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2014 DIGILAW 168 (MEG)

Union of India v. Narender Singh

2014-07-04

PRAFULLA C.PANT, S.R.SEN

body2014
Judgment Prafulla C. Pant, CJ. 1. This instant writ appeal is directed against the impugned judgment and order dated 28.10.2013 passed by the learned Single Judge in WP(C) No. 140 of 2012 whereby, the learned Single Judge has disposed of the writ petition directing the respondents of the writ petition (Appellants) to grant pension under invalid pension scheme/rule to the writ petitioner (Present Respondent) treating that he was in service till the date of the judgment (passed by the learned Single Judge). 2. Heard the learned counsel for the parties and perused the affidavit on record. 3. Brief facts of the case are that the writ petitioner/Rifleman/(General) No. 163914 got enrolled/recruited with the Assam Rifles on 10.10.1994 and on completion of the training he was attached to the unit 11 Assam Rifles and posted at Mokokchung, Nagaland. During his posting, he was detected to have been suffering from Psychosis Schizophrenia and he was placed in Low Medical Category by a medical board with effect from July 1999. From time to time, he was examined by the review medical boards, and ultimately, in view of the fact that the writ petitioner failed to attain his fitness to the medical category SHAPE-I, he was discharged from service with effect from 01.06.2004. 4. Strangely, the writ petitioner remained quite for more than 8(eight) years with effect from 8th June 2012 and thereafter, filed the WP(C) No. 140 of 2012 challenging the order of discharge and prays that the discharge order be declared illegal. Alternatively, he also prays for disability pension. 5. The respondents to writ petition (Appellants) filed counter affidavit before the learned Single Judge defending the order of discharge. In Para 9 of the counter affidavit (affidavit-in-opposition), the following averment is made: That while denying the correctness of the statement made in Para 2, it is respectfully submitted that following the diagnosis of the petitioner is a case of "Psychosis Schizophrenia" he was downgraded to LMC BEE (Permit)/S2 (Permit) for 2 years. On Feb 2003, he was referred to Consultant Psychiatrist Civil Hospital, Mokokchung, who in his opinion mentioned that possibility of relapse, cannot be ruled out for which he was placed in LMC BEE (P)/S2 (P) for 2 years. The Petitioner was again referred to consultant psychiatrist, Civil Hospital, Mokokchung for opinion with fresh AFMSF-10 (Revised). On Feb 2003, he was referred to Consultant Psychiatrist Civil Hospital, Mokokchung, who in his opinion mentioned that possibility of relapse, cannot be ruled out for which he was placed in LMC BEE (P)/S2 (P) for 2 years. The Petitioner was again referred to consultant psychiatrist, Civil Hospital, Mokokchung for opinion with fresh AFMSF-10 (Revised). The consultant Psychiatrist in his opinion declared the patient (Petitioner) "unfit to perform normal soldier duties as relapse/recurrence of such a disease is unpredictable". Pursuant to recommendation of consultant Psychiatrist Civil Hospital, Mokokchung a release medical board was duly constituted as per rules and petitioner was invalided out of service as per findings and recommendation of medical board. As such the allegation that the petitioner was discharged from service without any medical board is blatantly false, baseless and denied hereby. 6. In Para 11 it is pointed out that the petitioner was suffering from Psychosis Schizophrenia since September, 1996. 7. In Para 13 of the counter affidavit, the following averments' are made on behalf of the respondents of the writ petition: That the statement made in Para 3 (v) are blatantly false and denied hereby. In as much as a Release Medical Board (RMB) was duly convened as per rules, which screened the petitioner as per recommendations of Consultant Psychiatrist of Civil Hospital, Mokokchung and recommend that the petitioner is a fit case for discharge from service in low medical category S-2 (Permit). The recommendations of board were accepted by the competent authority and date of discharge was fixed vide HQ DGAR letter No. I. 31021/16AR/2004/Adm-III/205 dated 03 Feb 2004, 8. It is further stated that the petitioner was given his IRLA Credit, GPF, Gratuity, etc admissible under the rules. It is also stated that since the writ petitioner had not completed a minimum 10(ten) years of service mandatory for becoming eligible for invalidity pension under Rule 38 read with Rule 49 (2) (b) of CCS (Pension) Rule 1972 as such, he is not entitled to any invalidity pension. It is also stated that the disease of petitioner got aggravated, and as he was found unfit on medical ground, he was placed in low medical category S-2 with effect from 1st September 2003 by the medical board. As such, it is pleaded on behalf of the appellants that, there was no illegality in the impugned judgment and order. It is also stated that the disease of petitioner got aggravated, and as he was found unfit on medical ground, he was placed in low medical category S-2 with effect from 1st September 2003 by the medical board. As such, it is pleaded on behalf of the appellants that, there was no illegality in the impugned judgment and order. The learned Single Judge did not set aside the discharge order, but directed that invalidity pension be given to the writ petitioner treating his service till the date of the judgment was passed in the writ petition. 9. This court is of the view that the service period cannot be extended of an employee in the manner done in the present case by the learned Single Judge particularly, when the impugned order of discharge passed in WP(C) No. 140 of 2012 was not found illegal. There is no authority with the court to extend the service period from 2004 to 2013 to make the writ petitioner entitled for invalidity pension. It is relevant to mention here that admittedly the writ petitioner had not completed 10 years of service on the date of discharge. 10. Attention of this court is drawn to the case of Union of India and another versus Talwinder Singh (2012) 5 SCC 480 on behalf of the writ petitioner, and it is contended that even for an injury suffered by the Army personnel during leave period it can be said to be attributable to the service rendered by him. The said case is of little help to the writ petitioner in the present case for the reason assuming for a moment that the disease suffered by the writ petitioner was attributable to the service rendered by him, but the minimum period of service required by him was not completed to make him entitled for disability pension. It is not a case of extraordinary injury suffered by the soldier during war, etc for which no minimum period of service required. In the aforesaid case relied on behalf of the writ petitioner, there is nothing indicating that the employee who has not completed the minimum service required for the disability pension should be granted the same. Rather, in said judgment the Apex Court has held that it will be safe for the courts to leave the reason for the experts who are more familiar with the problems they faced. Rather, in said judgment the Apex Court has held that it will be safe for the courts to leave the reason for the experts who are more familiar with the problems they faced. It is observed that the court cannot ignore the findings of the medical board for the reason that the medical board is a specialized authority composed of the experts. There is no application of the principle of natural justice in the matter of discharge of an employee on the medical ground. 11. For the reasons as discussed above, we are of the view that the learned Single Judge has erred in law by extending the length of service of the writ petitioner from 2004 to 2013 to make him entitled to the disability pension. 12. Accordingly, this instant writ appeal is allowed, and the impugned judgment and order dated 28.10.2013 passed by the learned Single Judge in WP(C) No. 140 of 2012 is hereby set aside. The said writ petition shall stand dismissed. No order as to costs.