Where a service related claim based on continuing wrong relief can be granted even there is long delay

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+WP(C) No.173/2012

%Date of Decision: 10.01.2012

Ex. Sep. Trilochan…. Petitioner

Through Mr. S. M. Dalal, Advocate

                                                                         Versus

                                             Union of India & Ors.…. Respondents

Through Mr. Ankur Chhibber, Advocate

CORAM:

HON’BLE MR. JUSTICE ANIL KUMAR

HON’BLE MR. JUSTICE J.R.MIDHA

ANIL KUMAR, J. *

1. Issue show cause notice to the respondents as to why rule nisi be not issued.

2. Mr. Ankur Chhibber, Advocate, accepts notice on behalf of the respondents and states that no reply to the writ petition is to be filed without prejudice to the rights and contentions of the respondents regarding the merit of the case. However, the respondents do not dispute the law laid down by the Supreme Court and the High Court in the various cases holding that regarding the claim of pension/disability pension, the bar of limitation would not apply and if there is any delay in preferring the claim, the relief could be molded by denying the pension from the date it is due and payable and by restricting the benefits for a period of three years preceding the date when the applicant approaches the Court.

3. With the consent of the parties, the matter is taken up for final disposal.

4. The petitioner has challenged the order dated 13th October, 2011 passed by the Armed Force Tribunal, Principal Bench, New Delhi in O.A.No.425/2011, titled as „Ex. Sepoy Trilochan v. Union of India & Ors.‟, dismissing the petition as belated on the ground that the petitioner had been discharged in the year 1980 and the original application had been filed after the lapse of 30 years in 2011 with regard to his disability pension. Therefore, it was held that the same could not be entertained at such a belated stage and consequently the petition was dismissed.

5. The petitioner has contended that he had enrolled in the Army as a Sepoy and was assigned to the Kumaon Regiment. While performing his duties the petitioner contracted a disease known as Schizophrenia Psychosis in the month of April 1980. According to the petitioner instead of treating the petitioner‟s sickness and rehabilitating him, he was brought before an Invaliding Medical Board (IMB) on 30th July, 1980.

6. The IMB assessed that the disability of the petitioner as 40% but opined that the said disease was neither attributable to nor aggravated by the military service, but was in fact constitutional in nature. Consequently the petitioner‟s claim for the grant of disability pension was also rejected by the PCDA (P) Allahabad by their order dated 24th February 1981, the copy of which the petitioner alleges had not been supplied to him.

7. Thereafter, the petitioner filed an appeal against the said order on 1st April 1981 but it was rejected by the Ministry of Defense through a non-speaking order dated 27th November 1982. However an option was given to the petitioner to file a final appeal on the basis of any new facts on the record to the Defense Secretary for consideration by the Defense Minister‟s Appellate Committee for pension within 6 months from the date of the receipt of the letter by the petitioner.

8. The petitioner filed the second statutory appeal against the orders dated 24th February, 1981 and 27th November 1982. However, the appeal was also rejected by order dated 7th June, 1984 passed by the Kumaon Regiment Records Office and the sanction of the disability pension to the petitioner was denied. Thereafter the petitioner also filed a complaint before the Pension Adalat at the Kumaon Regimental Centre, but it was held that the disability of the petitioner‟s was neither attributable to the military service nor was it aggravated due to the army service, and thus the disability pension was denied by order dated 20th Jan, 1996.

9. Meanwhile since the proceeding of the IMB was not supplied to the petitioner, he applied for the same through the RTI Act, 2005 and the same was supplied by the Kumaon Regiment Records by letter no. 4169941/OP dated 20th July, 2011.

10. Thereafter on September, 2011, the petitioner filed an original application bearing O.A. no. 425/2011 before the Armed Forces Tribunal against the orders dated 27th November, 1982 and 7th June, 1984. The Tribunal observed that the petitioner had been discharged from the service in the year 1980 and that he had filed the original application only in the year 2011 after the lapse of almost 30 years. The Tribunal referred to Section 22 of the Armed Forces Tribunal Act, 2001 stipulating the period of limitation and held that the inordinate delay in the present matter could not be condoned, thereby dismissing the petitioner‟s application by order dated 13th October, 2011.

11. It is against the said order of the Tribunal that the petitioner has filed the above mentioned writ before this Court. The petitioner has contended that the Tribunal was wrong in dismissing the matter on the grounds of inordinate delay since in matters involving pension, the cause of action is continuing in nature. The petitioner also relied on the judgment of UOI & Ors. V. Tarsem Singh: (2008) 8 SCC 648 and a judgment of this Court in the matter of Ex Sigmn Ganga Ram Sharma v. UOI and Ors. WP(C) No. 4669 of 2010 decided on 29th April, 2011 wherein this Court held that the Tribunal erred in not taking note of the legal principle of continuing wrong with respect to limitation in matters regarding pension, and consequently remanded the matter back to the AFT for deciding the same on merits.

12. This Court has heard the learned counsel for the parties. This is not disputed that the Armed Forces Tribunal has dismissed the Original application merely on the ground that it is extremely belated as the petitioner retired back in the year 1980 and the application with regard to his pension has been filed with gross delay in the year 2011.

13. The Tribunal has, however, not disputed the fact that the original application related to the disability pension claimed by the petitioner. The petitioner has also relied on the above mentioned judgments, the ratio of which is not disputed even by the respondents. However, the Tribunal has not considered as to how the ratio of the precedents relied on by the petitioner is not applicable in his case with regard to his disability pension. A division Bench of this Court in WP (C) 4669 of 2010 titled as Ex.Sigmn Ganga Rama Sharma Vs UOI & ors. decided on 29.4.2011 had held as under:

“5. At the first blush, the Tribunal's decision that the claim was extremely belated appears to be plausible, but we note that on the issue of pensionary dues, in the decision reported as (2008) 8 SCC 648 UOI & ors. Vs Tarseem Singh, on the principle of law of continuing wrong, the Supreme Court has held that a judicial remedy pertaining to claim for pension may be invoked belatedly and if invoked would have to be decided on merits. On this issue of delay, the Supreme Court has held that the Court concerned would take cognizance thereof and if the claim is allowed, the implementation thereof would be restricted to the previous three years, when the claim before the Court was made. The reason is obvious. A money claim preceding three years, from the date when a judicial remedy is invoked would be barred by limitation.

6. The Tribunal ought to have taken note of the legal principle of continuing wrong with respect to limitation and since the Tribunal has not so done, we hold that there is a jurisdictional error in the order dated 25.2.2010 four which we dispose of the petition questioning the order dated 25.2.2010..”

14. In Tarseem Singh (supra) at page 649 the Supreme Court had categorically held as under:

“4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A “continuing wrong” refers to a single wrongful act which causes a continuing injury. “Recurring/successive wrongs” are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798, explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963): (AIR p. 807, para 31)

 “31. … It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.” 5. In M.R. Gupta v. Union of India (1995) 5 SCC 628 the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1-8-1978. The claim was rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the decision. This Court held: (SCC pp. 629-30, para 5)

“5. … The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time-barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion, etc., would also be subject to the defence of laches, etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time-barred….”

 6. In Shiv Dass v. Union of India (2007) 9 SCC 274 this Court held: (SCC p. 277, paras 8 & 10)

“8. … The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. … If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years.”

7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

15. In the circumstances, the Tribunal has committed jurisdictional error in dismissing the Original application of the petitioner seeking disability pension which as enumerated above is a matter of continuing wrong, and therefore the bar of limitation shall not apply to the same. In the facts and circumstances, it is appropriate to set aside the order of the Tribunal dated 6th September, 2011 dismissing the OA No.425/2011, titled as „Ex.Sepoy Trilochan v. Union of India & Ors.‟, dismissing the same only on the ground that it was extremely belated.

16. Accordingly, the present writ petition is allowed and the order of the Tribunal dated 13th October, 2011 in O.A.No.425/2011 is set aside and the OA No.425/2011 is restored for adjudication on merits by the Tribunal.

17. In the facts and circumstances, the parties are directed to appear before the Registrar of the Armed Force Tribunal, Principal Bench, New Delhi on 1st February, 2012. The Registrar would do the needful on production of the certified copy of the present decision. Copy of this order be sent to the Registrar of the Armed Force Tribunal and the copies be also given dasti to the learned counsel for the parties. Considering the facts and circumstances, the parties are, however, left to bear their own costs.

ANIL KUMAR, J.

                                                                                                                    J.R.MIDHA, J.