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2000 DIGILAW 469 (PAT)

Ram Kumar Bhagat v. Union Of India

2000-03-27

S.N.JHA

body2000
Judgment S.N.Jha, J. 1. The dispute in this writ petition relates to Freedom Fighters Pension under the Freedom Fighters Pension Scheme, 1972 as amended by Freedom Fighters Samman Pension Scheme, 1980. The claim of the petitioner has been rejected by the Central Government vide letter dated 28.7.97 contained in annexure 14 of the writ petition. The petitioner seeks quashing of the said order/letter and directions to grant him Freedom Fighters pension. 2. The petitioner claims to have suffered shoot injury in his right leg in course of occurrence during the 1942 freedom movement, and relies on the letter of the Special Officer, Political Department, Government of Bihar dated 22.10.51 by which a cash grant of Rs. 200/- was recommended for him. From the contents of the said letter, copy whereof has been enclosed as annexure 2 to the writ petition, it appears that the case of the petitioner was considered by the Bihar Political Sufferers Relief Committee which recommended a cash grant of Rs. 200/- which was actually paid vide memo no. 15246 dated 24.11.51 of the Political Department (Spl. Section) Government of Bihar. 3. The petitioner had approached this Court earlier in CWJC No. 6964/93 and CWJC No. 11654/96. By the order passed in the former case, the Central Government was directed to take final decision within a fixed time, and after the claim was rejected, in the later writ petition, direction was issued to constitute a Medical Board to examine the nature of the disability of the petitioner and thereafter consider his claim again. Pursuant to the said direction the petitioner was examined by the Medical Board headed by Civil Surgeon-cum-Chief Medical Officer, Patna on 27.3.97. Though the relevant part of the report, written in hand, is not quite legible, counsel stated that the words occurring in the relevant column in the report are "part fracture suffered on R. ankle". Upon consideration of the said report of the Medical Board, the Central Government took the view that the petitioner had suffered minor hurt, and his disability was only 10 per cent, whereas in terms of Freedom Fighters Samman Pension Scheme only such Freedom fighters were entitled to pension who had suffered injury resulting in complete disability. 4. Upon consideration of the said report of the Medical Board, the Central Government took the view that the petitioner had suffered minor hurt, and his disability was only 10 per cent, whereas in terms of Freedom Fighters Samman Pension Scheme only such Freedom fighters were entitled to pension who had suffered injury resulting in complete disability. 4. Smt. Anjana Mishra, learned counsel for the petitioner submitted that the impugned decision of the Central Government is contrary to the terms of the pension scheme as well as law laid down by the Supreme Court in R. Narayan V/s. Union of India, AIR 1990 Supreme Court 746. She drew my attention to the eligibility part of the pension scheme. Sub-clause 3(e) of the Explanation appended to clause 4 contains the eligibility clause, which is relevant for the purpose of this case, runs as follows : "A person who become permanently incapacitated during firing or lathi charge." Counsel submitted that for being eligible to claim pension under the aforesaid Clause, it is not necessary that the person should have suffered a total disability, what the Clause contemplates is that the disability should be permanent in nature. She highlighted the distinction between disability being in total and permanent, and in this connection relied on N. Narayanans case (supra). 5. The submission of the counsel finds enough support from the observations of the Supreme Court in the aforesaid case, and it would be useful to quote the relevant part of the judgment as under: "The Clause only refers to permanent incapacitation due to firing or lathi charge and not to total incapacitation. The respondents would however take the stand that the incapacitation must not only be permanent but it must also be a total one. Hence according to them, since the appellant has not lost vision in both the eyes, the incapacitation, though permanent is only partial and not total and as such he is not eligible to grant of pension under clause (e) of the Scheme. The interpretation given by the respondents to Clause 3(e) of Para 4 cannot be sustained because the words used in the Clause are permanently incapacitated and not permanently totally incapacitated. The interpretation given by the respondents to Clause 3(e) of Para 4 cannot be sustained because the words used in the Clause are permanently incapacitated and not permanently totally incapacitated. If the stand of the respondents is to be accepted, it would be opposed to the plain meaning of the words and result in addition of more conditions to the clause what the framers of the Scheme have laid down. 6. In the above view of the matter, the decision of the Central Government rejecting the claim of the petitioner on the ground that the petitioner had suffered only 10 per cent disability or incapacitation and not total one must be held to be illegal and arbitrary. This however, is not the end of the matter. While the decision of the Central Government based on the extent of incapacitation may not be correct, question nevertheless would arise as to whether any and every kind of incapacitationthough permanent in naturewould entitle the person to Freedom Fighters pension under the aforementioned clause of the pension scheme. 7. At this stage it must be pointed out that the report of the Medical Board can hardly be said to be the be-all of the matter. The result of Medical examination held in the year 1997 cannot be conclusive of the controversy involved. The basis of the claim is injuries sustained in course of an occurrence which took place 55 years ago and it can not be said with any amount of certainty that during the intervening period of 55 years, he would not have suffered any other injury in some other occurrence. Therefore, the existence of the particular injuryirrespective of its nature and extentcannot be the basis for holding that such injury was sustained 55 years ago. However, having regard to the view that I am inclined to take of the matter, as indicated hereinabove, it is not necessary to go into the evidenciary value of the said report of the Medical Board. 8. Under Clause 4(3)(e) of the Pension Scheme a person is eligible to grant of Freedom Fighters pension if he became permanent incapacitated in course of firing or lathi charge in the freedom movement. The dictionary meaning of the word incapacitate is "to make incapable". An injury may be permanent, but it may not be such as to make him incapable. Under Clause 4(3)(e) of the Pension Scheme a person is eligible to grant of Freedom Fighters pension if he became permanent incapacitated in course of firing or lathi charge in the freedom movement. The dictionary meaning of the word incapacitate is "to make incapable". An injury may be permanent, but it may not be such as to make him incapable. From the supplementary counter affidavit filed by the Union of india it appears that reference had been made earlier to the Ministry of Health and Family Welfare and the Ministry of Defence as to the meaning of the term "permanent incapacitation", and it would be useful to quote the relevant part of the communications received from the said two Ministeries. The Ministry of Health and Family Welfare vide its letter dated 28.1.86 responded to the query as follows : "There is no medical term like permanent incapacitation. However a person who cannot do any work, occupation or profession to earn or obtain wages, compensation or profit is permanently incapacitated. The common physical/ Orthopaedic disabilities due to firing or lathi charge that may give rise to "permanent impairment/ incapacitation" are : Loss/ complete paralysis/ paresis/deformity of both upper limbs or both lower limbs, like : 1. Loss of both upper limbs at the level of wrists or above. 2. Loss of both lower limbs at the level of both ankles or above. 3. Complete paralysis of both lower limbs. 4. Complete paralysis of both upper limbs. 5. Severe deformities of both hands/or both feet, that will not permit a person to use his hands or his feet. 6. Combination of any of the above." The Ministry of Defence specified the physical disabilities amounting to permanent incapacitation as follows : "1. Loss of both hands or of all fingers and thumbs. 2. Amputation of Arm through shoulder. 3. Amputation above and below Elbow. 4. Loss of both Lower Limbs. 5. Loss of both feet. 6. Amputation of one leg at hip or below hip. 7. Loss of hand and foot. 8. Severe Facial disfigurement. 9. Total deafness. 10. Total loss of vision. 11. Haemiplegia. 12. Para plegia. 13. Quadri Plegia. 14. Head Injury with residual lesion in the Brain. 15. Permanent Nerve damage with Paralysis. 16. Permanent damage to organs of Reproduction." 9. 6. Amputation of one leg at hip or below hip. 7. Loss of hand and foot. 8. Severe Facial disfigurement. 9. Total deafness. 10. Total loss of vision. 11. Haemiplegia. 12. Para plegia. 13. Quadri Plegia. 14. Head Injury with residual lesion in the Brain. 15. Permanent Nerve damage with Paralysis. 16. Permanent damage to organs of Reproduction." 9. Coming to the instant case even if the case of the petitioner is accepted to be true, it would appear that he had suffered "shot" in his right leg in 1942 but there is nothing to indicate that it made him incapable or incapacitated. The key word in the aforesaid clause of the Pension Scheme is "incapacitated" and unless it is found that the injury suffered by the petitioner incapacitated him that is to say made him unable or incapable from carrying on normal activities of life, he may not be entitled to the pension. I do not wish to make further observations on the merit of the claim. The claim of the petitioner has been rejected on a ground which is not in accordance with the decision on the Supreme Court in R. Narayanans case (supra), under a complete misapprehension of the scope of the relevant clause of the pension scheme, and it would therefore, only be proper to direct it to reconsider the claim. 10. In the facts of the case, and for the reasons stated above, the impugned decision of the Central Government contained in its letter dated 28.7.97 (Annexure-14) is quashed and the matter is sent back to Government for taking fresh decision in the matter in accordance with law. 11. The writ petition is disposed of in the above terms. There will be no order as to costs.