Gujarat High Court
Sergeant Birendra Chaudhary (Retd.) ... vs Secretary, Ministry Of Defense on 12 December, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/MCA/2190/2023 ORDER DATED: 12/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR RESTORATION) NO. 2190 of 2023
In R/MISC. CIVIL APPLICATION NO. 2018 of 2023
With
R/MISC. CIVIL APPLICATION NO. 2018 of 2023
In
R/LETTERS PATENT APPEAL NO. 1225 of 2023
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SERGEANT BIRENDRA CHAUDHARY (RETD.) S/O LATE AKALU
CHAUDHARY
Versus
SECRETARY, MINISTRY OF DEFENSE
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Appearance:
PARTY IN PERSON(5000) for the Applicant(s) No. 1
for the Opponent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 12/12/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
Order in MISC. CIVIL APPLICATION No.2190 of 2023
1. The restoration / recall application, seeking for recall of the
order dated 06.11.2023, whereby the review application has been
dismissed for want of prosecution and the absence of the review
applicant / party-in-person, is hereby allowed, as the explanation for
absence of the review applicant is found to the satisfaction of the
Court.
2. The review application is restored to its original number.
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C/MCA/2190/2023 ORDER DATED: 12/12/2023
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Order in MISC. CIVIL APPLICATION No.2018 of 2023
1. Coming on the merits of the review application filed by the
review applicant, relevant is to note that the Court of Chief
Commissioner for Persons with Disabilities, constituted under
Section 74 of the Rights of Persons with Disabilities Act, 2016, has
recommended that the disability certificate of the complainant may
be got assessed independently from a third Medical Board / Hospital
for correct assessment of the disability percentage for providing
allowances as applicable, but it has not issued any direction as to
who would be that independent Medical Board wherein,
independent assessment of disability of the review applicant can be
made. We may note that the writ petition was filed with the relief to
issue mandamus for compliance of the order passed by the Court of
Chief Commissioner dated 30.07.2020, directing the respondent
authorities to take prompt action to comply with the said
recommendation. It seems that before the learned Single Judge, an
affidavit-in-reply had been filed on behalf of the Central Government
wherein, it was stated that the certificate issued by the Chief
Medical Officer, Lucknow is not acceptable in respect of the
petitioner, who was a combatant member of the Indian Air Force
when the certificate was issued to him. It was further stated in the
affidavit of the Central Government that the petitioner being subject
to Air Force Act, 1950, proceeding for medical examination by other
than military authorities, without permission, is not admissible or
binding on Air Force authorities. The learned Single Judge, taking
note of the aforesaid stand taken on behalf of the Central
Government, had directed the petitioner to approach the Command
Hospital, Central Command, Lucknow or INHS Asvini Military
Hospital, WR28 + 339, Near RC Church, Navy Nagar, Colaba,
Mumbai, saying that the petitioner has option only to get his
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C/MCA/2190/2023 ORDER DATED: 12/12/2023
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disability reassessed in either of the said hospital. A further direction
has been issued by the learned Single Judge asking the petitioner to
approach the Air Officer Commanding, 47 Signals Unit, Air Force
(Vadsar) to bring the said order before him so that assessment of
percentage of permanent disability sustained by the petitioner may
be made.
2. In the appeal, the challenge by the review applicant /
petitioner was made to the independence of the choice of hospitals
given by the learned Single Judge on the ground that the review
applicant / petitioner being an Ex-Air Force Personnel and the Air
Force authorities having assessed the petitioner's disability to the
extent of 33%, he does not have confidence on any of the choice of
hospitals given to him. The insistence of the review applicant /
petitioner in the review application is that the recommendation of
the Court of Chief Commissioner for Persons with Disabilities is to be
given due weightage and an independent assessment by a third
Medical Board, which is not associated with any of the Wings of
three forces of the country, may be made.
3. We may note that at the time of hearing of the instant appeal,
we have expressed our concurrence with the order of the Court of
Chief Commissioner giving direction on 30.07.2020, recommending
for an independent assessment by a third Medical Board / Hospital
for correct assessment of disability percentage of the review
applicant / petitioner and thus, agreed with the order of the learned
Single Judge, to the above extent.
4. However, it appears that the mistake apparent on the face of
the record, has occurred while passing the order dated 27.09.2023
by us as we failed to take note of the contention of the review
applicant / original petitioner that he has no confidence in any of the
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C/MCA/2190/2023 ORDER DATED: 12/12/2023
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two choices given by the learned Single Judge in the judgment and
order dated 16.06.2023, being an Air Force Personnel, fighting with
the authorities for enhancement of the disability allowance.
5. We may note that the review applicant / petitioner is claiming
that assessment of the disability by the Air Force authorities to the
extent of 33%, while discharging the review applicant / petitioner for
service, is a wrong assessment causing prejudice to him as he is
getting lesser amount towards the disability allowance.
6. Taking note of the above, we are of the considered opinion
that the review application deserves to be allowed in part. The
observation made in paragraph '7' of the judgment and order dated
27.09.2023, under review, dismissing the appeal on merits, is
hereby reviewed to the following extent:-
8. While modifying the judgment and order dated 16.06.2023
passed by the learned Single Judge, we direct that the review
applicant / petitioner shall appear before the Air Officer
Commanding, 47 Signals Unit, Air Force (Vadsar) along with the
copy of this order within a period of two weeks from today. On such
application being filed by the review applicant / petitioner, he shall
be referred to the All India Institute of Medical Science New Delhi.
(AIIMS, New Delhi). The Director, AIIMS shall constitute a three
member Medical Board (of experts in the field concerned) to assess
the disability condition of the review applicant / petitioner in
accordance with the Rights of Persons with Disabilities Act, 2016
and issue certificate under the signature of the competent authority.
The entire exercise for assessment of the disability condition of the
review applicant / petitioner shall be completed within a period of
eight weeks from the date of moving of the application before the
abovenoted Air Force Officer. In this exercise, as per the direction
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given by us, the review applicant, namely, party-in-person
herein, is bound to co-operate. In case of any non-co-operation of
the party-in-person, he will not be entitled to any further indulgence.
9. With the above observations and directions, the review
application is allowed in part.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
Hitesh
