Abhijit Jana Vs. Union of India, Through the Secretary and Others - Court Judgment

Excerpt:

Judgment:

Lt. Gen. K.P.D. Samanta, Member (Administrative)

1. The petitioner, Abhijit Jana, was enrolled in the Indian Army, in the Mechanized Infantry Regiment, Ahmednagar, on 24th March 2001 and was discharged on 7th January 2006 on medical grounds after due recommendation of an Invalidation Medical Board. His discharge was under Army Rule 13(2) (iii).

2. The petitioner was suffering from a neurotic disorder diagnosed as 'Left Frontopaarietal Parafalcine Cavernous Hameangiomai, (OPTD) (clotting of blood at left side of brain), for which he was operated upon on 02 April 2002 as per medical records. He did not improve from this disease and had to be finally discharged from service. During his period of service that was little over five years, he was mostly in hospital for treatment or on sick leave to recuperate on account of his illness. The details of his service, as mentioned in Paragraph h 4(ii) of the affidavit-in-opposition, indicate that soon after his enrolment in March 2001, he remained in active service only for about a year i.e. up to March 2002. Thereafter, his series of ailments started, which unfortunately culminated in his discharge from service on medical ground.

3. The petitioner in his writ petition No. 11143-w/2009, filed before the Honble Calcutta High Court that was subsequently transferred to this Bench and re-numbered as TA 80 of 2010, has pleaded that the illness for which he was discharged should be treated as ‘attributable to or aggravated by military service. To substantiate his claim, he has brought about the following facts:-

a) He was fully fit when he was recruited in the Army. The medical examination report at the time of recruitment dated 21.3.2011 has been annexed by the petitioner in his writ petition indicating that he was found medically fit as per general medical examination that was carried out at the time of enrolment.

b) He completed his training without any impediment or difficulty. It was only in February 2005, according to the petitioner, that he was admitted in hospital with some symptoms of headache and later on discharged advising him sedentary duties. Thereafter, the disease worsened and he had to be operated upon in the Military Hospital at Ahmednagar on 2.4.2002.

4. In view of the circumstances of illness that have been explained by the petitioner in his application, he prays for ‘disability pension and ‘disability award as would be admissible to him from the government and the Army Group Insurance (AGI) Fund respectively. Before approaching the Calcutta High court by filing this writ petition, the petitioner had made such request for disability benefit from the Army Group Insurance Fund through a petition dated 26.7.2006 (annexure-P2). This representation was routed through the Records of the Mechanized Infantry Regimental Centre, Ahmednagar. In the same representation, the petitioner had also agitated on the point of him being eligible to receive the ‘disability pension as well, since, according to him, his disability was on account of aggravation due to military service. Notwithstanding the above, the authorities at Army Group Insurance Fund, New Delhi rejected his prayer for disability benefit after examining all the records on the ground that the “disability existed before enrolment”, vide Annexure-P4 dated 7.5.2006. Similarly, his plea for grant of disability pension was also rejected by the Records, Mechanized Infantry Regiment Centre (annexure-P3) assigning the same reason that his disability was neither attributable nor aggravated due to military service.

5. The respondent Nos. 1 to 5 and 7 in their affidavit-in-opposition have, besides mentioning the factual aspects of the petitioners service and incidents of hospitalization, emphasized on the issue that the petitioner was invalidated out of service by a second Medical Board held at headquarters of Mechanized Infantry Regimental Centre (MIRC), Ahmednagar. As explained in Para 4(iii) of the said affidavit-in-opposition, the ibid respondents have submitted that detection of the petitioners disease was made at the Centre for which, according to them, he was suffering prior to his enrolment. The same aspect has been contradicted later on when the respondents have mentioned that the petitioner was attested on completion of his training and thereafter such disability was detected for which he was invalidated out of service through a properly constituted Invalidation Medical Board as per recommendation made by the medical authorities in Command Hospital, Southern Command, Pune. The medical report has been attached as Annexure-A/R1.

6. We have examined the medical reports of the Invalidation Medical Board, which has been annexed with this affidavit-in-opposition, but we notice that the proceedings of this medical board (Annexure A/R-1 of the Petition) are selectively incomplete. Pages 1,2,3 and 4 of the said medical board proceedings are missing and the proceedings start from page 5, thereby, not revealing the full text of opinion of the Medical Board with regard to aggravation/attribution factor; whether the disability had any casual connection with military service or otherwise. The respondents are fully aware that details on such issues on page 3 and 4 of medical board proceedings can influence the course of decision with regards to eligibility of disability pension of the petitioner; yet such vital information were suppressed and concerned pages were not found attached with the document. The respondents and their representatives including counsels should be careful in future.

7. Fortunately, the same Medical Board proceedings were attached as annexure-R3 to the affidavit-in-opposition, as filed by the respondent No. 6 i.e. Army Group Insurance Fund authorities. In this document, all the pages were intact and we found that the Medical Board has opined that the ibid disability was aggravated on account of military service (vide Page 4, part V of the Invalidation Medical Board proceeding, held at Military Hospital, Ahmednagar on 25.11.2005).In this part of the said medical board proceeding, under the heading “Casual Relationship of the disability with service conditions or otherwise”, against the last column relating to “reason/cause/specific condition and period of service”, the specific condition has been clearly observed by the Medical Board as under:-

“Congenital anomaly could have gone unnoticed, possibly ruptured due to physical stress and strain of military service.”

8. Having examined the same document in an incomplete manner, as produced by respondents 1 to 5 and in a complete manner, as submitted by respondent No. 6; it clearly reveals the fact that the Medical Board was of the opinion that the disability was indeed aggravated due to military service.

9. In view of the circumstances mentioned above and considering the submissions made by the ld. Counsels for both parties through their affidavit and also during the course of hearing, we are of the considered view that the submission made in Para 4(v) of the affidavit-in-opposition of respondents 1 to 5 and 7, are incorrect. In the aforesaid submissions, the said respondents have mentioned that “as per recommendation of medical authority, the petitioners disability is considered as neither attributable to nor aggravated by military service.” These are inaccurate facts when compared with the endorsement made by the Medical Board as discussed earlier. Such inaccuracies in sworn affidavits, besides being irresponsible, could mislead the Court.

10. We are of the opinion that the administrative authority like Officer-in-Charge, Record or Principal Controller of Defence Accounts (Pension) {PCDA (P)} should not have interfered with the opinion of the validly constituted medical board. Moreover, the opinion of the medical board has been disregarded by the said authorities without obtaining any fresh medical opinion by referring the matter to the review medical board with superior medical authorities. In this regard there are several decisions of the Honble Supreme Court and different High Courts, which suggest that the recommendation of the medical board should not, in normal course, be tampered with and that such opinion should be given due weight and credence. In this context, the decisions brought out in the subsequent paragraphs may be referred to:- 11. In the decision reported in 2010 JT (7) 188, Om Prakash Singh –vs.- Union of India, the Honble Supreme Court clearly opined to the effect that –

“20. We have heard learned counsel for the parties at length. We are clearly of the view that the Medical Board is an expert body and they take into consideration all relevant factors and essential practice before arriving at any opinion and its opinion is entitled to be given due weight, merit, credence and value.

21. In the instant case, the Medical board has given unanimous opinion that the disease of the appellant was neither attributable to nor aggravated by the military service. The findings of the Medical Board has been accepted by the Division Bench of the High Court, Thus, in our considered opinion, no interference is called for. The appellant is not entitled to the disability pension. However, in case some amount has ever been paid to the appellant towards the disability pension, the same may not be recovered from him.”

12. This was also the view of the Punjab and Haryana High Court in the decision reported in 1999(4) SLR (PandH) 511, SurmukhSingh, ex. Hav –vs- Union of India, wherein it was held that it was not open to the CCDA (P), Allahabad to review the finding of the Invaliding Medical Board, as the opinion of that Board, which had been recorded on a physical examination of the patient, must be accepted.

13. Similarly, the Rajasthan High Court, Jaipur, in SB Civil WP No. 3468 of 1995 decided on 15.5.1997 in the case of WahiAjay, Lt. col. (Dr.) –v-Union of India, clearly held that the opinion of the Medical Board should not be ignored without any reason whatsoever. The same view has been taken by the Honble Apex Court in the decision reported in (2009) 9 SCC 140, Secretary, Ministry of Defence and Ors –vs- A.V.Damodaran (dead) through LRs and Ors, In the said decision, the Honble Apex Court held that the Medical Board is an expert body and its opinion is entitled to due weight, value and credence and should not be ignored without any reason whatsoever. Thus, it appears that the settled position of law is that the Medical Boards opinion cannot be overruled by an administrative authority. If necessary, the matter can at best be referred to a review medical board for fresh opinion. 14. In consideration of the points as mentioned above, the writ petition is allowed in part with the following directions :-

(a) The respondents are directed to sanction disability pension to the petitioner at the rate of 30% for life in accordance with the recommendation as made by the Invalidation Medical board held at Military Hospital, Ahmednagar on 25.11.2005.

(b) Such disability pension shall be for the purpose of disability being aggravated by military service as opined by the ibid Medical Board.

(c) The disability pension as above shall be paid to the petitioner with effect from the day following the date of discharge i.e. from 8th January 2007.

(d) The service element of such disability pension shall be calculated as per rules and PPO/Corrigendum PPO as applicable, shall be issued to the petitioner within 3 months from the date of receipt of a copy of this order.

15. The TA is disposed of with the above directions on contest but without costs. Let a plain copy of this order be handed over to the ld. Advocates for both the sides.