REGULAR SECOND APPEAL NO.2277 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 18, 2010 Daljit Singh .....Appellant VERSUS Union of India and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Vipin Mahajan, Advocate, for the appellant. Ms. Geeta Singhwal, Advocate, Central Government Counsel. **** RANJIT SINGH, J. A Constable of Central Reserved Police Force has filed this Regular Second Appeal to impugn the order whereby the percentage of disability suffered by him as assessed by the Board was reduced by the Director, which he challenged by filing a civil suit. The Medical Board had assessed the percentage of disability suffered by the appellant as 93.75%. This was statedly as per the Government instructions. Because of this disability, the appellant was entitled to ex-gratia amount of Rs.90,000/- and pension of Rs.3000/- per month for life. At the time of passing of the order, the appellant REGULAR SECOND APPEAL NO.2277 OF 2008 :{ 2 }: had rendered 16 years service. The disability assessed was issued by Additional Deputy Inspector General of Police and when the same was denied to him, he filed the suit. On being put to notice, written statement was filed. By way of preliminary objections, it was stated that the suit was not maintainable. Jurisdiction of the civil Court was also challenged besides raising the plea of maintainability of the suit in the present form. On merits, it was submitted that the appellant felt weakness in lower limbs during 1979 and had undergone treatment in various hospitals and ultimately, after holding consecutive Boards was invalided out of service. It is conceded that the Board of Medical had examined the appellant on 3rd and 4th December, 2001 and assessed the disability as 93.75%. While deciding the case for grant of financial benefit, the competent authority had to review the case and curtailed the percentage of disability to 75%. Accordingly, he was paid the financial benefit to the tune of Rs.87,000/- as per the rules and regulations. The Trial Court dismissed the suit by holding that the Director, Medical Board, could competently give his opinion about the percentage of disability by having access to case history etc. and accordingly action to decrease the disability to 75% was held justified. The Court found that there was no violation of any rule or instructions, which was pointed out. The first Appellate Court again did not accept the plea of the appellant that percentage of his disability could not be lowered by an authority who had no opportunity to examine him. In this regard, the judgments referred to were ignored on the ground that these were in relation to army persons. The appellant is, therefore, before REGULAR SECOND APPEAL NO.2277 OF 2008 :{ 3 }: this Court in Regular Second Appeal. Having considered the submissions as made, the following substantial question of law apparently would emerge in this case:- 1. Whether the percentage of disability could be decreased by a Director, who had no opportunity to examine the appellant only on the basis of record and documents? 2. Whether the Director could reduce the percentage of disability without affording any opportunity of hearing to the effective employee i.e. the appellant and further whether this would reveal violation of principles of natural justice? The counsel for the appellant has referred to Mohan Lal, Ex.Havaildar Vs. The Union of India and others, 2001 (1) RSJ 394, Ex.Signalman Surinder Pal Vs. Union of India and others, 2001 (1) RSJ 396 and Ex.Sepoy Shyam Singh Vs. Union of India and others, 2000 (3) RSJ 321. No doubt all these cases relate to the Army persons but the principle of law would not be different in any manner. The question involved is of general applicability i.e. to see if any authority could change the percentage of disability without having an opportunity to examine an effected employee. The ratio of law that would emerge from the above noted cases of Mohan Lal, Ex.Havaildar, Ex.Signalman Surinder Pal, and Ex.Sepoy Shyam Singh (supra) is that the pension authority could not sit in judgment over the opinion of the Medical Board or Re-Survey Medical Board to change the extent of disability. In Mohan Lal's case (Supra), the REGULAR SECOND APPEAL NO.2277 OF 2008 :{ 4 }: opinion given by the Medical Advisor for the pension authority to reduce disability without examining the petitioner therein was held to be bad on the ground that the opinion of Advisor could not over-ride the opinion of the Medical Board, unless it is shown by cogent and reliable evidence that the opinion of the Medical Board was contrary to the rules or otherwise. This order was accordingly set-aside. In case of Ex.Signalman Surinder Pal, (supra), where the disability was reduced without getting the petitioner therein examined by a fresh Medical Board was held to be arbitrary. Directions were issued to release disability pension to the petitioner therein. Similarly, in Ex.Sepoy Shyam Lal's case (supra), such a course adopted to reduce disability without examining the affected employee was held illegal. In this view of the matter, the view taken by the Trial Court as well as by the first Appellate Court clearly appears to be legally unsound. There is no justification forthcoming for reducing the disability as assessed by the Medical Board. There would hardly be any substantial difference financially except that the appellant would be entitled to monthly pension. Since the appellant has been invalidated out of service, primarily because of the conditions he was placed while serving the Nation, it would be unfair now not to compensate him for the loss suffered by him in his health. Even otherwise, the percentage of disability as assessed by the Board gave certain rights to the appellant and entitlement to claim certain pensionary benefits under the Rules, which have been taken away in a manner, which would rather sound arbitrary. Least what could be expected in this case was to afford an opportunity to the appellant to REGULAR SECOND APPEAL NO.2277 OF 2008 :{ 5 }: ensure adherence to the principles of natural justice. If that had been done, perhaps the appellant may have been able to show that he indeed has suffered such a disability extent of which was as assessed by the Board. In any case, it will sound unfair to permit a Director to change the percentage of disability without even examining the effected employee. The action of the respondents, thus, is arbitrary and can not be sustained. The view of the Trial Court and the first Appellate Court clearly appears illegal. The questions of law that are arising in this case are not been correctly decided and, thus, the case for interference is made out. The Regular Second Appeal is accordingly allowed. The judgments and the decrees passed by the Trial Court as well as first Appellate Court are set-aside. The suit as filed by the appellant stand decreed. The decree sheet be accordingly prepared. February 18, 2010 ( RANJIT SINGH ) khurmi JUDGE