Judgment:
LT GEN K P D Samanta, Member (Administrative):
1. The petitioner, Ex-Sepoy, Nagendranath Mondal was enrolled in the âRAJPUT REGIMENT of the Indian Army on 22nd October, 1969. He took part in 1971 war at the Western Theatre, where he was wounded with a bullet injury. The bullet was lodged in the left side of his chest. He was treated in a military hospital and finally retired on completion of his normal terms of engagement having completed 15 years of active service on 1st Nov, 1984. He was in receipt of his normal entitled service pension. While he was released from Army, his âRelease Medical Board awarded him âdisability pension @ 30% of his disablement on account of âgunshot wound on left chestâ. Such disability pension of 30% was awarded for 2 years. These are the facts that have been mentioned in the writ petition, not contested in any manner by the respondents in their Affidavit-in-Opposition (in short the A/O). In fact, it has been further clarified by the respondents in ibid A/O that he was initially paid 30% disablement up to 30-10-1986 and thereafter, such percentage of disablement was changed to 20%, which was paid to him till 6th September, 2001. Subsequent to this date, no disability pension was paid to him, which is the point of grievance of the petitioner that he has included in his prayer.
2. On the issue of non-payment of disability pension subsequent to 6th September, 2001, the petitioner further submits through his Writ Petition that he had appealed before the respondents agitating that his disability pension should not have been stopped. In the said appeal, he also submitted certain X-rays to indicate that there were pieces of bullet still lodged in his body and he stated that he was still experiencing substantial difficulty in movement of limbs on account of such disability.
3. To the surprise of the petitioner, he was replied by âRAJPUT Records, Fatehgarhâ on 4th December, 2001 ( Annexure P-3) that he was not entitled to any disability pension since one Re-survey Medical Board was held in the Command Hospital, Eastern Command at Kolkata on 6th September, 2001and the said medical board had re-assessed his disability as âNIL percentage. The same facts have been submitted in paragraph -5 (c) of the A/O. This has, however, been contested by the petitioner in paragraph-5 of his rejoinder, where he has insisted that there was no Re-survey Medical Board ever carried out to his knowledge. He further insisted that he was neither called nor examined by any medical authorities for such a Re-survey Board which was now been claimed by the respondents. The respondents, however, have produced and submitted a copy of the above Re-survey Medical Board said to have been conducted on 6th September, 2001, during hearing on 31st March, 2011. We shall discuss the ibid issue in subsequent paragraphs.
4. The second prayer of the petitioner is that he was not paid Rupees one lakh of ex-gratia payment that was due. To substantiate his claim for such ex-gratia payment, the petitioner has annexed a letter from 15 RAJPUT (Unit of the petitioner) addressed to Rajput Records on 10th June 2000, which has been attached as Annexure P-2 of the petition. The extract of this letter are as under:-
âEx-Sepoy Nagendranath Mondal had opted for cash payment of Rs. 1 lakh that was communicated to your office by him in December, 1999. He has received no intimation from the Record office thereafter. It is requested that an early payment of such ex-gratia out of âACWF may be made to him.â
5. The ibid communication reveals that there was some proposal for payment of Rs. 1 lakh from âACWF (âArmy Commanders Welfare Fund).
6. The respondents in their A/O (paragraph-5(d)) have, however, contested that the petitioner was never entitled to any such payment. They have in fact, submitted that the Rajput Regiment Records had intimated to the petitioner on 6th September, 2007 that such financial assistance/ex-gratia of Rs. 1 lakh to the petitioner was applicable to those who were invalided out of service or discharged on medical grounds, and such grants were not applicable to those battle causalities, who were retained in service despite disability and later discharged on completion of their terms of engagement. The petitioner, in his rejoinder, has reiterated that he was promised such a financial grant but was now denied for no valid reasons.
7. We have heard the learned counsels for both the sides and have gone through the written submissions and affidavits. We have also considered the oral submissions during hearing from both sides. The main issues that need deliberation and application of our mind are the following:-
(a) The petitioners claim for Ex-gratia payment of Rs. 1 lakh.
(b) Continuance or otherwise of disability pension in favour of the petitioner.
8. Ex-gratia Payment. It is an admitted fact that the petitioner was injured during 1971 War and was disabled on account of âGunshot injuryâ. Despite such disability, the petitioner was not invalided out of service. In fact, he has submitted that his service continued till completion of his terms of engagement and he retired in 1984 after completing pensionable service of 15 years. He remained in an acceptable âlow medical category throughout his service and was recommended for disability pension for two years at 30% in his release medical board at the time of retirement. On retirement, he was in receipt of disability pension as well as his normal pension as would be due. Under the circumstances, there are no rules to suggest that he could be entitled to any Ex-gratia payment. As regards payment from any regimental fund or welfare fund of the Army, we did not find any written assurances from any quarters to suggest that any such grant was ever sanctioned or withdrawn. Therefore, it will not be appropriate for us to adjudicate on a matter that relates to any discretionary payment from some welfare fund mentioned by the authorities. It should continue to be at the discretion of the authorities who administer such funds.
9. Continuance of disability pension. There is no doubt that the petitioner was in receipt of disability pension @ 30% disablement, initially for two years and thereafter extended till September 1991. As per statements made in Paragraph -5 (b) of the A/O, the petitioner was receiving disability pension from time he retired in October, 1984 till 6th December, 2001. The petitioner, however, has denied that he was receiving any such amounts as mentioned in Para 5 (b) of the A/O, as per oral submission made on 31st March, 2011. There is, however, no such denial in any of his rejoinder affidavits. The issue, actually, hinges on the validity of the Re-Survey Medical Board that was held at Command Hospital, Eastern Command, Kolkata, on 28th August, 2001, as submitted by the respondents in their supplementary affidavit filed on 31st March, 2011. This Re-survey Medical Board has been totally denied by the petitioner, who claims that such a Medical Board, if held, was in his absentia and could not be treated as valid. He further claimed, both through his written statements and vehement oral objections that how a Medical Board of this nature could be held without examining the patient concerned! In view of such objections, we went on to examine the copy of the ibid Re-survey Medical Board Proceedings. Our observations after perusal are:-
(a) The documents (AFMSF-17) were forwarded by the RAJPUT Regiment Records to Eastern Command Hospital, Kolkata on 16th July, 2001. Medical Board assembled on 28th August, 2001 at Command Hospital, Eastern Command in terms of Army Order 121/79 to examine Ex-Sepoy Nagendranath Mondal. We however, find no authentication to suggest that the patient, Nagendranath Mondal, was indeed present at the said Medical Board, which had assembled to examine him.
(b) The entire Board Proceedings including investigations, x-rays, if any, and Medical opinions were all completed on the same day, i.e., on 28-8-01.
(c) We did not find any pathological investigation reports or x-ray report attached to the submitted Re-survey Medical Board proceedings. If at all, such examinations were indeed done, the findings thereof could have been endorsed within ibid board proceedings; but we did not find any such mention.
(d) The Board has endorsed that there was a âgunshot wound on the left side of chest and left hand, but came to a conclusion that the percentage of disability was âNIL and the condition was said to be cured. All these findings and opinion were completed in one day and the proceedings were forwarded with such endorsements by the said Board to Headquarters, Eastern Command on the same day i.e., on 28th August, 2001.
(e) The said medical board was subsequently approved by the higher authorities at Headquarters, Eastern Command on 6th September, 2001.
10. Under the circumstances, as discussed above, it appears most unlikely that the said Re-survey Medical Board, if held, could have been carried out in a reasonable and fair manner. We have no reason to disbelieve the submissions made by the petitioner to the fact that he was not present while the Re-Survey Medical Board was carried out, perhaps on paper. His Re-Survey Medical Board came to conclusion that while he did have a bullet lodged in his body his percentage of disability was âNILâ.
11. In view of the points of issue and incidents discussed above and our application of mind on the facts leading to the manner in which the Re-survey Medical Board was carried out, we are of the opinion that the authorities must carry out another Re-survey Medical Board afresh, in a fair and just manner, without any reference to any previous Board that appears to have been done without the patients presence.
12. With due consideration to matters and issues brought to our notice and the circumstances as discussed ibid, the TA No. 210/10 is disposed of with partial relief to the petitioner on contest, without any cost, with following directions :
(a) The respondent No. 3 shall order a fresh Re-Survey Medical Board to re-assess the percentage of disability of the petitioner within three months of receipt of this order. The percentage of disability so awarded, shall be abided by the respondent No. 2 to decide and pay disability pension to the petitioner as due.
(b) The respondents No. 2 and 3 shall ensure that the disability pension, as stated to have been paid to the petitioner as per paragraph- 5(b) of their Affidavit in Opposition, were indeed paid and obtain written confirmation from the concerned bankers with regards to such payment and apprise the petitioner within three months from the date of receipt of this order.
(c) The Ex-gratia or financial grant, as prayed for by the petitioner, is left to the discretion of the concerned authorities of Respondent No. 3, who should be magnanimous to pay any previously promised grants to the petitioner, if permissible, under Regimental Rules.
(d) Till finalisation of the Re-survey Medical Board as ordered vide (a) above, the petitioners previously granted disability pension @ 30% shall continue from 6th December, 2001 onwards keeping the previous Medical Board as valid. The Re-survey Medical Board dated 28th August, 2001 approved on 6th September, 2001 shall not be made operative.
(e) Let a plain copy of this order be handed over to the learned counsel for both the sides.