Dharam Singh vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 2446 Del

ORDER

1. Prayers in this Writ Petition under Article 226 of the Constitution of India are - (a) to quash and set aside the impugned Order of the PCDA(P), Allahabad dated 8th February, 1983; (b) to issue a Writ of Mandamus directing the Respondents to release disability pension of the Petitioner with effect from 1st February, 1977, his date of release/R.M.B.P. from the Navy together with interest thereon.

2. Learned Counsel for the Petitioner relies on the judgment of the Division Bench of this Court in Raghubir Singh v. UOI 1998 (46) DRJ 181 (DB) in which the question arose whether the CCDA could override the medical opinion of the Invaliding Medical Board. The Division Bench referred to an unreported judgment of the Hon'ble Supreme Court in Ex-Sapper Mohinder Singh v. UOI Civil Appeal No. 163/1993, decided on 6.2.1995 to the effect that the opinion given by the invaliding Medical Board with regard to the assessment of disability of an incumbent should be respected until a fresh Medical Board examines the incumbent and comes to a different conclusion. On the strength of Mohinder Singh, the Division Bench held in Raghubir Singh that the CCDA had no power to override the medical opinion of the Medical Board.

3. We are of the view that this case is of no assistance to the Petitioner. We have perused the Medical Board proceedings which are Annexure-R-2. The opinion of the ENT Specialist as on 6.1.1977 is that - "This Individual is an old case of CSOM Rt ear in low medical category since May 72. Last reviewed in 1973 and placed in medical category CEE permanent with effect from 9 July 73. He was advised to under go tonsillactomy and tympanoplasty, which he refused (Refusal certificate attached)." No doubt on the next page, there is a noting of the disability in question i.e. CSOM (RT) Ear which states that the disability is attributable to service. On the very same page, in response to the query - "Has the individual refused to undergo operation/treatment?", the reply is that "Yes, Refusal Certificate attached." Thereafter the Medical Board has recorded that a complete cure is possible (100%) by operation/treatment. The Board further opined that the ailment/disability i.e. "Tympanoplasty" is not a dangerous operation and could cure his (Petitioner's) disablement. The proceedings record that at that time the disablement was 20% for a permanent duration. Annexure R-6 is the Refusal Certificate signed by the Petitioner in the context of the recommendation for an operation.

4. Reliance has been placed by learned Counsel for the Petitioner on Annexure R-3 which is dated 23rd September, 1977 and signed by the Staff Officer (Pensions). The said annexure does not in any manner certify that the Petitioner is entitled to disability pension for 20% or any other percentage.

5. The terms of engagement of the Petitioner were for a period of 10 years. Learned Counsel for the Respondents submits on instructions from Commodore K.N. Bhagat that the Petitioner would have been offered a further engagement of five years. Annexure-R1 is the Certificate signed by the Petitioner to the effect that he was unwilling to serve the Indian Navy any further. This is, therefore, not a case where the Petitioner has been discharged from service contract to his will on the ground of his disability. Instead the Petitioner has himself failed to serve for the requisite period rendering him eligible to earn ordinary service pension. His endeavor is to achieve this indirectly, by claiming Disability Pension which, if granted, would contain a ratio service pension. In the present case, since the Petitioner had served for ten years, and he would earn pension only of serving a further five years, presumably he would receive two-third's of the service pension.

6. Reliance has been placed by learned Counsel for the Petitioner on Section 4 of the Navy (Pension) Regulations, 1964 which deals with Disability Pension. Regulation 101 of this fasciculous of this said Regulations speaks of the conditions for the grant of disability pension and stipulates that it can be granted to a person who is invalided out from service on account of a disability which is attributable to or aggravated by service. In the first place, as we have already noted above, the Petitioner has not been discharged from service on account of his disability. He had himself declined to serve the Indian Navy any further, of his own volition, after the expiry of his engagement of only ten years. Regulation 101 must be read with Regulation 104 of the said Regulations which lays down that in cases where the Medical Board certifies that an operation or medical treatment would cure the disability, disability pension shall be withheld. Reliance by learned Counsel for the Petitioner on Regulation 104 (b)(ii) is misplaced.

7. Learned Counsel for the Petitioner next relies on Regulation 105-B of the said Regulations which states that a sailor, who is discharged from service after he has completed the period of his engagement and is, at the time of discharge found to be suffering from a disability attributable to or aggravated by naval service may at the discretion of the competent authority be granted, in addition to the service pension admissible, a disability element as if he has been discharged on account of that disability. Once again, this Regulation is of no assistance whatsoever to the Petitioner. As has already been noted, it is the Petitioner who had declined to serve any further in the Indian Navy. Ten years' service does not entitle him to a pension which he would have been aware at the time when he declined the offer to serve in the Indian Navy. All that this Regulation provides is that in addition to the service pension which would ordinarily be payable if the entitlement to service pension had already been earned, the competent authority could in addition thereto grant the disability component of the pension.

8. At this stage, learned Counsel for the Petitioner submits that the Commanding Officer has sanctioned disability pension to the Petitioner, but he is unable to produce the document. He then states that the same in fact is Annexure R-3. We have already said that Annexure R-3 does not sanction any disability pension.

9. The Petition is wholly without merit and is, along with the pending Application, dismissed.