Ex. Nk. Ramesh Kumar vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 59 Del

JUDGMENT

Swatanter Kumar, J

1. Keeping in view the facts and circumstances of the present case, and particularly the general principles of law relating to enforcement of rules, regulations and instructions for grant and/or declining of disability pension to the members of the Force, vide our Order dated 5th July, 2006, we had constituted a Special Committee and passed the certain directions. The Order reads as under:

In furtherance to the order of the Court dated 4.7.06, Senior Officers from the Army as well as CDA are present.

During the course of arguments various objections and lacunae have been stated by the counsel appearing for the parties which in their contention not only results in undue delay in matters relating to the members of the Armed Forces but also hampers the administration of justice. Some of these difficulties and problems are relatable to the non-cooperative attitude adopted by various wings of the Union of India, and particularly the CDA and concerned medical/administrative core of the Army. The pointed objections inter alia relate to conflict of opinion between CDA and the Medical Board. In face of the clearly enunciated principles of law, Medical Board's view has to be respected. Copies of the documents including discharge order are not supplied to the petitioners though they adversely affect their rights. The benefit granted to the petitioners is abruptly stopped without following the due procedure and in violation of principles of natural justice. With some vehemence, it was also pointed out that the medical opinion is recorded by the Board in a most casual manner and without specifying any reasons despite the fact that the rules and relevant instructions require specific reasons to be stated and due application of mind even by the administrative/disciplinary authority.

According to the respondents, though the copies are supplied to the petitioners at the time of discharge or even at subsequent stages but usually the pleadings in the writ petition are to the contrary. The petitioners make statements in the writ petitions which are factually incorrect and are contrary to the records maintained by the authorities in normal course of its business. The affidavits filed by the petitioners are vague. The pleas taken are without any basis.

In the last few days nearly 120 cases relating to refusal, stoppage of disability pension have been listed before this Court. These objections by the counsel appearing for the respective parties were raised during the hearing of those cases. During the pendency of the objections, the petitioners made no effort and prayer for supply of the documents to them and/or for amendment of the writ petitions.

It is obligatory upon any department of the Government to perform its duties in accordance with law and act fairly so as to avoid litigation. The State or its instrumentalities are not expected to generate litigation particularly due to default of procedure and not acting in accordance with settled principles of equity and fair play.

We do not propose to dwell upon these controversies in any greater detail, at least at this stage, in view of the approach that we propose to adopt in this order and particularly keeping in mind the assurance given by the senior officers representing Army as well as the CDA. Normally, the Court would expect the findings of the Medical Board unless the report was ex-facie perverse, oppose to the judgments of the Court and was recorded in a patently arbitrary manner.

After having given our considered view to the entire matter and having heard the counsels appearing for the parties and the senior officers present, we issue the following directions:

(a) We direct constitution of a Committee which shall be chaired by the Vice Chief of Army and shall have the following members:

(i) Director General, Armed Forces Medical Services (ii) Joint Secretary (MOD) (iii) Judge Advocate General & (iv) Principal Controller of defense Accounts (Pension).

(b) In addition to the above, Mr. Gyan Prasad, Controller General of defense Accounts and Major General D.K. Mohanty, Additional Director General of Medical Services shall also be the member of that Committee. They would be at liberty to inform the Committee of what transpired in the Court and the object of passing of this order.

(c) The Chairman of the Committee would be at liberty to co-opt any member from any other department including Indian Navy and Indian Air Force if is necessary in the opinion of the Committee.

(d) The Committee will have its first meeting as early as possible and in any case not later than one week from passing of this order.

(e) The Committee shall have due deliberations on various facets and would submit a report to this Court within four weeks.

The Committee constituted in terms of this order shall be at liberty not only to suggest the methodology and procedure which shall be adopted by the respective departments to streamline the functioning particularly in relation to invalidation, grant and/or refusal of disability pension but they would also be at liberty to suggest appropriate format in which the reports should be made, opinions recorded and reasons given by the concerned authorities in the hierarchy of the Army as well as the CDA.

All concerned shall ensure that the directions contained in this order are carried out without delay. All persons and authorities from which any cooperation or query is sought by this Committee shall be furnished to the Committee without delay. All concerned shall ensure due compliance of this order of the Court.

List this case for further hearing on 7.8.06.

As far as the directions with regard to the petitioners are concerned, the matter will be dealt on the same date.

The copy of this order be given dusty under the signatures of the Court Master to the counsel appearing for the parties.

Vide our Order dated 24th July, 2006, we had permitted the Director General Hospital Services to participate in the proceedings as a Member of the Committee. The Committee deliberated on various issues and keeping in view the progress/development of law in this field, they had prepared certain new forms and contemplated issuance of certain specific directions. Notice of such new forms 'was taken by the Court in its Order dated 11th October, 2006', which reads as under:

We have heard learned Counsel for the parties as well as Air Comd. D.P. Joshi, Dy. Dhafms (Pension), who is present in the Court. Learned Counsel appearing for the respondents pray for some time to place on record the new form that has been prepared by them in the light of the recommendations made by the Specialized Committee constituted under the Order of this Court.

Having perused the minutes of the Committee, we are of the view that point Nos. 4.3 and 4.4 require certain deliberations, including the need for continuing with Re-survey Medical Board in any case as well as need for giving weightage to the opinion of the Commanding Officer of the unit to which the individual belongs in regard to the attributability.

List for further arguments on 17.10.2006. dusty.

2. The report of the Committee was filed in the Court on 22nd August, 2006 wherein the respondents had annexed various instructions and circulars issued by the competent authorities and had also recommended amendment of various formats. On 16th October, 2006, newly framed format of AFMSF15 to 17 were also filed on the Court record. A clarificatory was also filed on 27.11.2006 to clarify that the procedure for holding Re-survey Medical Board is not completely abolished and the same would be held as prescribed except where the disability is stated to be a permanent disease or of permanent nature. It was also clarified in this report that while determining the attributability of disability, the Medical Board would take into consideration and give effect to the statement of the Commanding Officer.

3. Thereafter, we had also heard the learned Counsel appearing for the parties. Having given it a considered view, we make the following Order and direction for compliance by all concerned:

1. The instructions and circulars as prepared by the competent authority appears to be in order and the respondents are at liberty to proceed with the newly added procedure and formats in accordance with law.

2. Every effort should be made to reduce the paper work and procedural delays should be curtailed at different levels so as to decide the cases for grant and/or rejection of disability pension with utmost expeditiousness.

3. The authorities should make every endeavor to deal with various representations in a consolidated manner and within a provided time-frame. The entertainment of repetitive petitions should be avoided so as to prevent multifarious litigations.

4. The copies of the complete proceedings of the duly constituted Medical Board (whether Invalidating or Release) will be supplied to the concerned person at the time of his discharge to avoid delay. During the course of hearing we were informed that the competent authority had already taken this decision.

5. The authorities concerned shall publish and circulate to each unit, the procedure and right of persons, obligations of different authorities as well as the affected persons in relation to entitlement, entertainment, grant and/or refusal of disability pension.

6. The Government and the competent authority under the rules should provide for further delegation of powers in appropriate cases for dealing with the appeals/petitions by the aggrieved persons. The power should not be so centralized that it would result in inevitable delay of the petitions/appeals as a large number of such petitions and appeals are admittedly pending before the competent authority. This would help in expeditious disposal of grant and/or rejection of disability pension at the first instance and thereafter passing of appropriate orders by the appellate authorities.

7. Every appeal, as contemplated, should normally be disposed of within three months from the date of its filing before the competent authority.

8. As per Clause 4.3 of the original recommendations of the Committee which has also been amended vide its clarification report dated 27.11.2006 filed on the record of this file, the periodical review shall not be totally dispensed with. However, the initial longest period of disability should be indicated by the medical authorities and the need for Re-Survey Medical Board should also be specifically mentioned in the original medical board proceedings, of course, unless and until, the medical board for reasons to be recorded in writing, is of the opinion that the disability of the applicant or a person invalided in accordance with rules, is for life.

9. The opinion of the Medical Board should be expressive based upon proper clinical examination and investigations, which in the opinion of the Board would be necessary for arriving at a just conclusion. The view of the Commanding Officer should also be duly weighed by the Board.

10. Keeping in view the various judgments of the Supreme Court, High Courts and the rules and regulations framed on the subject in question, the medical board should state the nexus 'casual/causal' between the injury/disability suffered by the person and the nature of the duty keeping in view the normal conduct of a person subject to the Army Act.

11. The law develops with the passage of time. Various pronouncements of the Apex Court and different High Courts are expected to be followed by the authorities without default, and particularly when they have attained finality. It would be in the interest of all concerned that the Medical Officers, who are required to express their opinion in accordance with rules, regulations and various circulars and instructions issued by the Government, are provided with adequate legal guidance to deal with the matters effectively and efficaciously. We expect that the concerned authorities would ensure that such guidance, at least by holding conferences of the concerned Department, is provided to the medical experts.

12. The concept of attributablity or aggravation by service should be a collective decision of the administrative authorities and the medical board, the opinion of the authority being the final.

13. The instructions/circulars' amended formats framed by the competent authorities and as placed on the record of the Court file, should be issued in super session to all such circulars controlling the subjects mentioned therein. This would avoid any possible conflict in the mind of all concerned authorities in regard to enforcement of such provisions. The instructions/circulars now should be complete in all respects and would not leave any scope for ambiguity.

14. Clause 2 of Part 5 of Afmsf-16 (at page 6) should be answered by the medical experts while keeping in mind the various provisions providing for presumptions in favor of the member of the Force, whether such disease was and could not have been detected at the time of entry or during the period of service rendered by such person. To provide explicit answer is the obligation of the experts as it is the spirit of the various provisions controlling the conduct of Medical Boards under defense Services Regulations for the Medical Services of the Armed Forces, 1962. With similar care and caution, the medical expert should provide answer to Clauses 17 and 18 of Afmsf-15.

15. All amendments to rules, regulations and instructions by the concerned authorities should be finalized and given effect to at the earliest and in any case not later than 31st March, 2007.

4. With the above Order, we dispose of this Writ Petition as far as issuance of general directions are concerned, however, the Writ Petition be listed for disposal on the date already fixed.