Ravi Dutt (Ex.L.Nk.) vs Union Of India & Ors.
1998 Latest Caselaw 635 Del

JUDGMENT

Devinder Gupta, J.

1. Petitioner's grievance is that he has illegally been deprived of the disability pension and has prayed for direction against respondent to grant him disability pension, in addition to his service element pension, from the date of his discharge with CRPF, after quashing of the orders dated 28.9.1995 and 8.4.1995 (Annexure P1 and P2 espectively).

2. The facts in brief, as stated in the reply filed by the respondents on the affidavit of R.M. Khan, Commandant, 52 Battalion, CRPF, are that the petitioner was enrolled in CRPF on 25.5.1981 and on 22.6.1993 was posted back, on transfer from 83 Battalion CRPF to 52 Battalion CRPF. When he was posted in F. Company at Jammu, he remained on sick report from 7.7.1993 to 9.7.1993 and again on 27.8.1993, whereafter he started complaining about loss of hearing. He was sent to Station Hospital, Bantalab, Jammu on 11.9.993 and was declared temporarily unfit. He was referred to Base Hospital No.1, CRPF, New Delhi on 20.9.1993 for further treatment. After due examination and treatment, Chief Medical Officer referred the petitioner to Ram Manohar Lohia Hospital and All India Institute of Medical Sciences for specialised treatment and ultimately, the Chief Medical Officer, B.H.I., New Delhi returned the petitioner to 52nd Battalion on 23.10.1993 with his opinion that the petitioner was unfit for further service w.e.f. 10.10.1993. Petitioner's case for invalidation was initiated and after medical examination, he was declared completely and permanently unfit for service of any kind in the department to which he belongs, namely, CRPF, in consequence of BILATERAL SENSO NEURAL HEARING LOSS. He accordingly was invalided out from service w.e.f. 27.7.1994 through Office Order of the same date.

3. In the light of the aforementioned facts, petitioner's case is that on 21.2.1994 Board of three doctors of Capital Hospital, Bhubaneshwar declared his disability as hundred per cent for which the petitioner has placed reliance on document dated 21.2.1994 (Annexure P4) and it is alleged by him that the order dated 27.7.1994 (Annexure P7) is an order passed by his department declaring him completely and permanently incapacitated for further service in CRPF. Despite various representation, he has not been allowed disability pension, merely on the ground that the Board of Officers has not declared his disability as hundred per cent. This claim was rejected on the basis of two letters, which are sought to be quashed, as aforementioned.

4. The respondents' stand is that though the petitioner was invalided out of service w.e.f. 27.7.1984 as the Medical Board detailed by the Additional DIGP, Bhubaneshwar, who examined the petitioner had declared him completely and permanently incapacitated for further service of any kind in the department to which he belongs; the Board, however, had not certified him as hundred per cent disabled. Disability pension is available only to such of the candidates, who are certified by the Medical Board as being hundred percent disabled. Reply further states that the petitioner had never been advised/directed to appear before the Medical Board at Capital Hospital, Bhubaneshwar. The petitioner had submitted only photocopy of disability certificate signed by three doctors of Capital Hospital, Bhubaneshwar, but failed to submit the original certificate. As such, the petitioner was not allowed disability pension.

5. We heard learned Counsel for the parties and were taken through the record. On careful consideration of the respectful submission made, we are of the view that the respondents' act in denying to the petitioner disability pension is wholly unjustified, illegal and contrary to the record. Annexure P4 which is a disability certificate dated 21.2.1994 reads:

"DISABILITY CERTIFICATE Certified that as per the definition, given by Ministry of Welfare, Government of India, Gazette Notification No. 4-2/83, H.W. III dated 8th August, 1986, Shri Ravi Dutt s/o Rattan Lal Resident of Narnol, Distt. Issar is a physically handicapped.

He/she suffers from Bilateral deafness forthy accident He/she comes under the category of hearing handicap. His/her percentage of disability is 100%.

     Recommended for physical Restoration
     Sd/-                                    Sd/-
     21/2/94                                 21/2/94
     C.D.M.O./C.M.O./S.D.M.O.                Specialist in 
     with seal & date         with seal & date
                              Specialist, ENT                   
                              Capital Hospital
                              Bhubaneshwar
     Sd/-
     21/2/94
     Asst. Surgeon
     Capital Hospital
     Bhubaneshwar
     Write Visually/Hearing/Locomotor/Mental/
     Leper Negative"
 

6.   Annexure  P5 is the petitioner's identity card issued by the  Superin-
tendent  of  the Vocational Rehabilitation Centre  for  Handicapped,  which 
reads: 
   

     "GOVERNMENT OF INDIA Ph. 406375 

     MINISTRY OF LABOUR, DGE&T. 

     VOCATIONAL REHABILITATION CENTRE FOR  

     HANDICAPPED, SIRD CAMPUS, UNIT-VIII, 

     BHUBANESHWAR-751012. 

     IDENTITY CARD
 

 Deafness of both ears Percentage 100 

     Name & Address: Shri Ravi Dutt S/o Shri  

     Ratan Lal, 52 CRPF, Bhubaneshwar
 

     3. Intake No. KHD/63/o/94 

     4. Registration No. 17179  

     5. Age 32 years 

     6. Date of admission 22-2-94 

     7. Caste General 

     8. Date of Discharge 22-2-94  

     9. N.C.O. - 

     10. Rehabilitation Plan
      

Note:      1.  Please bring this card whenever called at VRC. 
 

2. Mention your intake No./ Registration No. whenever making any correspondence to the Centre.

      Sd/-                                    Sd/-
     Signature of client                     Superintendent"
     

 

On the same date 21.2.1994, certificate (Annexure P8) was issued to the petitioner, which reads:

"DISABILITY CERTIFICATE

Certified that as per the definition given by Ministry of Wel fare, Government of India, Gazette Notification No. 4-2/83 HW III dated 6th August, 1986 Sh. Ravi Dutt, S/o Sri Rattan Lal Resident of G.C. CRPF Bantalab (J&K) is a handicapped. He suffers from Hearing Handicapped. His percentage of disability is 100%.

Recommended for physical Restoration.

Sd/-

Signature of Specialist

Specialist Capital Hospital,

Bhubaneshwar"

The order of discharge (Annexure P7) reads:

"OFFICE OF THE COMMANDANT 52 BATTALION, C.R.P.F. C/O 56 A.P.O.

No. P.III 294-EC-IV-52 Dated, the 27 July, 1994

OFFICE ORDER

No. 810702381 L/NK Ravi Dutt of F/52 Bn CRPF who has been declared completely and permanently incapacitated for further service in the CRPF, by the Board of Medical Officers of GC, CRPF, Bhubaneshwar, in consequence of 'BILATERAL SENSO NEURAL HEARING' vide Medical Certificate dated 27.6.94, is hereby invalidated out from service with effect from 27.7.94 (FNO. 2. Under the authority of Rule 20(1)(b)(ii) of CCS (Leave) Rules and Rule 5(3) of CCS (Medical Examination) Rule, 1957, read with DD (Adm), CRPF, letter No. P.III. 4/82-Adm.II dated 13/7/82, the period from the date he was declared unfit for further service by CMO, BH-I, CRPF, New Delhi to the date he has been declared completely and permanently incapacitated for further service in CRPF by the Board of Medical Officer at GCBBSR and notice period under Rule 5(2)(A) of CCS (Medical Examination Rules, 1857) till the date of actual retirement i.e. 11.10.93 to 26.6.94 (259 days)and 16.7.94 to 26.7.94 (11 days) is hereby regularised as Leave Kind Due.

3. The intervening period (between the date of signing the Medical Certificate and the date of receipt of the certificate)i.e. 27.6.94 to 15.7.94 (19 days) is treated as period spent on duty.

Sd/-

F.J. Baba

Commandant"

7. On 26.9.1995, certificate (Annexure R1) was issued by the Joint Assistant Director, Welfare Directorate General, CRPF stating:

"DIRECTORATE GENERAL, CRPF BLOCK NO.1, CGO COMPLEX, LODHI ROAD,

NEW DELHI-110003.

No. RF-13/95-Adm. II Dated, the 26th Sept. '95

SANCTION ORDER

Under the authority of Dt. Genl. letter No. RF-3/85-86-a Adm. II ated 11.3.86, RF.3/81-88-Adm. II dated 2.6.88, read with Dt. Genl. CRPF Office Order No. RF-3/81-90-Adm. II dated 21.4.93 and Circular Order No.28/89, No. 010702381 LNK Ravi Dutt of 52 Bn CRPF who has been invalidated out from service w.e.f. 27.7.94 (FN) in consequent of 100 per cent disablement "BILATERAL SENSO NEURAL HEARING LOSS" is hereby sanctioned recurring payment of Rs. 1,000/- (Rupees one thousand) only per month from Risk Fund for his life time. If he dies after being invalidated out from service but before getting payment for 20 years, payment will be made to his wife Smt. Kela Devi for the balance period of 20 years at the normal rate of Rs.400/- (Rupees four hundred) only per month.

(Surat Singh)

Jt. Asst. Director (Welfare)"

8. Reading of the aforementioned certificates coupled with the order of discharge and certificate dated 26.9.1995 would make it clear that the petitioner had been invalided out of service consequent upon hundred per cent BILATERAL SENSO NEURAL HEARING LOSS. The respondents have not disputed the correctness of invaliding certificate dated 21.2.1994 (Annexure P4) or the fact that such a certificate was issued in his favour, when he was admitted in the Vocational Rehabilitation Centre for Handicapped at Bhubaneshwar or the fact that the three specialists of the Capital Hospital, Bhubaneshwar issued certificate (Annexure P4) declaring his disability to be hundred per cent. Consequently, we are of the view that the respondents' act in denying to the petitioner disability pension on the ground that Board had not declared him completely and permanently incapacitated declaring him disabled as hundred per cent, is wholly unjustified. The espond-

ents have not produced the proceedings of the officers of the Board, who declared the petitioner unfit for further ervice. The certificate (Annexure P4) is prior to the date of his discharge. Obviously, certificate

(Annexure P4) must have formed part of the Board proceedings on which petitioner was declared unfit. The mere fact that in subsequent proceedings, Board did not incorporate disability to be hundred per cent though in February, 1994, disability had been assessed to be hundred per cent, will not make any difference.

9. Accordingly, we allow the writ petition and declare the respondents' action to be unjust. The impugned orders (Annexures P-1 and P-2) are struck down further holding the petitioner entitled to disability pension in accordance with law from the date of his discharge. The amount of arrears will be worked out and paid to the petitioner within a period of three months from the date of receipt of the writ order from this Court along with interest at the rate of 10% p.a. on the amount of arrears, due and payable to the petitioner.