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2016 DIGILAW 914 (ORI)

Prahallad Mohanty v. Union of India

2016-10-05

D.P.CHOUDHURY

body2016
JUDGMENT : D.P. Choudhury, J. Challenge has been made to the inaction of the opposite parties in not granting disability pension to the petitioner although he has been declared permanently incapacitated with 70% disability. FACTS 2. The factual matrix leading to the petitioner’s case is that the petitioner was initially appointed as a Cook in the Central Reserve Police Force (hereinafter called as “CRPF”) and subsequently he fell ill and kept under medical supervision for a long time. While he was discharged from CRPF Base/Group Hospital BH-2, he was discharged with a declaration that he was not fit for any active combat duty and was declared permanently unfit. Accordingly, the Chief Medical Officer, CRPF Base Hospital, Hyderabad recommended for invalid retirement of the petitioner. 3. Be it stated, the Additional DIGP, CRPF, Bhubaneswar, vide memo dated 3.6.2004 declared the petitioner completely and permanently incapacitated for further service of any kind in the Department because of his chronic psychiatric illness. However, an opportunity was afforded to the petitioner to make any representation within a period of one month from the date when he was proposed to be invalidated from the service under the provision of Article 455 of CSR Volume-I. 4. It is averred that the petitioner had been examined by Board of Medical Officers and was completely permanently incapacitated for further service with effect from 26.5.2004. The petitioner was suffering from chronic psychiatric illness “Schizophrenia” and the percentage of disability was 70%. So, the Additional DIGP declared the petitioner invalidated with effect from 2.7.2004 as per Rule-38 of CCS (Pension) Rules 1972. The petitioner applied for the disability pension on 20.6.2008 and on 29.7.2008, Additional DIGP, Group Centre, CRPF, Bhubaneswar intimated the petitioner that his disability is not attributable to Government service and hence, he was not entitled to disability pension. But the wife of the petitioner claimed that mental disorder of her husband was due to irregular and hazardous duties undertaken by the petitioner. 5. It is further averred that on 4.12.2008, the wife of the petitioner submitted a representation to the Secretary to Government of India in the Ministry of Home Affairs stating therein that her husband was not suffering from Schizophrenia when he was leading happy conjugal life and the said disease was caused mainly due to the irregular and hazardous duties being undertaken by the petitioner. 6. 6. The opposite parties 2 to 4 turned down the plea of the wife of the petitioner and reiterated that the disease of Schizophrenia of the petitioner was not attributable to the Government service and the persons suffering from the aforesaid disease are not eligible for sanction of disability pension. 7. On 19.2.2009, the wife of the petitioner made another representation to I.G. Police, CRPF Eastern Sector, Kolkata reiterating her previous claim and requested the concerned authority to examine her husband by Review Medical Board. According to her, her husband was suffering from mental depression or disorder being treated at Capital Hospital, Bhubaneswar from 7.12.2002 to 17.12.2002, subsequently being treated at SCB Medical College and Hospital, Cuttack and finally he was under the treatment of CRPF Base Hospital, Hyderabad from 31.12.2002 to 3.2.2004. The wife of the petitioner had claimed that under all these medical reports, the disease was not diagnosized to be Schizophrenia but the mental disorder occurred only due to the nature of duty and responsibility bestowed on him. Thereafter, the above authority rejected the prayer of the petitioner and his wife by reiterating the stand earlier taken. The petitioner inter alia alleged that said rejection of the prayer is illegal, improper and arbitrary. So, the petitioner prayed to direct the opposite parties to grant disability pension from the date of discharge from service till the actual payment. 8. Per contra, the opposite parties have filed counter affidavit stating therein that the petitioner was working as a Cook in CRPF being appointed in 1988. 9. It is stated that due to the illness of the petitioner, he was examined by Board of Medical Officers and declared completely and permanently incapacitated for further service with effect from 25.5.2004. The petitioner was suffering from chronic psychiatric illness “Schizophrenia” and the percentage of disability of the disease declared by the Medical Board was 70% under Category-A. Accordingly, necessary one month notice as per Rule was served on the petitioner proposing his invalidation in service. Consequent to such notice, the petitioner submitted application on 7.6.2004 stating that he has no objection to proceed on invalidation from service due to illness. So, finally he was invalidated from service with effect from 2.7.2004 with the sanction of invalidation pension by PAO, CRPF, New Delhi with effect from 3.7.2004. 10. Consequent to such notice, the petitioner submitted application on 7.6.2004 stating that he has no objection to proceed on invalidation from service due to illness. So, finally he was invalidated from service with effect from 2.7.2004 with the sanction of invalidation pension by PAO, CRPF, New Delhi with effect from 3.7.2004. 10. Be it stated, the opposite parties denied about disability pension stating that the petitioner has been sanctioned invalidation pension vide letter dated 24.8.2004, but as regards to the sanction of disability pension, the petitioner is not entitled to such disability pension because of the disease not being attributable to Government service inasmuch as the Disability Pension Rules do not entitle him to get such disability pension, if he has got permanent disability being not attributable to Government service. The opposite parties rejected the application of the petitioner stating that the petitioner has been examined by Medical Board having 70% chronic psychiatric illness “Schizophrenia”, he has been rightly declared by the Medical Board incapacitated to discharge duty and the petitioner has been given sufficient opportunity to prefer appeal. The opposite parties reiterated that since the petitioner was suffering from chronic psychiatric illness “Schizophrenia”, which has been duly acknowledged by the petitioner by endorsing his signature on Form No.23 and such disease not attributable to the Government service, the claim of the petitioner is baseless and should not be allowed in the writ petition. SUBMISSIONS 11. Learned counsel for the petitioner submitted that in view of Annexure-1 series and Annexure-2, the petitioner has been treated at Base CRPF Hospital, Hyderabad, Capital Hospital, Bhubaneswar and also at SCB Medical College & Hospital, Cuttack where he has been treated for the disease psychosis/psychotic disorder. From Annexure-2, it appears that from 3.3.2003 to 4.4.2003, he was under treatment of psychosis/psychotic disorder, from 7.4.2003 to 26.4.2003 he was treated for psychosis/psychotic disorder and from 5.8.2003 to 19.8.2003, he was treated for psychosis/psychotic disorder. In the same document, it is mentioned that from 4.11.2003 to 3.2.2004, he was treated for the disease Schizophrenia. Here, learned counsel for the petitioner submitted that for the disease psychosis/psychotic disorder he was treated but not for Schizophrenia as the petitioner was severely ailing for psychosis/psychotic disorder. 12. In the same document, it is mentioned that from 4.11.2003 to 3.2.2004, he was treated for the disease Schizophrenia. Here, learned counsel for the petitioner submitted that for the disease psychosis/psychotic disorder he was treated but not for Schizophrenia as the petitioner was severely ailing for psychosis/psychotic disorder. 12. Learned counsel for the petitioner submitted that in spite of the illness of the petitioner for the disease psychosis/psychotic order, the opposite parties issued a memorandum vide Annexure-3 to the writ petition stating therein that the petitioner was suffering from Chronic Psychiatric illness (Schizophrenia) and accordingly the petitioner was asked to make representation for challenging the view of the Additional DIGP. He also drew the attention of this Court to Annexure-4 to the writ petition where according to Rule 38 of CCS (Pension) Rules, 1972, the Additional DIGP, GC, CRPF, Bhubaneswar passed the order on 2.7.2004 invalidating out the petitioner from service. When the representation was made by the petitioner, the Additional DIGP, on 29.7.2008 under Annexure-6, has passed the following order: “xx xx xx 2. As per the certificate issued by the Board of Medical Officers, you were suffering from Chronic Psychiatric illness ‘Schzophrenia’, therefore, you were declared completely and permanently incapacitated for further service under Category ‘A’ of GOI Deptt. Of P&PW OM No.45/22/97-P & PW(C) dated 3/2/2000 (CCS (EOP) Rules). In this regard, this Officer Order No.P-III-1/04-GCBBSR-Pen dated 2/7/04 may also be referred. As per above rules, your disability is not attributable to Government service. Therefore, you are not entitled for sanction of Disability Pension”. 13. Learned counsel for the petitioner has challenged the above order stating that the petitioner had suffered from psychosis/psychotic disorder because of the medical certificates all of which are showing that the petitioner was suffering from psychosis/psychotic disorder and such disease occurred as disability attributable to Government Service. 14. Mr. M.K. Badu, learned Central Government Counsel for the Union of India, supporting the counter affidavit, stated that under the EOP Rules, Schizophrenia is not a disease to be covered under such rules and moreover such disease of Schizophrenia as the petitioner was suffering was not attributable to Government service. It is also revealed from his submission read with the counter affidavit that on 25.5.2004, the Medical Board has certified that the petitioner was being suffered from Schizophrenia and such suffering was not attributable to Government service. POINT FOR CONSIDERAITON 15. It is also revealed from his submission read with the counter affidavit that on 25.5.2004, the Medical Board has certified that the petitioner was being suffered from Schizophrenia and such suffering was not attributable to Government service. POINT FOR CONSIDERAITON 15. Whether the petitioner is entitled to disability pension under the Central Civil Services Extra-ordinary Pension Rules (hereinafter called “EOP Rules”). DISCUSSION 16. It is admitted fact that the petitioner was working under the opposite parties as Cook and he entered into service on 30.4.1988 against the strength of 94 Bn CRPF and he bears one identity number, i.e., 880947015. It is not in dispute that the petitioner has been sanctioned invalidation pension under Rule-38 of CCS (Pensions) Rules, 1972. It is also not in dispute that the petitioner was suffering from psychosis/psychotic disorder in the year 2002 and his percentage of disability is 70% under Category-A. 17. It is also the admitted fact that CCS (Pension) Rules, 1972 governs about invalidation pension at Rule-38 of the said Rule. As per the G.I. Department of P & PW., OM No.45/86/97-P&PW(A) dated 7.8.2001, the pensioner to whom the CCS Pension Rules applies for obtaining the invalidation pension can also avail the disability pension and such disability pension is available under the EOP Rules. 18. It is, therefore, necessary to go through the EOP Rules to find out as to whether the petitioner is entitled to disability pension. 19. The EOP Rules is extended for the disability or death of the Central Government employee and as such disability must have been caused due to disease as defined under the Rule-3-A of the appendix which is placed below for better reference: “3-A-Eligibility (1)(a)Disablement shall be accepted as due to Government service, provided that it is certified that it is due to wound, injury or disease which – (i) is attributable to Government service, or (ii) existed before or arose during Government service and has been and remains aggravated thereby.” 20. The word “DISEASE” is also defined at Rule-3(4) which is placed as under: “3.(4) “DISEASE” means – a disease as is mentioned in Schedule I-A hereto annexed" 21. Of course, Schedule-1-A of the EOP Rules has got long list of diseases. Clause-B of the said list classifies the disease which can be contracted by service in following manners: “B. Disease affected by stress and strain. (i) Psychosis and Psychoneurosis (ii) Hyperpiesia. Of course, Schedule-1-A of the EOP Rules has got long list of diseases. Clause-B of the said list classifies the disease which can be contracted by service in following manners: “B. Disease affected by stress and strain. (i) Psychosis and Psychoneurosis (ii) Hyperpiesia. (iii) Hypertension (BP). (iv) Pulmonary Tuberculosis (v) Pulmonary Tuberculosis with pleural effusion. (vi) Tuberculosis - Non-pulmonary. (vii) Mitral Stenosis. (viii) Pericarditis and adherent pericardium. (ix) Endo-carditis (x) Sub-acute bacterialendo-carditis, including infective endocarditis. (xi) Nyocarditis - acute or chronic. (xii) Valvular disease.” 22. From the aforesaid provisions, it is clear that Psychosis and Psychoneurosis being disability which is affected by stress and strain covered under the EOP Rules. The opposite parties have relied upon the Government of India decision No.1 in Appendix-3 of the CCS EOP Rules and such circular is placed below for better reference: “Xx xx xx Category-B Death or disability due to causes which are accepted as attributable to or aggravated by Government service. Diseases contracted because of continued exposure to a hostile work environment, subjected to extreme weather conditions or occupational hazards resulting in death or disability would be examples. Category-C Death or disability due to accident in the performance of duties. Some examples are accidents while traveling on duty in Governments vehicles or public transport, a journey on duty is performed by service aircraft, mishaps at sea, electrocution while on duty, etc. xx xx xx xx III. Disability Pension - for cases covered under Categories 'B' and 'C' (1) Normal pension and gratuity admissible under the CCS (Pension) Rules, 1972, plus disability pension equal to 30% of basic pay, for 100% disability, (2) For lower percentage of disability, the monthly disability pension shall be proportionately lower as at present, provided that where permanent disability is not less than 60%, the total pension (i.e., pension or service gratuity admissible under the ordinary pension rules plus disability pension as indicated at (1) above) shall not be less than 60% of basic pay, subject to a minimum of Rs. 2500.” 23. From the aforesaid provision, it is clear that in spite of receiving the normal invalidate pension under the CCS Pension Rule, 1972, the disability pension equal to 30% of basic pay for 100% disability or for lower percentage of disability, the proportionate disability pension would be made available for the disability due to the causes which are attributable or aggravated by the Government service. 24. 24. In the case of Union of India & another –V- Rajbir Singh; (2015) 12 SCC 264 the Hon’ble Supreme Court of India, at paragraph-16, has observed as under: “Applying the above parameters to the cases at hand, we are of the view that each one of the respondents having been discharged from service on account of medical disease/disability, the disability must be presumed to have been arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to have been attributable to or aggravated by military service. There is admittedly neither any note in the service records of the respondents at the time of their entry into service nor have any reasons been recorded by the Medical Board to suggest that the disease which the member concerned was found to be suffering from could not have been detected at the time of his entry into service. The initial presumption that the respondents were all physically fit and free from any disease and in sound physical and mental condition at the time of their entry into service thus remains unrebutted. Since the disability has in each case been assessed at more than 20%, their claim to disability pension could not have been repudiated by the appellants.” 25. With due respect to the above decision, it must be observed that although the above decision relates to disability pension matters of the Army employees but the facts and circumstances of that case is similar to the facts and circumstances of the present case. So, the ratio of the above case is applicable to the present case. 26. Now, adverting to the present case, it is the case of the petitioner, while entering into the service in CRPF, was not suffering from psychosis/psychotic disorder and his ailment only started in the year 2002. As it appears, the disease psychosis/psychotic disorder only was diagnosized as per treatment records but for Schizophrenia, there is no treatment records produced by the opposite parties except a list of disease with dates for which the petitioner got treated. So, the disease of Psychosis/psychotic disorder is considered as petitioner was suffering. The opposite parties have taken a plea that the disease suffered by the petitioner is not attributable to the Government service. So, the disease of Psychosis/psychotic disorder is considered as petitioner was suffering. The opposite parties have taken a plea that the disease suffered by the petitioner is not attributable to the Government service. As there is no material or document placed by the opposite party to show that the petitioner was suffering from Psychoneurosis or the psychosis disorder or Schizophrenia at the time of entry into service, it must be presumed that he had entered into service as a normal man. 27. The opposite parties have issued the order vide Annexures-3 and 4 to the writ petition stating that the petitioner was suffering from Chronic Psychiatric illness (Schizophrenia) basing on the report of the Medical Board dated 25.5.2004 and the same was accepted as a final opinion towards the disease. When there are documents of treating doctor vide Annexures-1 and 2 certifying that the petitioner was suffering from psychosis/psychotic disorder, any change of his treatment as opined by the opposite parties, the onus lies on the opposite parties to prove the same. No document of any Medical Board dated 25.5.2004 upon which the opposite parties relied upon has been produced by the opposite parties to prove the same as the basis for issuance of the order dated 2.7.2004 to declare the petitioner invalidate from service and allowing him only the invalidation pension. 28. The disease psychosis refers to an abnormal condition of the mind described as involving a “loss of contact with reality”. People with psychosis are described as psychotic. People experiencing psychosis may exhibit some personality changes and thought disorder. Psychosis is a sign of psychiatric disorder is a diagnosis of exclusion. Psychotic disorder are a group of serious illness that affect the mind. Psychosis or Psychotic disorder includes the Schizophrenia and other kinds of disorders. Thus, the psychosis or psychotic disorder is considered are genus whereas Schizophrenia is a species. Therefore, the contention of the learned counsel for the opposite parties that the petitioner having suffered from Schizophrenia cannot be said to have suffered from psychosis and psychoneurosis and, therefore, not covered under the definition of disease to receive the disable pension is not correct. Since psychosis and psychoneurosis includes the Schizophrenia, the Court is of the considered view that the petitioner was suffering from disease psychosis and psychoneurosis as per the “disease” under EOP Rules. 29. Since psychosis and psychoneurosis includes the Schizophrenia, the Court is of the considered view that the petitioner was suffering from disease psychosis and psychoneurosis as per the “disease” under EOP Rules. 29. In the case of Secretary, Ministry of Defence and others –V- Damodaran A.V. (Dead) through LRs and Others; (2009) 9 SCC 140 where Their Lordships have decided the case on pension regulation of the Army and stressed on the opinion given by the doctor of the Medical Board which should be given weightage and primacy in the matter for ascertaining of illness was due to or was aggravated by military service which attributed to invalidation from the military service. In absence of any report of the Medical Board relied upon by the opposite parties that the letter of the opposite parties under Annexures-3 and 4 denying the disability pension to the petitioner because of such opinion of the Medical Board which is not produced before this Court cannot be acceptable. 30. Not only this but also it appears from the counter that the petitioner has served for 16 years while he was invalidated from the service. After serving about ten years, the petitioner suffered from psychosis/psychotic disorder and it is upon the opposite parties to prove that such disease is not attributable to Government service. No material is produced by the opposite parties that such disease was not attributable to Government service. On the other hand, when the petitioner was serving in the CRPF and managed to work continuously for ten years and then suffered from such disease, it must be observed that the petitioner was suffering from psychosis/psychotic disorder, a disease as prescribed in the Schedule-1-A of the EOP Rule by virtue of which he was invalidated from service and eligible to receive the disability pension as per Government of India Decision No.1, Appendix-3 because it is attributable to Government service as observed above. 31. In the instant case, when there is no report of the Medical Board produced by the opposite parties, there is nothing to show that the petitioner has entered into service being suffered from any disease as recorded by the Medical Board which could have been revealed at the time of entering into service, it must be observed that the disablement of the petitioner has been attributable to or aggravated by Government service in CRPF. 32. 32. As per clause-ii of Sub-Rule-1(a) of Rule-3-A of EOP Rules, the disablement is accepted due to Government service if it is found that the disease existed before or arose during Government service and has been and remains aggravated thereby. In the instant case, as per discussion made herein, it is made clear that the petitioner has entered into service as a normal man, but in the year 2002, he suffered from psychosis/psychotic disorder which arose during the Government service. Thus, the disablement of the petitioner arose during the Government service, i.e., after entering into service. Not only this but also, such disease has remained aggravated for which he was allowed invalidate pension. Thus, the pre-conditions as required to accept the disablement of the petitioner in terms of clause-ii of Sub-Rule-1(a) of Rule-3-A of EOP Rules became satisfied. In toto, the disablement of the petitioner has been proved to be attributable to or aggravated by Government service in CRPF as per clause-(i) and his disablement shall be also accepted as due to Government service as per clause-ii of Sub-Rule-1(a) of Rule-3-A. Point No.1 is answered accordingly. CONCLUSION 33. In the instant case, the wife of the petitioner has made representations to the authority for granting disability pension but the opposite parties after granting invalidate pension has refused to grant disability pension without hearing the petitioner or his wife when the petitioner is suffering from Psychosis and Psychoneurosis disorder and the wife of the petitioner all along has submitted that such disablement occurred due to the Government service and as per above observation that the petitioner was disable being attributable to the Government service and it occurred during Government service, the rejection of the representation by the opposite parties vide Annexure-6 is illegal and improper and the same is liable to be quashed and this Court do so. 34. The opposite parties are hereby directed to grant disability pension to the petitioner under CCS (EOP) Rules as per Government of India Decision No.1, Appendix-3 proportionately to his disability of 70% from the date of discharge from service in addition to his invalidate pension already sanctioned by the opposite parties within a period of two months from today. The writ petition is disposed of accordingly.