Jammu & Kashmir High Court
Indu Bhushan Bali vs Union Of India (Uoi) And Ors. on 19 September, 2006
Equivalent citations: 2006(2)JKJ340, 2008(2)SLJ241(NULL)
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. Petitioner was enrolled in the army as Senior Field Assistant (Medico) on 5th of Dec 90. In the year 1994, he was transferred to Leh where he fell sick and was admitted in the Army Hospital Leh on 22nd of Aug 94. He was discharged from the said hospital on 1st of Sept 94 and was placed under C&E category temporarily. The petitioner thereafter in view of his ailment was transferred from Leh to Rajouri w.e.f. 1st Jan 95 as he was categorized unfit for posting in a high altitude. Petitioner was then transferred to Poonch on 7th Oct 98 where he again fell sick and was referred to the Standard Medical Board of Government Medical College, Jammu on 23rd of Aug 99. The Medical Board of the Government Medical College, Jammu, recommended that the petitioner may be referred for further diagnosis to PGI Chandigarh or AIIMS, New Delhi. The petitioner was then referred to Ram Manohar Lohia Hospital, New Delhi where it was detected as a case of Paranoid Schizophrenia. The petitioner was declared unfit to continue in service.
2. The wife of the petitioner earlier preferred a writ petition bearing OWP No. 968/96 which was decided on 9th Feb 98 with a direction that in case the husband of the petitioner is interested in continuing in service, he must report at his place of posting immediately and cooperate with the respondents to get him treated and if he does so, the respondents shall post him suitably and besides affording best of medical cover shall put at his disposal all possible facilities which are congenial to his mental health. Thereafter the petitioner resumed his duties and his case was referred to the Medical Board of Government Medical College, Jammu. The said Board recommended that the petitioner may be referred either to Chandigarh or New Delhi for further check up. The said Board also opined that the petitioner at present is unfit to continue in service. On the basis of said medical report, the petitioner was discharged from service w.e.f. 18th of Aug 2000.
3. The petitioner impugned the aforesaid order of discharge in writ petition bearing OWP No. 712/2000, which came to be disposed of vide order dt. 30th March 01, with the following observations:
...The respondents would accordingly arrange another medical examination of the petitioner. The Medical Boards opinion in this regard would govern further action required to be taken in this case. As such order dated 18th Aug 2000 shall not be given effect to. Relationship of Master and servant shall be kept intact. In case the medical opinion goes in favour of the petitioner then appropriate action be taken by the respondents and the petitioner be not compelled to approach this court again. Expenses of this medical examination shall be borne as per Government Rules. Let the medical examination be done and completed and final order be passed within a period of three months from the date a copy of this order is made available to the respondents by the petitioner....
4. Thereafter the petitioner was subjected to medical examination at Safdarjung Hospital, New Delhi and the medical board of the said hospital ' was of the opinion that the petitioner is suffering from Paranoid Schizophrenia with border line personality trade. It is after the said opinion expressed by the medical board of the said Hospital, the petitioner has been discharged from service vide order dt. 30th July 01 with retrospective effect i.e. 18th of Aug 2000. It is this order which is impugned in this writ petition.
5. The grievance of the petitioner is that as this court vide judgment dt. 30th March 01, passed in OWP No. 712/2000 had directed that the relationship of master and servant be kept intact till a medical opinion is given by the fresh medical board to be constituted by respondents, and therefore, the order dt. 30th July 01 could not have been given effect to retrospectively. It is further stated that the petitioner has neither been given the pensionary benefits nor his claim for disability pension has been considered by the respondents.
6. On notice, respondents have filed counter in which it has been admitted that the after passing of the judgment by this court dt. 30th March 01, the respondents arranged another medical examination of the petitioner at Safdarjang hospital, New Delhi on 14th July 01 and the medical board opined that the petitioner is still suffering from Paranoid Schizophrenia, and it was thereafter the order impugned came to be passed which was given retrospective effect from 18th of Aug 2000. In para 4 of the counter, it has been pleaded as under:
...The petitioner has rendered total service of 6 years and 26 days, which is less than, 10 years. So far, following payments have been made to petitioner:
(1) Terminal gratuity Rs. 10,6201- sent vide DD/No. 1073/028978 dt. 31.10.2001.
(2) GPF final payment Rs. 35,617/- sent vide DD No. 1073/027836 dt. 10.9.01.
(3) Leave encashment Rs. 2181 sent vide DD No. 558910 dated 4.12.2k.
(4) Bill No. 316 dated 26.12.2k of CGEGIS payment for Rs. 2808/ sent to DACS for payment. Reminder already sent as the payment not yet received.
(5) Vide letter No. 3305 dated 4.9.2k of AO Poonch, Sh IB Bali was asked to submit application for Rs. 15000 assistance for medical invalidation from SSB welfare fund, if found fit by Board, but he has not responded yet for that.
7. I have heard learned Counsel for the parties and perused the record. Respondents have rejected the claim of the petitioner solely on the ground that the petitioner has not completed ten years of active service in the army but there is no dispute that the petitioner was invalidated out of service on the ground of disability. Therefore, it would be appropriate to notice the relevant provisions of Pension Regulations for the Army which deal with the grant of disability pension. Para 173 of the Pension Regulations for the Army, 1961 Part-I deals with the grant of disability pension, which is reproduced as under:
Primary conditions for the grant of disability pension. 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 percent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix-II. Individuals discharged on account of their being permanently in low medical category.
173-A: Individuals who are placed in lower medical category (other than E) permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who having retained in engagement shall be deemed to have been invalided out from service for the purpose of the entitlement rules laid down in appendix II to these Regulations.
8. At this stage, it will also be appropriate to notice the relevant provision of Central Civil Services (Extraordinary Pension) Rules. Rule 38 of the said rules, which deals with the invalid pension reads as under:
38. Invalid pension:
(1) Invalid pension may be granted if a Government servant retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service.
(2) A government servant applying for an invalid pension shall submit a medical certificate of incapacity from the following medical authority, namely:
(a) a Medical Board in the case of a gazetted Government servant and of a non-gazetted Government servant whose pay, as defined in Rule 9(21) of the Fundamental Rules, exceeds (Two hundred rupees) per mensem;
(b) Civil surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases.
9. A perusal of the aforesaid rules shows that the said rules do not prescribe any limit of minimum service to enable an army personnel to become entitled for invaliding pension. Even if an army personnel suffers from a disability after few days of his joining the service, which disability is on account of stress and strains of army service, he is entitled to disability pension under the aforementioned rules. Reliance in this regard can be placed on 2004(2) JKJ 113, Kaushalya Devi v. Union of India and Ors. In the present case, the petitioner suffered from Paranoid Schizophrenia which disease is held to be a disease on account of stress and strain of army service. In Harjit Singh v. Union of India 1998(4) SCT 88, the army personnel suffering from Schizophrenia was held entitled to disability pension. The Karnataka High Court in the case of Ex. Naik M.S. Pemmaiah v. Union of India 1998 (3) SCT 755, had allowed the disability pension where the concerned employee was suffering from Schizophrenia. In the said case the reasoning given was that if a person was not suffering from the disease when he joined the service and when there was no entry that the person was suffering from any disorder or disability, then it is to be presumed that the disease had occurred on account of stress and strain of army service and the same is attributable to military service. Therefore, the petitioner is held entitled to disability pension. The disability pension is to be assessed by the respondents under Central Civil Services (Extraordinary Pension) Rules as amended by G.I. M.F., O.M No. F.23(15)-E.V(A)/73-Main & Pt. I, dated 20th January, 1978 as per the assessment made by the medical board.
10. The other grievance of the petitioner as noticed above is that the petitioner has been invalided out of service vide order dt. 30th July 01 with retrospective effect from 18th Aug 2000 whereas this court while disposing of the writ petition OWP No. 712/2000 had directed that the relationship of master and servant be kept intact till a medical opinion is given by the fresh medical board to be constituted by the respondents.
11. I have given my thoughtful consideration to the above submission made by the learned Counsel for the petitioner and found merit in it. In view of the order passed by this court in the aforementioned writ petition, the relationship of master and servant was to be kept intact till a fresh medical opinion is given by the medical board. The Board was constituted by respondents after passing of the aforesaid order on 30th March 01, and it was thereafter, the Board gave an opinion that the petitioner being suffering from Paranoid Schizophrenia is unfit for service. After the said opinion was obtained, the respondents passed the order impugned i.e. 30th July 01 by which petitioner has been invalidated out of service with retrospective effect from 18th Aug 2000, which could not have been done in view of order passed by this court in OWP No. 712/2000 dt. 30th March 01.
12. For the reasons mentioned above, this petition is accepted. Petitioner shall stand invalidated out of service w.e.f. 30th July 01 and is also held entitled to disability pension under the Central Civil Services (Extraordinary Pension) Rules, referred to above as per the assessment made by the medical board. Let the disability pension be released in his favour within a period of two months from the date a copy of this order is made available to respondents by the petitioner. The petitioner is also held entitled to the cost of petition.
Disposed of accordingly.