Judgment:
SadhanKumar Gupta, MEMBER (Judicial)
1. Initially, the applicant filed the writ petition before the Honble High Court at Calcutta praying for grant of medical disablement pension and other reliefs. Subsequently, the said writ petition was transferred to this Tribunal in view of the provisions of Armed Forces Tribunal Act, 2007.
2. In brief, the case of the applicant is that he was enrolled in the Indian Army as a Sepoy on 29.1.1998. He was posted in the State of Jammu and Kashmir. During his tenure of service, on 8.2.2003, the applicant became sick and was admitted in 92 Base Hospital at Srinagar, as he was suffering from âModerate Depressive Episode (IMB). He was discharged from the Base Hospital on 4.3.2003 and was sent back to his residence. Subsequently, the respondent No. 6 by the notice dated 8.9.2003 informed the applicant that a sum of Rs. 23,568/- would be remitted in favour of the applicant as post-discharge claim. The said amount was received by the applicant. The discharge certificate was issued in the name of the applicant on 27.10.2003. It was mentioned in the discharge book that the applicant was suffering from âModerate Depressive Episode (F32-1), % of disability 50% for two yearsâ. On November 30, 2003, the respondent No. 6 forwarded the sheet roll together with the documents to the office of respondent No. 7 in respect of the disability pension claim, as raised by the applicant. The said respondent No. 6 informed the applicant through his letter dt. July 7, 2004 that his claim for disability pension was submitted to the office of PCDA(P), Allahabad and ultimately on November 13, 2004, the respondent No. 6 informed the applicant that the respondent No. 7 i.e. PCDA(P), Allahabad decided that the applicant was not entitled to the disability pension, as the disability of the applicant was neither attributable to nor aggravated by the military service and the same was constitutional disorder and not related to military service. The respondent No. 6, in the said letter, advised the applicant that if he so desired, he could prefer an appeal addressed to the Minister of Defence, Govt. of India, within six months.
3. The applicant preferred an appeal to the Honble Minister of Defence, Govt. of India against the refusal of disability pension and this appeal was preferred on January 19, 2005. However, no action was taken inspite of repeated reminders. Ultimately, the applicant had to submit a âDemand Justice notice through his advocate on November 23, 2005. In this way, the respondents delayed the matter thereby depriving the applicant of his legitimate claim of disability pension. Being aggrieved and dissatisfied with the inaction on the part of the respondents in issuing pension payment order, the applicant was compelled to approach the Honble High Court at Calcutta in its writ jurisdiction claiming the relief as mentioned in the said petition.
4. The application has been contested by the respondents wherein they have denied the allegations made by the applicant on all material points. However, it has been mentioned in the said counter-affidavit that due to the illness of the applicant, he was admitted in the Military Hospital. As there was no satisfactory improvement, so the applicant was placed before a Medical Board constituted to assess the nature and extent of disability of the applicant. Ultimately, the applicant was discharged from service w.e.f. 4.3.2003.
5. As the applicant put forward a claim of disability pension, so the matter was referred to the PCDA(Pension), Allahabad, who by their letter dt. 20.10.2004 rejected such prayer, as according to them, the disease was neither attributable to nor aggravated by the military service and was in the nature of constitutional disorder. The said decision was communicated to the applicant and he was advised to prefer appeal against such decision, if he so desired. In fact, the applicant preferred an appeal, which was still pending at the time of filing of the counter-affidavit with the appropriate authority. It is the claim of the respondents that since the appeal is still pending, so, this application/writ petition is not maintainable. The respondents have prayed for dismissal of the application. 6. We have heard the submissions of the ld. Advocates for both the sides and also perused the claims, as put forward by the respective parties in their pleadings. Admittedly, the applicant was enrolled in the military service in the year 1998 and thereafter, he was discharged from service on 4.3.2003 on medical ground, as he was found unfit for military service. It is the admitted position that after the applicant was discharged, a discharge certificate was issued in his name wherein it was mentioned that he was invalidated out of service on medical ground. It is also the admitted position that the applicant put forward a claim for disability pension with the appropriate authority. Although the respondents have not produced any documentary evidence regarding the decision of the Medical Board, which examined the applicant, still, it appears from the counter affidavit that it has been mentioned therein that the claim for disablement pension was actually forwarded by the appropriate authority for sanction of the PCDA(P), Allahabad. It is surprising that the concerned authority did not think it proper to place the report of Medical Board before this Bench at the time of hearing. We have got no hesitation to hold that there was deliberate intention on their part to suppress material document before this Court. This attitude on the part of the concerned Govt. officials is certainly deplorable and must be condemned.
7. Be that as it may, there cannot be any two opinion that in order to decide as to whether a person is entitled to get disablement pension or not, the medical papers, which were issued by the concerned Medical Board, which examined the said person, are most vital in nature. The opinion of the Medical Board, so far as grant of disablement pension is concerned, must be considered to be the final in nature. The law in this respect has been clearly stated in various decisions of the Honble Supreme Court as well of different High Courts. In the decision reported in 2010 JT (7) 188, Om Prakash Singh âvs- Union of India, the Honble Supreme Court clearly opined to the following effect â â20. 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.â
The ratio of this decision is clearly to the effect that the view of the Medical Board is final and such view cannot be over-turned by another authority without any appropriate reason whatsoever.
8. In the decision reported in 1999(4) SLR (PandH) 511, Surmukhsingh, ex. Hav âvs- Union of India, the Honble Punjab and Haryana High Court 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. The Rajasthan High Court, Jaipur, in the case of WahiAjay, Lt. col. (Dr.) âv-Union of India, passed in SB Civil WP No. 3468 of 1995 which was decided on 15.5.1997 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 âvs- 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.
9. So, there cannot be any doubt that in order to come to a conclusion as to whether a person is entitled to disablement pension or not, the opinion of the Medical Board should be considered to be final unless there is valid reason for differing with the said opinion. We have already pointed out that the respondents did not produce the Medical Boards opinion. It is shocking that the authorities acted in such a manner in order to suppress material facts before the Court of law. Be that as it may, the applicant has produced the copy of the Medical Boards opinion, which, according to him, was obtained by way of collecting information under the Right to Information Act, 2005. Ld. Advocate for the respondents did not dispute the authenticity of such documents, which are Xerox copies of the originals. As such, we perused the medical Boards opinion, as filed by the applicant. The opinion of the medical Board at page 3 clearly observed that âdisablement was aggravated due to stress and strain of service and its effect still continuesâ Ultimately, the Medical Board opined that the applicant was suffering from 50% disablement and it recommended such disablement pension for two years to be granted in favour of the applicant. Surprisingly, inspite of such clear opinion of the Medical Board, the concerned authority i.e. PCDA(P), Allahabad rejected such claim by observing that the disease of the applicant was neither attributable to nor aggravated due to military service and it was constitutional in nature. We fail to understand as to how the PCDA(P), Allahabad could come to such a conclusion in order to overrule the finding of the Medical Board, which is an expert body in this respect. Nothing has been produced before us as to the basis of the decision of the PCDA(P), Allahabad. Since we have already pointed out that it is the settled legal position that the opinion of the Medical Board in this respect is final and that cannot be set aside/over-ruled by a stroke of pen by the PCDA(P), Allahabad. In the absence of any material whatsoever as to how the said PCDA(P), Allahabad was pleased to overrule the decision of the Medical Board, we are of opinion that such decision of the said authority was palpably without jurisdiction and must be set aside.
10. The fact remains that the Medical Board was of clear opinion that the disablement percentage of the applicant was 50% and it was aggravated due to military service and not constitutional in nature. We think that the said opinion of the Medical Board should be honoured and the applicant should be granted disability pension to the extent of 50%, as recommended by the Medical Board. It should be pointed out here that the said Medical board was of the opinion that probable duration of that degree of disablement would be two years. As such, we think that the applicant should be granted 50% medical disablement pension for two years from the date of discharge and thereafter he may be placed before further review Medical Board in order to ascertain as to whether the such disablement pension should be extended or not. To our mind, the applicant should be granted interest @ 8% per annum from the date of his discharge upto the next two years in respect of the arrear amount to which he is entitled.
11. It is submitted in the counter affidavit that the present application is not maintainable as an appeal has been preferred by the applicant with the appellate authority and that is still pending. Admittedly, the appeal was preferred 5/6 years before. It is shocking that for the last 5/6 years, the appeal has been kept pending although it relates to a claim of disablement pension. It will be a travesty of justice, if, on this ground, the application submitted by the applicant before this court is to be rejected. If this view is accepted, then in that event, the door of justice will be closed to the aggrieved persons simply by delaying disposal of the appeal for years together. This, according to us, is not at all desirable and is not permissible in the eye of law. To our mind, the present application is very much maintainable before this Tribunal, as the concerned authorities failed to discharge their legal obligation in this respect, by way of keeping the appeal pending for more than five years.
12. Be that as it may, at the time of hearing, the ld. Advocate for the respondents submitted that the appeal has since been rejected by the concerned authority. If that is the position, then the question of non-maintainability of the present application does not arise at all. We accordingly reject this contention of the respondents.
13. In the result, the application is allowed on contest but without cost. It is declared that the applicant is entitled to get disability pension at the rate of 50% from the date of his discharge, for two years and the respondent authorities are directed to pay such disablement pension immediately in favour of the applicant along with arrear amount, which will carry interest at the rate 8% per annum from the date of discharge upto the next two years. Since that period of two years, as recommended by the Medical Board, is admittedly over, the respondent authorities are directed to place the applicant before a review medical board in order to ascertain as to whether the disablement pension, as was recommended by the first Medical Board, should be extended or not. The respondents authorities are directed to act as per the opinion of the review medical board in this respect.
14. Let a plain copy of this order be handed over to the ld. Advocates for both the sides.