Research › Browse › Judgment

Himachal Pradesh High Court · body

1999 DIGILAW 77 (HP)

BHAJAN LAL v. UNION OF INDIA

1999-05-21

D.RAJU, LOKESHWAR SINGH PANTA

body1999
JUDGMENT D. RAJU, C.J.—The above writ petition has been filed seeking for the issue of a writ to declare that discontinuation of the disability pension of the petitioner with effect from 21.12.1994 maybe declared illegal and the petitioner may be held entitled to the same without any interruption, with all consequential benefits by quashing the decision of the first respondent rendered on appeal against the order of second respondent with 18% per annum till the date of actual payment. 2. It is unnecessary to advert to all the details exhaustively set out in the writ petition or even in the reply filed. It is a matter of record that the petitioner was enrolled in the Army on 22.11.1962 as a recruit who became Gdr (Sepoy) w.e.f. 10.7.1963 was operated on 11.1.1986 for the disease "PERFORATION DUODENAL ULCER" and again for the same operated in January 1988. Thereafter, he was said to have been down graded to medical category BEE (Temporary) for six months with effect from 7.4.1986 and to medical category CEE (Temporary) for six months with effect from 20.11.1986 on review by Medical Board. It appears that there had been periodical review by the Medical Board and ultimately the petitioner was discharged from service w.e.f. 17.7.1988, under Army Rule 13 (3), item I(i)(a). The petitioner was sanctioned disability pension by the office of the Chief Controller of Defence (Pension), Allahabad in PPO No. 3242/88 at Rs. 165/- per month, in addition to the service pension for the period between 17.7.1988 and 24.4.1990. Subsequently, on the basis of re-assessment made by the Medical Board, the same was continued for the period from 25.4.1990 to 20.12.1994. Thereafter for the period subsequent to 20.12.1994 for the purposes of reassessment of the disability another Review Medical Board appears to have been held and on the basis of the assessment by the reassessment Medical Board of the disability of the petitioner to be at 30% (permanent), the papers appear to have been submitted to the Competent Authority but the Chief Controller of Defence Accounts (Pension), Allahabad appears to have, on perusal of the service/medical documents, himself assuming the role of the Appellate Medical Authority has found that the disability has improved and in turn chose to assess the disability at less than 20% (15-19%) for five years. As a consequence of the same, second respondent appears to have held that the petitioner is not entitled of disability pension with effect from 21.12.1994. Aggrieved, an appeal appears to have been filed and the first respondent in turn rejected the claim of the petitioner. Hence, the above writ petition. 3. The above narrated factual position is not in serious dispute, in the hands of the respondents, but what is stated for the respondents among other things in their reply (internal pages 6 85 7) is as follows:— "During the admission period in the Hospital, The Re-survey Medical Board Proceedings were finalised by the Command Hospital, Western Command (Medical Board Proceedings dated 1 December, 1994 is enclosed as Annexure R-10). The medical board has assessed his disability at 30% for permanent. But the Re-Survey Medical Board is only the recommendatory medical authority. Therefore, its opinion has not been accepted by the Medical Advisor (Pension) at Chief Controller of Defence Accounts (Pension), Allahabad (Competent Medical Authority) and percentage of his disability was assessed by them at less than 20% (15-19%) for 5 years. The highest appellate authority that is Government of India, Ministry of Defence has also agreed with the opinion of the Medical Advisor (Pension) at Chief Controller of Defence Accounts (Pension) Allahabad as explained above and rejected the appeal submitted by the petitioner against the decision of the Chief Controller of Defence Accounts (Pension), Allahabad/ 4. The claim of the petitioner is contested by the respondents in their reply as also by the learned Counsel appearing for the respondents at the time of hearing on the above lines. The learned Counsel for the petitioner Mr. Shrawan Dongra, while placing strong reliance upon the decision of the Division Bench of this Court reported in 1999 (1) Shim. L.C. 70 (Prem Singh (Ex-Sepoy) v. Union of India and others), contended that the second respondent is not entitled to adopt such an attitude and go behind the assessment made by the Re-survey Medical Board. 5. The Division Bench, in the decision reported in 1999 (1) Shim. L.C. 70, supra, has adverted to the relevant entitlement rules and also the respective role to be played by Re-survey Medical Board and the Chief Controller of Defence Accounts (Pension), Allahabad in the matter of recognizing or rejecting the claim of a person claiming for disability pension. 5. The Division Bench, in the decision reported in 1999 (1) Shim. L.C. 70, supra, has adverted to the relevant entitlement rules and also the respective role to be played by Re-survey Medical Board and the Chief Controller of Defence Accounts (Pension), Allahabad in the matter of recognizing or rejecting the claim of a person claiming for disability pension. It is useful to refer to the relevant portion of the judgment which reads as follows, wherein unreported decision of the Apex Court has also been relied upon by the Division Bench:— “Therefore, the spirit of these Rules is that the recommendations of invalidating Medical Board/Re-survey Medical Board regarding claim of disability pension should be respected by the Chief Controller Defence Accounts (Pensions), Allahabad and in case of doubt he may refer for second medical opinion to Medical Advisor (Pensions) in his Office, as appears to have been done in the present case. But the second opinion given by the Joint Director, Armed Forces Medical Services as Medical Adviser (Pensions), Allahabad only on the basis of documents on record without examining the petitioner and without giving reasons to differ with the recommendations of the Re-survey Medical Board that the disability of the petitioner was assessed as 20% for life is unjust, arbitrary and cannot stand judicial scrutiny. The respondents have not brought any material on record to justify the opinion of the Joint Director Aimed Forces Medical Services that the disability of the petitioner was 6 to 10% and not 20% for life as recommended by the Re-survey Medical Board on the basis of which the Chief Controller Defence Accounts (Pensions), Allahabad has passed the impugned order which has been mechanically approved by the Appellate Authority. For taking this view we are relying upon an unreported judgment of the Supreme Court in Civil Appeal No. 264 of 1991, titled Ex. Sapper Mohinder Singh v. Union of India, delivered on 14th January, 1993 in which the recommendations of the Medical Board assessing the disability of the appellant in that case as 40% was not accepted by the Chief Controller Defence Accounts (Pensions), who held the disability at less than 20% disentitling the appellant to disability pension. Sapper Mohinder Singh v. Union of India, delivered on 14th January, 1993 in which the recommendations of the Medical Board assessing the disability of the appellant in that case as 40% was not accepted by the Chief Controller Defence Accounts (Pensions), who held the disability at less than 20% disentitling the appellant to disability pension. In this context the learned Judges have held :— ".....In view of all the relevant circumstances of the case, we are of the opinion that the Disability Pension assessed at the rate of 40% by Medical Board, which had examined the appellant, should be respected until a fresh Medical Board examine the appellant again and comes to a different conclusion. Accordingly, we direct that for the period 1.8.1989 to 31.1.1993 the appellant shall be paid the Disability Pension at the rate of 40% and it will be open to the authority concerned to have the appellant re-examined by a properly constituted Medical Board for re-assessment of the disability with effect from 1.2.1993." 6. In the light of the above decision of the Division Bench which has been rendered, as earlier noticed, on the basis of the judgment of their Lordships of the Apex Court referred to therein, the stand taken for the respondents cannot be countenanced and has to be hear by rejected. When the Medical Board or Re-survey Medical Board after personally examining the person concerned, assessed the disability in a particular manner, it is not given, in our view, to the second respondent to merely to have its own assessment, de hors the medical opinion on file, to arrive at a contra conclusion and make its own assessment without obtaining any second medical opinion, even if the second respondent has its own doubts about the credibility or veracity of the Medical Assessment. Applying the ratio of the decision of the earlier Division Bench, the order of the second respondent confirmed by that of the first respondent, denying the petitioner the benefit of the disability pension sanctioned to him earlier and continued till 20.12.1994 for the period subsequent thereto and w.e.f. 21.12.1994, is hereby quashed. Applying the ratio of the decision of the earlier Division Bench, the order of the second respondent confirmed by that of the first respondent, denying the petitioner the benefit of the disability pension sanctioned to him earlier and continued till 20.12.1994 for the period subsequent thereto and w.e.f. 21.12.1994, is hereby quashed. As pointed out by the respondents themselves in their reply (internal pages 5 and 7, respectively) the next Re-survey Medical Board for the petitioner is due only on 21.12.1999 and therefore the petitioner is entitled to the relief prayed for, and to be continued to be paid the disability pension as sanctioned earlier, subject to the assessment to be made by the Re-survey Medical Board which is due on 21.12.1999. 7. The respondents shall comply with the orders of this Court within a period of eight weeks by releasing the disability pension withheld, with interest due at the rate of 12% per annum. No costs. Petition allowed.