O.A. No. 77 of 2011 & I.A. No. 182 of 2012. Case: Bhatt Jagdish Aged 81 Years, No. 166, 10th Main Road, Paul Chinnappa Layout, Bikasipura, Bangalore 560078 Vs The Director, Directorate of Auxiliaries and Reserves, Air Head Quarters, New Delhi - 110001, The Officer Commanding Air Force Record Office and Pension and Welfare, Subroto Park, New Delhi - 110010, The General Manager, Hindustan Aeronautics Ltd., (Aeroplane Overhaul Division), Govt. of India Public Sector Undertaking, Vimanapura, Marathalli, Bangalore - 560017 and The Secretary, Ministry of Defence, Union of India, New Delhi - 110001. Armed Forces Tribunal
| Case Number | O.A. No. 77 of 2011 & I.A. No. 182 of 2012 |
| Counsel | For Appellant: Sri. Bhatt Ganesh Sharma, Adv. and For Respondents: Sri. K.M. Jamaludeen, Sr. Panel Counsel |
| Judges | Mr. Shrikant Tripathi, Member (J) and Lt. Gen. Thomas Mathew, PVSM, AVSM, Member (A) |
| Issue | Armed Forces Tribunal Act 2007 - Section 14; Reserve and Auxiliary Air Forces Act 1952 - Sections 25, 25(c) |
| Judgement Date | October 10, 2012 |
| Court | Armed Forces Tribunal |
Order:
Shrikant Tripathi, Member (J), (Regional Bench, Kochi)
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Heard Mr. Bhatt Ganesh Sharma for the applicant and Mr. K.M. Jamaludeen for the respondents and perused the records. By this Original Application under Section 14 of the Armed Forces Tribunal Act, 2007, the applicant Bhatt Jagdish, a former Corporal, has impugned his discharge from the Indian Air Force which was implemented from 1st December 1962 and has also claimed the declaration that he continued in service upto 15th May 1965 and was entitled to pension and other benefits with effect from the said date.
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In view of the fact that the O.A. has been filed with considerable delay, the applicant has filed I.A. No. 182 of 2012 for the condonation of the delay in filing the O.A.
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With the consent of the learned counsel for the parties, both the aforesaid I.A. No. 182/2012 and O.A. were heard together and are being disposed of by this order.
Order in I.A. No. 182/2012:
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In support of the condonation application, the applicant has filed his affidavit in which he has very specifically stated that the National Emergency was in operation from 26th October 1962 to 10th January, 1968, therefore, he was precluded from expressing grievances to the authorities, as he apprehended his dismissal even from the civil employment in H.A.L. The applicant has further stated that despite repeated representations to higher authorities, right from 15th May 1965, he did not get any response nor reasons for his discharge. However, vide letter dated 31st July 2007 (Annexure A6), for the first time the applicant got the information with regard to reasons for the discharge. According to that letter, the reason for the discharge was that the applicant failed to report on due date for the Air Force Service under Section 25(c) of the Reserve and Auxiliary Air Force Act, 1952 during the Emergency. The applicant has further alleged that the delay occurred on account of reluctance on the part of the respondents to show their response to the repeated requests of the applicant, and in that view of the matter, the applicant was not in a position to institute any judicial proceedings against the respondents. Some of the relevant allegations made by the applicant in the O.A. are being reproduced as follows:
(VII)... As it was the emergency period I was prevented from making any written representation. My colleagues advised me against any representation as that would have construed as indiscipline and I would have been removed/dismissed even from the Civil employment I was told the IAF HQ would be making Suo motu exemption of my case.
(VIII)... I made repeated written petitions to IAF authorities with pleas and prayer for sanction/grant of Service Pension to me. I did not have any response from them for a very long time - nearly for 40 years and poverty and infirmity gripped me and I lost all hopes of pension and decent living. I could not take proper care of my ailing wife and provide decent education for my growing children....
(IX) Only after 44 years of persistent pleas and prayer I got, for the first time, the reason for my premature discharge from service. The letter from Air Force Record office Subroto Park, New Delhi bearing No. RO/2801/CORR/C-01/P & W/SP/dated 31 July 2007 gave the reason for the premature discharge from service as you failed to report on call-up for Air Force service under section 25 of the Reserve and Auxiliaries Air Force Act 1952 (Para 2)....
(X)...
(XI) I am too poor, old and weak with geriatric ailments to go to a court of law to redress my grievances and my wife is an invalid suffering from dementia. Hence, with my empirical knowledge of the IAF administration, I requested my younger brother, himself as senior citizen aged 79, a retired Central Government Servant and an Advocate to help me in getting my pension granted by IAF. After collecting and arranging the letters and documents, and studying the case, my brother gave his view that the IAF authorities have not provided the burden of proof for the charge against me, that I failed to report on CALL-UP for Air Force Service under section 25 of the Reserve and Auxiliaries Air Force Act, 1952 during the Emergency (National Emergency of 1962) Annexure A6 and advised me to send my petition to higher IAF authorities for examination/review of my case.
This gave me confidence to send written petitions to higher authorities. The petition was submitted to Air Chief Marshal Major, Chief of Air Staff in the written letter dated 18 September 2006
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Learned counsel for the respondents, on the other hand, submitted that the delay was of about 50 years which has not been properly explained, therefore, the prayer for the condonation of delay was liable to be turned down. The counsel for the respondents further submitted that if the applicant had been sending representations after representations with no response, even then, the delay on this ground could not be condoned. Learned counsel for the respondents lastly submitted that the discharge order was served on the applicant vide letter dated 28th January 1963 and as such he had knowledge of the discharge order, therefore, the contention that he had been pursuing the matter by way of making representations could not be said to be a ground to condone the delay. More so, all the original papers pertaining to the applicant have already been weeded out on expiry of the statutory period of limitation of 25 years and only long roll was available, therefore, it was quite impossible to verify as to whether the applicant had given any representation or not.
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In the present matter, the ultimate relief which the applicant claims from the Tribunal in substance is the relief of pension.
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The application for the condonation of the delay cannot be dismissed only on the ground of delay of 50 years, if the applicant has shown sufficient cause for the delay. In the case of Sardara Singh v. Union of India (2011 (1) AFTLJ 86), a Division Bench of the Punjab and Haryana High Court condoned a delay of almost 40 years and held as follows:
It is no doubt correct that the petitioner has filed the writ petition after a lapser of almost 40 years. A perusal of the order, quoted above, however, shows that the petitioner had been regularly representing to the authorities and his claim was declined only on the ground that the disability was not attributable to or aggravated by military service. This being factual incorrect, we have no alternative but to quash the order. Furthermore, in the circumstances of the case and more particularly the continuing disability (-sic-) delay in approaching the court even in the matter of pension cannot completely defeat his claim. We consider it to be in the interest of justice to allow his claim for the payment of pension. However, on account of delay, we declined the petitioner's prayer for the payment of interest.
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In Sh. Sadashiv Haribabu Nargund & Others v. Union of India & Others (2011 (1) AFTLJ 174), a similar question with regard to limitation had arisen. The Principal Bench opined that it will not be proper for them to dismiss the petition on account of...
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