SCA/27230/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27230 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== BACHUBHA BANESINGH PARMAR Versus STATE OF GUJARAT & others ====================================== Appearance : Mr. Anand L. Sharma for the petitioner Ms. Asmita Patel, Assistant Government Pleader for the respondents ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 08/05/2008 ORAL JUDGMENT 1 Rule. Learned Assistant Government Pleader waives service of Rule on behalf of the respondents. At the joint request of the learned advocates for the parties, this petition is taken up for final hearing today. SCA/27230/2007 2/9 JUDGMENT 2 This petition under Article 226 of the Constitution of India is preferred by the petitioner for the following relief: [A] Your Lordships may be pleased to issue appropriate writ, direction or order declaring the action on the part of the respondents in not sanctioning the injury pension from the date of permanent disability in spite of the certificate of the Civil Surgeon and in not granting special disability leave to the petitioner, as illegal, unjust, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution, and contrary to the Rules. [B] Be pleased to direct the respondents to sanction injury pension to the petitioner from the date he suffered permanent disability i.e. from 10.7.1977 and to make payment of the arrears accordingly with interest @ 18% p.a. forthwith. [C] Be pleased to direct the respondents to treat the leave of 155 days, which the petitioner was required to take for treatment of the injury which he received during the course of his employment, as Special Disability Leave and confer upon him all such benefits as may be entitled consequent upon such grant of special disability leave, including encashment of the said Earned Leave.” 3 The short facts are as under: 3.1 On 10th July 1977, when the petitioner was working as Unarmed Head Constable at Dariapur Police Station, Ahmedabad, while carrying out raid in due performance of his official duties, he sustained serious injuries and lost one of his eyes permanently and, due to injuries, he was unable to attend duties for about 155 days since he was under treatment of the Civil Hospital at Ahmedabad. It is an undisputed fact that on 18th October 2000, the petitioner was examined by the Medical Board at Civil Hospital, Ahmedabad, and issued a certificate of injuries sustained by the petitioner to the effect that loss of vision is a permanent disability. Therefore, the petitioner applied for 'disability leave' to the Authority. While the petitioner was in service, he continued to make SCA/27230/2007 3/9 JUDGMENT representations and one of such representations was made on 6th April 1985 to the Director General of Police for grant of 'disability leave' and injury pension. The petitioner was superannuated on 30th June 1986. 3.2 So far as 'disability leave' is concerned, by communication dated 4th August 1995 addressed by the Home Department to the Director General of Police, Gujarat State, it was conveyed that, in consultation with the Finance Department, the request of the petitioner for grant of 'disability leave' was not acceded to, but no reasons were given for rejection of request of 'disability leave' to the petitioner. However, the petitioner persisted with his efforts to convince the Authorities. 3.3 On 2nd August 1999, respondent No.1 sanctioned injury pension of Rs.300 per month initially for three years from 2nd August 1999 subject to obtaining fresh medical certificate and the said pension continues as on date. 3.4 It transpires from the record that, on 18th October 2000, a certificate of Civil Surgeon, Civil Hospital, Ahmedabad, was sent to the Government. However, in view of the earlier decision of the Home Department in consultation with the Finance Department, the petitioner was again conveyed that 'special disability leave' cannot be granted. 3.5 The petitioner also approached the Alternative Dispute Resolution Mechanism held in the High Court of Gujarat, but, ultimately, the proceedings came to be terminated by order dated 9th September 2005 so as to enable the petitioner to file a writ petition in this Court through the Legal Aid Committee and, accordingly, by order dated 21st March 2007 Special Civil Application No.21434 of 2006 came to be disposed of by this Court [Coram: H.K. Rathod, J.] with certain directions to the SCA/27230/2007 4/9 JUDGMENT respondents. In pursuance of the order dated 21st March 2007, the petitioner again made a representation to the respondents. By communication dated 29th June 2006 and 28th July 2006, the representation of the petitioner came to be rejected by the respondence. Hence, this petition. 4 Mr. Anand L Sharma, learned counsel for the petitioner, has relied upon Rules 269, 270, 270A and 298A of the Bombay Civil Service Rules, 1959 [for short, 'the Rules'] for claiming injury pension and Rules 748 and 749 for grant of special disability leave. He submits that there was no dispute with regard to the injuries suffered by the petitioner. That, the petitioner lost his one eye and suffered permanent disability. That, the above injury is of permanent nature, as certified by the Civil Surgeon and also by the Medical Board of the Civil Hospital, which are produced on record. That, Rule 269 of the Rules only envisages that the Authority has to consider the case for grant of injury pension upon production of relevant medical certificate in requisite format issued by the competent authority. That, when the petitioner was under treatment and remained on leave for 155 days pursuant to permanent injury, the Authority is duty bound to grant disability leave to the petitioner. That, grant of sanction of injury pension with effect from 2nd August 1999, when the petitioner sustained injuries on 10th July 1977, is also erroneous, unjust, arbitrary and contrary to the material on record and the Rules in as much as the petitioner was referred to the Medical Board and, in the certificate, it was specifically mentioned that the petitioner sustained injury on 10th July 1977. That, if some delay has occurred in correspondence between the Civil Surgeon, Civil Hospital, Ahmedabad, and the Superintendent, Civil Hospital, Ahmedabad on the one hand and the Offices of the Police Commissioner and Director General of police and the Home Department on the other hand, the petitioner cannot be SCA/27230/2007 5/9 JUDGMENT subjected to such kind of harassment more particularly when the injury was sustained on duty as a Member of disciplinary police force while he had raided the premises of a bootlegger. Not only that, right from the day when he sustained injury, the petitioner continued to apply for disability leave and series of representations were made from 1998 onwards for grant of injury pension and, pursuant to the representation of the petitioner, injury pension was granted by the respondents on 2nd August 1999, instead of with effect from 10th July 1977, which is contrary to Rule 269 and the respondents ought to have considered the case of the petitioner for grant of injury pension with effect from 10th July 1977. 5 Ms. Asmita Patel, learned Assistant Government Pleader appearing for the respondents, relies on the affidavit-in-reply filed by one Mr. V.V. Nagvadia, Deputy Director [Accounts], Office of the Commissioner of Police, on 28th November 2007, and submits that, upon production of injury certificate, the injury pension was granted to the petitioner vide order dated 2nd August 1999 initially for three years and thereafter continued from time to time and the delay has occurred due to non- production of medical certificate at the relevant point of time. She further submits that, so far as disability leave is concerned, the case of the petitioner has been rejected as early as in the year 1995 in consultation with the Finance Department, wherein, it was found that the petitioner was not eligible to get disability leave. That, after sufferance, the petitioner was given alternative job and permitted to perform his duties on desk. That, under Rule 269 of the Rules, an employee is entitled to receive injury pension from the date when he produced injury certificate. Therefore, the petitioner had already been granted the benefits under the Rules to which he was entitled as per the Rules and, therefore, this petition is liable to be rejected. SCA/27230/2007 6/9 JUDGMENT 6 In rejoinder, the learned counsel for the petitioner has specifically relied upon the correspondence addressed by the Authorities from 8th August 1978 onwards. He produced on record copies of the correspondence ensued between the respondents-authorities and the opinion of the Medial Board and prayed that the relief, as prayed for in the petition, may be granted in toto. 7 Heard the learned advocates for the parties and perused the record, affidavit-in-reply and affidavit-in-rejoinder. Re: Injury Pension 8 The relevant rules are reproduced hereinbelow for determination of the issue at controversy: “269 A wound or injury pension may be granted on the production of a medical certificate in BCSR Form No.14-A [Army Form A.45-A] in Appendix XI-A or on the production of a certificate from a competent authority mentioned in Rule 202 that the wound or injury is so severe as to justify the grant of a pension, even though the Government servant concerned may not be permanently incapacitated, for further service as a result of wound or injury. 270 A wound or injury pension shall be granted not necessarily for the life-time of the pensioner but for such period as Government may direct. If granted temporarily in the first instance, it may subsequently be extended for such further period as may be considered necessary. 270A A wound or injury pension, sanctioned under Rule 298- A would, except when it is sanctioned for life, be dependent on the continuance of the disability. The payment shall be subject to the production of a medical certificate, once in three years, from the Civil Surgeon, or a Medical Board in accordance with the SCA/27230/2007 7/9 JUDGMENT provisions of Rule 269. Where the disability has disappeared or become less, Government may pass such orders regarding its continuance as are deemed fit.” 8.1 Rule 269 provides that wound or injury pension may be granted on production of a medical certificate in prescribed format in Appendix XI-A or on production of certificate from the competent Authority mentioned in Rule 202 that the wound or injury is so severe as to justify the grant of a pension, even though the government servant concerned may not be permanently incapacitated for further service as a result of wound or injury. Rule 270 provides for duration of grant of injury pension, whereas Rule 270A gives liberty to the Government to discontinue pension in case disability disappears or becomes less and, accordingly, to modify and reduce the injury pension granted to the employee concerned. 8.2 According to this Court, on a bare perusal of the provisions embodied in Rule 269 of the Rules, it is clear that a duty is cast upon an employee to prefer an application for receiving pension from a particular date i.e. the date of injury. Admittedly, the application is to be submitted in the prescribed format with a medical certificate. It further stipulates that even in case the government employee is not permanently incapacitated but if a certificate from the competent authority mentioned in Rule 202 about the nature of injury so severe as to justify the grant of a pension is produced, the Government is duty bound to pay injury pension. Therefore, even if injury is not of permanent nature, then also, it is kept open for the Government to grant such pension. 8.3 As borne out from the record, the admitted and undisputed facts are: [i] the injuries were sustained by the petitioner on 10th July 1977 on SCA/27230/2007 8/9 JUDGMENT duty as an Armed Constable; [ii] the treatment was received by the petitioner in the Civil Hospital, Ahmedabad, both as indoor patient and outdoor patient, for about 155 days; [iii] the authorities asked the petitioner to appear before the Medical Board, Civil Hospital, Ahmedabad; the petitioner did appear and it was found by the Medical Board that the injury was of permanent nature and an eye of the petitioner was operated and removed because of injuries suffered by him. [iv] the authorities granted injury pension from 2nd August 1999 onwards. [v] different governmental authorities, namely, Civil Surgeon, Civil Hospital, Ahmedabad, Superintendent of Civil Hospital, Ahmedabad, Office of Commissioner of Police, Director General of Police and Home Department, inter-se, took too much time to take a decision on the grant of injury pension to the petitioner. Considering the above factual aspects and relevant provisions of the Rules governing the field, it is held that the claim of the petitioner to receive injury pension from the date of injury, i.e. 10th July 1977 cannot be denied. Re: Special Disability Leave 9 'Special disability leave' is governed by Rules 748 and 749 of the Rules. Sub-rule (1) of Rule 748, which is relevant, reads as under: “748[1] Subject to the conditions hereinafter specified Government may grant special disability leave to a Government servant who is disabled by injury intentionally inflicted or caused in or in consequence of, the due performance of his official duties or in consequence of his official position.” SCA/27230/2007 9/9 JUDGMENT 9.1 Sub-rule (1) of Rule 748 and Rule 749 of the Rules clearly govern the field and the petitioner has remained out of duty for 155 days due to injuries suffered during the course of duty as per the advice of the Civil Surgeon, Civil Hospital, Ahmedabad, and necessary certificates have been issued as reflected in the letter dated 8th August 1978 addressed by the Civil Surgeon, Civil Hospital, Ahmedabad, and Superintendent of Civil Hospital, Ahmedabad. On the contrary, the communication dated 4th August 1995 addressed by the Home Department in consultation with the Finance Department does not assign any reasons for rejecting disability leave to the petitioner and the learned Assistant Government Pleader is not able to defend the said communication. No other point is raised by the learned Assistant Government Pleader to defend the action of the respondents. Therefore, it is held that the petitioner is eligible to get 'special disability leave', as claimed. 10. As a result of foregoing discussion, this petition succeeds. The respondents are directed [a] to sanction injury pension to the petitioner from the date he suffered permanent disability i.e. from 10.7.1977 and to make payment of the arrears accordingly; [b] to treat the leave of 155 days, which the petitioner was required to take for treatment of the injury received during the course of his employment, as Special Disability Leave and confer upon him all such benefits as may be entitled consequent upon such grant of special disability leave, within eight weeks from the date of receipt of writ of this order. Rule is made absolute with no order as to costs. (ANANT S. DAVE, J.) (swamy)