Jc 264149M Ex. Naib Sub Marut ... vs Union Of India (Uoi) And Ors. ...
2006 Latest Caselaw 1143 Del

JUDGMENT

Swatanter Kumar, J.

Page 2866

1. Simple but a pertinent question, as to the ambit and scope of the power exercisable by Principal Controller of defense Accounts (P) (in short PCDA(P)) while dealing with the request of the member of the Armed Forces for grant of disability pension, arises for consideration in the present case. Despite the fact that this question has already been answered by the Courts in favor of the petitioner, the respondents still persist with the view that PCDA(P) can ignore the findings of the Medical Board duly forwarded to it in AFMSF-16 and substitute its own findings in that regard. This patently is progression of the jurisdiction vested in PCDA(P) in accordance with the relevant provisions. In the case of Controller of defense Accounts (Pension) and Ors. v. S. Balachandran Nair , a clear principle was laid down that where a medical opinion has been prepared in accordance with the provisions of the Act satisfying the ingredients of the statutory rules particularly Appendix-II and attributability contemplated under regulation 423, the view of the medical board would have to be respected and would determine the fate of an applicant claiming disability pension. Once, the medical board gives an opinion that satisfies the basic ingredients of Rule 173 of the Pension Regulations for the Army, 1961 i.e. the disability suffered by the person subject to armed force is 20 per cent and above and is attributable or aggravated by military service, then normally such opinion would entitle the person for receipt of disability pension unless there were reasons for denying such claim which are indicated in the Act or the regulations itself. The Page 2867 procedure contemplated under law is that where in the opinion of the medical board a person subject to Army Act and Rules should be invalided out of army service as having earned a disability of 20 per cent and above which is attributable or aggravated by the army service, such opinion will be forwarded to the Commanding Officer or such authority competent to pass an appropriate order and sanction the disability pension, unless it has reasons to differ with the findings of the medical board where it may choose to refer the matter to the appellate board constituted in accordance with the regulations or once the pension is sanctioned then it is sent to the PCDA(P) for issuance of PP order and disbursement of the pension in accordance with rules. The scope of power of PCDA(P) is a very limited and normally it would hardly have any jurisdiction to sit over the findings of the medical board. In a given case, it may refer the matter to a medical specialist, as envisaged under the army instructions but exceptions apart, as a matter of rule, the PCDA(P) would be bound by the findings of the medical board and would be obliged to carry out its responsibility in issuing the PPO and disbursement of pension to the concerned member of the force. The ambit and scope of its power has been subject matter of controversy for quite some time. However, this question is no more res integra and is answered squarely by various pronouncements of different courts.

2. In the case of Janak Raj v. Union of India and Ors. CWP No. 16976 of 1998 decided on 23.12.1999 by the Punjab & Haryana High Court 2000 (1) RSJ 706 wherein the medical board had opined that the disease was aggravated due to stress and strains of army service and disability of the petitioner was assessed at 40% and the CDA had refused to sanction the disability sanction being not attributable to army service, the court held as under:

The short question that falls for consideration of this Court in the present writ petition whether the findings of the medical board could be altered to the prejudice of the petitioner by the C.D.A. and could the C.D.A. sit in judgment over the findings recorded by the medical board. This question is quite settled and does not call for any detailed discussion on the subject. It is a settled principle of law that the C.D.A. is not an expert body in regard to the determination of extent of medical disability or its attributability or aggravation to the military service. At this stage it will be appropriate to refer to the judgment of this Court in the case of Ujagar Singh v. Union of India and Ors. 1997 (4) Recent Service Judgments 587 where after detailed discussion, it was held as under:

From the above narrated facts and the stand taken by the parties before us, the controversy that falls for determination by us is 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 no where 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 Page 2868 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 Corp.

Somewhat similar defense was raised on behalf of the Union of India before the Hon'ble Apex Court in the case of Ex. Sapper Mohinder Singh v. Union of India, Civil Appeal No. 164 of 1993 decided on 14th January, 1993, where the Court held as under:

We have examined the relevant materials and we do not feel satisfied with the plea taken in the counter affidavit. No details of the consultation has been disclosed by the respondent nor it is claimed that the appellant has been re-examined by any higher medical authority. We are not prepared to set on the vague allehgations in the counter affidavit referred to above. In view of all the relevant circumstances of the case we are of the opinion that the Disability Pension assessed at the rate of 40% by the Medical Board which had examined appellant, should be respected until fresh Medical Board examined the appellant again the reached different conclusion.

An identical stand was taken by the Union of India in the case of Mam Raj v. Union of India CWP No. 2302 of 1997 decided on 10.9.1996 by this Court where this Court held as under:

Instruction No. 27 under the head of 'function and responsibilities' of Appendix II of these instructions at best empowers the Medical Authority so constituted to give its view about assessment of disablement restricted to the medical issues. The Medical Board (s) views and findings could be subject to any appellate view by the Director General, Armed Forces Medical Services whose view would be final. Nothing has been brought on record before us which would show that subsequent to the Medical Board, as a result of which the petitioner was discharged from Army was held by the competent authority and that gave any findings contrary to the view expressed by the earlier Medical Board.'

XXX XXX XXX

In view of the above settled principles and more particularly keeping in view the facts stated in the written statement itself this Court has no choice but to set aside the impugned orders as they suffer from any apparent error of lack of jurisdiction. As per rules C.D.A. Cannot sit in judgment over the findings of the medical board specially when the Government had referred the matter back to C.D.A. and sent reminders. In that event, the C.D.A. was expected to act in consonance with rules and settled law.

3. In the case of Ex. Sepoy Jagmel Singh v. UOI and Ors. CWP 12749/1998 decided on 16.3.2000 by the Punjab & Haryana High Court 2000 (3) RSJ 88 Page 2869 wherein the petitioner was denied the disability pension by the CDA(P) Allahabad vide their letter dated 12th September 1988 holding that the disability was less than 20 per cent and as such he was not entitled to receive disability pension, though the medical board, after 9 years of petitioner's service and while placing the petitioner under permanent medical low category EEE on the opinion of the surgical specialist, stated that disability was more than 20 per cent. In that case, the court held as under:

I have already noticed that the facts in the present case are hardly in issue and as far as the question of law is concerned that stood answered by the Division Bench of this Court in the case of Amar Nath v. Union of India and Ors. 1998 (1) All Instant Judgments, 478, where the court, after discussing the law in detail, held as under:

Once this certificate was issued in favor of the appellant entitling him to receive the disability pension, this benefit could not have been withdrawn by the Controller of defense Accounts (P), Allahabad on his own without holding appellate medical board in accordance with law. Exhibit D.3 while rejecting the claim of the appellant referred to period of 10 years previous of 25.6.1988 and disability being less than 20%. This was never put to the appellant prior to the passing of the order. If the appellant was entitled to the benefit in accordance with the rules on the strength of the disability certificate Ex.P.1, the appellant could not be divested of the same without following due process of law and after giving proper opportunity to the appellant which admittedly has not been done in the present case. The corollary to this main issue is as to whether the Controller of defense Accounts (P), Allahabad at all was justified in assuming the jurisdiction which is not vested in it under the rules. Under the relevant rules and instructions, the respondents have the authority to constitute an Appellate Board and disturb the findings arrived at by the first medical board which again was not done, it would not be permissible to disturb the findings without taking recourse to the relevant rules and instructions governing the subject.

XXX XXX XXX

Reference can also be made to the decision rendered in L.P.A. No. 82 of 1997 titled as Union of India and Ors. v. Ex. Captain Harbhajan Singh, decided on 25.4.1997. In the present writ petition, no details have stated in the counter affidavit filed on behalf of the Union of India nor any documents has been produced before us which could satisfy the above enunciated principles it has also been held that pension and likewise the disability pension is recurring cause of action and mere delay will not frustrate the claim of the petitioner.

Learned Counsel for the appellant has also relied upon the case of Ram Singh Jaggi v. Union of India and Ors. 1995(4) R.S.J. 807, where a Division Bench of the Himachal Pradesh High Court took the same view.

Page 2870

6. From the above settled principles of law, I have no hesitation in coming to the conclusion that the learned courts below have fallen in error in coming to the conclusion that the Controller of defense Accounts (P), Allahabad can disturb the findings of the medical board in the present manner. Admittedly, no evidence has been brought on record much less an expert evidence recorded by the medical officer to show that the finding recorded by the medical board where incorrect factually or otherwise.

7. Moreover, from the record, which has been produced by the learned Counsel for the parties, I find that a specific ground was raised before the learned first Appellant Authority that Controller of defense Accounts (P), Allahabad had no authority to express view contrary to the medical board. This contention has not been properly dealt with by the learned first Appellant Court. Keeping in view the instructions aforestated there is no escape from setting aside the contents of exhibit D.3 being against the rule and settled law.

Under para 17 (page 129 of the Army Pension Regulation Book placed on record), it is the Medical Adviser to the pension board, who is appropriate authority to opine upon such matters. There is no averment in the counter-affidavit that the Medical Adviser was consulted in the present matter and that he had acted in consonance with the principles of natural justice and had afforded an opportunity to the petitioner of being examined before alleged reduction of the disability from 25% to 20%. I find it unnecessary to discuss in some elaboration this controversy as it does not even arise in the present case. The respondents have not raised any such plea in the counter-affidavit nor any records were produced before the Court which could justify even this argument on the strength of record, as it is writ of Certiorari. Be that as it may, the CCDA(P) itself had admittedly no jurisdiction to upset findings recorded by a duly constituted medical board or re-survey medical board under the relevant rules. It is conceded that the medical board is headed by the officers of high ranks i.e. Lt. Col. and even above higher ranks depending upon member of the force who is subjected to such medical board. It still remains to be considered whether the opinion of a duly constituted medical board can be over looked or varied even by the Medical Adviser to the CCDA(P), who is the sole member and may be inferior in rank to the head of the medical board, who had examined the concerned applicant. Further, it will have also to be gone into and answered in an appropriate case whether the principles of natural justice would have to be adhered to before reduction of disability which has been certified by the duly constituted board or by any such authority except the appellate medical board which might be constituted at the request of either party in accordance with rules. These are the few doubts, which arise in the mind of the Court as ancillary question to the arguments raised by the learned Counsel for the Union of India but in the present case there is hardly a controversy and it is apparent on the face of the record and the respondent-CCDA(P) has exceeded it jurisdiction and authority in reducing the disability of the petitioner, who was subject to one medical board and two re-survey medical boards and all of them defined the disability of the petitioner more than 20%.

Page 2871

4. Still in another case titled as Suresh Chander Kesar v. Union of India and Ors. CWP No. 33/1999 decided on 2.3.2000 by the Punjab & Haryana High Court, the petitioner was placed by the medical board in low medical category EEE and was consequently discharged on medical grounds on 31.10.1989 with disability more than 20% as being aggravated by military service. The invaliding medical board was approved by ADMS HQ 16 Corps on October 11, 1989 and the petitioner was invalided from army. However on the objection of the CCDA(P) Allahabad, the disability pension was denied. In that case, the court while granting relief to the petitioner held as under:

Under Rule 173 of the Army Pension Regulations 1961 and disability pensionary award clearly provides that a disability pension would consist of service element and disability element. Such disability pension would be granted to a person who is invalided out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and disability being assessed at 20% or above. Rule 183 which confirms the above two elements as constituents of the disability pension, there it also provides for computation of such pension. There can be no dispute to the fact that the petitioner fulfillls all these qualifications. He has suffered a disability of 30 % (which is more than 20%) and was discharged from service on account of disability which was aggravated by military service.

In view of the above settled position of law, the regulations governing the subject and the stand taken by the respondents in the written statement/counter affidavit, I have no hesitation in allowing the writ petition. The respondent-CCDA(P) had no jurisdiction to reject and differ with the finding recorded by an expert body and that too without following the prescribed procedure and in violation of the principles of natural justice.

5. A Division Bench of this Court in the case of Ex.Ct. Jasbir Singh and Ors. v. UOI and Ors. while hearing a bunch of writ petitions also took the similar view. The dictum of the court is clearly reflected in the following paragraphs of the judgment:

7. We also hold that where a person is invalided out of service on account of lowering of his medical category it is incombent upon the respondents to inform the person concerned that he has been invalided out of service on account of lower medical category and inform the percentage of disability and/or disease so that he exercises his right, if so advised, to make an appropriate appeal to the authority concerned. In cases where the aforesaid procedure has not been followed and the petitioners who have been invalided out of service on account of lowering of medical category assessing percentage of disability to be more than 20% non-grant of disability pension to such petitioners by Controller of defense Accounts (Pension) is wholly arbitrary and illegal. We quash the said orders.

Page 2872

8. Similarly, in cases where a court of enquiry has been held with regard to any injury of a person and it has been held by the Commanding Officer that the injury sustained by the petitioner was attributable to military service and the person was placed in low medical category, orders passed by the Chief Controller of defense Accounts (Pension) summarily rejecting the disability claim without following the procedure, as mentioned in Shri Bhagwan's case (supra), suffers from infirmity and the same are hereby quashed.

6. Reference can also be made to another judgment of the Punjab & Haryana High Court in the case of Ramesh Kumar Sharma v. Union of India and Ors. 2004 (2) SCT 870 : 2004 (2) RSJ 116 where the court held as under:

7. We have examined the relevant material and do not feel satisfied with the plea taken by the respondents in their reply. A perusal of the report, dated 10.12.1999 (Annexure P/1), clearly shows that at the time of joining the military service the petitioner did not suffer any disability and the Medical Board has clearly opined that the disability was aggravated due to stress and strain of military service and the petitioner is suffering from 30% disability. When the pension papers were sent to P.C.D.A. Allahabad, it was only to ascertain about the pension but not to sit over the opinion and findings of the Medical Board. This has been so held by this Court in the case of Havaldar Ram Phal v. Union of India and Ors. 2002 (4) SCT 952 (P&H) : 2003 (2) RSJ 228.

7. In the judgment of the Division Bench of this Court in Ex Const.Jasbir Singh (supra), reference was made to another Division Bench judgment of this Court in the case of Ex. Singnalman Sri Bhagwan . In the Judgment of the Court in Sri Bhagwan's case the consistent view taken by the Court is that the jurisdiction of the PCDA(P) is a very limited one and at best it can refer back the case to the competent authority for replying to the queries, if any, raised by the pension authorities that too in accordance with rules but it certainly has no jurisdiction to take a view contrary to the view of the Medical Board. Arbitrary non-acceptance of view of the Medical Board would be in violation to the rules as well as the principles of law stated by the Courts. In all the above cases, the Courts have dealt with the provisions entitling the member of the Armed Forces to receive disability pension. There is no divergence of view in regard to ambit and scope of power of PCDA(P) and binding nature of the opinion of the Medical Board constituted in accordance with rules. Regulation 173 of the Pension Regulations for Army, 1961 Appendix II relates to grant of entitlement for disability pension. Section 22 of the Army Act and the instructions issued by the competent authorities as afore-referred, leave no doubt that PCDA(P) is vested with no jurisdiction of its own to reject issuance of PPO and disbursement of pension after receiving sanction of the competent authority in terms of AFMSF-16 accompanied by the medical opinion of the duly constituted Medical Board. Once conditions of Regulation 173 of the Pension Regulations, 1961 are satisfied, the jurisdiction of the PCDA(P) is very limited. Once the rules required the authorities to Page 2873 perform acts in a particular manner then it is expected that they would be done as required. Acti qualibet it suavia. In other words things should take the prescribed course and the prescribed procedure should not be permitted to be frustrated particularly by arbitrary exercise of power. In the case of S.Balachandran Nair (supra), the Supreme Court has clearly stated the nature and effectiveness of a medical opinion expressed by the appropriate Board in accordance with rules. Once the PCDA(P) transgresses its specified jurisdiction, their action would invite judicial intervention.

WP(C) 23320/2005

8. Having answered the question of law in the above terms, now, we would revert to the facts of individual cases. In the case of Ex. Naib Sub Marut Sharan Tiwari, it may be noticed that he was enrolled in the Indian Army on 04.09.1981 as a Clerk on general duty. He was in medical category 'AYE' as prescribed by the military physical standards. In the year 1984, he was performing his duties in the field and due to firing of the artillery guns, he felt numbness in both ears as a result of noise trauma. He was evaluated at Military Hospital Deolali and was referred to INHS Ashwini where he was detected as a case of Otosclerosis (Bilat). He was treated as result of which his hearing improved and he served with great devotion and dedication. After serving the Army at various stations, in the year 1998, he again suffered from the same problem and his hearing capacity of both ears deteriorated. He was put in medical category CEE (Temporary) for six months. On 12th March, 1999, the medical board stated that the state of affair of the petitioner was attributable to military service. He was subjected to surgical process in May, 2000 where after he was put in permanent low medical category and was sought to be discharged from the Army in terms of the Army Order 46/80 dated 1.7.2002. The service of the petitioner was termed as 'Exemplary' by the Army authorities as communicated on 31.12.2002. The medical board assessed the disability of the petitioner at 20% and the disability was attributable to army service due to noise trauma. However, the grant of disability pension to the petitioner was declined and vide communication dated 31.12.2003 by respondent No. 5, it was stated that the Principal Controller of defense Accounts (P) vide their letter dated 30th September, 2003 had rejected the disability pension of the petitioner. Against this communication on 25th March, 2004, the petitioner had preferred an appeal which was also rejected. The notice demanding justice from the respondents served by the petitioner on 1.9.2005, also failed to yield any results and the petitioner was compelled to file the present writ petition.

9. The petitioner has placed on record the documents containing the opinion of the medical board in the above terms. The communication dated 31.12.2003 rejecting the claim of the petitioner stated no reasons for the rejection. However, the letter dated 1.12.2003 addressed to the Records Officer Artillery issued by the Sr. Accounts Officer (P) stated three reasons i.e. the disability was not attributable to or aggravated by the military service, it was constitutional and was less than 20%.

Page 2874

10. The counter affidavit has been filed on behalf of the respondents wherein it is stated that the disability pension claim of the petitioner was forwarded to PCDA(P) Allahabad for award. It was rejected vide letter dated 1.12.2003. It is stated that the same was reviewed in terms of Rules 17 and 27 of Entitlement Rules 1982 and the claim of the petitioner was declined by the PCDA(P) Allahabad. However, it is not disputed that the medical case sheet of the petitioner attached to AFMSF-16 reveals that the petitioner was an old case of Bilat Otosclerosis and on-set of the disease was detected in the year 1984. It is also stated that the appeal preferred by the petitioner was also rejected by the concerned authorities. In these circumstances, it is stated that the writ petition of the petitioner be dismissed.

11. During the course of hearing, the medical record of the petitioner was produced before the court. The opinion of the medical board as disclosed in part III of AFMSF-16 clearly states that the disability of the petitioner was due to noise trauma. The disability was stated to be 20% and was said to be attributable to army service. The medical record clearly shows that the petitioner suffered the disability of Otosclerosis (BIL) of both ears during the course of his service and onset of the disease was 1984 and he was placed in category BEE (Permanent) and was operated upon thereafter. It is nobody's case that the petitioner suffered from this disease when he was inducted into the Army. No such disease was detected in the annual medical check ups of the petitioner. It is also not disputed that the petitioner was not subjected to any Re-survey Medical Board or was not even examined by the medical specialist attached to PCDA(P) unit of Allahabad. There is no justification for the respondents to decline the relief claimed by the petitioner in view of what we have discussed above. PCDA(P) of its own, in any case, had no jurisdiction to alter or sit over the opinion of the medical board. There is no document placed on record before us which can reasonably show that any medical specialist had even opined to the contrary and particularly after giving an opportunity to the petitioner or examining him as per the medical instructions contained in the various rules afore-referred.

12. In view of our discussion, we set aside the order dated 1.12.2003 as well as communication dated 31.12.2003 and direct the respondents to grant disability pension to the petitioner in terms of the opinion of the medical board and the sanctioning authority. We make it clear that the respondents would be at liberty to subject the petitioner to Re-survey medical board, of course, prospectively.

13. The writ petition is disposed of while leaving the parties to bear their own costs.

CW 20000/2005

14. In this case, the undisputed facts are that the petitioner was enrolled as a combatant soldier in Indian Army on 16.10.48. The petitioner participated in 1962 Chinese Aggression, 1965 Indo-Pak conflict and then 1971 Bangladesh operation. In the year 1975 the petitioner claims to have developed certain problems and reported to the Army Medical Authorities where after he was subjected to medical examination. The authorities diagnosed the disease of the petitioner as 'Upper Motor Neurone Rt Upper Limb (4-34)'. He was placed in low medical category 'CEE' and was given the treatment. The petitioner could not be cured and was brought before a properly Page 2875 constituted Medical Board who assessed his disability 30%. The Medical Board recommended that the petitioner will be invalidated out of army service. The petitioner was so invalidated with low medical category on 30.10.76.

15. The Commanding Officer of the petitioner sanctioned the case of the petitioner for grant of disability pension and forwarded the same by issuing Form No. AFMSG-81 to Principal Controller of defense Accounts (Pension), Allahabad but the finding of the authority based upon Medical Board was varied by the Principal Controller of defense Accounts, Allahabad stating that petitioner was not entitled to 30% disability element and granted service element to the petitioner vide their letter dated 28.6.77. The petitioner thereafter filed an appeal but the same was rejected by Ministry of defense. On 8.11.04 the petitioner served a legal notice upon the respondents praying for the relief. Having failed to get any redress to his grievances the petitioner has filed the present petition challenging the above directions of the respondents.

16. No counter affidavit was filed in the present writ petition. During the course of hearing, the original records were produced by the respondents before us. It is not disputed and is apparent from the record that the Medical Board had recommended invalidation of the petitioner from the army with 30% disability attributable to army service. The petitioner has rightly argued that he was not suffering from any disease at the time of his enrollment in Army. He was subjected to routine medical examinations years after years and was posted to all difficult stations. The petitioner participated in three wars and gave his best to the Indian Army. Once the Medical Board had recorded the finding that the petitioner had 30% disability attributable to army service, the PCDA had no jurisdiction or authority in law to disturb the said finding. The authorities responsible for disbursement of pension cannot sit over the judgment of the experts and that too without any plausible reason and/or subjecting the petitioner to Appellate Medical Board. The action of the pension authorities in disturbing findings of Medical Board without even inviting the petitioner much less hearing him, would be in apparent violation of principles of natural justice. The sanction of pension by the authorities gives a right to the pensioner to receive certain benefits. Deprivation of such benefit without following due process of law particularly by PCDA(P) would be arbitrary and without jurisdiction. We have no hesitation in coming to the conclusion that petitioner is entitled to be awarded disability pension as contemplated under the provisions of Regulation 173 of the Pension Regulation for Army, 1961. Consequently, this writ petition is allowed. The afore-stated orders passed by the respondents are quashed. The respondents are directed to consider and grant to the petitioner the disability pension with 30% disability attributable to army service, as recorded by the Medical Board, within three months from the date of pronouncement of this judgment. Needless to note that grant of relief to the petitioner would no way prevent the respondents to subject the petitioner to Resurvey Medical Board in accordance with law, if they so choose. In view of the undisputed facts and the reasons afore-recorded, the writ petition is allowed in the above terms while leaving the parties to bear their own costs.