HC raps AFT for dismissing war injury pension case of war veteran

  • Bhartesh Singh Thakur, Hindustan Times, Chandigarh
  • Updated: Feb 24, 2015 11:05 IST

The Punjab and Haryana high court has come down heavily on the Chandigarh bench of the Armed Forces Tribunal (AFT) for dismissing a war injury pension case and also ordered it for fresh adjudication.

Baldev Singh joined the army in 1967 as a sepoy and suffered injuries during the 1971 India-Pakistan war. He was discharged from the service in 1991. The army authorities denied his claims for disability pension on the premise that disability was not attributable to nor aggravated by the military service.

He approached the AFT for the disability pension on two counts — war injury suffered during the 1971 war and also for the disability caused on account of injury sustained while he was on leave in 1983.

Later, during the pendency of his application, he filed an amended plea where he restricted his prayer to pension for disability on account of injury sustained during leave. The AFT allowed his prayer.

But when he approached again for the war injury element, his application was dismissed and he was slapped a fine of Rs 10,000 as it was barred by principle of res judicata. The principle of res judicata means that a matter will not be relitigated once it has been judged on merits.

Hearing Baldev Singh’s case in the high court, Justice Surya Kant ruled: “That being an admitted fact, we have no doubt in our mind that at least the principle of res judicata, constructive or otherwise, could not be attracted or applied by the Tribunal…”

The judgment said: “The Supreme Court has held that the procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. It was further observed that the procedural law so dominates in certain systems so to overpower substantive right and substantial justice.”

The judgment added: “The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex-debito justitiae where the tragic sequel otherwise would be who inequitable.”

“In the given scenario where the petitioner’s anxiety was to secure disability pension along with other litigating applicants whose similar cases were also pending before the Tribunal, the petitioner cannot be said to have voluntarily given up his claim for the grant of service benefit, if he is so entitled to, on the basis of the injury alleged to have been suffered in the 1971 war. The principle of estoppel also thus cannot be invoked against the petitioner,” the judgment read.

The high court sent back the case to the AFT for fresh adjudication on the war injury pension. bhartesh.thakur@hindustantimes.com

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