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Bhagwant Singh v. Union Of India .
Factual and Procedural Background
The petitioner, Bhagwant Singh, served as a civilian clerk with the rank of Subedar in the Army Ordnance Corps. He developed diabetes necessitating repatriation from Singapore to India in February 1946. A medical board declared him unfit for service on 17 September 1946 due to diabetes mellitus, assessing his disablement at 50% and incapable of improvement, aggravated by war service. He was granted a provisional pension effective 8 November 1946, later made permanent but reduced in amount. The petitioner was employed elsewhere until 1953. In 1955, he was informed that his pension was cancelled following a reassessment by another medical board which reduced his disablement to 20% and found no aggravation by war service. Bhagwant Singh filed the present petition on 1 November 1958, challenging the cancellation as unjust and contrary to natural justice.
Legal Issues Presented
- Whether the petitioner’s disability pension constitutes a right of property protected under Article 31 of the Constitution of India.
- Whether the cancellation of the petitioner’s pension without notice and contrary to earlier medical board findings violated principles of natural justice.
- Whether the revised Army Instruction 388/50 permitting modification of disability pensions applied retrospectively to affect the petitioner’s pension granted before its commencement.
- Whether delay in filing the petition bars relief under Article 226.
Arguments of the Parties
Petitioner’s Arguments
- The pension granted for life in April 1948 was a right and could not be subsequently revised under the amended Army Instruction of 1950 effective from 28 July 1948.
- The right to receive pension is a property right protected under Article 31, enabling the petitioner to seek relief under Article 226.
- The cancellation of pension was arbitrary and done without affording the petitioner an opportunity to be heard, violating natural justice.
- The delay in filing the petition does not bar relief as fundamental rights under Article 31 cannot be waived or lost by delay.
Respondent’s Arguments
- There is no statutory right to receive a pension; hence, the question of property does not arise.
- The disability pension was granted under a mistake of fact, as the second medical board reassessed the disability at 20% and found no aggravation by war service, justifying cancellation.
- The revised Army Instruction 388/50 allows modification of pensions based on subsequent medical examination.
- The petition should be dismissed on the ground of delay.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ex parte Huggins v. In re Huggins, 1882 21 Ch. D. 85 | Recognition that a pension granted by the Crown constitutes "property" in bankruptcy law. | Used to illustrate that pension rights can be considered property, though the court still needed to determine whether the petitioner’s pension was a fundamental right under Article 31. |
| Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan, A.I.R 1959 S.C 149 | Delay cannot defeat a writ petition enforcing fundamental rights under Article 226; fundamental rights cannot be waived by delay. | Supported the rejection of the respondent’s plea of delay in filing the petition. |
| Eshugbavi Eleko v. Officer Administering the Government of Nigeria, A.I.R 1931 P.C 248 | The executive can only act within powers given by law; interference with liberty or property must be legally justified and subject to judicial review. | Applied to hold that the executive’s cancellation of the petitioner’s pension without justification or notice was unlawful. |
| Kakku Venkataramaiah v. The State of Andhra Pradesh, A.I.R 1930 Andhra Pradesh 420 | Administrative actions affecting rights must have a valid legal basis and cannot be justified on vague administrative grounds. | Reinforced that the executive’s action lacked legal justification and was arbitrary. |
Court's Reasoning and Analysis
The court began by acknowledging the undisputed facts regarding the petitioner’s service, medical condition, and initial pension grant. It examined whether the pension constituted a property right under Article 31, referencing the English precedent in Ex parte Huggins to support that pensions may be property. The court noted that the pension was granted for life before the revised Army Instruction 388/50, which allowed pension modification from 28 July 1948 onwards, and found that this instruction did not apply retrospectively to the petitioner’s case.
The court held that the petitioner had a right to the pension which could not be revoked arbitrarily or without due process. It emphasized that any revision or cancellation must comply with the rules and natural justice, including an opportunity to be heard. The cancellation was found to be unilateral and without notice, violating these principles.
Regarding delay, the court relied on the Supreme Court’s decision in Basheshar Nath affirming that fundamental rights cannot be waived or defeated by delay, thus rejecting the respondent’s plea on this ground.
The court also rejected the respondent’s contention that the pension was granted by mistake, pointing to the first medical board’s findings as valid and binding until properly challenged. The executive’s action was held to be unlawful under the principle that powers must be exercised according to law and subject to judicial scrutiny, citing Eshugbavi Eleko and Kakku Venkataramaiah.
Holding and Implications
The court allowed the petition and set aside the order cancelling the petitioner’s pension. The petitioner was awarded costs of the proceedings.
The direct consequence is the reinstatement of the petitioner’s disability pension, recognizing it as a right protected under Article 31 of the Constitution. The decision underscores that pensions granted under lawful authority cannot be arbitrarily revoked without due process and that fundamental rights related to property are enforceable by writ under Article 226. The opinion did not establish any new broader precedent beyond the application of existing constitutional protections and principles of natural justice.
Shamsher Bahadur, J.:— The facts on which the decision of this petition under Article 226 of the Constitution of India must turn are not in dispute and may be briefly set out. The petitioner, Bhagwant Singh, while serving as a civilian clerk with the rank of Subedar in Army Ordinance Corps, developed diabetes which necessitated his repatriation from Singapur to India in February, 1946. He was sent to a board of medical specialists and declared unfit for service on the 17th of September 1946, on account of “diabetes mellitus”. In the view of the medical board the disability had aggravated by war service and the degree of disablement was assessed at 50 per cent “incapable of improvement”. He was granted provisional pension described as a “pending enquiry award” at Rs. 88/8/- with effect from 8th of November, 1946. Subsequently the pension was made a permanent disability pension also with effect from 8th of November, 1946, but the amount was reduced to Rs. 82/8/-. The petitioner was given some other employment till 1953 in the Delhi Ordinance Depot. By letter dated 23rd of March, 1955 the petitioner was informed that the pension granted to him stood cancelled and it was explained subsequently that the board had re-assessed disablement at 20 per cent which disentitled him to any pension. Moreover it was stated that the disability was not aggravated by war service.
2. The present petition was filed by Bhagwant Singh on 1st of November, 1958, on the ground that his right to hold pension had been interfered with without just cause and in contravention of the principles of natural justice. The petitioner would certainly be entitled to seek the aid of this Court provided he is able to show that the right, which has been denied to him, is relatable to property under Article 31 of the Constitution of India. The learned counsel for the petitioner has placed reliance on an English decision of the Court of Appeal in Ex parte Huggins v. In re Huggins . 1882 21 Ch. D. 85.. In that, case the bankrupt, H.J Huggins, had been Chief Justice of the colony of Sierra Leone and had retired on a pension of £875 per annum. It was held that the pension of a retired Judge of a Crown colony, granted by the Secretary of State for the Colonies, and voted annually by the Legislature of the colony, is, in case of the bankruptcy of the Judge, “property” which vests in the trustee in the bankruptcy. The word “property” has not been defined anywhere and it has to be conceded that the right to receive a pension is a right of property, but it still remains to be determined whether the pension granted to the petitioner in the present instance partakes the nature of a fundamental right under Article 31 for whose protection a writ under Article 226 could be entertained. The petitioner had been in service since 1939 and became entitled, according to the first medical board, to the disability pension which on subsequent examination by another board came to have been assessed wrongly. Mr. Jindra Lal on behalf of the respondent has contended that there is no statutory right to receive a pension and the question whether it constitutes property or no becomes an irrelevant matter. My attention has been invited to Annexure R/1, which reproduces a copy of the Army Instruction 388/50 wherewith rule 374 of the Pension Regulations for the Army in India was revised. Under this revised instruction, which is of the year 1950, a disability pension could be modified if on the result of a further medical examination of the individual the disability is reduced or has disappeared or has become capable of improvement. This instruction was to take effect from 28th of July, 1948.
3. It is contended by the petitioner that the pension granted for life to the petitioner in April, 1948, could not be subsequently revised even under the amended Army instruction which took effect from 28th of July, 1948. Though no particular reference has been made to disability pensions in the Army instruction, it seems to me that the grant of Rs. 82/8/- per month for life was given in accordance with rules and must be regarded as something to which the petitioner had a right. That a subsequent instruction was made to make the pension modifiable in certain contingencies shows that the grant of pension had been recognized as a right which could be tinkered with only under specified conditions. The revised Army instruction does not apply to the case in point and it is difficult to avoid the conclusion that the petitioner was in enjoyment of the pension as a matter of right, a right which according to the instructions as stood before 28th of July, 1948, could not even be modified.
4. If I am right so far, it follows that the petitioner become entitled to a pension for life under the orders of the appropriate authorities on the recommendation of the medical board duly constituted. If any revision was permissible it could have been in accordance with the rules and certainly no order could have been made unilaterally without the petitioner being afforded an opportunity to show cause against it. Under Article 226 of the Constitution the power of this Court extends to the granting of relief which has the effect of enforcing the right of an individual conferred on him by Part III of the Constitution. Now under Article 31(1) of Part III of the Constitution it is solemnly stated that “no person shall be deprived of his property save by authority of law.” Once it is assumed that the petitioner had a right of property to be protected there could be no escape from the conclusion that he has been deprived of it in the most arbitrary manner.
5. A plea taken up on behalf of the respondent that the petition ought to be dismissed on ground of delay cannot be sustained on account of the recent decision of the Supreme Court in Basheshar Nath v. Commissioner of Income tax, Delhi and Rajasthan . A.I.R 1959 S.C 149.. It was held by their Lordships that no citizen can give up or waive a breach of the fundamental right and, therefore, no amount of delay can defeat the purpose of a writ under Article 226. The provisions of Article 31 are in the nature of a command and as observed by Chief Justice S.R Das at pages 158-159 of the report “no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.”
6. It is the case of the respondent-Union that the disability pension was granted under a mistake which was merely rectified by the second medical board. Now it is admitted in paragraph 4 of the affidavit of the respondent-Union that the first medical board had found that—
(1) the petitioner was suffering from ‘diabetes mellitus’ which made him unfit to serve; and
(2) this disability was aggravated by war services and the degree of disablement was assessed at 50 per cent.
7. How can it be said that these findings of the board were the outcome of some misunderstanding or that the disability was only 20 per cent not attributable to or aggravated by service factors? The decision taken by the authorities is hit by the famous pronouncement of Lord Atkin in Eshugbavi Eleko v. Officer Administering the Government of Nigeria . A.I.R 1931 P.C 248., at page 251 that the executive “can only act in pursuance of the powers given to it by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive.” These observations apply with full force to the state of affairs which have been discussed in this case. The petitioner's right of life pension has not merely been curtailed but abolished altogether by the fiat of the executive Government for which there is no prime facie justification and of which the petitioner was not even given a notice of. The action of the executive cannot be defended on the vague formula of “administrative grounds” as observed by Basi Reddy, J. in Kakku Venkataramaiah v. The State of Andhra Pradesh . A.I.R 1930 Andhra Pradesh 420..
8. Mr. Jindra Lal has very strongly contended that the pension given to the petitioner was a matter of grace and bounty not founded on any legal right. No reference has been made in support of this proposition to any law or statutory rules and considering that the petitioner had enjoyed this pension for a span of many years I feel bound to hold that there has been a very serious interference with and grave violation of a right which must in the context be regarded as property right. In this view of the matter the petition must succeed and the order of cancellation of pension set aside. The petitioner would get the costs of these proceedings.
Petition allowed.
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