IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :- 20.02.2007
Coram:-
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice N.PAUL VASANTHAKUMAR
Writ Appeal No.2188 of 2002
C.Japamani ... Appellant
vs.
1. The Government of India,
Represented by its Secretary,
Ministry of Personnel,
Public Grievances and Pensions,
Department of Pensions and
Pensioners Welfare, 6th Floor,
Nirvachan Sadan, New Delhi.
2. The Commandant,
C.I.S.F, FSTPP, Farakka,
Nabarun Post,
Murshidabad District,
West Bengal.
3. The Accounts Officer,
Regional Pay and Accounts Officer,
C.I.S.F. Ministry of Home Affairs,
I.B.B.D. Bagh, (East),
Old Currency Building,
Calcutta 700001.
4. The Director General,
C.I.S.F. Head Quarters,
Block No.13, E.G.O. Complex,
Lodhi Road, New Delhi-110 003.
5. The Senior Accounts
Officer (Administration),
Principal Accounts Office,
Ministry of Home Affairs,
North Block, New Delhi-110 001. ... Respondents
Appeal against the Order of the learned single Judge, dated
25.02.2002, passed in W.P. No.11762 of 1999.
For Appellant : Mr.D.Prabhu Mukunth Arun Kumar,
for Mr.A.Thirumoorthy.
For Respondents: Mr.P.Wilson, Assistant
Solicitor General.
JUDGMENT
(Judgment of the Court was delivered by P.SATHASIVAM, J.)
– – – – –
The above Writ Appeal is directed against the order
of the learned single Judge, dated 25.02.2002, passed in
W.P. No.11762 of 1999, in and by which, the learned Judge
dismissed the Writ Petition filed by the writ petitioner as
not maintainable.
2. For convenience, we shall refer the parties as
arrayed before the learned single Judge.
3. According to the petitioner, he is an ex-
serviceman. He joined the Indian Army and worked as
Subedar. After 19 + years of service, he retired from Army
Service in the year 1976. Thereafter, he joined the Central
Industrial Security Force (CISF) on 08.07.1978 as Assistant
Sub-Inspector and, after putting in 7 years of service, he
was promoted as Sub-Inspector. In 1990, he was boarded out
of service on account of his disablement and the disability
was certified as 80%. Accordingly, he was relieved from
duty on 16.01.1990. Eleven months after his retirement, the
Accounts Officer, Regional Pay and Accounts Office, released
invalid pension though he was eligible for disability
pension as per relevant Rules. The respondents did not
release the disability pension; therefore, he made a
representation on 07.12.1990. The Deputy Commandant, CISF,
by letter dated 14.07.1992, sent to the Chief Medical
Officer of Health, Malda, a copy of which had been marked to
the petitioner, called for the opinion of the Medical Board.
Thereafter, by letter dated 17.11.1993, the Commandant, CISF
Unit, Farakka, advised the petitioner to report to the
District Hospital, Malda, for a detailed Medical check up.
By letter dated 21.12.1993, the petitioner requested the 2nd
respondent / Commandant to permit him to have medical check
up at a place nearer to his town. The Director General /
R4, by letter dated 16.09.1994, instructed the D.I.G, CISF,
to make arrangements by deputing staff to contact the
medical authority at petitioner’s native place for
conducting a second medical examination and accordingly, the
same was conducted on 24.10.1994. The Board assessed the
disability as 80%. The Commandant enclosed the original
Medical Board Proceedings dated 24.10.1994 along with his
letter dated 24.11.1994 addressed by him to the Accounts
Officer. By letter dated 24.12.1994, the Commandant
recommended for disability pension and requested the
Accounts Officer for early action. However, the
petitioner’s case was rejected by the Accounts Officer,
which necessitated him to file W.P. No.2122 of 1996 for
directing the respondents to grant disability pension from
16.01.1990. By Order dated 10.07.1997, the said Writ
Petition was disposed of with a direction to the respondents
to pass orders within three months. Thereafter, the
petitioner received a letter dated 14.11.1997 from the
Commandant, CISF Unit, FSTPP, Farakka, stating that the
disability pension is not admissible to him. Questioning
the said Order, he filed W.P. No.11762 of 1999.
4. On behalf of the respondents, the Commandant,
CISF Unit, Farakka, West Bengal – 2nd respondent filed a
counter affidavit disputing various averments made in the
affidavit filed in support of the Writ Petition. It is
mainly stated that, as per the Government of India, Finance
Office Memorandum No.F.19(2) CV (A) 104, dated 03.06.1965,
appeal against the first Medical Board’s report must be made
within one month from the date on which the findings of the
Board were made known to the Government Servant. The
petitioner had made his objection against invalid pension
after lapse of almost one year from the date of report of
the first Medical Board. Further, the 2nd Medical Board did
not certify to the effect that it had been given full
knowledge of the fact that the person concerned had already
been examined by a Medical Board who had given their opinion
as to the disease in respect of which the Government Servant
was incapacitated. It is further stated that the 2nd
Medical Board at the native place of the petitioner, after
almost five years, suo motu cannot state that the petitioner
was affected by disease during the tenure of his service.
It must be specifically mentioned in the medical report that
the nature of government service was responsible for the
disease.
5. With the above pleadings, the learned Judge
considered the claim of both sides. After noting that the
claim of the petitioner was considered and rejected in the
earlier Writ Petition viz., W.P. No.2122 of 1996, and that
he cannot seek for a similar direction in the present writ
petition, the learned Judge dismissed W.P. No.11762 of 1999.
Questioning the said order, the petitioner has filed the
present Appeal.
6. Heard learned counsel for the appellant as well
as learned Assistant Solicitor General appearing for the
respondents.
7. The only point for consideration in this appeal
is as to whether the petitioner has made out a case for
grant of disability pension and the learned Judge is right
in dismissing the writ petition.
8. First of all, let us clarify the reasoning and
ultimate conclusion of the learned Judge for dismissing
W.P. No.11762 of 1999. The relevant paragraph, namely, para
No.9 of the order of the learned Judge, shows that the
petitioner had earlier filed W.P. No.2122 of 1996 claiming
disability pension and the same was rejected, hence, 2nd
writ petition for the same relief cannot be sustained. We
are unable to accept the said conclusion for the following
reasons. In WP No.2122 of 1996, the petitioner prayed for
the issuance of a writ of mandamus, directing the
respondents to grant disability pension to him from
16.01.1990 on which date he was discharged from his job as
Sub Inspector, CISF, with all arrears of pension. After
hearing the counsel for petitioner as well as the Additional
Central Government Standing Counsel, one of us
(P.Sathasivam, J.), after finding that there is no need to
go into the merits and the claim made by the petitioner,
disposed of WP No.2122 of 1996 by directing the 3rd
respondent – Accounts Officer, CISF, Ministry of Home
Affairs, to consider the claim of the petitioner in
accordance with law and pass appropriate orders within three
months from the date of receipt of copy of that order. In
the same order, it was clarified that, while disposing of
the claim of the petitioner, the third respondent is
expected to get all clarifications from respondents 1 and 2
if need arises. Thus, it is clear that, while disposing of
W.P.2122 of 1996, the court had no occasion to go into the
merits and it merely directed the 3rd respondent therein to
pass appropriate orders in accordance with law.
9. Coming to the merits of the claim of the
petitioner that he was invalidated that too during the
course of service and eligible for disability pension, heavy
reliance was placed on the opinion of the 2nd Medical Board.
Learned Assistant Solicitor General, by taking us through
various averments in the counter affidavit, contended that
the 2nd Medical Board was not constituted in accordance with
Rules/Procedure. He also contended that there is no specific
opinion/conclusion to the effect that the disability was
caused due to his service with the respondents (CISF). In
view of the above contentions, we verified the relevant
documents, the stand taken by the respondents in the earlier
writ petition as well as the information available from
various communications. It is seen from the letter of the
Commandant, CISF, dated 08.06.1993, that for want of
definite opinion in the first medical report his claim for
disability pension was not recommended. Though it was
argued that the 2nd Medical Board was not in accordance with
procedure/instruction, learned counsel appearing for the
petitioner has brought to our notice the specific averments
made in the counter affidavit of the commandant/CISF Unit,
F.S.T.P.P., Farakka, dated 24.06.1997, filed in W.P.
No.2122 of 1996. In the counter affidavit, in para No.5,
the deponent has specifically stated thus,
“… However, on humanitarian ground
to provide him the extra monetary
benefits, a 2nd Medical Board was
arranged at his native place. ..”
It is also relevant to mention that, in the same counter
affidavit, in para No.3, the officer has mentioned about the
2nd Medical Board and their opinion regarding the disease of
the petitioner. The following statement in the said
paragraph is relevant,
” ….. The 2nd Medical Board
had, however, on 24-10-94 endorsed the
required certificate to the effect that
“the disability is attributable with his
Govt. service and had been aggravated
during his service tenure”. ”
The above information makes it clear that, first of all, the
Medical Board was constituted at the instance of the
Department and a specific opinion was given by the Board
that the disability suffered by the petitioner is
attributable to his service and that the disease got
aggravated during his service tenure. The above assertion
and the statement of the Officer cannot be ignored lightly.
It is also relevant to mention the detail given in letter
No.V-15014/CHPT/LC/119/2002/739 of the commandant, CISF,
Chennai, dated 23.01.2003, which shows that the 2nd medical
report confirms that the candidate (writ petitioner) comes
under the claimed category. All the above mentioned
particulars particularly the opinion of the 2nd Medical
Board clearly show that the disability is attributable to
his Government service and that the disease got aggravated
during his service tenure. These relevant aspects have not
been taken note of by the respondents as well as the learned
single Judge. It is also relevant to point out that though
the learned Assistant Solicitor General has pointed out that
the procedure applicable for constitution of 2nd Medical
Board has not been followed; as mentioned in the earlier
paragraphs, the said Medical Board was not constituted at
the instance of the writ petitioner. In those circumstances
and in the absence of specific provisions, we are of the
view that the report of the 2nd Medical Board cannot be
rejected on the ground that certain conditions have not been
fulfilled/satisfied. Accordingly, we reject the said
contention of the learned Assistant Solicitor General.
In the light of our discussion, the impugned
proceedings of the respondents are quashed and the
respondents are directed to grant disability pension to the
writ petitioner from 16.1.1990 on which date he was
discharged from his service as Sub Inspector, CISF, with all
arrears of pension. The arrears shall be paid within a
period of 8 weeks from the date of receipt of copy of this
order. Writ Appeal is allowed. No costs.
JI.
To
1. The Secretary, Ministry of Personnel, Public Grievances
and Pensions, Department of Pensions and Pensioners Welfare,
6th Floor, Nirvachan Sadan, New Delhi.
2. The Commandant, C.I.S.F, FSTPP, Farakka, Nabarun Post,
Murshidabad District, West Bengal.
3. The Accounts Officer, Regional Pay and Accounts Officer,
C.I.S.F. Ministry of Home Affairs, I.B.B.D. Bagh, (East),
Old Currency Building, Calcutta 700001.
4. The Director General, C.I.S.F. Head Quarters,
Block No.13, E.G.O. Complex, Lodhi Road, New Delhi-110 003.
5. The Senior Accounts Officer (Administration), Principal
Accounts Office, Ministry of Home Affairs, North Block,
New Delhi-110 001.