Research › Search › Judgment

Himachal Pradesh High Court · body

2011 DIGILAW 1356 (HP)

Union of India v. Diwakar Dutt Sharma

2011-03-16

DEV DARSHAN SUD, KURIAN JOSEPH

body2011
JUDGMENT Kurian Joseph, Appellants are review petitioners i.e. Union of India & others. The appeal was filed, challenging the correctness of the judgment of the learned Single Judge dated April 12, 2007 in CWP No. 559 of 2002. The issues pertain to grant of disability pension. The learned Single Judge having perused the records disposed of the writ petition with direction to take a humanitarian view. It is inter-alia observed in the judgment:- “The petitioner has been posted at different geographical conditions, harsh and difficult climatical conditions and with the nature of the work assigned to the petitioner having suffered disability during the course of his employment cannot be ruled out absolutely.” 2. It was also observed in the judgment that; “A person does not acquire or suffer disability by choice and such a person, if not protected, is not only bound to suffer personally but also make other suffer who are dependent upon him economically and socially.” 3. Again there was an observation that: “The disease can be aggravated due to stress and strain suffered by the petitioner while rendering service for the cause of the nation. He has been exposed to high tension wires and transformers. The attending facts and circumstances have to be considered and in the present case, indulgence of the Court is required.” 4. In view of the above observations and findings, the writ petition was disposed of with direction to the respondents to calculate the disability pension in accordance with the Pension Regulations & Rules. Aggrieved, the appeal was filed by the Union of India and others. 5. There appears to be a factual mistake in the judgment in LPA No. 64 of 2007 dated 20.5.2010. It is seen from the judgment that this Court was also of the view that Release Medical Board had certified that the disability is attributable to service and hence, it was held that the opinion of the Release Medical Board cannot be upset by the PCDA (P) Allahabad. As rightly pointed out by the learned Assistant Solicitor General, the Release Medical Board has not attributed the disability to service. But there is no dispute that Release Medical Board has assessed the disability to 50%. As rightly pointed out by the learned Assistant Solicitor General, the Release Medical Board has not attributed the disability to service. But there is no dispute that Release Medical Board has assessed the disability to 50%. Though, there is a factual mistake, as pointed above, we do not think that notice should be issued to the respondent/petitioner since we find it difficult to interfere with the judgment of the learned Single Judge, more particularly in view of the affidavit filed on behalf of the appellant pursuant to the directions issued by this Court on 23.12.2010. The facts in this case would show that the writ petitioner did not suffer from any disease prior to his entering service and the first ever episode of epilepsy occurred only after five years of his service, as observed by the learned Single Judge in the judgment. It is a matter of sheer commonsense that a person with the constitutional disorder unless controlled by appropriate medicines, cannot survive in service as above. There is no case of the appellant that the writ petitioner was under medication for treatment for any disease at the time of entering in service or during the first five years of service. The disease occurred during service only, after five years. There is no scientific proof to establish that it is not on account of service and the available materials show otherwise. 6. In the above circumstances, while clarifying the inadvertent factual mistake in the judgment in LPA No. 64 of 2007 that the PCDA (P) Allahabad has not opposed the findings of Release Medical Board, so far as the interference with the judgment of learned Single Judge, we make it clear that the same does not call for any interference. We are of the view that discretion has been properly exercised in the facts and circumstances of the case and the same does not suffer from any legal infirmity. 6. In view of the above observations, the review petition is disposed of, so also the pending application (s), if any.