Major S.K.Goyal vs Union Of India And Ors

By this special appeal, a challenge has been made to the order dated 9.1.2006, passed by the learned Single Judge, dismissing the writ petition of the petitioner for claim of disability pension. It is by treating it to be a case of resignation from service by the petitioner.

Learned counsel for the petitioner-appellant submits that no resignation was ever tendered by the petitioner. It is submitted that petitioner was enrolled in Territorial Army somewhere in the year 1981. He joined the service and assigned duties in operation 'Rakshak', undertaken by the Indian Army.

During operation 'Rakshak', the petitioner sustained injury in the back bone on 13.8.1990.

The petitioner was put in Special Unattached List (SUL) as per the recommendations of the Medical Board. It was initially for a period of 24 weeks which was further extended. The Medical Board examined the petitioner and recommended for the surgery. The petitioner sent a letter to the respondents on 21.09.1990 (Annexure-6). It is to seek release from Territorial Army on medical ground. The alternative prayer was to place him on SUL and be disembodied immediately.

After several letters by the petitioner, he was asked to appear again before the Medical Board. In Pursuance to aforesaid, petitioner appeared before the Medical Board and was examined on 24.5.1991. The petitioner was not suggested for surgery this time, rather his category was changed form "temporary" to "permanent". He was again asked to report on 24.5.1993 but, before that, the impugned order dated 30.5.1991 was passed to accept the resignation though it was not tendered.

The challenge to it was made before learned Single Judge but writ petition was dismissed without taking into consideration the subsequent report of the Medical Board dated 24.5.1991. It is also submitted that the impugned order dated 30.5.1991 at Annexure-10 was passed even without an opportunity of hearing. It is more so when the petitioner did not send resignation letter. In view of above, petitioner is entitled to disability pension out of services of Territorial Army.

Learned counsel for Union of India has contested the appeal. He submits that the petitioner was disembodied thus, not entitled to any benefit. It is more so when it was on the request of the petitioner himself. He did not attend the Medical Board as and when directed, rather, insisted for release from the services of Territorial Army. It was to undertake further treatment at his own. In view of the aforesaid, it was taken to be a case of resignation and, accordingly, impugned order was passed for acceptance of the resignation. The opportunity of hearing is not required in the case of resignation. The learned Single Judge has thus rightly dismissed the writ petition.

We have considered rival submissions of the parties and perused the record.

The facts of the case have already been narrated in brief. It is not in dispute that while the petitioner was in operation 'Rakshak', he sustained injury on 13.8.1990. He was medically examined by the Board and recommended for surgery. The petitioner requested to release him from TA on medical ground and, if that is not possible, then to keep him in the list of SUL. The petitioner never tendered resignation from the services of Territorial Army. The release from the services was also prayed on medical grounds and not simplicitor.

The petitioner was again examined by the Medical Board on 24.5.1991. This time, his category was changed from "temporary" to "permanent". Once he was declared to be permanently disabled, he became entitled for consequential benefits. It is more so when the petitoner was asked to report again in the year 1993 but, before that, impugned order was pased in the year 1991 vide Annexure-10.

The respondents passed the order on 26.6.1991 to release the petitioner after accepting his resignation though it was never tendered. The letter sent by the petitioner was only for release from Territorial Army on medical ground or to keep him on SUL. It could not have been considered to be resignation. The petitioner was otherwise declared permanent disabled by the Medical Board.

Accordingly, we find reasons to set aside the order i.e. Annexure-10 dated 26.6.1991 so as the judgment of the learned Single Judge. Taking facts into consideration, we find petitioner to be entitled for disability pension out of services of Territorial Army. The benefits arising out of it would be extended within a period of four months from the date of receipt of copy of this order. The petitioner appellant would be entitled to other benefits, as consequence thereupon, if are available.

In view of the aforesaid, special appeal stands allowed.