LT GEN K P D Samanta, Member (Administrative):
1. The petitioner, Parimal Sarkar was enrolled in the Army, Army Medical Corps (in short the âAMC) as a Sepoy in December, 1993 and was discharged on medical grounds on 26th July, 1995 (Annexure P/1 of the Writ Petition). Being aggrieved with the conditions for which he was discharged and not paid any disability pension, the petitioner filed a Writ Application before the Calcutta High Court (No. W P 3907 (W)/2002). The said Writ Petition was admitted and heard for the first time at Calcutta High Court on 3rd April, 2002 and subsequently transferred to this Tribunal on 18th May, 2010 by a judicial order from Calcutta High Court and re-numbered as TA 94/2010 after being admitted on 5th August, 2010 at this Tribunal. The transfer application was initially dismissed for default since none was present for the petitioner despite repeated calls on 13th September, 2010. It was later restored vide our decision dated 24th September, 2010 in response to one Miscellaneous Application (MA 14/2010) wherein the petitioner had prayed for its restoration.
Facts of the Case
2. The petitioner, Parimal Sarkar, after enrolment in December, 1993 and subsequent to completion of training, was posted at Lucknow. He submits in his application that he sustained some minor injuries in November, 1994 resulting in some kind of eye problem for which he was admitted in Command Hospital at Lucknow. His treatment continued till March, 1995 after which he was transferred to Psychiatric ward in the same hospital where, as stated by him, he was treated as a lunatic patient. He remained hospitalised in the psychiatric care ward for four months and was finally boarded out under medical grounds as per discharge order received on 26th July, 1995. His plea for disability pension was rejected and it was communicated to him by the AMC Records that his case was considered by the Principal Controller of Defence Accounts (Pension) (PCDA (P)), Allahabad, but the disability, as per opinion of the Medical Board, was neither attributable nor aggravate due to military service; thus, he could not be sanctioned any disability pension. Such communication was made to him directly by the impugned order of the AMC records on 31st May, 1996 (Annexure P-2 of the Writ Petition), wherein they have quoted PCDA (P) letter of 13th May, 1996 to substantiate that the petitioner was not entitled to any disability pension. The petitioner appealed against such decision which was rejected by the Ministry of Defence vide their letter of 16th April, 1998, as mentioned in paragraph-4 (iii) of the Affidavit-in-Opposition( in short âA/O), and also as per Annexure P-4 of the Writ Petition.
3. Both the appeals were rejected by the Ministry of Defence in April, 1998, the petitioner filed the Writ Petition (WP No. 3907(W)/2002), which was after four years of him being informed about the rejection of his appeal before the MoD. The opposition contested all these issues highlighting not only the delay aspect, but also another issue, wherein the opponents felt that the petitioner could have filed statutory complaint under the provisions of Section 26 of the Army Act, 1950. These two aspects were contested by the petitioner in paragraph-7 of the rejoinder by rightly mentioning that statutory provisions for complaint was not applicable in this case and the delay in filing the Writ Petition before Calcutta High Court was on account of non-receipt of medical documents till 26th May, 2000, when the respondents communicated that they were not in a position to supply such confidential medical documents.
4. The respondents in their A/O have reiterated that the petitioner was invalidated out of service under Army Rule 13 (3) Table (iii) (iv) for being in medical category âEEE- (Psy) with a total service of one year and 256 days. They have also produced the Medical Board Proceedings and Medical Case-sheet in respect of the petitioner for the purpose of invaliding him (Annexed as annexure R/1 to the A/O).
5. The opponents in paragraph-4(iii) of their A/O have mentioned that Ministry of Defence, Govt. of India, while rejecting the appeal for disability pension of the petitioner, opined that his disability was constitutional in nature, thus un-related to service. During the process of hearing, the petitioners Counsel, to strengthen their point, have quoted two judgments, one from Delhi High Court and another from Himachal Pradesh High Court referring the case of Ex. Sepoy Jagbir Singh Vs. Union of India 2000 Lab IC 790 and Piar Chand Vs. Union of India 1996 LAB IC 445 respectively. Similarly, the respondents have also drawn our attention to the judgment of the Supreme Court in the case of Om Prakash Vs. Union of India 2010 JT (7) 188 in order to support their argument that the opinion of the Medical Board was final which could not be altered or to be interfered upon. All the above judgments are being subsequently discussed while deciding on the matter.
DECISION
6. The petitioner, Parimal Sarkar served in the Indian Army for one year and 256 days and was discharged on medical grounds on 26-7-1985 under Army Rule 13(3) Table (iii) (iv). The disease for which he was invalided out of service was diagnosed to be âNeurosis (Conversion Reaction).â It is well established that the petitioner was initially admitted in Command Hospital, Luknow for an ophthalmic problem but was subsequently treated for psychiatric disorder for which he was finally diagnosed as suffering from âNeurosis (Conversion Reaction). It is on this account that he was medically invalided, after obtaining opinion of a duly constituted release medical board. The said Medical Board Proceedings along with related case sheets have been attached as Annexure R/1 to the A/O.
7. The ibid Medical Board Proceedings are vital documents to decide on the nature of disability; details of treatment, opinion of the specialists and to arrive at a holistic conclusion relating to the opinion of the Medical Board with regards to percentage of such disability and whether it had any casual link with his service conditions. We have accordingly, examined these documents and have noted the following points:-
(a) The petitioner, when admitted for his invaliding Board on 26th July 1995, was seen by the classified Specialist Psychiatrist Lt. Col. B. Patra. His opinion in the attached Case-sheet is summarised in page -13 of the said annexure, wherein the opinion is dated 13th June 1995. In the said opinion, the Classified Specialist Psychiatrist has considered the petitioner could not be retained in service and has recommended for invaliding him out of service in Medical Category âEEE- (Psy), having diagnosed him as a patient of âNeurosis (Conversion Reaction). The Specialist has granted him the disability of 0% and has mentioned in the case sheet that the said disability was neither attributable nor aggravated by military service. We, however, note that this was really in the opinion mentioned in the subject Case-sheet, and not the opinion of the final Medical Board.
(b) Lt. Col. R.C. Padhi, Classified Specialist Ophthalmology, has also expressed his opinion in the Case Sheet noting that his vision had deteriorated to 6/36, but did not make any recommendations with regards to his medical condition, further treatment, disability, if any, or recommendations with regard to aggravation or otherwise on account of military service. In this regard, the Ophthalmologists opinion has been endorsed on 20th July 1995 only in the case sheet (page 17 of Annexure R/1). There is, however, no opinion or endorsement by the Ophthalmologist recorded in the Release Medical Board.
(c) Subsequent to our examination of his Case-sheet and endorsement of both the Specialists (Psychiatrist and Ophthalmologist), we went on to examine the Invaliding Medical Board Proceedings which was approved and confirmed on 31st August, 1995 by Brigadier Bhatnagar, ADMS, HQ Central Command at Lucknow. In the ibid Board Proceedings, we observed following points:-
(i) The summary of opinion submitted by Lt. Col. B. Patra (Psychiatrist Specialist) does not mention a word about his disability being attributable or aggravated due to service or otherwise.
(ii) Though, Lt. Col. B. Patra was a Psychiatrist, he preferred to endorse his opinion on the conditions of the Petitioners eyes also; commenting that the patient was having diminishing vision more at night. We found no endorsement of the Ophthalmologist on the aforesaid Medical Board proceeding.
(iii) In page-4 of the Invaliding Board Proceedings, it has been clearly mentioned in paragraph-3 that the disease of âNeurosis (Conversion Reaction) in respect of the petitioner was aggravated due to service conditions. In paragraph-3(c), the Board has opined that, âthe disability is due to stress/strain of military serviceâ. In subsequent Sub-paragraphs of the said board proceedings, under 3(c), it is also reflected that such aggravation still persisted and was likely to persist for a material period.
(iv) As per Paragraph 4 in Page 4 of the Medical Board Proceedings, the petitioner has been awarded 30% disablement for two years, implying; he should have been reviewed after two years. Unfortunately, the authorities have ignored this medical board and also kept the petitioner in dark about its contents.
(v) In Page-5 of the Invaliding Medical Board, it is mentioned in paragraph-5 that the patient would require further treatment being symptomatic.
8. A perusal of the above medical documents, specially the invaliding Board Proceedings, which was presided over by a senior medical officer with two other medical officers as members, would reveal that the petitioner was indeed examined by a group of doctors and specialists, who decided that the his disease of âNeurosis (Conversion Reaction) was ascertained as a disability that was aggravated due to stress and strain of military service. The ibid Board on 26th July, 1995 was later approved at the level of Headquarters, Central Command, Lucknow by the Brigadier in-charge of the Medical Services (ADMS) on 31st August 1995. Yes, there is a contradiction between opinions of Lt. Col. B. Patra, (âPsychiatrist Specialist) mentioned in the Case- sheet and in the Medical Board. We are inclined to consider the Medical Board to be accurate and more reliable, since a team of doctors that included this Specialist, have collectively opined that the disability was indeed aggravated due to stress/strain of the military service and assessed percentage of disablement was 30% for two years.
9. We have also applied our mind to the ratio and contents of decisions of some High Courts and the Honble Supreme Court that were brought before us by the Ld Counsels of both sides.
a) Delhi High Court decision in the case of Ex Sepoy Jagbir Singh (supra). It has been held that administrative authority could not overrule the Medical Board; has further explained in paragraph-7 of the ibid judgment, we agree with the ratio of this judgment as would be applicable in this case as well.
b) HP High Court decision in the case of Piar Chand (supra). It relates to a particular case of the petitioner, Piar Chand, also was a patient of âNerosis, same as diagnosed for the petitioner in TA No. 94/2010. However, the circumstances, length of service are at variance and therefore, this judgment is not comparable to be applied in the present case. The ratio of this decision does not suggest that all soldiers suffering from Neurosis would always be considered to be aggravated or attributable to military service.
c) The Supreme Court in the case of Om Prakash ( supra), emphasized on the fact as mentioned in paragraph-21 of the ibid judgment that the unanimous decision of the Medical Board and the findings of such Medical Board should not be interfered upon. Although, the ibid judgment has been relied upon by the respondents while submitting on 7th February, 2011, the ratio and substance of this decision highlights the principle that, no administrative authority can overrule the findings with regards to attributable or aggravation of a disease, as the collective and unanimous opinion of a Medical Board which was constituted for that purpose must hold. In fact, the ratio of this judgment would further strengthen our decision.
10. We have heard the submissions made orally and through affidavits by both sides and we are of the opinion that the petitioner should benefit from the opinion as given in Invaliding Medical Board at Annexure R-1 of the A/O. Accordingly, the decision of the Board, which has concluded the disability of the petitioner to be aggravated due to military service must hold along with 30% disablement recommendation so made in ibid board proceedings. Disability pension should be calculated and paid accordingly. No administrative authorities, including the PCDA (P), can interfere or alter the award made by the collective wisdom of a specially constituted medical board for the purpose in such cases.
11. In addition to the above, the deterioration of the petitioners vision, while in service, should also be considered by the authorities while deciding on his disability pension. Presently, no opinion with regards his deteriorating ophthalmic condition have been conveyed by the Medical Board. This aspect, even at this belated stage, should be considered by a fresh Medical Board to enable complete justice to the petitioner. In consideration to the points mentioned above, the Transfer Application is disposed off, on contest, without any cost, with following directions:-
(a) The impugned order dated 31st May 1996 (Army Medical Corps Records letter No. C/13987576/DP (PPO) dated 31 May 1996) is quashed since it is in violation of the unanimous opinion of the Medical Board constituted for this purpose.
(b) The petitioner should be granted disability pension @ 30% disablement, from the date of his retirement i.e., 26th July, 1995.
(c) The arrears of disability pension should be paid to him from 1st April, 1998 i.e. three years prior to the date when he filed his writ petition before the Calcutta High Court.
(d) He shall be brought before a fresh Medical Board within 90 days of receipt of this Order to determine with regards to his ophthalmic disorder since his vision had considerably deteriorated as also to consider whether the disability on account of âNeurosis (Conversion Reaction) to be continued for life or not.
(e) Corrigendum PPO to the petitioner shall be issued with disability pension and service element of pension as admissible by implementing ibid directions within 90 days of receipt of this Order.
12. The above directions shall be comprehensively implemented within a period of three months from the date of receipt of this order. Let a plain copy of this order be handed over to the learned counsels for both the parties.