ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 1989 of 2012

Transcription

1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR OA 1989 of 2012 Jainarain Shivrain Petitioner(s) Vs Union of India and others Respondent(s) For the Petitioner (s) : Mr Surinder Sheoran, Advocate For the Respondent(s) : Mr. Ram Chander, Sr. PC. Coram: Justice Rajesh Chandra, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. ORDER Prayer in this petition is that the respondents s letters dated , and (Annexures A-2,A-3 and A-5) vide which the disability element granted to the petitioner was discontinued to the petitioner w.e.f , may be quashed and the disability element with effect from at 20% with rounding off may be allowed. 2. In brief, the facts of the case are that the petitioner joined Indian Navy service on and was discharged w.e.f after completiton of more than 20 years service. At the time of discharge the petitioner was found suffering from the disability POLY ARTHRITIES at 20%. The petitioner was granted disability pension, consisting service element and disability element w.e.f to against 20% disability vide PPO No.09/97/B/O/0060/92. The Re-survey Medical Board (RSMB) of the petitioner was held on which found the disability as static and recommended for disability pension for 10 years. The Officer-in-Charge Records, Bureau of Sailor, Cheeta Camp, Mankhurd, Mumbai vide letter dated informed the petitioner that his disability element has been discontinued w.e.f for five years as the disability has been re-assessed at less than 20% (Annexure A-2). The appeal filed by the petitioner was rejected by appellate authority (Annexure A-3). The petitioner was again brought before the Re-survey Medical Board on which again found the disability of the petitioner as static (Annexure A-4). The aforesaid Record Office vide letter dated

2 again intimated the petitioner that his claim for disability pension has been rejected for five years (Annexure A-5). The petitioner then sought certain documents vide application dated which were supplied to him vide letter dated (Annexure A-6). It has further been alleged that the petitioner was never intimated that his disability was re-assessed static by RSMB held on and and the decision of the RSMB had been changed by PCDA(P) Allahabad discontinuing the disability element to the petitioner. The petitioner is entitled for disability pension consisting of disability element and service element according to Regulation 101 of Navy (Pension) Regulations 1964 and that the action of the PCDA(P) Allahabad discontinuing the disability element is arbitrary and against the settled law. 3. The respondents filed the Written Statement and alleged that at the time of release the petitioner was found suffering from the disability POLY ARTHRITIES which was found aggravated by navy service. The disability was assessed at 20% for two years. However, based on the recommendations of Medical Advisor (Pension),Allahabad, PCDA(N) Mumbai sanctioned the disability pension for five years w.e.f The RSMB was carried out which assessed the disability at 20% for ten years but the claim for continuing disability element was rejected by PCDA(N) Mumbai vide letter dated for five years. Petitioner s first appeal was rejected by the Government of India MoD vide letter dated Further RSMB was carried out in November, 2001 and the disability was assessed at less than 20% for five years. The claim for continuance of disability pension was forwarded to PCDA(N) Mumbai vide letter dated but the same was rejected on the ground that disability was less than 20%. This fact was communicated to the petitioner vide letter dated Thereafter no further RSMB was arranged. It has been admitted that the petitioner had sought certain documents through RTI which were forwarded to him vide letter dated The contention of the respondents is that in rejecting the claim of disability pension no law or regulation has been violated. The petitioner s claim for disability pension was

3 -3- processed as per the laid down procedure but the petitioner was not found eligible for the same as per the statutory rules. The petition is barred by limitation as the petitioner has approached the court after 21 years. It is admitted to the respondents that firstly RSMB was carried out in the year 1997 and the disability was found static at 20% for 10 years but the claim for continuing disability pension was rejected by PCDA(N) Mumbai based on the recommendations of Medical Advisor (Pension) Allahabad. It has further been admitted that the next RSMB was held in November, 2001 which assessed the disability at less than 20% and hence the claim for disability pension was rejected vide letter dated We have heard learned counsel for the petitioner and respondents and have also gone through the entire record of the case. 5. This fact has been admitted by both the parties that at the time of discharge from Navy the petitioner was suffering from the disability POLY ARTHRITIES aggravated by navy service and was assessed at 20% for two years. However, on the recommendations of Medical Advisor (Pension),Allahabad the disability pension was sanctioned for five years w.e.f instead of two years as was recommended by RSMB. First RSMB was held on and proceedings were approved by the higher medical authority on as is evident from the RSMB proceedings (Annexure A-1). The RSMB found the disability as static and, as is admitted in the written statement, was assessed at 20% for 10 years. However, this finding of the RSMB was not accepted by PCDA(N) Mumbai and it was communicated to the petitioner that his disability element has been discontinued w.e.f for five years as his disability has been re-assessed at less than 20% (Annexure A-2). First appeal filed by the petitioner was also dismissed on the ground that disablement has been assessed at less than 20% (Annexure A-3). 6. Learned counsel for the petitioner has vehementally argued that in view of the judgment of Hon ble the Supreme Court in the case of Ex Sapper Mohinder Singh Vs Union of India in Civil Appeal

4 -4- No.164 of 1993, decided on the opinion of the medical board cannot be interfered with by the PCDA and the claim for disability pension was wrongly rejected by PCDA(N) Mumbai as communicated to the petitioner vide letter dated (Annexure A-2). We have considered over the said argument and we would like to refer the judgment of Hon ble the Punjab and Haryana High Court in Ex. Havildar Babu Singh Vs. Union of India and others, CWP No of 2003, decided on in which in which after referring the judgment of Hon ble the Supreme Court in the case of Ex. Sapper Mohinder Singh Vs. Union of India in Civil Appeal No. 164 of 1993, decided on the following has been held:- From the above narrated facts and the stand taken by the parties before us, the controversy that falls for determination by us is in a very narrow compass viz., whether the Chief Controller of Defence 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 nowhere stated that the petitioner was subjected to any higher Medical Board before the Chief Controller of Defence Accounts (Pension) decided to decline the disability pension to the petitioner. We are unable to see as to how the accounts branch dealing with the pension can sit over the judgment of the experts in the medical line 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 Core. 7. In view of the above judgment we are satisfied that the claim for disability pension was wrongly interfered with by PCDA and as per the findings of RSMB the petitioner was entitled for disability element of disability pension for 10 years w.e.f as the RSMB had assessed the disability at 20% for 10 years being static. Since the findings of the RSMB were interfered with by PCDA(N) Mumbai and the disability element was discontinued for five years, the petitioner was subjected to second RSMB which was held on and was approved by higher medical authorities on (Annexure A-4 and R-1). A perusal of RSMB proceedings makes it evident that the RSMB again found the disability as static but assessed it at 11 to 15% for five years. Learned counsel for the respondents argued that disability of the petitioner was assessed at less than 20% by the second RSMB held in the year 2001 hence the petitioner is not entitled to any disability pension. In reply, learned counsel for the petitioner pointed out that since the findings of the first RSMB were interfered with by PCDA (N) Mumbai on the recommendation of Medical Advisor (P)

5 -5- Allahabad and the disability of the petitioner was re-assessed at 11 to 14% ( as mentioned in Government of India letter dated Annexure A-3) the second RSMB though mentioned the disability as static,assessed the disability at 11 to 15% as that was in consonance with the opinion of Medical Advisor (P) Allahabad who at that time was the adjudicating authority of disability pension. 8. We have considered the respective arguments and we are satisfied that since the disability which was assessed by the first RSMB at 20% was interfered with by PCDA(N) Mumbai on the advice of Medical Advisor (P) Allahabad which was the adjudicating authority at that time, the second RSMB was bound to mention the same percentage as the condition of disability was static and was assessed by Medical Advisor (P) after the first RSMB at 11 to 14%. 9. The result of the above entire discussion is that since the disability of the petitioner was found by the Release Medical Board as aggravated by Naval service at 20% for two years and again assessed as static by the first and second RSMB, the disability should be taken at 20% for the whole period beginning from the date of discharge of the petitioner till five years w.e.f. second RSMB dated We have also considered the question of limitation and we find that since the continuance of disability pension was wrongly interfered with by PCDA(N) Mumbai though the petitioner was entitled for the same, it comes within the category of a continuing wrong and the question of limitation does not come in between. 11. In view of the above the petitioner is entitled to disability pension w.e.f Since the petitioner was invalided out of service with 20% disability aggravated by Naval service, he is entitled for disability element of disability pension with rounding off disability element as per the judgment rendered by Hon ble the Supreme Court dated passed in CA No of 2006 K.J.S.Buttar vs. Union of India and others, read with judgment of this Tribunal dated , passed in OA No.1370 of 2011, Labh Singh v. Union of India and others, and a recent judgment of this Tribunal, dated

6 , passed in bunch of cases led by OA No.1960 of 2012, Ved Parkash v. Union of India and others. 13. The petition is allowed. The petitioner is entitled to get disability element of disability pension from along with the benefit of rounding off, but the entire arrears are restricted to three years prior to the filing of the petition dated At the same time, since in Ved Parkash s case, leave to appeal under Section 31 of AFT Act has been granted, on the same questions, and for the same reasons, the leave to appeal under Section 31 is granted to the respondents in this case also. 15. The respondents are directed to make necessary calculations, and make payment to the petitioner, within a period of three months, from the date of receipt of certified copy of this order by learned counsel for the respondents. 16. Since the second RSMB had assessed the disability as 20% for five years, the respondents shall be at liberty to carry out RSMB for future entitlement of disability element. (Justice Rajesh Chandra) (Air Marshal (Retd) SC Mukul) tyagi Whether the judgment for reference to be put on internet-yes/no.