The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.24658 of 2013 1. Ex-Rect Sidhartha Karan, aged about 37 years, S/o. Sribatsa Karan, At-Podapada, P.O.-Hindol Road, P.S.-Motanga, Dist.- Dhenkanal, PIN-756002. -Versus- …Petitioner 1. Union of India represented through Secretary, Ministry of Defence, South Block, New Delhi-110011. 2. Dir. Gen. of Armed Forces Medical Sciences, Ministry of Defence, South Block, New Delhi-110011. 3. Principal Controller of Defence Accounts (Pension), Draupadi Ghat, Allahabad (U.P.)-211014. 4. OIC Records, Signal Abhilekh Karyalaya, Signal Records, Post Bag No.5, Jabalpur (M.P.)-482001. 5. Secretary, Army Group Insurance Fund, AGI Bhawan, Rao Tula Marg, R.K. Puram, New Delhi-110066. 6. Secretary, Zilla Sainik Board, Dhenkanal, Near Kunja Kanta Chhak, AT/P.O./Dist-Dhenkanal. …Opposite Parties W.P.(C) No.24658 of 2013 Page 1 of 13 Advocates appeared in the case: For the Petitioner :
Legal Reasoning
Mr. Bisikesan Pradhan, Advocate along with Mr. Rahul Pradhan, Advocate For Opposite Parties : None CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 15.01.2025 Chakradhari Sharan Singh, CJ. An order of the Armed Forces Tribunal, Kolkata Bench dated 30.03.2011 passed in TA 166 of 2010 (WP-C 18064/2008) has been put to challenge in the present writ application filed under Article 226 of the Constitution of India by the petitioner. 2. The facts which are not in dispute are that the petitioner had joined as a recruit on 26.04.1996 after undergoing physical, medical as well as psychological test conducted by a Selection Board. While serving as a recruit, he had fallen sick and was made to appear before a Medical Board on 14.01.1997 under the direction of his superiors. He W.P.(C) No.24658 of 2013 Page 2 of 13 was discharged from military service with effect from 14.02.1997 on the ground of disability. The petitioner learnt that his disability was assessed by the Medical Board to be more than 20%. Despite recommendation of the Medical Board, no disability pension was allowed in the petitioner’s favour. The petitioner made a representation for grant of disability pension. As no decision was taken on his representation, he had to file a writ application before this Court. During the pendency of the writ petition, the petitioner received an order dated 06.02.2006 rejecting his claim for disability pension on the ground that the disease was neither attributable nor aggravated by military service and the same was constitutional in nature. It was clearly mentioned in the letter dated 06.02.2006 that he could prefer an appeal against the decision of the authority before appropriate forum. In view of the decision as contained in the communication dated 06.02.2006, the said writ petition, i.e. W.P.(C) No. 977 of 2006 was
Decision
disposed of vide order dated 03.04.2006 with a liberty to the petitioner to prefer an appeal against the order rejecting the petitioner’s claim for disability pension. The authorities were directed to dispose of the appeal within a period of four months from the date of its presentation W.P.(C) No.24658 of 2013 Page 3 of 13 and that the petitioner would be afforded with an opportunity of hearing. 3. The petitioner preferred an appeal accordingly, which came to be rejected on 14.09.2007. Challenging the said rejection dated 14.09.2007, the petitioner filed a writ petition before this Court giving rise to W.P.(C) No. 18064 2008. After enactment of Armed Forces Tribunal Act, 2007, the said writ petition stood transferred to the Tribunal and came to be registered as T.A. 166 of 2010. 4. It was the petitioner’s case that the invaliding Medical Board had assessed his disability to be more than 20%, which was attributable to or aggravated by military service. He asserted that he was taken into Army after extensive medical test and there was no disability found at the time of his recruitment. The subsequent disability, as was noticed by the Medical Board could not be treated to be constitutional, rather it was attributable to or aggravated by the military service. It was further case of the petitioner before the Tribunal that he petitioner’s claim for disability pension ought not to have been rejected based on the opinion of another Medical Board for considering his claim. W.P.(C) No.24658 of 2013 Page 4 of 13 5. It appears from the impugned order that the petitioner had rendered 276 days of service before the order of invalidation was passed. The Medical Board had assessed his disability to be more than 20 per cent and had clearly opined that it was attributable to or aggravated by the military service with 30% disablement for two years. The claim for grant of disability pension was forwarded to the Principal Chief Controller of Defence Accounts (P), Allahabad, which is the statutory pension sanctioning authority, along with the relevant documents for taking proper action. A plea was taken in the counter affidavit on behalf of the respondents before the Tribunal that the medical documents of the petitioner were placed before the Medical Advisor (Pension). On examination of the medical documents of the petitioner, the Medical Advisor (Pension) concluded that the disability of the petitioner was neither attributable to nor aggravated by military service. On the said ground, the petitioner’s claim was rejected by the PCDA (P), Allahabad by order dated 04.01.2006, which was communicated to the petitioner. 6. As has been noted above, the said decision was challenged by the petitioner before this Court in W.P.(C) No. 977 of 2006. Pursuant W.P.(C) No.24658 of 2013 Page 5 of 13 to this Court’s order dated 03.04.2006, the petitioner preferred an appeal. The appeal, along with the medical documents, was forwarded to the Additional Directorate General of Personnel Services at Army Headquarters for adjudication. The concerned authority decided to hold First Appeal Medical Board, which was held at Base Hospital, Delhi Cantonment, on 26.03.2007. The Medical Board arrived at a conclusion that the disability was neither attributable to nor aggravated by military service since his disability was considered as pre-enrolment in origin which manifested within six months of enrolment. 7. The Tribunal noticed the circumstances that the invaliding Medical Board, which had examined the petitioner physically had recorded that his disability was aggravated by military service with 30% disablement and accordingly recommended disability pension for two years in favour of the petitioner. The petitioner was invalidated out of military service with effect from 13.02.1997 based on the opinion of the said invaliding Medical Board. The respondent had claimed before the Tribunal that all medical documents were placed before the Medical Advisor (Pension), who was of the opinion that the disability of the petitioner was neither attributable to nor aggravated by military W.P.(C) No.24658 of 2013 Page 6 of 13 service. The Tribunal, after having noticed the decisions in the case of Surmukh Singh Ex. Hav. v. Union of India by the Punjab & Haryana High Court, reported in 1999 (4) SLR (P&H) 511; Wahi Ajay Lt. col. (Dr.) v. Union of India of Rajasthan High Court in SB Civil WP No. 3468 of 1995 decided on 15.05.1997 and the Supreme Court’s decision in the case of Secretary, Ministry of Defence & Ors v. A.V. Damodaran (dead) through LRs & others, reported in (2009) 9 SCC 140, held that the Medical Board’s opinion could not be over ruled as was done in case of the petitioner and that PCDA (P) Allahabad could not overturn the decision of the first Medical Board simply by referring the matter to the Medical Advisor. 8. The Tribunal has recorded in the impugned order that the respondents acted illegally in not accepting the opinion of invaliding Medical Board based on the opinion of Medical Advisor and there was no material as to under which circumstance the said Medical Advisor could undo the finding of the first Medical Board. After having recorded thus, the Tribunal held that the petitioner was entitled to get disability pension on account of 30% disablement for a period of two years. W.P.(C) No.24658 of 2013 Page 7 of 13 9. After having noticed the fact that another Medical Board, i.e. the Appeal Medical Board was constituted by the authority and the petitioner was placed before such board which gave its opinion in the year 2007 that he was not entitled to disability pension, the Tribunal by the impugned order has held that the petitioner shall not be entitled to get pension beyond the period of two years, as was originally recommended. 10. Accordingly, the Tribunal disposed of the case with an order that the petitioner would be entitled to get disability pension @ 30% from the date of his discharge from military service up to two years and he will not be entitled to any disability pension beyond that date. The arrear amount shall carry interest @ 8% per annum from the date of filing of the writ petition till the date of actual payment, the Tribunal ordered. The said order is being assailed by the petitioner seeking following relief. “Therefore, it is prayed that this Hon'ble Court would graciously be pleased to admit the writ petition, call for records and issue Rule „Nisi‟ calling upon the opposite parties to show cause as to why the impugned orders dated 06.02.2006 and 14.9.2007 of the OIC Records (Annexure-5 & 9), findings of the Appeal Medical Board held in March 2007 (Annexure-8) and the W.P.(C) No.24658 of 2013 Page 8 of 13 order dated 30.3.2011 of the Hon'ble Armed Forces Tribunal, Regional Bench, Kolkata (Annexure-12) shall not be quashed and as to why PCDA(P), Allahabad (OP No. 3) shall not be directed to continue to disburse disability pension w.e.f. 13.02.1999 in favour of the petitioner with accrued interest @12% and as to why the OP No. 5 shall not be directed to pay disability benefit to the petitioner w.e.f. 15.02.1997 with accrued interest @12% corresponding to his degree of disability and as to why OP No. 6 shall not be directed to issue Ex- Serviceman Identity card to the petitioner and if the opposite parties failed to show cause or show insufficient or false cause make the Rule „Nisi‟ absolute and allow the writ petition with cost and any other relief or reliefs this Hon'ble Court deems fit and proper.” 11. Mr. Bisikesan Pradhan, learned counsel appearing on behalf of the petitioner has submitted that the petitioner was entitled to disability pension for life, which has been wrongly confined by the respondents to two years with effect from 13.02.1997, which has been erroneously affirmed by the Tribunal. He has placed reliance on the Supreme Court’s decision in case of Dharamvir Singh v. Union of India & others, reported in 2013 AIR SCW 4236; Union of India and another v. Rajbir Singh, reported in (2015) 12 SCC 264. Reliance has also been placed on another Supreme Court decision in case of K. Srinivasa Reddy v. Union of India, reported in Mil LJ 2014 SC 20. W.P.(C) No.24658 of 2013 Page 9 of 13 12. We have carefully perused the impugned judgment and order passed by the Tribunal and have examined the materials on record. We have given our anxious consideration to the submissions advanced on behalf of the petitioner. 13. What emerges from the pleadings and submissions on record that the petitioner was produced before the Medical Board as he had fallen sick while he was discharging his duty as a recruit, on 14.01.1997 and was discharged from military service on 14.02.1997 based on the recommendation of the Medical Board. The Medical Board had assessed the petitioner’s disability to be 30% for two years. The petitioner’s discharge was apparently based on the said advice of the Medical Board. The Medical Board had also opined that the disability was attributable to and aggravated by the military service. It was however on the advice of Medical Advisor, on a request made by PCDA (P) Allahabad that the petitioner’s claim for grant of disability pension was rejected. The Medical Advisor (Pension) had opined, contrary to the opinion recorded by the Medical Board before which the petitioner was placed for examination, that disability of the petitioner was neither attributable nor aggravated by the military W.P.(C) No.24658 of 2013 Page 10 of 13 service. The ground of rejection of disability pension based on the opinion of the Medical Advisor (Pension) has been held to be unsustainable by the Tribunal for two reasons. Firstly, the petitioner was recruited after undergoing rigorous physical, medical as well as psychological tests and he was found fit in all respect. Secondly, the opinion of the first Medical Board before which the petitioner was produced could not be ignored. The first Medical Board, as has been noted above, had opined that the disability of 30% was attributable to and/or aggravated by military service. The said Medical Board had recommended disability pension for two years only. 14. In the present writ application, thus, the petitioner’s claim that the disability which he had suffered was on account of or aggravated by the military service has been accepted by the Tribunal. The decisions in case of Dharamvir Singh (supra), K. Srinivasa Reddy (supra) and Rajbir Singh (supra) support the petitioner’s case to the aforesaid effect. In case of Dharamvir Singh (supra), the Supreme Court has ruled that a member of the armed process is to be presumed to have been in sound physical and mental condition upon entering except as to physical disabilities noted or recorded at the time of W.P.(C) No.24658 of 2013 Page 11 of 13 entrance. In the event of his subsequently being discharged from service on medical grounds, any deterioration in his health is to be presumed due to service. Similar view has been taken in the case of K. Srinivasa Reddy (supra) and Rajbir Singh (supra). 15. Dispute in the present case is not as to whether the petitioner’s disability which was the ground for his discharge from military service was on account of military service or not. This dispute has been decided by the Tribunal in petitioner’s favour. The petitioner has been held to be entitled to disability pension. 16. The Tribunal has however directed for payment of disability pension for two years from the date of his discharge as was recommended by the Medical Board, which had examined the petitioner. The Board declined to pass order for payment of disability pension beyond two years on the reasoning that the petitioner was examined by the appellate Medical Board in the year 2007 and the Medical Board found that he was not entitled to disability pension anymore. W.P.(C) No.24658 of 2013 Page 12 of 13 17. The said order passed by the Tribunal, in our opinion is reasonable and not in conflict with any statutory provision. 18. The petitioner’s case that interest @ 12% per annum ought to have been awarded instead of 8% has no basis. In any view of the matter, we are not inclined to take a different view than that has been taken by the Tribunal on the point of rate of interest. 19. Accordingly the impugned order passed by the Tribunal does not require any interference. This writ petition has no merit, which is accordingly dismissed. (Chakradhari Sharan Singh) Chief Justice Savitri Ratho, J. I agree. (Savitri Ratho) Judge Arun Mishra Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-Cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jan-2025 15:26:29 W.P.(C) No.24658 of 2013 Page 13 of 13