Kerala High Court
Cdr. P.P. Prasad (Rtd) vs Union Of India on 24 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 24TH DAY OF JUNE 2024 / 3RD ASHADHA, 1946
WP(C) NO. 34680 OF 2023
PETITIONER/S:
CDR. P.P. PRASAD (RTD)
AGED 49 YEARS
S/O S. PADMANABHAN,NOW RESIDING AT FLAT 6 B, RDS OASIS, 4TH
NETAJI CROSS ROAD, JAWAHAR NAGAR, KADAVANTHARA, KOCHI., PIN
- 682020
BY ADVS.
P.RAMAKRISHNAN
C.ANIL KUMAR
PREETHI RAMAKRISHNAN (P-212)
PRATAP ABRAHAM VARGHESE
ASHA K.SHENOY
GOKUL KRISHNA
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH
BLOCK, NEW DELHI., PIN - 110011
2 THE CHIEF OF NAVAL STAFF
INTEGRATED HEAD QUARTERS, MOD (NAVY), SOUTH BLOCK, NEW DELHI
., PIN - 110011
3 INTEGRATED HEAD QUARTERS OF MOD (NAVY)
(DTE OF PAY AND ALLOWANCES), NAVAL HEADQUARTERS ANNEX,
TALKATORA STADIUM, NEW DELHI. REPRESENTED BY ITS DIRECTOR,
PIN - 110004
4 PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS
NAVY (PENSIONS), PO BOX NO. 589, NO. 1 COOPERAGE ROAD,
MUMBAI., PIN - 400039
BY ADV N.S.DAYA SINDHU SHREE HARI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.06.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 34680 OF 2023
2
JUDGMENT
Amit Rawal, J.
Present writ petition is directed against the order of the Armed Forces Tribunal dated 3.4.2023 whereby the claim of the writ petitioner for disability pension has been rejected.
2. Succinctly, the facts in brief are that the petitioner was recruited as a Naval Officer in the Indian Navy in the year 1991. At the relevant time, the educational qualification was 10+2 and was commissioned in the Navy with effect from 1.1.1996. On 30.12.2016, retired as a Commander. During the period of service, on 9.7.2010, was examined and found that he was unfit for submarine service. On the basis of the aforementioned finding, was assigned office job ie., offshore. In 2012, was again examined by the Medical Board regrading the extent of disability he had suffered by 'Tinnitus'. The dispute erupted only in 2016, when the petitioner was again subjected to medical examination by the Medical Board. As per the results in the examination, it was found that he was unfit to be kept in the employment of the Navy as he had suffered disability to the extent of 20%. It is pertinent to mention here that, when such examination is undertaken, the Naval officer is also called upon to fill up the form for submission of information with WP(C) NO. 34680 OF 2023 3 regard to the disease and the after effects like physiological and depressive problems. Medical Board found him to be unfit, as noticed above, for 20% disability and passed a release order. The said release order, where the disability was determined as 20% had certain cutting and usage of whitener. On 16.2.2017, Integrated Headquarters of Ministry of Defence (Navy) intimated the Commanding officer, Naval Base there should not be any cutting/alteration/usage of whitener in the Release Medical Board Proceedings and that should be replaced. The trouble erupted only thereafter, whereby the extent of disability was determined as 10% without reexamination . When he was subjected to examination in December, 2016, it was found that on both, right and left ears, he had hearing problem beyond twenty (20) feet and the Medical Board suggested the entitlement of disability pension. On the basis of the letter in February, 2017, the same document dated 19.12.2016 containing aforementioned clauses was replaced and the disability was determined as 10%. The said order was challenged before the competent authority which was dismissed vide order dated 17.1.2019 and the 2nd appeal preferred against thereof was also dismissed on 18.10.2019. The aforementioned orders were challenged before the AFT. AFT also, not been able to appreciate the contentions and rejected the case.
WP(C) NO. 34680 OF 2023 4
3. Learned counsel for the petitioner submitted that the respondent did not place on record the prevailing guidelines for entitlement or otherwise of the disability, till the proceedings before the AFT. It is only when this Court in the order dated 20.10.2023 raised few queries, a counter statement has been filed by relying upon the guidelines. Even the guidelines would also support the case of the petitioner ,for, in clause 6 of 20, it is evident that, if the hearing loss is not over 10 feet, disability has been assessed as 40% and for other hearing losses ie., more than 10 feet as 20%. The guideline is conspicuously absent with regard to determination of the disability @ 10%. Learned Tribunal rejected the case on the premise that the petitioner was again subjected to a medical test which is not the case of respondent, either before the AFT or before this Court, therefore there is an abdication and all the orders are liable to be set aside.
4. Learned counsel for the respondents supported the aforementioned findings and submitted that concededly, the hearing loss of the petitioner is up to 20 feet for both left and right ears, whereas, the guidelines makes the person eligible for entitlement of disability, only if the hearing loss is less than 10 feet. Therefore the reclassification on the basis of the letter in February, 2017, ibid, the disability was determined at 10%. But, to a specific query raised by WP(C) NO. 34680 OF 2023 5 the Bench as to whether the petitioner was subjected to fresh medical test, the answer was in negative.
5. We have heard the learned counsel for the parties and appraised the paper books. The facts regarding the examination of the petitioner in 2000, 2012 and 2016 are not in dispute. The only dispute which arises for determination is whether the respondents have been justified in reclassifying/redetermining the extent of disability at 10% instead of 20%, which was already arrived at in the proceedings dated 19.12.2016. For answering the aforementioned controversy, it would be in the fitness of things to extract the relevant clause of the Guide to Medical Officers (Military Pensions), Ministry of defence, 2008. Clause 20 deals with the 'defective hearing'. It is extracted herein below:
20 Hearing Loss. Hearing loss refers to impairment of heering, the degree of which may vary from mild to total hearing loss.
Assessment of hearing loss a. Screening for hearing loss should be carried out with free field hearing tests, namely Conversational Voice Tests, (CV) and Forced Whisper Test (FW) using Phonetically Word List. If any subject scores less than 610 cms in CV/FW Test, he should be subjected to assessment for a hearing loss using pure tone audiometry.
Assessment should be based on the grade attained using both ears together, the percentage assessment appropriate to the grade thus attained is given below:
Grad Degree of hearing Assessment
e attained forboth ears
used together
1 Total deafness 100.00%
WP(C) NO. 34680 OF 2023
6
2 Shout not beyond 3 80.00%
feet
3 Conversational voice 60.00%
not over 1 Foot
4 Conversational voice 40.00%
not over 3 Feet
6 Conversational voice
not over 10 Feet
a.Unilateral total 40%
deafness
b.Otherwise 20%
A case in which the right ear attained grade 4, the left ear grade 2 should be assessed as follows:
Disability for grade 4 - 40% Disability for grade 2 - 80%
-----------------
Totl mean disability 40+80 = 60%
2
6. On perusal of the aforementioned guidelines, it is
evident that sub clause 6 of Clause 20 envisages, if the
conversational voice is not over 10 feet, the total deafness would be 40% and for otherwise, 20%. Conceded case of the respondents before the authority in the proceedings dated 19.12.2016 was that, the hearing loss of the petitioner was determined at 20% . This document was replaced owing to the contents of the letter dated 16.2.2017, which has been placed on record for the first time in this Court. The same reads as under:
RETURNING OF RELEASE MEDICAL BOARD PROCEEDINGS CDR PULKNATE PADINCHARE ORASAD, (41860K)Refer to HQ SNC letter MD/2270/8 dated 16 Jan 17 2 The Release Medical Board Proceeding in respect of the above named officer are returned herewith, with the following observations WP(C) NO. 34680 OF 2023 7
(a) Conversational voice of the officet in (Rt) and (Lt) ears is 20 Ft and 18 Ft respectively. Hence, accord of 20% disablement isnot in order.
The documents are returned herewith it is requested that the same be re submitted duly reconciled.
5 It is pertinent to mention that i.a.w to O/ DGAFMS letter NO 16036/RMB/IMB/DGAFMS/MA (Pens) dated 12 Aug 15, no cutting/alteration/use of whitener is to be made in Release/Invaliding Medical Board proceeding. It is therefore requested that a fresh sheet incorporating necessary amendments be attached and signed by the Board of the Day.
7. We have been informed that the copy of this communication was though given to the Tribunal across the Bench as evident from the findings in paragraph 7 but copy thereof was not given to the counsel representing the petitioner. It is in that background, the disability was determined at 10%. It is also not in dispute that after the issuance of the aforementioned letter, petitioner was never subjected to fresh medical test. Concededly, before us also, it has been admitted that the disability is 20%. By relying upon the term 'otherwise' referred to in sub clause 6 of clause 20, the maximum disability for such officers suffering from hearing problems ie., the disease called Tinnitus would be 20%. We fail to understand that how and under what manner, respondents have redetermined/reclassified the disability as 10%. AFT had been completely oblivious of the aforementioned guidelines and had arrived at a finding that petitioner was subjected to a fresh medical WP(C) NO. 34680 OF 2023 8 test which was not correct observation, in view of our findings above. For the reason aforementioned, the impugned orders dated 5.5.2017, 17.1.2019 and 18.10.2019 are set aside. Consequentially, the OA No.102 of 2020 is allowed. Writ petition is also allowed. Respondents are directed to release the disability pension within a period of one month from the date of receipt of a certified copy of this judgment, failure of which shall entitle into interest @ 6% till the actual disbursement.
Sd/-
AMIT RAWAL JUDGE Sd/-
sab EASWARAN S.
JUDGE
WP(C) NO. 34680 OF 2023
9
APPENDIX OF WP(C) 34680/2023
PETITIONER EXHIBITS
Exhibit P-1 TRUE COPY OF MEMORANDUM OF ORIGINAL
APPLICATION AND THE ANNEXURES A-1 TO A-5
PRODUCED ALONG WITH IT.
Exhibit P-2 TRUE COPY OF REPLY STATEMENT ALONG WITH
THE ANNEXURES FILED BY THE RESPONDENTS IN OA 102 OF 2020.
Exhibit P-3 TRUE COPY OF ORDER DATED 3/4/2023 IN OA NO. 102 OF 2020 PASSED BY THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI.
RESPONDENT ANNEXURES
Annexure R3 (a) A true copy of the computer generated
print dated 29-05-2023 of the PPO
Annexure R3(b). A true copy of the
ADM/0101/UPSC/CAPF(AC)2020 dated 18-12- 2020 Annexure R3(c) A true copy of the relevant pages of Guide to Medical Officers (Military Pensions) issued by the Ministry of Defence, Government of India dated NIL