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Supreme Court of India
Pani Ram vs Union Of India on 17 December, 2021Author: B.R. Gavai
Bench: L. Nageswara Rao, B.R. Gavai
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2275 OF 2019
PANI RAM …APPELLANT
VERSUS
UNION OF INDIA AND ORS. …RESPONDENTS
JUDGMENT
B.R. GAVAI, J.
1. The appeal challenges the judgment and order dated
10th 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 be dismissed. The
appellant also challenges the order dated 31 st October 2018
passed in M.A. No. 1839 of 2018 in O.A. No. 149 of 2018,
vide which though, the application for leave to appeal was
allowed, but the AFT framed a different question of law.
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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 reenrolled in the Territorial
Army as a fulltime soldier on 1st August 2007. While serving
in Territorial Army, on 5th April 2009, the appellant was
granted 10 days’ part of annual leave from 15 th April 2009 to
24th April 2009, to proceed to his home, which was at a
distance of few kilometers from the Unit where he was
posted. After availing the said leave, when the appellant was
coming back on his scooter to rejoin his duty, on 24 th April
2009, he met with a serious accident. Initially, the appellant
was admitted to the District Hospital, Pithoragarh from
where he was shifted to the 161 Military Hospital at
Pithoragarh. On 25th April 2009, the appellant was evacuated
by helicopter to the Base Hospital at Lucknow, 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 14th September 2009, he was discharged
from ALC and was granted 28 days’ sick leave with the
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instruction to report back to the ALC. After the expiry of sick
leave, he was readmitted to ALC on 11th October 2009. On
21st October 2009, the Medical Board was held at ALC which
assessed the appellant’s disability to be 80%. However, it
could not give any opinion about the attributability aspect of
the injury. On 07th November 2009, the appellant was
discharged from ALC 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 held from 13th November 2009 onwards to
investigate into the circumstances under which the appellant
had sustained injury. The CoI found that the injury
sustained by the appellant was attributable to military
service and it was not due to his own negligence. The said
finding of CoI was duly approved by the Station Commander
Respondent No. 3, on 11th January 2010. On 25th October
2010, a recategorization Medical Board was held at ALC,
which maintained appellant’s disability at 80% and declared
it as attributable to military service. Subsequently, on the
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basis of the opinion of the Invaliding Medical Board
(hereinafter referred to as ‘IMB’), on 1 st January 2012, the
appellant was invalided out of service with 80% disability
which was attributable to military service.
4. The appellant, therefore, approached AFT for grant of
disability pension as is applicable to the personnel of Regular
Army, in accordance with Regulation No. 292 of the Pension
Regulations for the Army, 1961. The claim of the appellant
was resisted by the respondents on the ground that the
appellant, after discharging from mechanized infantry as a
pensioner, was reenrolled in 130 Infantry Battalion
(Territorial Army), Ecological Task Force, Kumaon, on 1 st
August 2007 as an ExServiceman (ESM). The claim of the
appellant has been denied by the respondents on the ground
that the appellant was not entitled to any pensionary benefits
in view of the letter of the Government of India, Ministry of
Defence, dated 31st March 2008.
5. The AFT though held, that the injury sustained by the
appellant which resulted into 80% disability was found by
the competent authority to be aggravated and attributable to
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the military service, rejected the claim of the appellant on the
ground that a separate scheme and service conditions have
been created for the Members of Ecological Task Force
(hereinafter referred to as ‘ETF’), which was accepted by the
appellant and as such, he was not entitled to disability
pension.
6. The appellant thereafter filed M.A. No. 1839 of 2018 in
O.A. No. 149 of 2018 for grant of leave to appeal against the
judgment and order dated 10th October 2018, wherein the
appellant had framed the following question of law of general
public importance:
“Whether the terms and conditions of service of a
member of the Territorial Army (TA) during the
period of his embodiment with the T.A. will be
governed by the statutory rules which provide for
grant of ‘disability pension’ or by the departmental
orders which deny the grant of the disability
pension to the members of a particular unit of the
T.A. to which such individual belongs.”
7. The AFT vide order dated 31 st October 2018 though,
allowed the application for grant of leave to appeal, framed a
different question of law, as under:
“Whether the members of Ecological Task Force of
Territorial Army are entitled to pensionary benefits
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at par with the members of regular Army in spite of
the aforementioned MOD letter dated 31.03.2008
whereby pensionary benefits have been denied.”
8. The said order dated 31st October 2018, passed by AFT
is also a subject matter of challenge in the present appeal.
9. We have heard Shri Siddhartha Iyer, learned Counsel
appearing on behalf of the appellant and Shri Vikramjit
Banerjee, learned Additional Solicitor General, appearing on
behalf of the respondentUnion of India.
10. It is the specific case of respondentUnion of India that
separate terms and conditions were provided by it vide
communication dated 31st March 2008, which provides that
the members of ETF would not be entitled for disability
pension. Vide the said communication, the Government of
India has communicated to the Chief of Army Staff, the
sanction of the President of India for raising two additional
companies for 130 Infantry Battalion (Territorial Army)
Ecological under Rule 33 of Territorial Army Act, Rules 1948.
11. The respondents rely on Clause (iv) of SubPara (d) of
Para 1 of the said communication dated 31 st March 2008 :
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“(iv) Pension entitlement of Territorial Army
personnel earned for the earlier regular Army
Service, will remain untouched and will be ignored
in fixing their pay and allowances.”
12. The respondents also rely on a document titled
“Certificate” dated 30th 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 having been enrolled in this force.”
13. It will be relevant to refer to subsection (1) of Section 9
of the Territorial Army Act, 1948 :
“Sec. 9. Application of the Army Act, 1950.
(1) Every officer, when doing duty as such officer,
and every enrolled person when called out or
embodied or attached to the Regular Army], shall,
subject to such adaptations and modifications as
may be made therein by the Central Government by
notification in the Official Gazette, be subject to the
provisions of the Army Act, 1950, and the rules or
regulations made thereunder in the same manner
and to the same extent as if such officer or enrolled
person held the same rank in the Regular Army as
he holds for the time being in the Territorial
Army ..”
14. It could thus be seen that every such officer or enrolled
person in Territorial Army when holds the rank, shall be
subject to the provisions of Army Act, 1950 and the rules or
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regulations made thereunder, equivalent to the same rank in
the Regular Army.
15. Chapter 5 of the Pension Regulations for the Army,
1961 deals with Territorial Army. The Regulation No. 292 of
the Pension Regulations for the Army, 1961 read thus:
“292. The grant of pensionary awards to the
members of the Territorial Army shall be governed
by the same general regulations as are applicable to
the corresponding personnel of the Army except
where they are inconsistent with the provisions of
regulations in this Chapter”
16. It could thus be seen that the grant of pensionary
awards to the members of the Territorial Army shall be
governed by the same rules and regulations as are applicable
to the corresponding persons of the Army except where they
are inconsistent with the provisions of regulations in the said
chapter.
17. Chapter 3 of the Pension Regulations for the Army,
1961, deals with Disability Pensionary Awards, in which
Regulation No. 173 reads thus:
“173. Primary Conditions for the grant of
Disability Pension
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Unless otherwise specifically provided a disability
pension consisting of service element and disability
element may be granted to an individual who is
invalided out of service on account of a disability
which is attributable to or aggravated by military
service in nonbattle casualty and is assessed at 20
per cent or over.”
18. The perusal thereof will reveal that an individual who is
invalided out of service on account of disability, which is
attributable or aggravated by Military Service in nonbattle
casualty and is assessed 20% or more, would be entitled to
disability pension. The respondents are not in a position to
point out any rules or regulations, which can be said to be
inconsistent with Regulation No. 292 or 173, neither has any
other regulation been pointed out, which deals with the
terms and conditions of service of ETF.
19. The communication of the Union of India dated
31st March 2008, vide which the President of India has
granted sanction, itself reveals that the sanction is for raising
two additional companies for 130 Infantry Battalion
(Territorial Army) Ecological.
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20. It is thus clear that the ETF is established as an
additional company for 130 Infantry Battalion of Territorial
Army. It is not in dispute that the other officers or enrolled
persons working in the Territorial Army are entitled to
disability pension under Regulation No. 173 read with
Regulation No. 292 of Pension Regulations for the Army,
1961. When the appellant is enrolled as a member of ETF
which is a company for 130 Infantry Battalion (Territorial
Army), we see no reason as to why the appellant was denied
the disability pension. Specifically so, when the Medical
Board and COI have found that the injury sustained by the
appellant was attributable to the Military Service and it was
not due to his own negligence.
21. In case of conflict between what is stated in internal
communication between the two organs of the State and the
Statutory Rules and Regulations, it is needless to state that
the Statutory Rules and Regulations would prevail. In that
view of the matter, we find that AFT was not justified in
rejecting the claim of the appellant.
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22. The respondents have heavily relied on the document
dated 30th August 2007, titled “Certificate”. No doubt that
the said document is signed by the appellant, wherein he had
agreed to the condition that he will not be getting any
enhanced pension for having been enrolled in this force.
Firstly, we find that the said document deals with enhanced
pension and not disability pension. As already discussed
hereinabove, a conjoint reading of Section 9 of the Territorial
Army Act, 1948 and Regulation Nos. 292 and 173 of the
Pension Regulations for the Army, 1961, would show that a
member of the Territorial Army would be entitled to disability
pension. In any case, in this respect, even accepting that the
appellant has signed such a document, it will be relevant to
refer to the following observations of this Court in the case of
Central Inland Water Transport Corporation Limited
and Another v. Brojo Nath Ganguly and Another1 :
“89. ……We have a Constitution for our country.
Our judges are bound by their oath to “uphold the
Constitution and the laws”. The Constitution was
enacted to secure to all the citizens of this country
social and economic justice. Article 14 of the
Constitution guarantees to all persons equality
1 (1986) 3 SCC 156
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before the law and the equal protection of the laws.
The principle deducible from the above discussions
on this part of the case is in consonance with right
and reason, intended to secure social and economic
justice and conforms to the mandate of the great
equality clause in Article 14. This principle is that
the courts will not enforce and will, when called
upon to do so, strike down an unfair and
unreasonable contract, or an unfair and
unreasonable clause in a contract, entered into
between parties who are not equal in bargaining
power. It is difficult to give an exhaustive list of all
bargains of this type. No court can visualize the
different situations which can arise in the affairs of
men. One can only attempt to give some
illustrations. For instance, the above principle will
apply where the inequality of bargaining power is
the result of the great disparity in the economic
strength of the contracting parties. It will apply
where the inequality is the result of circumstances,
whether of the creation of the parties or not. It will
apply to situations in which the weaker party is in a
position in which he can obtain goods or services or
means of livelihood only upon the terms imposed by
the stronger party or go without them. It will also
apply 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 in a prescribed
or standard form or to accept a set of rules as part
of the contract, however unfair, unreasonable and
unconscionable a clause in that contract or form or
rules may be. This principle, however, will not apply
where the bargaining power of the contracting
parties is equal or almost equal. This principle may
not apply where both parties are businessmen and
the contract is a commercial transaction. In today’s
complex world of giant corporations with their vast
infrastructural organizations and with the State
through its instrumentalities and agencies entering
into almost every branch of industry and commerce,
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there can be myriad situations which result in
unfair and unreasonable bargains between parties
possessing wholly disproportionate and unequal
bargaining power. These cases can neither be
enumerated nor fully illustrated. The court must
judge each case on its own facts and
circumstances.”
23. As held by this Court, a Right to Equality guaranteed
under Article 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 a contract or to sign on the dotted
line in a prescribed or standard form or to accept a set of
rules as part of the contract, however unfair, unreasonable
and unconscionable a clause in that contract or form or rules
may be. We find that the said observations rightly apply to
the facts of the present case. Can it be said that the mighty
Union of India and an ordinary soldier, who having fought for
the country and retired from Regular Army, seeking re
employment in the Territorial Army, have an equal
bargaining power. We are therefore of the considered view
that the reliance placed on the said document would also be
of no assistance to the case of the respondents.
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24. The present appeal is therefore allowed and the
judgment and order dated 10th October, 2018 passed by AFT
in O.A. No. 149 of 2018 is quashed and set aside. The
question of law framed by AFT in its order dated 31 st October
2018, already stands answered in view of our finding given in
para (21).
25. The respondents herein are directed to grant disability
pension to the appellant in accordance with the rules and
regulations as are applicable to the Members of the
Territorial Army with effect from 1st January 2012. The
respondents are directed to clear arrears from 1 st January
2012 within a period of three months from the date of this
judgment with interest at the rate of 9% per annum.
26. The appeal is allowed in the above terms. All pending
applications shall stand disposed of. No order as to costs.
……….……………………..J.
[L. NAGESWARA RAO]
..…….……………………..J.
[B.R. GAVAI]
NEW DELHI;
DECEMBER 17, 2021.
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