with no order as to costs. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE February 28, 2008. ak