Jharkhand High Court
Ram Brind Prasad Singh vs Union Of India Through The Secretary on 7 May, 2018
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 5936 of 2008
Ram Brind Prasad Singh, son of Late Hari Prasad Singh, resident of Village-
Meru Camp, Hazaribagh, P.O. Meru, P.S. Meru, District-Hazaribagh.
.... Petitioner
Versus
1. Union of India through the Secretary, Ministry of Home Affairs,
Government of India, New Delhi.
2. Director General, Force Headquarters, Boarder Security Force, New Delhi.
3. Deputy Inspector General, Boarder Security Force, Panjipada Uttar
Dinajpur, West Bengal.
4. Deputy Inspector General, Training Centre and School, Boarder Security
Force, Meru Camp, Hazaribagh. ... Respondents
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CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mr. Saurabh Shekhar, Advocate
For the Respondents : Mr. Madan Prasad, C.G.C
.......
12/ Judgement On 07.05.2018
Per Pramath Patnaik, J.
In the caption writ application, the petitioner has inter alia prayed for direction commanding upon respondents for payment of compensation amount on the ground of disability sustained during course of service alongwith penal interest from the due date, till its actual payment.
2. The factual matrix as has been delineated in the writ application, in a nutshell is that petitioner joined Border Security Force as Lance Naik. While on duty on 20th March, 2003 because of abnormal behaviour, the petitioner was referred to MDM Hospital, Jodhpur where he was treated in the Psychiatric Department and was diagnosed for as a case of Manic Depressive Psychosis hereinafter referred to in short as MDP. Thereafter, the case of the petitioner was referred to Medical Board and the Medical Board assessed the 2 disability of 55% vide medical proceeding in Annexure-1 to the writ application. Because of his disability, the petitioner has been declared unfit for further service and he was given compulsory retirement on the ground of medical disability. The petitioner submitted series of representation for payment of compensation and one of the representation has been annexed as Annexure-2 to the writ application. Being aggrieved by the inaction/indifference of the respondents for non-payment of compensation, the petitioner has been constrained to knock the doors of this Court for redressal of his grievances under Article 226 of the Constitution of India.
3. Learned counsel for the petitioner has strenuously urged that the respondent authorities are duty bound to pay the amount of disability compensation on the ground that the petitioner has sustained disability while in service and as per Medical Board, the extent of disability is 55%. Inspite of such disability there is stony silence on the part of the respondents in not paying the compensation to the petitioner, though the petitioner is suffering from SCHIZO Affective Disorder (D). Learned counsel further submits that the petitioner was subjected to discrimination since similarly situated constables working in Border Security Force have been paid compensation and petitioner without any rhyme and reason inspite of clear cut disability report, has been deprived of getting the same and therefore, the action of the respondents is in breach of Article 14 of the Constitution of India. Learned counsel for the petitioner during course of hearing has referred to decision rendered in W.P.(S) No.6315 of 2010 in the case of Oshihar Prasad Vs. The Union of India & Others, order dated 30.08/2017.
4. Repudiating the averment made in the writ application, a counter- affidavit has been filed by the respondent nos.1 to 4. In the counter-affidavit, it has been submitted that the present writ petition is not maintainable on the ground of lack of territorial jurisdiction. It has further been submitted that the petitioner was diagnosed as a case of SCHIZO Affective Disorder (D) by psychiatric of MGM Medical College and Hospital. Therefore, the petitioner was considered unfit for further service in the BSF. The Medical Board awarded medical category "S5H1A1P1E1" to the petitioner and assessed his disability 55% (Permanent). After approval of the medical proceeding by 3 competent authority, the petitioner was informed about finding of the medical Board and decision to retire in accordance with Rule 25(3) of the BSF Rules, 1969 and was also informed by provision to make a representation to the competent authority for review of his case, if he felt aggrieved about the proposed action against him. Despite opportunity given, the petitioner neither appeared before Medical Officer, 10 Battalion BSF for preparation of part 1 nor reported to BSF Composite Hospital Kadamtala for appearing before the Review Medical Board. The petitioner submitted an application for voluntary retirement from services with effect from 30th April, 2008, which has been accepted by the competent authority and issued order for voluntarily retirement of the petitioner with all consequential benefits under Rule 48 'A' of CCS (Pension) Rules, 1972 with effect from 30th April, 2008. Accordingly, the petitioner has retired voluntarily on 30th April, 2008 and he was awarded/sanctioned pensionery benefits and other financial benefits as per rule, such as Basic Pension, Commuted value of Pension and Service Gratuity. It has further been submitted in the counter-affidavit that since the petitioner has prayed for disability compensation but, same is not admissible. The said disability is due to natural causes and is not directly attributable to the Government service and his case is covered under category 'A' of Ministry of Personnel, Public Grievances & Pensions, Dept. of Pension & Pensioners Welfare Officer Memorandum dated 3rd February, 2000. As per the said memorandum, the cases covered under the category 'A' would continue to be covered under the normal existing provision of CCS (Pension) Rule and he will not get any disability pension/disability compensation as per the existing rules and also the petitioner was not interested to appear before the Review Medical Board in order to fix his disability and proceed for retirement on medical grounds even though, he was given ample opportunity. It has further been submitted that the Medical Board opined that the disability of the petitioner was not directly attributable to the service (Annexure-B). However, considering his more than 20 years of service in BSF, instead of considering his grievance, he was medically boarded out by the Department, as per Medical Board proceedings. The petitioner has been given an opportunity to seek voluntary retirement from services so that he may get maximum retirement benefits. Accordingly, the petitioner has submitted an 4 application for his voluntary retirement from services with effect from 30.04.2008, which has been accepted by the competent authority and issue order for voluntarily retirement of the petitioner with all pensionary benefits under Rule 48 (A) of CCS (Pension) Rules, 1972 with effect from 30.04.2008 vide order dated 28.11.2007 (Annexure-D) and hence, the petitioner has no right for seeking disability pension/disability compensation.
5. Learned counsel for the Union of India by referring to the counter- affidavit filed by the respondents has submitted that since the petitioner has received the benefits under the provisions of CCS (Pension) Rules, he is not entitled to disability pension.
6. A rejoinder affidavit to the counter-affidavit has been filed by the petitioner wherein it has been submitted that the petitioner has undergone disability during the course of service while he was posted at different places throughout his service tenure. This has to be seen and understood on the basis of his postings at different places including his posting at Hazaribag Training Centre, Meru Camp from 01.01.1997 till 2000 where he was assigned for the duty of Instructor. It has further been submitted that the disability mentioned has not been related to any particular time period, rather it relates to all the period for which he remained in services while posted at different places. Therefore, it cannot be said that the petitioner has contracted this psychological disease while he was posted at one particular place and this can very well be attributed to service rendered by him while he was posted in Hazaribag Training Camp at Meru Unit of BSF alongwith other places. On the question of jurisdiction, it has been submitted that it is well settled principle that jurisdiction of a court will be attracted even if a negligible part of cause of action happens within the territory. In the instant case, the disability of psychiatric nature cannot be attributed at a particular time and place and therefore, it has to be said that it could have been contracted at the time when the petitioner was employed in Hazaribag or at least when he got aggravated during his appointment and stay at Hazaribag.
7. After having bestowed my anxious consideration to the rivalized submissions and on perusal of the documents on records, I am of the considered view that the petitioner has been able to make out a case for 5 interference due to the following facts, reasons and judicial pronouncements:-
(I) Before adverting to the claim of the petitioner, it would be apposite to dwell upon the issue as to whether the writ petition is maintainable on the ground of territorial jurisdiction. It would be profitable to refer to Article 226 (2) which is quoted hereinbelow:-
'2':- The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(II) Indisputably, the petitioner was posted at Hazaribag Training Centre, Meru Camp in the State of Jharkhand from 1997 to 2000 and the petitioner because of his physical disability being diagnosed as case of MDP in other words Schizo Affective Disorder as evident from Medial Board Proceeding vide Annexure-1. Since, the said disability has occurred during the service career and because of his posting in the State of Jharkhand, part of cause of action arose in the State of Jharkhand. Therefore, on the plain reading of Article 226 (2) of the Constitution of India, the writ petition is maintainable on the ground of territorial jurisdiction.
(III) Now, the question arises as to whether the petitioner is entitled to disability compensation since he has sustained the physical disability during course of employment. The nature of disability i.e. Schizo Affective Disorder and such a disorder, nothing conclusive has come during which place or time the petitioner was afflicted by such disorder. From the pleadings available on record, it appears that any deficiency/deterioration/disability which has not been recorded by the Medical Board during the service career or in course of his employment which is to be presumed that such disability has been caused during course of employment. The view of this Court gets fortified by the decision of Hon'ble Apex Court as rendered in the case of Sukhvinder Singh Vs. Union of India as reported in (2014)14 SCC 364, wherein the Hon'ble 6 Apex Court has categorically held that any disability not recorded at the time of recruitment was to be presumed to have been caused subsequently.
8. In view of the reason stated in forgoing paragraphs, the writ petition stands disposed of with a direction to the respondents to consider the case of the petitioner for grant of payment of compensation on the ground of disability, in accordance with law, within a period of eight weeks, from the date of receipt/communication of a copy of this order.
(Pramath Patnaik, J.) RKM