Delhi High Court
Suresh Kumar vs Uoi & Ors. on 27 July, 2012
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : July 13, 2012
Judgment Pronounced on: July 27, 2012
+ R.P.No.510/2011 in WP(C) No.797/2011
SURESH KUMAR ..... Petitioner
Represented by: Ms.Rekha Palli with Ms.Punam
Singh, Advocates
versus
UOI & ORS. ....Respondents
Represented by: Mr.Madan Gera, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE P.K.BHASIN
PRADEEP NANDRAJOG, J.
1. The issue raised in the writ petition was: Whether,
on being invalidated from service on medical grounds, with
disability certified to be 90%, was petitioner entitled to be
sanctioned disability pension.
2. It was not in dispute that as per CCS(Extra-Ordinary
Pension) Rules if disability was attributed to or aggravated by
service, petitioner would be entitled to disability pension @
100% in view of OM dated December 10, 2010 issued by the
Ministry of Personnel, PG & Pension.
3. It was the case of the petitioner that while
representing CISF at the All India Police Games at Bhopal in
December 1996, due to a fall, he received an injury which later
on developed into Cervical Spondylosis with Brachialgia. This
was disputed by the department.
4. The petitioner had claimed in the writ petition that
medical records pertaining to him, which included the medical
records when petitioner was treated at Bhopal were with the
respondents and thus the respondents should produce the
same. Indeed, the said contention had a merit for the reason
the respondents ought to have produced the record pertaining
to a medical treatment officially given to a force personnel
during service. No such record was produced.
5. The petitioner had additionally pleaded that being
injured he availed 30 days leave and over-stayed the same by
72 days and the reason for over-staying leave was his
continued medical problem in the house. Petitioner claimed
that when he returned, he submitted the requisite medical
papers pertaining to the treatment received by him in his
house and accepting the said papers the department
regularized his leave by accounting for the same towards
medical leave due.
6. Allowing the writ petition it was held that the
respondents are at fault in not preserving the medical record
of the petitioner i.e. the medical record pertaining to
petitioner's treatment at Bhopal and such medical record
which he submitted when he over-stayed leave by 72 days.
We highlight that as many as four opportunities were granted
to the respondents to either file a counter affidavit or produce
the record. A counter affidavit was filed but sans the medical
record of the petitioner. It was held that the respondents had
breached the duty of reasonable care inasmuch as if service
rules require disability pension to be paid to a force personnel
who is invalidated from service on account of a medical
disability which is attributed to the service, it would be the
duty of the force to retain all medical record pertaining to a
force personnel.
7. Seeking review it is pleaded by the respondents
that after the writ petition was decided, the department could
lay their hands on the personal file of the petitioner which
contained evidence recorded at an inquiry held pertaining to
petitioner over-staying leave by 72 days and in respect of
which inquiry proceedings, referring to various documents
exhibited therein, it is sought to be highlighted that as against
the pleading in the writ petition that petitioner's over-staying
leave was regularized by accepting medical record produced
by him, the leave was regularized, not towards any medical
infirmity proved. It is sought to be highlighted that reason
given by the petitioner to over-stay leave was firstly his
requirement to be present in the village to oversee repair of
the house and secondly he having contacted viral fever i.e. a
medical problem not relatable to any injury.
8. Opposing the Review Petition, the petitioner seeks
to rely upon his having obtained, under Right to Information
Act, his leave account, as per which he was sanctioned 11
days commuted leave on medical grounds with full pay for 11
days between December 20, 1996 till December 30, 1996, and
from which it is sought to be made good that petitioner had
suffered some injury at Bhopal.
9. Now, an issue would arise: Whether the medical
problem faced by the petitioner when he over-stayed leave
was viral fever or was it something to do with the injury, if at
all, suffered by the petitioner at Bhopal while on duty. This
issue needs to be considered with reference to the reasoning
as per the order dated July 20, 2011 which records that
petitioner's assertion that his over-staying leave by 72 days
was regularized by accepting the medical papers produced by
him and the respondents not producing the relevant record.
Surely, this reasoning is now dented in view of the record now
produced along with the Review Application.
10. The petitioner has now obtained the leave account
which would show that 11 days' leave from December 20,
1996 to December 30, 1996 has been sanctioned on medical
grounds but what were the medical grounds, is still not clear.
11. In our opinion the matter requires proper pleadings
to be brought on record and this could only be, if the writ
petition is restored for hearing afresh and the respondents
permitted to file a further counter affidavit in view of the
record which respondents claim to have found subsequently;
simultaneously permitting the petitioner to file a rejoinder
thereto.
12. R.P.No.510/2012 stands disposed of recalling the
order dated July 20, 2011.
13. The respondents shall file a counter affidavit and
would annex as Annexures such documents on which the
respondents now rely. Needful shall be done within eight
weeks. Within four weeks thereafter rejoinder would be filed,
and along therewith the petitioner would file such documents
on which the petitioner relies.
14. List as per roster on October 15, 2012.
15. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(P.K.BHASIN)
JUDGE
JULY 27, 2012
rk
