Ram Singh vs Union of India and Others

A.K. Sikri, C.J.—The petitioner was enrolled in the Indian Army by the BRO, Patiala on 24.01.1989 in the medical category (AYE). While he was undergoing training, he suffered an injury in the firing practice for which he was operated upon and the injury was diagnosed with Absces Right Index Finger (OPTD) and he was medically downgraded to the lower category. He was invalided out of military service on 02.11.1989 in Low Medical Category EEE Permanent due to the aforesaid disability but by that time, he had rendered 283 days service while on training in the Battalion Sikh Light Infantry, Fatehgarh. The petitioner was granted pension for both elements i.e. for service and the disability for a period of two years from 03.11.1989 to 24.09.1991. It was further extended for a period of 5 years finding the disability to be 30%. He was again brought before the Resurvey Medical Board on the expiry of the disability award on 10.12.1996 and the Medical Board held in the year 1996 in the MH, Jalandhar Cantt. and the Surgical Classified Specialist held the disability to be static but the Resurvey Medical board ignored the report of the Classified Specialist and reduced the disability from 30% to 11-14%. In view thereof, element of disability pension was stopped to the petitioner from 11.12.1996, whereas the element of service pension is continuing for life. The petitioner, thus, filed the Original Application before the Tribunal but it was dismissed on 13.04.2010, without giving any cogent reasons.

From the aforesaid, following admitted facts are emerges:

The petitioner was invalided out of service due to the disability namely deformed index finger with 30% disability which was found on 02.11.1989 by the Medical Board.

The disability was attributed to Military Service.

As a consequence, the petitioner was also granted disability pension which he started receiving from the date of his retirement.

At the same time the disability with 30% was assessed for two years, meaning thereby his case was to be re-examined after two years. However, in the year 1996, when he was examined by the Resurvey Medical Board, as per respondents, the disability was assessed at 11 to 14% and since it was less than 20%, disability element pension was stopped w.e.f. 10.12.1996. The learned Tribunal has taken note of this fact and dismissed the O.A. of the petitioner herein.

Challenging the veracity of the assessment made by the Resurvey Medical Board, learned counsel for the petitioner has drawn our attention to Medical Board proceedings of 23.10.1996 which are annexed as Annexure P-10. In Column No. 16 of these Medical Board proceedings disability is accepted as 30% and opinion given is that it is ''static''. The obvious conclusion is that it remains at 30%. In the summary and opinion annexed with the Medical Board proceedings it is specifically mentioned that "there is no change in this condition" and "disability static", however, notwithstanding the same, when the petitioner was produced before the Board in December 1996, the Medical Board assessed the disability at 11-14%. Though, there also the condition is stated to be "disability static". This report is contrary to the report dated 23.10.1996 which fact is totally glossed over by the learned Tribunal. Not only this, in report dated 23.10.1996 the petitioner''s disability at 11-14% is self contradictory inasmuch as on the very next date the disability is stated to be ''static''. If disability is ''static'' that would mean that the condition of the petitioner had neither improved nor deteriorated and it remained the same i.e. the earlier disability which was to the extent of 30%. Even otherwise, going by the nature of disability i.e. ''absces of right index finger'' which was because of the injury the petitioner suffered and was surgically operated upon, there cannot be any improvement thereof in future. Since the report of the Medical Board assessing the disability at 11-14% is not only self contradictory but contrary to the report dated 23.10.1996 and having regard to the nature of injury suffered by the petitioner, it is a clear case where report dated 23.10.1996 assessing the disability at 30% and after giving a clear opinion not only in October 1996 but even in December 1996 that disability has remained ''static'', would mean that the petitioner continues suffering with 30% disability. The action of the respondent in stopping the disability element pension was therefore, in appropriate, arbitrary and unjustified.

We, accordingly, set aside the impugned order as well as the order of the Tribunal and allow this writ petition with a direction to the respondent to resume the disability pension of the petitioner and pay all the arrears within two months from the receipt of certified copy of this order.