MARUT SHARAN TIWARI Vs. UNION OF INDIA

JUDGEMENT

(1.) Simple but a pertinent question, as to the ambit and scope of the power exercisable by Principal Controller of Defence Accounts (P) (in short PCDA(P)) while dealing with the request of the member of the Armed Forces for grant of disability pension, arises for consideration in the present case. Despite the fact that this question has already been answered by the Courts in favour of the petitioner, the respondents still persist with the view that PCDA(P) can ignore the findings of the Medical Board duly forwarded to it in AFMSF-16 and substitute its own findings in that regard. This patently is progression of the jurisdiction vested in PCDA(P) in accordance with the relevant provisions. In the case of Controller of Defence Accounts (Pension) and others Vs. S. Balachandran Nair, 2005 IX AD (S.C.) 53 = AIR 2005 SC 4391, a clear principle was laid down that where a medical opinion has been prepared in accordance with the provisions of the Act satisfying the ingredients of the statutory rules particularly Appendix-II and attributability contemplated under regulation 423, the view of the medical board woutd have to be respected and would determine the fate of an applicant claiming disability pension. Once, the medical board gives an opinion that satisfies the basic ingredients of Rule 173 of the Pension Regulations for the Army, 1961 i.e. the disability suffered by the person subject to armed force is 20 per cent and above and is attributable or aggravated by military service, then normally such opinion would entitle the person for receipt of disability pension unless there were reasons for denying such claim which are indicated in the Act or the regulations itself. The procedure contemplated under law is that where in the opinion of the medical board a person subject to Army Act and Rules should be invalided out of army service as having earned a disability of 20 per cent and above which is attributable or aggravated by the army service, such opinion will be forwarded to the Commanding Officer or such authority competent to pass an appropriate order and sanction the disability pension, unless it has reasons to differ with the findings of the medical board where it may choose to refer the matter to the appellate board constituted in accordance with the regulations or once the pension is sanctioned then it is sent to the PCDA(P) for issuance of PP order and disbursement of the pension in accordance with rules. The scope of power of PCDA(P) is a very limited and normally it would hardly have any jurisdiction to sit over the findings of the medical board. In a given case, it may refer the matter to a medical specialist, as envisaged under the army instructions but exceptions apart, as a matter of rule, the PCDA(P) would be bound by the findings of the medical board and would be obliged to carry out its responsibility in issuing the PPO and disbursement of pension to the concerned member of the force. The ambit and scope of its power has been subject matter of controversy for quite some time. However, this question is no more res integra and is answered squarely by various pronouncements of different courts.

(2.) In the case of Janak Raj vs. Union of India and others, CWP No. 16976 of 1998 decided on 23.12.1999 by the Punjab & Haryana High Court : 2000 (1) RSJ 706 wherein the medical board had opined that the disease was aggravated due to stress and strains of army service and disability of the petitioner was assessed at 40% and the CDA had refused to sanction the disability sanction being not attributable to army service, the court held as under:-

(3.) In the case of Ex. Sepoy Jagmel Singh v. UOI & others (CWP 12749/1998) decided on 16.3.2000 by the Punjab & Haryana High Court: 2000 (3) RSJ 88 wherein the petitioner was denied the disability pension by the CDA(P) Allahabad vide their letter dated 12th September 1988 holding that the disability was less than 20 per cent and as such he was not entitled to receive disability pension, though the medical board, after 9 years of petitioner's service and while placing the petitioner under permanent medical low category EEE on the opinion of the surgical specialist, stated that disability was more than 20 per cent. In that case, the court held as under:-