Ex. Lnk Gordhan vs Union Of India (Uoi) And Ors.
2001 Latest Caselaw 1712 Del

JUDGMENT

Vikramajit Sen, J.

1. Common questions of law arise in both these writ petitions - viz. - whether the Chief Controller of defense Accounts (Pensions), Allahabad, Uttar Pradesh, can refuse to release disability pension to a person who has been Discharged form the Armed Forces pursuant to the recommendation of it Release Medical Board.

2. In C.W.P. No. 2010 of 2000 the Petitioner had joined the Army as a Gunner in August, 1983. His first hospitalisation took place in 1996 and he was placed in the category CEE(P) in February, 1997. In the Counter Affidavit filed by the Respondents contradictory stands have been taken as would be apparent from a reading of paragraphs 2 and 3 thereof.

"2. IAP-4303, Appendix 'D' of para 4.4.18 prescribes occasions for Medical Boards in respect of Airmen. Sl. No. 09 of the above said Appendix 'D' clearly stipulates that at the time of retirement if in lower medical category or if a disease/disability is detected, a Release Medical Board is required to be held in respect of Airmen and the same is to be approved by DMS (Air) Accordingly, in the instant case a Release Medical Board was also conducted on 11 Feb 91 for disease 'Bronchial Asthma' at the time of petitioner's discharge from IAF. The Release Medical Board had assessed petitioner's disability as 30% for two years. Accordingly, petitioner's claim for grant of disability pension was taken up with Pension Sanctioning Authority [i.e. CCDA (Pension) Allahabad (Respondent No. 3)] for adjudication in consultation with Medical Advisor (Pension) attached to them. On adjudication, Pension Sanctioning Authority [i.e. CCDA (Pension) Allahabad (Respondent No. 3)] had accepted the petitioner's claim and accordingly, the petitioner was sanctioned with disability pension for two years. For further constitution of disability element of disability pension, the Re Survey Medical Board was conducted at Base Hospital Delhi Cantt on 01.02.95 and he was re-assessed 30% disability for five years.

Accordingly, petitioner's claim for grant of disability pension was again taken up with Pension Sanctioning Authority [i.e. CCDA (Pension) Allahabad (Respondent No. 3)] for adjudication in consultation with Medical Advisor (Pension) attached to them. On adjudication, Pension Sanctioning Authority [i.e. CCDA (Pension) Allahabad (Respondent No. 3)] had accepted 20% of disability for 03 years and the same was notified vide Pension Payment Order No. 08/14/B/08378/11996. However, the petitioner was not satisfied with said reduction of CCDA (Pension) and filed a Civil Writ Petition No. 3939 of 1997 before this Hon'ble Court. Respondents received the petition on 24.09.1997. The matter was decided on 22.09.1997 without the Counter Affidavit on the day when Govt Counsel Mr. Satish Kumar had accepted the Notice. A copy of the Judgment is annexed as Annexure 'R-1.' Accordingly, in pursuance to the Hon'ble Court's direction, the petitioner was sanctioned with disability element of disability pension @ Rs. 165/- pm for 30% disability for 02 years vide Pension Payment Order No. 08/14/B/746/1998.

3. On expiry of stipulated period, a Re Survey Medical Board in respect of the petitioner was conducted at Base Hospital Delhi Cantt on 13.11.98 and he was assessed 30% disability for five years. Accordingly, petitioner's claim for grant of disability pension was again taken up with Pension Sanctioning Authority [i.e. CCDA (pension) Allahabad (Respondent No. 3)] for adjudication in consultation with Medical Advisor (Pension) attached to them. On adjudication, Medical Advisor (Pension) attached to CCDA (Pension) Allahabad (Respondent No. 3)] had accepted 20% of disability for 05 years and the same was communicated vide CCDA letter dated 04.03.99.

Accordingly, the same was notified vide Pension Payment Order No. 08/14/B/301/1999. A copy of the said Pension Payment Order No. 08/14/B/301/1999. Copy of the said Pension Payment Order No. 08/14/B/301/1999 is annexed as Annexure 'R-2-. It is pertinent to mention that as per Rule 17(b) of the Entitlement Rules for Casualty Pensionary Awards 1982 as amended vide Government of India, Ministry of defense letter No. 1(1)/81/D (Pen-C) dated 21.06.96, the findings of the Medical Boards are recommendatory in nature, shall be reviewed by the Competent Medical Authority at the time of consideration of disability pension claim. The Medical Advisor (Pension) attached to CCDA (Pensions) are appointed by the Director General of Armed Forces Medical Services, who are of the rank of Joint Director Armed Force Medical Services, are the Competent Medical Authority. They may for reasons to be recorded in writing, alter or modify the recommendation of Release Medical Board (as in the case of petitioner). The Medical Boards functioning in various military hospitals can not be expected to be uniform in their assessment of disability and also on the military service, the Joint Director Armed Forces Medical Services who is an officer under the Director General of Armed Forces Medical Services attached as Medical Advisor (P) in the Office of the Principal CDA(P) Allahabad ensures consistency in assessment of disability and uniform application of the Entitlement Rules. The office of the Principal CDA(P) Allahabad shall on all Medical issues consult Competent Medical Authorities. Accordingly, the Re Survey Medical Board of the petitioner was got adjudicated by the Competent Medical Authorities and they opined that I.D.

BRONCHIAL ASTHMA is static and assessed at 20% for five years. A copy of opening sheet containing opinion of the Medical Advisor (Pension) is enclosed as Annexure 'R-3'. Thus, the decision of the Pension Sanctioning Authority (i.e., Chief Controller, of the defense Accounts (Pensions) Allahabad) are legal as the same are in accordance with provisions stipulated in the Rule 17 of the above said Entitlement Rules to Casualty Pensionary Awards to the Armed Forces Personnel, 1982.

Further, in term of para 17(a) of the Entitlement Rules to Casualty Pensionary Awards to the Armed Forces Personnel, 1982, "the Medical Advisor (Pension)/Jt. Dir. AFMS (Pension) attached to the Office of Chief CDA (Pensions) is the competent authority in respect of airmen (i.e. the petitioner is an airman) for giving medical opinion on the aspects of assessment of disability and acceptance of death/disablement due to causes attributable to/aggravated by military service." Further, Rule 17(b) of the abovestated Entitlement Rules stipulates that "At the time of invalidment/release of a service personnel medical views on attributability/aggravation and degree of disability shall be given by the invaliding Medical Board (IMB)/Release Medical Board (RMB). The findings of the IMB/RMB/RSMB which are recommendatory in nature, shall be reviewed by the Competent Medical Authority at the time of consideration of initial Claim/Appeal for grant of disability pension. The Competent Medical Authority may for reasons to be recorded in writing, alter or modify the recommendations of IMB/RMB/Lower Medical Authorities." Rule 17(c) of the said Entitlement Rules provides that "The competent medical authorities after review of the IMB/RMB/RSMB proceedings/findings of the lower Medical Authorities, study of related medical/service documents, the clinical profile recorded and keeping in mind the actiology and nature of disease, shall evaluate the role played by service factors in the onset/progress of the disability. The recommendations of the competent medical authority as accepted by the Pension Sanctioning Authorities i.e., Chief CDA (Pension)/Ministry of defense shall be final with regard to the entitlement and assessment of disability for the purpose of grant of disability pension." A copy of relevant rules is annexed as Annexure 'R-4.'

3. At the time of hearing I had pointedly enquired from Counsel for the Respondents which party they were representing since if the stance of the CCDA (Pension) was being defended, it would have the consequence of assailing the recommendations of the Release Medical Board, and this would possibly lay the foundation for a challenge to the release/discharge of the Petitioner. Learned counsel for Respondents had even in these circumstances argued in favor of sustaining the order of the CCDA (Pension). The incongruity in the defense cannot be appreciated.

4. In C.W.P. No. 5823/2000 the Petitioner was enrolled in the Indian Air Force on 30.7.1971 and was placed in Medical Category CEE (T-24) in March 1989. In February 1991 he appeared before the Release Medical Board and was recommended to be released in Medical Category BEE Permanent with a recommendation of 30 per cent disability. He was Discharged from service with effect from 1.8.1991 and Disability pension of Rs. 165/- per month was sanctioned from August 1991 to February 1996. On 29.11.1995 the Petitioner again appeared before the Re-Survey Medical Board (RSMB) whose recommendation was that the disability had remained unchanged. Inexplicably, however, disability pension was reduced by the Respondent by an order dated 19.6.1996. This constrained the Petitioner to file C.W.P. 3939 of 1997 in this Court. This writ petition was disposed off by Order dated 22.9.1997 of Hon'ble Ms. Justice Usha Mehra, who had observed that "the CCDA (Pension) Allahabad had no power to reduce the disability of the official who had been examined by a duly constituted re-survey medical board and found that his disability remained unchanged i.e. 30%. The Medical Advisor (Pension) could not change it to be 20% at his discretion. The impugned order is accordingly set aside. Directions are given to the respondents to pay to the petitioner the disability pension at the same rate i.e. Rs. 165/- per month. The arrears be worked out and paid to petitioner within four weeks." The Re Survey medical Board of the Petitioner took place at Base Hospital, Delhi Cantt, in November 1998, and his condition was reported as - "Patient's condition has remained static since last seen." In view of this opinion of the RSMB the position remained that the Petitioner continued to suffer thirty per cent disability. The Medical Advisor (Pensions) has reduced the disability element to 20 per cent. Accordingly the pension now stands reduced to Rs. 110/- for the period from 1.12.1998 to 16.11.2003 in terms of letter dated 1.6.1999 (Annexure P-7). It is this order which is under challenge. In the Counter Affidavit it has been pleaded that "the Re Survey Medical Board of the Petitioner was got adjudicated by the Competent Medical Authorities". The catena of judgments clarifies that this so called adjudication which tantamounts to the Medical Advisor (Pensions) assuming an Appellate jurisdiction, is impermissible.

Ms. Sujata Kashyap, learned counsel for the Respondents had rested her case on the arguments addressed by Mr. A.K. Srivastava, learned counsel for Respondents in C.W.P. 2010/2000. The stand/submission made in the Counter Affidavit filed in C.W.P. 5823/2000, inter alia, is "that entitlement of disability can only be assessed by the Competent Medical Authority who is Medical Advisor (Pension) attached to C.C.D.A. (Pension) Allahabad. The Medical Advisor (Pension) attached to C.C.D.A. (Pensions) are appointed by the Director General of Armed Forces Medical Services, who are of the rank of Joint Director Armed Force Medical Services, are the Competent Medical Authority. They may for reasons to be recorded in writing, alter or modify the recommendation of Release Medical Board (as in the case of Petitioner). The Medical Boards functioning in various military hospitals cannot be expected to be uniform in their assessment of disability and also on the military service, the Joint Director Armed Forces Medical Services who is an Officer under the Director General of Armed Forces Medical Services attached as Medical Advisor (P) in the Office of the Chief CDA (P) Allahabad ensures consistency in assessment of disability and uniform application of the Entitlement Rules. The Office of the Chief CDA(P) Allahabad shall on all Medical issues consult Competent Medical Authorities. Accordingly, the Re Survey Medical Board of the petitioner was got adjudicated by the competent Medical Authorities and they opined that I.D. BRONCHIAL ASTHMA is static and assessed at 20% for five years (Annexure 'R-3')."

5. Different Division Benches of Punjab & Haryana High Court have held that the disability indicated by the concerned Medical Board must be accepted by the C.C.D.A. (Pension). This has been so held in Ashwani Kumar (Ex-Havildar) v. Union of India, 1997 (1) SLR 87. The same views have been expressed in Ujaggar Singh v. Union of India, 1997 (4) RSJ 587. A Division Bench of this Court has also considered the very same question in Raghubir Singh v. Union of India and Anr., . My Learned Brothers had also relied on the decision of the Hon'ble Supreme Court in Mohinder Singh v. Union of India (Civil Appeal No. 164 of 1993 decided on 14.1.1993) and held that the C.C.D.A. (P) had no power to override the opinion of the Medical Board which had discharged the Petitioner from service with 30% disability. The writ petition was allowed with costs of Rs. 2000/-.

6. It may be recalled that a Single Judge of this Court has already allowed the earlier petition of Shri Ram Kanwar. Single Benches of Punjab & Haryana High Court have held in Darshan Singh v. Union of India, 2001 (2) SCT 813, Baldev Singh v. Union of India etc., 2001 (2) SCT 807, Ex-Sepoy Hari Chand v. Union of India, 2001 (2) SCT 525, Ajmer Singh (Ex. Sigmn) v. Union of India and Ors., 2001 (1) SLR 461, Surmukh Singh v. Union of India, 1994 (4) SCT 31 and Ex. Subedar Clerk Nirmal Singh v. Union of India, 1999 (4) SCT 810 that it was not open to the C.C.D.A. (Pension) or the Appellate Authority to record an opinion contrary to the Re-Survey Medical Board, or the Medical Board concerned without re-examination.

7. Apart from Division Benches of different High Courts, and various pronouncements of Single Judges of different High Courts, the Hon'ble Supreme Court has now given a final and definitive judgment on the question in Ex. Sapper Mohinder Singh v. Union of India (Civil Appeal No. 164 of 1993) decided on 14.1.1993 wherein it has observed as follows:

"From the above narrated facts and the stand taken by the parties before us, the controversy that falls for determination by us is in a very narrow compass viz. whether the Chief Controller of defense Accounts (Pension) has any jurisdiction to sit over the opinion of the experts (Medical Board) while dealing with the case of grant of disability pension, in regard to the percentage of the disability pension, or not. In the present case, it is nowhere stated that the petitioner was subjected to any higher medical board before the Chief Controller of defense Accounts (Pension) decided to decline the disability pension to the petitioner. We are unable to see as to how the accounts branch dealing with the pension can sit over the judgment of the experts in the medical line and comment upon the extent of disability without making any reference to a detailed or higher medical board which can be constituted under the relevant instructions and rules by the Director General of Army Medical Core."

8. From the above analysis it is at once evident that the matter is no longer res integra. It cannot, therefore, be appreciated that the C.C.D.A. (Pension) continues to implement its own view, which is contrary to these judgments. The effect of this obduracy on the part of the C.C.D.A. (Pension) is that there is proliferation in litigation which is wholly avoidable tests the resources of ex-servicemen and wastes the time of the Courts. It exposes a lack of compassion and concern for human plight especially of persons who have suffered these disabilities while in the service of the Armed Forces. An attitude such as has been exemplified by the C.C.D.A. (Pension) is deleterious and demoralising for persons who have served in the Armed Forces, fully aware of the dangers that are endemic in the performance of their duties. Rather than extending care, there appears to be a concerted effort towards harassment. That too when the amounts in question are not insignificant.

9. C.W.P. 2010/2000 is allowed and the Respondents are directed to release the disability pension to the Petitioner within four weeks from today in consonance with the extent Directions issued by Government of India from time to time, including that of the 5th Pay Commission. The Petitioner shall be entitled to costs of Rs. 5000/-.

10. In C.W.P. 5823/2000 it will be recalled that Ms. Sujata Kashyap, learned counsel for Respondents had stated that reliance will be placed on the arguments of Mr. A.K. Srivastava, learned counsel for Respondents in C.W.P. 2010/2000. It will also be recalled that stance of the Respondents even in C.W.P. 5823/2000, as extracted from the Counter Affidavit was that the C.C.D.A. (Pension) can adopt an opinion different from that of the Medical Board concerned, which stand is contrary to the pronouncements of the Hon'ble Supreme Court. Respondents are directed to pay the disability pension of Rs. 165/- per month at the rate of 30% disability and not Rs. 110/- per month at the rate of 20% disability in accordance with the extant Directions issued by Government of India from time to time, including of the 5th Pay Commission. In this case the Petitioner has already been left with no option but to approach this Court on the second occasion. Writ Petition 5823/2000 is allowed with costs of Rs. 5000/-.

11. A copy of this Judgment should be placed before the Chief of Army Staff as well as Chief of the Air Staff for their perusal since the policy adopted by the C.C.D.A. is not only deleterious and demoralising for the Armed Forces but is contrary to repeated pronouncements of different High Courts as well as the Hon'ble Supreme Court.