CW- 1429/04 - Ex Mb/Ris Kishna Ram (No.JC 195410N)Vs.UOI & Ors. Judgment dt.11.9.08 1/7 S.B. CIVIL WRIT PETITION NO.1429/2004 Ex Mb/Ris Kishna Ram (No.JC 195410N) Vs. UOI & Ors. Date of order : 11th September, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. S.K. Nanda for the petitioner. Mr. V.K. Mathur with Mr. M.S. Godara for the respondents. --------- 1. Heard learned counsels. 2. The petitioner in this writ petition is aggrieved by the order Annex.P/2 dated 16th August, 2000 whereby the disability pension on account of disability in the eye sight of the petitioner working in Snow bound area at LEH in 3 Inf Div (7 CAV) at High Altitude (Snow Bound Area), while serving the military on account of snow glare his eye sight weakened while discharging his service he was awarded pension including disability element at the rate of 80% disability vide Annex.P/1 for the period of 5 years from 1995 to 28.5.2000. He was also paid disability pension at the rate of 80% of disability for his eye sight for a period from 1995 to 2000. However, the Armoured Corpus Records, Ahmednagar, the authority concerned, reduced the said benefit of disability element from 80% to 30% allegedly on the ground of reassessment of the disability. 3. Being aggrieved of such reduction in the amount of pension by the aforesaid ex-parte order, the petitioner preferred this writ petition. CW- 1429/04 - Ex Mb/Ris Kishna Ram (No.JC 195410N)Vs.UOI & Ors. Judgment dt.11.9.08 2/7 4. Mr. S.K. Nanda, learned counsel for the petitioner relying upon the decision of this Court in Bhanwar Lal Vs. Union of India & Ors. - S.B. Civil Writ Petition No.3113/96 decided on 6th Nov., 1996 and decision of the Hon'ble Supreme Court in case of Ex. Sapper Mohinder Singh Vs. Union of India – Civil Appeal No.164/1993 decided on 14th January, 1993 submitted that without any fresh medical examination or re-examination, the said authority could not by an ex-parte order without affording an opportunity of hearing to the petitioner, reduce the disability element of pension from 80% to 30% arbitrarily. 5. On the side opposite, Mr. V.K. Mathur with Mr. M.S. Godara submitted that originally in the year 1995 when the petitioner was discharged from service, a medical assessment was done and his eye sight was found to be weakened on account of service in snow bound area as 30% only vide Annex.R/1 however, his disability pension was sanctioned by PCDAP (Principal Controller of Defence Account (Pension) Allahabad and the said disability pension was granted 80% for the period from 1.1.1996 to 27.5.2000 vide Annex.R/3. Learned counsel for the respondents also pointed out that again on reassessment in the year 2003 vide Annex.R/5 on 24th April, 2003 the assessment of weakness of eye sight has gone down to 40%. He, therefore, tried to justify the reduction of disability pension from 80% to 30% vide Annex.P/2 dated 16th August, 2000. CW- 1429/04 - Ex Mb/Ris Kishna Ram (No.JC 195410N)Vs.UOI & Ors. Judgment dt.11.9.08 3/7 6. The last submission of the learned counsel for the respondents is opposed by learned counsel for the petitioner with reference to Annex.R/5 (page 82 of the paper book) that in fact, the said competent authority has recommended the increase of disability by 10% vide column 5 of the said report which is titled as 'Worsening due to natural progress of disability”. Under the said column 10% is mentioned. In spite of Annex.R/4, he submits that as a matter of fact the original disability assessed in case of the petitioner at 80% ought to have been increased by 10% additionally recommended by the competent authority. 7. Be that as it may, the question before this Court is only about the decision of reduction of disability element by 80% to 30% vide Annex.P/2 dated 16th August, 2000. Admittedly the said reassessment or reduction from 80% to 30% disability was done by the said PCDAP vide Annex.P/2 dated 16th August, 2000 without any fresh medical examination at that point of time and originally the disability was assessed as 30% but the pension was granted at the rate 80% of the disability. There was no justification for again reducing it to 30% after lapse of about 5 years. The petitioner had been constantly paid the said benefit at the rate of 80% from the year 1995. There is also no dispute that the said order dated 16th August, 2000 was passed without giving an opportunity of hearing to the petitioner and without allowing him an opportunity to show cause as CW- 1429/04 - Ex Mb/Ris Kishna Ram (No.JC 195410N)Vs.UOI & Ors. Judgment dt.11.9.08 4/7 to why the disability of element be not reduced from 80% to 30%. The said order, therefore, not only being without any foundation but is also found to be in breach of principles of natural justice and the same cannot be sustained. 8. This Court while dealing with the similar case in Bhanwar Lal Vs. Union of India (Supra) had observed as under:- “Shri S.K. Nanda has placed reliance on the judgment of Punjab and Haryana High Court Sq. Ldr. G.S. Chima vs. Union of India 1991 (1) SLR 213 wherein it has been held that reducing the disability without referring to the Medical Board or without hearing Medical examination of the petitioner therein and without providing any opportunity to explain his case and produce necessary material before the respondent before the decision to reduce the pension arrived at, was violative of the principles of natural justice. Moreover it was held that once re-survey Medical Board had found the disability at particular magnitude and authorities had same dispute, it should refer this case to higher medical board for expert opinion. The same view has been taken b the Punjab & Hariyana High Court in Capt. Harbhajan Singh Vs. Secretary, Ministry of Defence, Govt. of India New Delhi 1996 (5) SLR 792 while deciding the said case the High Court has placed reliance upon the judgment of the Supreme Court in Ex. Sappore CW- 1429/04 - Ex Mb/Ris Kishna Ram (No.JC 195410N)Vs.UOI & Ors. Judgment dt.11.9.08 5/7 Mohinder Singh Vs. Union of India in Civil appeal No.164/93 decided on 14th Jan 1993 and other judgments viz. Munshi Ram Vs. Union of India and others 1996(2) RJS 705 decided by the Division Bench of Punjab and Haryana High Court and Wing. Commander R.L. Sharma vs. U.O.I. 1994 (7) SLR 473 decided by Punjab and haryana High Court. After considering all the judgments, the court has observed that unless there are cogent reasons to reduce the magnitude of the disability and is based on some expert evidence, such reduction will be deemed to be arbitrary, and, hence, liable to be quashed. Further reliance has been placed on Puspa Rani Vs. U.O.I. Decided by Punjab and Haryana High Court 1993(3) service cases today 490 wherein after placing reliance on various judgments of the courts, it reiterated the same view. Thus, in view of above, the writ petition succeeds and allowed. The impugned order reducing disability below 20 per cent is held to be arbitrary and quashed. Respondents are directed to pay arrears of pension at the rate referred above may be paid to the petitioner within a period of three months. However, liberty to the respondents to refer the case of the petitioner to superior medical board and take afresh decision on the report of such board after getting the petitioner medically examined. No order as to costs.” 9. To the same effect is the decision of the Hon'ble Supreme Court in case of Ex. Sapper Mohinder Singh V. Union of CW- 1429/04 - Ex Mb/Ris Kishna Ram (No.JC 195410N)Vs.UOI & Ors. Judgment dt.11.9.08 6/7 India (Supra) and para 4 of the said judgment is also quoted for ready reference:- “4. We have examined the relevant materials and we do not feel satisfied with the plea taken in the counter affidavit. No details of the consultation has been disclosed by the respondent nor it is claimed that the appellant has been re-examined by any higher medical authority. We are not prepared to act on the vague allegations in the counter affidavit referred to above. In view of all the relevant circumstances of the case, we are of the opinion that the Disability pension assessed at the rate of 40% by the Medical Board which had examined the appellant, should be accepted until a fresh medical Board examined the appellant again and came to a different conclusion. Accordingly we direct that for the period 1.8.1989 to 31.1.1993 the appellant shall be paid the Disability Pension at the rate of 40% and it will be open to the authority concerned to have the appellant re-examined by a properly constituted Medical Board for re- assessment of the disability with effect from 01.02.1993.” 10. In view of the aforesaid, this writ petition is allowed and the impugned order Annex.P/2 dated 16th August, 2000 is quashed and the arrears of the pension for the period 28.5.2000 to 29.3.2005 at the rate of 80% of the disability pension shall be paid to the petitioner within a period of 3 months from today. For the period after CW- 1429/04 - Ex Mb/Ris Kishna Ram (No.JC 195410N)Vs.UOI & Ors. Judgment dt.11.9.08 7/7 29.3.2005, the disability element may be determined afresh, as to whether 10% for further worsening is to be added to 80% or not. Such fresh decision may also be taken within 3 months from today and arrears be paid accordingly. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.s/7 babulal/-