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2005 DIGILAW 14 (HP)

DILBAG SINGH v. UNION OF INDIA

2005-01-07

A.K.GOEL, M.R.VERMA

body2005
JUDGMENT Arun Kumar Goel, J.—Facts as they emerge from the record of this case are that petitioner was enrolled in the Army on 1.10.1986. He was discharged from service on 1.10.2002 in accordance with Army Rule 13 (3). He was diagnosed under this Rule item III (V) diagnosises (i) TRAUMATIC SYNOVITIS (RT) WITH SECONDARY OA CHANGES and (ii) "HEREDITARY MACULOPATHY STARGARDTS DISEASE BOTH EYE." Thus he was not recommended to continue in service being in permanent low category. He was granted service pension. 2. So far placement of petitioner in low medical category was concerned, it was for 24 months with effect from 8th December, 2001. Though petitioner was willing to continue in service, but he was not recommended for being retained and no alternate appointment was also available to him at that point of time. As such, he was brought before Release Medical Board before his being discharged from service. His disease was found as under: "(i) "TRAUMAT1CE SYNOVITIS (RT) WITH SECONDARY OA CHANGES" was assessed at 15-19 as attributable to military service and disease (ii) "HEREDITARY MACULOPATHY STARGARDTS DISEASE BOTH EYE" was assessed at 60% as neither attributable to nor aggravated by military service." 3. In case of his (i) disability, he was allowed disability element in the sum of Rs. 310/- per month with effect from 1st October, 2002 for life and Pension Payment Order was issued on 28.2.2003. 4. So far second disability of both eyes assessed at 60%, he was declined disability pension qua it. It is against this rejection of his cLalm, the petitioner of 60% disability pension for the disease, supra. 5. Action of the respondents being illegal and arbitrary, besides being irrational, was liable to be struck down, additionally on the ground being violative of Article 14 of the Constitution of India, according to the petitioner in this writ petition. 6. At the time of hearing of this petition, learned Counsel appearing for the respondents submitted that 60% disability, supra, is not attributable to the military service. Further according to him, disability being hereditary to his both eyes, petitioners cLalm for granting disability pension in this behalf has been rightly rejected. 7. Another salient feature for rejecting the cLalm of the petitioner for the grant of disability pension is, that the record of this case was submitted by Signals Record Office to Principal Controller of Defence (Accounts), Allahabad. 7. Another salient feature for rejecting the cLalm of the petitioner for the grant of disability pension is, that the record of this case was submitted by Signals Record Office to Principal Controller of Defence (Accounts), Allahabad. He in consultation with the Medical Advisor (Pensions), accepted 20% disability attributable to military service, whereas cLalm of the petitioner for 60% disability to both of his eyes was rejected being neither attributable to nor aggravated by, military service. 8. When specifically questioned by the Court as to whether petitioner was examined by the Medical Advisor (Pensions) before rejecting his cLalm, learned Counsel for the respondents submitted that there is nothing on record to suggest anything in this behalf. Thus, in this behalf it can safely be said that if there was any material suggesting that petitioner had in fact been re-examined by the Medical Advisor (Pensions), before rejecting his cLalm so far 60% disability to both eye was concerned, then petitioner would have known what is the ground reality. 9. Once this conclusion is arrived at, then we have no option but for allowing this writ petition. Suffice it to say in this behalf that it is very strange that without examining the person under disability, somebody sitting in the office is adjudicating upon the matter thus denying a disabled soldier, like petitioner of his property. Reason for making this observation that pension is earned by person after having put in number of years of service and also having given his best period of his life in the service of the employer. It is by now well settled that a person cannot be deprived of his property save and except by due authority/process of law. This is the mandate of Artide 300-A of the Constitution of India. It has been followed more in breach than compliance. Thus cLalm of the petitioner of 60% disability qua his both eyes was wrongly rejected and without any justifiable cause to that effect. 10. Now coming to stand of Shri Pathak, that it has been ascertained by the authorities that the disease resulting in disability was hereditary in the case of the petitioner. This is a plea of frustration. Reason being that it is not the case of the respondents that when the petitioner was initially inducted into service, this disease was detected and thus he was suffering from it at that point of time. This is a plea of frustration. Reason being that it is not the case of the respondents that when the petitioner was initially inducted into service, this disease was detected and thus he was suffering from it at that point of time. Assuming for the sake of argument that this was the decision, then in the circumstances of this case it can safely be held that it has been aggravated during the period of 16 years of military service. Therefore, it can be concluded that the petitioner is entitled to the grant of pension qua 60% disability to both his eyes. 11. This matter is otherwise no more res-integra in view of decision of this Court in Prem Singh (Ex-Sepoy) v. Union of India and others, 1999(1) Sim. L.C., 70, wherein decision of Supreme Court of India in an unre-ported judgment in Civil Appeal No. 264 of 1991. Ex-Sapper Mohinder Singh v. Union of India, was followed by this Court and it was held as under:— "Therefore, the spirit of these Rules is that the recommendations of invalidating Medical Board/Re-survey Medical Board regarding cLalm 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 appear to have been done in the present case. But the second opinion given by the Joint Director, Armed Forces Medical Services as Medical Advisor (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 Armed 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 as Ex. For taking this view we are relying upon an unreported judgment of the Supreme Court in Civil Appeal No. 264 of 1991, titled as 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. 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” 12. To similar effect is a decision of Division Bench of this Court in Bhajan Lal v. Union of India, 1993 (2) Sim.L.C. 253. The ratio of above decisions was also followed in CWP No. 18 of 2000, Kanthu Ram v. Union of India and others, decided on 3.11.2003. 13. Learned Counsel for the respondents made an attempt to persuade the Court to dismiss this writ petition keeping in view peculiar disability, which was found to be hereditary. This plea has been raised simply to be rejected. 14. No other point is urged. 15. In view of the aforesaid discussion, this writ petition deserves to be allowed and it is ordered accordingly. As a result of it, respondents are now directed to calculate pension of the petitioner in respect of 60% disability qua the disease to his both eyes as noted hereinabove in this judgment, and then after working out the arrears with effect from 1.10.2002 till 30th June, 2005 to release this amount to him upto this date, and then regularly paying him pension for his this 60% disability every month. In case amount is not released by or before 30th June, 2005, petitioner will be entitled to payment of interest at the rate of 9% per annum on the pension in terms of this judgment from 1.11.2002 till it is in default of payment. 16. Respondents 2 and 3 shall file affidavit reporting compliance with the direction of this Court in this judgment in the first week of July, 2005 and for verifying this fact case is ordered to be listed in Court on 15th July, 2005. No costs. A Petition allowed.