PANI RAM versus UNION OF INDIA AND ORS. on 17 December 2021

Issues

1. The appeal challenges the judgment and order dated 10[th]October 2018 passed by the Armed Forces Tribunal, Regional Bench,Lucknow (hereinafter referred to as “AFT”), vide which the O.A. No.149 of 2018 filed by the appellant for grant of disability pension came to H

be dismissed. The appellant also challenges the order dated 31[st] October2018 passed in M.A. No. 1839 of 2018 in O.A. No. 149 of 2018, videwhich though, the application for leave to appeal was allowed, but theAFT framed a different question of law.

2. The facts in brief giving rise to the present appeal are as under:

After serving for about 25 years in Infantry of the Regular Army,the appellant got re-enrolled in the Territorial Army as a full-time soldieron 1[st] August 2007. While serving in Territorial Army, on 5[th] April 2009,the appellant was granted 10 days’ part of annual leave from 15[th] April2009 to 24[th] April 2009, to proceed to his home, which was at a distanceof few kilometers from the Unit where he was posted. After availing thesaid leave, when the appellant was coming back on his scooter to rejoinhis duty, on 24[th] April 2009, he met with a serious accident. Initially, theappellant was admitted to the District Hospital, Pithoragarh from wherehe was shifted to the 161 Military Hospital at Pithoragarh. On 25[th] April2009, the appellant was evacuated by helicopter to the Base Hospital atLucknow, where his right leg was amputated up to the knee. Thereafter,he was shifted to the Artificial Limb Centre (hereinafter referred to as‘ALC’) at Pune. On 14[th] September 2009, he was discharged fromALC and was granted 28 days’ sick leave with the instruction to reportback to the ALC. After the expiry of sick leave, he was re-admitted toALC on 11[th] October 2009. On 21[st] October 2009, the Medical Boardwas held at ALC which assessed the appellant’s disability to be 80%.However, it could not give any opinion about the attributability aspect ofthe injury. On 07[th] November 2009, the appellant was discharged fromALC with instruction to report back to his Unit.

3. As per Regulation No. 520 of the Regulations for the Army,1987, a Court of Inquiry (hereinafter referred to as “CoI”), was heldfrom 13[th] November 2009 onwards to investigate into the circumstancesunder which the appellant had sustained injury. The CoI found that theinjury sustained by the appellant was attributable to military service andit was not due to his own negligence. The said finding of CoI was dulyapproved by the Station Commander - Respondent No. 3, on 11[th] January2010. On 25[th] October 2010, a re-categorization Medical Board washeld at ALC, which maintained appellant’s disability at 80% and declaredit as attributable to military service. Subsequently, on the basis of theopinion of the Invaliding Medical Board (hereinafter referred to as A

B

C

D

E

F

G

H

A‘IMB’), on 1[st] January 2012, the appellant was invalided out of servicewith 80% disability which was attributable to military service.

4. The appellant, therefore, approached AFT for grant of disabilitypension as is applicable to the personnel of Regular Army, in accordancewith Regulation No. 292 of the Pension Regulations for the Army, 1961.BThe claim of the appellant was resisted by the respondents on the groundthat the appellant, after discharging from mechanized infantry as apensioner, was re-enrolled in 130 Infantry Battalion (Territorial Army),Ecological Task Force, Kumaon, on 1[st] August 2007 as an Ex-Serviceman(ESM). The claim of the appellant has been denied by the respondentson the ground that the appellant was not entitled to any pensionaryCbenefits in view of the letter of the Government of India, Ministry ofDefence, dated 31[st] March 2008.

5. The AFT though held, that the injury sustained by the appellantwhich resulted into 80% disability was found by the competent authorityto be aggravated and attributable to the military service, rejected theDclaim of the appellant on the ground that a separate scheme and serviceconditions have been created for the Members of Ecological Task Force(hereinafter referred to as ‘ETF’), which was accepted by the appellantand as such, he was not entitled to disability pension.

6. The appellant thereafter filed M.A. No. 1839 of 2018 in O.A.ENo. 149 of 2018 for grant of leave to appeal against the judgment andorder dated 10[th] October 2018, wherein the appellant had framed thefollowing question of law of general public importance:

“Whether the terms and conditions of service of a member of theTerritorial Army (TA) during the period of his embodiment withFthe T.A. will be governed by the statutory rules which provide forgrant of ‘disability pension’ or by the departmental orders whichdeny the grant of the disability pension to the members of aparticular unit of the T.A. to which such individual belongs.”

7. The AFT vide order dated 31[st] October 2018 though, allowedGthe application for grant of leave to appeal, framed a different questionof law, as under:

“Whether the members of Ecological Task Force of TerritorialArmy are entitled to pensionary benefits at par with the membersof regular Army in spite of the aforementioned MOD letter datedH31.03.2008 whereby pensionary benefits have been denied.”

8. The said order dated 31[st] October 2018, passed by AFT is alsoa subject matter of challenge in the present appeal.

9. We have heard Mr. Lalit Kumar, learned Counsel appearing onbehalf of the appellant and Shri Vikramjit Banerjee, learned AdditionalSolicitor General, appearing on behalf of the respondent-Union of India.

10. It is the specific case of respondent-Union of India thatseparate terms and conditions were provided by it vide communicationdated 31[st] March 2008, which provides that the members of ETF wouldnot be entitled for disability pension. Vide the said communication, theGovernment of India has communicated to the Chief of Army Staff, thesanction of the President of India for raising two additional companiesfor 130 Infantry Battalion (Territorial Army) Ecological under Rule 33of Territorial Army Act, Rules 1948.

11. The respondents rely on Clause (iv) of Sub-Para (d) of Para 1of the said communication dated 31[st] March 2008 :

“(iv) Pension entitlement of Territorial Army personnel earnedfor the earlier regular Army Service, will remain untouched andwill be ignored in fixing their pay and allowances.”

12. The respondents also rely on a document titled “Certificate”dated 30[th] August 2007, signed by the appellant wherein under condition(f), it is stated thus :

“(f) That, I will not be getting any enhance pension for havingbeen enrolled in this force.”

13. It will be relevant to refer to sub-section (1) of Section 9 ofthe Territorial Army Act, 1948 :

“Sec. 9. Application of the Army Act, 1950.

(1) Every officer, when doing duty as such officer, and everyenrolled person when called out or embodied or attached to theRegular Army], shall, subject to such adaptations and modificationsas may be made therein by the Central Government by notificationin the Official Gazette, be subject to the provisions of the ArmyAct, 1950, and the rules or regulations made thereunder in thesame manner and to the same extent as if such officer or enrolledperson held the same rank in the Regular Army as he holds forthe time being in the Territorial Army ..”

A

B

C

D

E

F

G

H

A14. It could thus be seen that every such officer or enrolled personin Territorial Army when holds the rank, shall be subject to the provisionsof Army Act, 1950 and the rules or regulations made thereunder,equivalent to the same rank in the Regular Army.

15. Chapter 5 of the Pension Regulations for the Army, 1961 dealsBwith Territorial Army. The Regulation No. 292 of the Pension Regulationsfor the Army, 1961 read thus:

“292. The grant of pensionary awards to the members of theTerritorial Army shall be governed by the same general regulationsas are applicable to the corresponding personnel of the ArmyCexcept where they are inconsistent with the provisions ofregulations in this Chapter”

16. It could thus be seen that the grant of pensionary awards tothe members of the Territorial Army shall be governed by the samerules and regulations as are applicable to the corresponding persons of Dthe Army except where they are inconsistent with the provisions ofregulations in the said chapter.

17. Chapter 3 of the Pension Regulations for the Army, 1961,deals with Disability Pensionary Awards, in which Regulation No. 173reads thus:E“173. Primary Conditions for the grant of Disability Pension Unless otherwise specifically provided a disability pensionconsisting of service element and disability element may be grantedto an individual who is invalided out of service on account of adisability which is attributable to or aggravated by military serviceFin non-battle casualty and is assessed at 20 per cent or over.”

18. The perusal thereof will reveal that an individual who is invalidedout of service on account of disability, which is attributable or aggravatedby Military Service in non-battle casualty and is assessed 20% or more,would be entitled to disability pension. The respondents are not in aGposition to point out any rules or regulations, which can be said to beinconsistent with Regulation No. 292 or 173, neither has any otherregulation been pointed out, which deals with the terms and conditionsof service of ETF.

19. The communication of the Union of India dated 31[st] MarchH2008, vide which the President of India has granted sanction, itself reveals that the sanction is for raising two additional companies for 130 InfantryBattalion (Territorial Army) Ecological.

20. It is thus clear that the ETF is established as an additionalcompany for 130 Infantry Battalion of Territorial Army. It is not in disputethat the other officers or enrolled persons working in the Territorial Armyare entitled to disability pension under Regulation No. 173 read withRegulation No. 292 of Pension Regulations for the Army, 1961. Whenthe appellant is enrolled as a member of ETF which is a company for130 Infantry Battalion (Territorial Army), we see no reason as to whythe appellant was denied the disability pension. Specifically so, when theMedical Board and COI have found that the injury sustained by theappellant was attributable to the Military Service and it was not due tohis own negligence.

21. In case of conflict between what is stated in internalcommunication between the two organs of the State and the StatutoryRules and Regulations, it is needless to state that the Statutory Rulesand Regulations would prevail. In that view of the matter, we find thatAFT was not justified in rejecting the claim of the appellant.

22. The respondents have heavily relied on the document dated30[th] August 2007, titled “Certificate”. No doubt that the said documentis signed by the appellant, wherein he had agreed to the condition that hewill not be getting any enhanced pension for having been enrolled in thisforce. Firstly, we find that the said document deals with enhanced pensionand not disability pension. As already discussed hereinabove, a conjointreading of Section 9 of the Territorial Army Act, 1948 and RegulationNos. 292 and 173 of the Pension Regulations for the Army, 1961, wouldshow that a member of the Territorial Army would be entitled to disabilitypension. In any case, in this respect, even accepting that the appellanthas signed such a document, it will be relevant to refer to the followingobservations of this Court in the case of Central Inland Water TransportCorporation Limited and Another v. Brojo Nath Ganguly andAnother[1]:

“89. ……We have a Constitution for our country. Our judges arebound by their oath to “uphold the Constitution and the laws”.The Constitution was enacted to secure to all the citizens of thiscountry social and economic justice. Article 14 of the Constitution AB

C

D

E

F

G

H

SUPREME COURT REPORTS

Aguarantees to all persons equality before the law and the equalprotection of the laws. The principle deducible from the abovediscussions on this part of the case is in consonance with rightand reason, intended to secure social and economic justice andconforms to the mandate of the great equality clause in Article14. This principle is that the courts will not enforce and will, whenBcalled upon to do so, strike down an unfair and unreasonablecontract, or an unfair and unreasonable clause in a contract,entered into between parties who are not equal in bargainingpower. It is difficult to give an exhaustive list of all bargains of thistype. No court can visualize the different situations which canCarise in the affairs of men. One can only attempt to give someillustrations. For instance, the above principle will apply wherethe inequality of bargaining power is the result of the great disparityin the economic strength of the contracting parties. It will applywhere the inequality is the result of circumstances, whether ofthe creation of the parties or not. It will apply to situations inDwhich the weaker party is in a position in which he can obtaingoods or services or means of livelihood only upon the termsimposed by the stronger party or go without them. It will alsoapply where a man has no choice, or rather no meaningful choice,but to give his assent to a contract or to sign on the dotted line inEa prescribed or standard form or to accept a set of rules as part ofthe contract, however unfair, unreasonable and unconscionable aclause in that contract or form or rules may be. This principle,however, will not apply where the bargaining power of thecontracting parties is equal or almost equal. This principle maynot apply where both parties are businessmen and the contract isFa commercial transaction. In today’s complex world of giantcorporations with their vast infrastructural organizations and withthe State through its instrumentalities and agencies entering intoalmost every branch of industry and commerce, there can bemyriad situations which result in unfair and unreasonable bargainsGbetween parties possessing wholly disproportionate and unequalbargaining power. These cases can neither be enumerated norfully illustrated. The court must judge each case on its own factsand circumstances.”

23. As held by this Court, a Right to Equality guaranteed underHArticle 14 of the Constitution of India would also apply to a man who

has no choice or rather no meaningful choice, but to give his assent to acontract or to sign on the dotted line in a prescribed or standard form orto accept a set of rules as part of the contract, however unfair,unreasonable and unconscionable a clause in that contract or form orrules may be. We find that the said observations rightly apply to thefacts of the present case. Can it be said that the mighty Union of Indiaand an ordinary soldier, who having fought for the country and retiredfrom Regular Army, seeking re-employment in the Territorial Army, havean equal bargaining power. We are therefore of the considered viewthat the reliance placed on the said document would also be of noassistance to the case of the respondents.

24. The present appeal is therefore allowed and the judgment andorder dated 10[th] October, 2018 passed by AFT in O.A. No. 149 of 2018is quashed and set aside. The question of law framed by AFT in its orderdated 31[st] October 2018, already stands answered in view of our findinggiven in para (21).

25. The respondents herein are directed to grant disability pensionto the appellant in accordance with the rules and regulations as areapplicable to the Members of the Territorial Army with effect from 1[st]January 2012. The respondents are directed to clear arrears from 1[st]January 2012 within a period of three months from the date of thisjudgment with interest at the rate of 9% per annum.

26. The appeal is allowed in the above terms. All pendingapplications shall stand disposed of. No order as to costs.

Divya Pandey

Appeal allowed.

A

B

C

D

E

F

G

H