IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 OP.No. 35340 of 2002(F) -------------------------------- PETITIONER: -------------------- SRI.R.RAVEENDRAN, EX.NAIK NO.1352228, MULLAVAYALIL HOUSE, MUNREETHORUTHU (P.O.), KOLLAM DISTRICT. BY ADV. SRI.P.K.MADHUSOODANAN RESPONDENTS: ---------------------- 1. THE OFFICER-IN-CHARGE, RECORD OFFICE, MADRAS ENGINEER, GROUP, POST BOX NO.4201, BANGALORE - 42. 2. THE CONTROLLER OF DEFENCE ACCOUNTS (PENSION), G3/RA SECTION, ALLAHABAD. 3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. BY ADV. SRI.M.RAJENDRA KUMAR, ADDL.CGSC FOR R1,2,3, SRI. AJITH KRISHNAN, ADDL.CGSC FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/08/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 35340 of 2002(F) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE LETTER DATED 30..10.1987 OF THE FIRST RESPONDENT SENT TO THE PETITIONER. EXT.P2 - TRUE COPY OF THE LETTER DATED 5.11.1996 ISSUED BY ASSISTANT RECORD OFFICER FOR 1ST RESPONDENT. EXT.P3 - TRUE COPY OF THE REPRESENTATION DATED 19.2.1998 SENT BY PETITIONER TO THE 1ST RESPONDENT. EXT.P4 - TRUE COPY OF THE REPLY DATED 27.2.1998 ISSUED TO PETITIONER BY THE 1ST RESPOPNDENT. EXT.P5 - TRUE COPY OF THE LETTER DATED 1.11.2001 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P6 - TRUE PHOTOCOPY OF CASE SHEET OBTAINED BY THE PETITIONER FROM INHS, SANJEEVANI. EXT.P7 - TRUE COPY OF LETTER DATED 9.5.2002 SENT BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P8 - TRUE COPY OF LAWYER NOTICE DATED 2.9.2002 SENT BY THE PETITIONER THROUGH HIS ADVOCATE TO EH 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1 - TRUE COPY OF THE MEDICAL BOARD PROCEEDING DATED 26.12.1984. EXT.R2 - TRUE COPY OF THE LETTER NO. 1352228/PEN(D)-5 DATED 30.08.1985 ISSUED BY CDA PENSIONS, ALLAHABAD. EXT.R3 - TRUE COPY OF THE LETTER NO. 1352228/PEN(RSMB/109 DATED 09.08.1996 ISSUED BY THE COMMNDANT MILITARY HOSPITAL TRIVANDRUM. EXTR4 - TRUE COPY OF THE GOVERNMENT OF INDIA LETTER NO.1(1)/81/D(PEN-C) DATED 21.6.1996. EXT.R5 - TRUE COPY OF THE LETTER NO. G3 -6/11/96/14253/VI DATED 5.3.1997 ISSUED BY CHIEF CONTROLLER OF DEFENCE ACCOUNTS. EXT.R6 - TRUE COPY OF THE EXTRACT FROM PENSION REGULATION FOR THE ARMY. EXT.R7 -TRUE COPY OF THE LETTER NO. 1352228/PEN/(RSMB)/117 DATED 3.4.1997 ISSUED BY RECORDS OFFICE. EXT.R8 - TRUE COPY OF THE MEDICAL BOARD PROCEEDINGS DATED 18.9.2001. EXT.R9 - TRUE COPY OF THE LETTER NO.DRA/312/2002/2001 DATED 15.3.2002. EXT.R10 - TRUE COPY OF THE EXTRACT FROM PENSION REGULATION FOR THE ARMY. EXT.R11 - TRUE COPY OF THE LETTER NO. 3276/PEN/(RSMB)/GEN./10 DATED 10.01.2003 ISSUED BY RECORD OFFICE. EXT.R12 - TRUE COPY OF THE LETTER FROM CHANDRASEKHARAN & CHANDRASEKHARA MENON, ADVOCATES, DATED 28.01.2003. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== O.P.No.35340 of 2002 ================== Dated this the 21st day of August, 2008. J U D G M E N T The petitioner was a Sapper in the Madras Engineering Group of the Indian Army. He joined the army on 31.7.1970. He was discharged from service with effect from 31.7.1985 on medical grounds. Having been discharged on medical grounds, the petitioner was entitled to disability pension. Originally the percentage of disability was assessed by the medical board as 30% on account of Bronchial Asthma. He was being paid disability pension on the basis that he had 30% temporary disability. Subsequently, he was reassessed for the purpose of continued payment of pension, by the concerned medical board, who examined him and again certified 30% disability. However, the 2nd respondent decided that the petitioner's disability is only 20% and accordingly the petitioner's disability pension was reduced correspondingly. This is under challenge in this writ petition. The petitioner seeks the following reliefs: “a) Issue a writ of certiorari or any other appropriate writ, order or direction to quash Exhibit.P7 including pension payment order No. D/R/312/2002 of the 2nd respondent referred to therein in so far as it reduces disability pension of the petitioner from 30% to 20% by O.P.No.35340 of 2002 - 2 - calling the entire records of the case leading to Exhibit.P8; b) A writ of certiorari or any other appropriate writ, order or direction to quash Exhibit.P4 including the pension payment order No.D/RA/1104/97 mentioned therein; c) A writ of mandamus or any other appropriate writ, order or direction declaring that the petitioner is entitled to be paid disability element of pension at 30% as accepted and recommended by the Resurvey Medical Boards of the years, 1986, 1996 and 2001 and direct the respondents to grant and disburse the arrears arising therefrom to the petitioner within a time limit to be fixed by this Honourable Court; d) A writ of prohibition or any other appropriate writ, order or direction to the respondents 1 and 2 not to reduce the disability element of pension of the petitioner from 30% as accepted by the Resurvey Medical Boards unless and until another Review Medical Board recommended changes of the percentage of disability element of pension of the petitioner and continue to pay the same at 30%; e) Costs” 2. A counter affidavit is stated to have been filed on behalf of the respondents, copy of which is made available to me by the Counsel for the petitioner. (The same is not found in the records of the court.) On a reading of the same, I find that it is not disputed that the Review Medical Board also certified the percentage of disability of the petitioner as 30%. The contention is that the Review Medical Boards is only a recommending authority and not a competent medical authority to determine disability pension. According to the respondents, the Medical Adviser (Pensions) who is the competent medical authority O.P.No.35340 of 2002 - 3 - attached to the office of the Controller of Defence Accounts (Pension), Allahabad, is empowered to renew/alter/ modify the recommendations of the Review Medical Board as per Entitlement Rule 17/1982 as amended vide Government of India, Ministry of Defence letter No. 1(1)/81/D(Pen-C) dated 21/6/1996. As per the counter affidavit the said Controller of Defence Accounts (Pension) came to a different conclusion from the recommendation of the Review Medical Board and reduced the percentage of disability to 20% and therefore the petitioner is entitled to only pension on the basis of 20% disability, is the contention apparently raised in the counter affidavit. 3. The Review Medical Board admittedly recommended the disability of the petitioner as 30%. A learned Judge of this court has, in the decision in Thankachan v. Union of India [2004 (1) KLT 967], held that once a duly constituted Medical Board makes an assessment of disability of a patient no other authority is justified in making reassessment that too reducing the disability and pension without examining the patient. This appears to be the correct view. In so far as the patient is actually examined by the Medical Board, their assessment is on the basis of the actual nature of the disability of the patient. A O.P.No.35340 of 2002 - 4 - Medical Adviser (Pensions) sitting at his office cannot on the basis of the very same records come to different conclusion. Such assessment would militate against the basic common sense. The Medical Board is a team of doctors who actually examined the patients. The Medical Advisor (Pensions) who has not even seen the patient cannot on the basis of the very same records come to a different conclusion from that of the medical board in the matter of the nature and percentage of disability. 4. Therefore, I respectfully agree with the decision of the learned judge in Thankachan's case (supra). Applying the said law, I am satisfied that in this case the reduction of percentage of disability made by the 2nd respondent against the percentage of disability assessed by the Medical Board is clearly unsustainable. Accordingly, I quash Ext.P7 order, by which the petitioner's disability pension has been reduced. I declare that the petitioner is entitled to disability pension on the basis that he has 30% disability. From Ext.R8 it is seen that petitioner's disability has been accepted as permanent. That being so, the petitioner is entitled to continued payment of disability pension treating the disability as 30% without any reduction therefrom. Arrears payable to the petitioner accordingly shall be paid within O.P.No.35340 of 2002 - 5 - two months from the date of receipt of a copy of this judgment, and disability pension shall be continued to be paid regularly accordingly. The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE rhs