CWP No. 3267 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 3267 of 2009 Date of decision: 10.03.2010 Jaswant Singh (Ex Constable/General Duty No. 903075324) ...... PETITIONER VERSUS Union of India and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Rajeev Anand, Advocate, for the petitioner. Ms. Anjali Kukkar, Central Government Standing Counsel, for the respondents. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present petition is for quashing of the impugned order dated 31.03.2004 (Annexure P-6), wherein the claim of the petitioner for grant of disability pension under the Central Civil Services (Extra Ordinary Pension) Rules, 1939 (hereinafter referred to as 'Rules 1939') and instructions issued thereunder has been rejected for the permanent disabilities suffered by the petitioner while fighting the militants in Jammu CWP No. 3267 of 2009 2 and Kashmir on the ground that Rule 6 of Rules 1939 is mandatory and Rule 88 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as 'Rules 1972), which provides for power of relaxation to the competent authority, cannot be invoked to extend the period as prescribed under Rule 6 of Rules, 1939. Counsel for the petitioner contends that the petitioner was appointed as Constable/General Duty in the Central Reserve Police Force in the year 1990 and was allotted Force Service No. 903075324. After the basic training, he was deployed with 74 Battalion CRPF. In the year 1994, the petitioner was posted in Jammu and Kashmir along with his Battalion, where on 29.05.1994 while performing counter insurgency duties at Khanabal (J&K), the militants lobbed a grenade on the vehicle in which the petitioner with other personnel was performing his convoy duties and got severe splinter injuries in the head and limbs. After initial treatment at Base Hospital, Srinagar (J&K), the petitioner was shifted to S.J. Hospital in New Delhi where he was diagnosed to have Right Frontal Depressed Fracture, Pellet in Right Frontal Lobe and was operated on 08.08.2994. A Court of enquiry was held in the incident and by the order dated 27.05.1995, the Court passed the order that the injuries sustained by the petitioner were attributable to the risk of bona fide Government duty and he was held entitled to all medical assistance at Government cost and all benefits admissible under the Rules in case he is incapacitated at a later stage due to these injuries. Copy of this order dated 27.05.1995 is appended as Annexure P-1. As per the medical condition of the petitioner, he was retained in service and he kept performing his duties as per the exigencies of his duties and the employment and medical restrictions imposed in view of his low medical category. The petitioner was thus CWP No. 3267 of 2009 3 retained in service and in the year 2001 i.e. after seven years of the incident, brief medical history dated 15.12.2001 was prepared by the Medical Authority under The Deputy Inspector General, CRPF-respondent No. 3 on the basis of the recommendations of the Rehabilitation Medical Board in view of the disabilities sustained in the year 1994. On the basis of the medical history and the Rehabilitation Board, it was opined that the condition of the petitioner was not likely to improve and the petitioner was unfit for active combat duties. The degree of disability of the petitioner was assessed at 35%. Copy of the medical history sheet dated 15.12.2001 is appended as Annexure P-2. A show cause notice was issued to the petitioner and vide order dated 13.02.2002, the petitioner was invalided out of service being completely incapacitated for further service of any kind in CRPF due to Post Traumatic Convulsion Disorder as consequence of Multiple Grenade Splinter Injury (Intra Cranial Splinter) and Right Depressed Fracture Frontal Bone. This order is dated 13.02.2002, wherein it has been mentioned that the premature termination of the services of the petitioner would entitle him invalid pension and other monetary benefits as admissible to the Government employees under the Central Government/Departmental Rules. Copy of this order is appended as Annexure P-3. In the light of this order, the petitioner was waiting for the grant of benefits as per the Rules mentioned therein. When he was not given any benefits under the Rules, 1939, the petitioner submitted a representation dated 12.07.2002 (Annexure P-4). Vide communication dated 03.09.2002, the petitioner was informed that the matter is under consideration for grant of disability pension under Rules, 1972. The case of the petitioner was duly considered by respondent No. 3 and was forwarded to the Pay and Account Office (Pension) CRPF, New Delhi CWP No. 3267 of 2009 4 recommending his case for grant of disability pension under Rules, 1972. The claim of the petitioner was rejected by the Pay and Account Office vide order dated 21.01.2003. The case of the petitioner was again considered by respondent No. 3 and forwarded for reconsideration of the claim of the petitioner for grant of disability pension under Rules, 1972. The objections, which were initially raised by the Pay and Account Office, were also removed/complied with. In this recommendation, it was also mentioned that in the peculiar facts and circumstances of the case of the petitioner, power of relaxation be exercised under Rule 88 of Rules, 1972 read with Government of India decision No. 2 under Rules, 1939. The case was reconsidered by the Pay and Account Office but was rejected on the ground that compliance of Rule 6 of Rules, 1939 for sanction of the extra- ordinary pension is mandatory, therefore, relaxation cannot be granted in time duration. This order was conveyed to the petitioner by respondent No. 3 vide order dated 31.03.2004 (Annexure P-6). Counsel for the petitioner contends that the respondents have totally overlooked/misread the intention and purpose of the powers of relaxation as provided under Rule 88 of Rules, 1972, which is applicable to Rules, 1939 as per decision No. 2 of the Government of India. He contends that in the peculiar facts and circumstances of the case, Rule 88 of Rules, 1972 would be fully applicable to the claim of the petitioner as it was a case of undue hardship and of an extra-ordinary nature. He contends that the impugned order deserves to be set aside and a direction be issued to the respondents to reconsider the claim of the petitioner by exercising the powers under Rule 88 of Rules, 1972. On the other hand, counsel for the respondents submits that the claim of the petitioner was duly considered by the competent authority. CWP No. 3267 of 2009 5 The period has been prescribed as laid down at para 6 (1) of Appendix-3 of the Rules, 1972. According to the said Rule, an Award in respect of an injury sustained more than 5 years before the date of application cannot be entertained. In the present case, the petitioner was injured on 28.05.1994 and he had submitted his application for grant of disability pension only on 27.11.2002, which is after a period of more than 8 years from the date of his sustaining the injuries. Her further contention is that para 6 (1) of Appendix-3 of the Rules, 1972, mandates a period, which cannot be relaxed while exercising the powers under Section 88 of the Rules, 1972. She further states that the petitioner has been given the retiral benefits in the form of invalid pension of Rs. 1,275/- per month and gratuity and other claims in accordance with the Rules. She, on this basis, contends that the order communicated to the petitioner dated 31.03.2004(Annexure P-6) is in accordance with law and does not call for any interference by this Court. I have heard the counsel for the parties and have gone through the records of the case. The factual aspect is not in dispute with regard to the petitioner being in service when he sustained injuries on 29.05.1994. It is also not in dispute that the petitioner was undergoing treatment while he was in service till he was struck off from strength of the respondent department on 13.02.2002. The relevant Rule as far as the issue involved in the present case, which has been reproduced in the writ petition, would be Rule 6 of Rules, 1939, which reads as follows:- “6. No award shall be made in respect of (i) an injury sustained more than five years before the date of application, or (ii) death which occurred more than seven years, CWP No. 3267 of 2009 6 (a) after the injury due to violence or accident was sustained or (b) after the Government servant was medically reported as unfit for duty on account of the disease of which he died.” A perusal of the above Rule would show that it does mandate the claim to be submitted under Rules, 1939 within a period of 5 years from the date of sustaining the injury. However, Rule 88 of Rules, 1972, which admittedly is applicable to the case of the petitioner as well, reads as follows:- “88. Power to relax.-Where any Ministry or Department of the Government is satisfied that the operation of any of these rules, causes undue hardship in any particular case, the Ministry or Department, as the case may be, may, by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. Provided that no such order shall be made except with the concurrence of the [Department of Personnel and Administrative Reforms].” A perusal of this Rule would show that where the Ministry or the Department of the Government is satisfied that the operation of any of these Rules, causes undue hardship in a particular case, the provisions of that particular Rule could be dispensed with or relaxed depending upon the case in hand. The Rule itself provides that in extra-ordinary cases of CWP No. 3267 of 2009 7 hardship, all or any of the provisions of the Rule could be dispensed with or relaxed depending upon the requirement. The stand of the respondents that Rule 6 of Rules, 1939 mandates a period and, therefore, cannot be relaxed, is totally overlooking the provisions, as contained under Rule 88 of Rules, 1972. The facts and circumstances of the present case, as have been enumerated herein above which have not been disputed by the respondents, clearly spell out a case, which is of an extra-ordinary hardship. This position was admitted and accepted by respondent No. 3, the competent authority, under whom the petitioner was performing his duties. In this view of the matter, the stand of the Pay and Account Office holding that Rule 6 of Rules, 1939 was mandatory and Rule 88 of Rules, 1972 could not be invoked, is totally misplaced. Rule 88 of Rules, 1939 has been provided primarily to take care of cases of undue hardship, in which category, the case of the petitioner would fall. In this view of the matter, the present writ petition is allowed and order dated 31.03.2004 (Annexure P-6) communicated to the petitioner cannot be sustained and is hereby set aside. A direction is issued to the respondents to reconsider the claim of the petitioner by invoking the provisions of Rule 88 as provided under Rules, 1972 within a period of three months' from the date of receipt of a certified copy of this order. The decision, so taken by the respondents, be conveyed to the petitioner forthwith. ( AUGUSTINE GEORGE MASIH ) JUDGE March 10, 2010 pj