OM PARKASH Vs. UNION OF INDIA

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution of India, the petitioner prays for quashing of order dated 8th July, 2002 passed by respondent No.4 and order dated 6th November, 2004 passed by respondent No.3 rejecting the claim of the petitioner for grant of disability pension. He further prays that respondents be directed to grant and pay disability pension to the petitioner @30% with effect from 31st July, 2001deemed to be 50% in terms of Government of India Notification dated 31st January, 2001.

(2.) The necessary facts are that petitioner was enrolled in the Army as Sepoy on 29th July, 1975. Due to his hard work and dedication to duty he was promoted to the rank of Nb. Sub. On 2nd August, 1999, the petitioner was granted 7 days casual leave from 2nd August, 1999 to 8th August, 1999. This leave was extended upto 31st August, 1999 by his Commanding Officer. After expiry of said leave, the petitioner commenced his journey from his leave station for his unit on 31st August, 1999. He boarded Pooja Express Train from his nearest railway station for Jammu Tawi. As the training was approaching Delhi, there was severe jolt due to sudden breaking as a result of which the petitioner fell down and his left leg got crushed between train and railway platform. Thereafter, the petitioner was taken and admitted to Base Hospital, Delhi Cantt by a fellow Passenger. The petitioner was transferred to Army Hospital R and R after two days where he was operated upon twice. His injury was diagnosed as "Crush Injury (LT) Foot (OPTD) with communuted Fracture 5th Matatarsal". As a result of above, the petitioner was placed in low medical category CEE (temporary) w.e.f. 25th November, 1999 and later on placed in low medical category BEE (Permanent) w.e.f. 25th November, 2000. The Court of Inquiry was held. However, copy of the same was not given to the petitioner. The Release Medical Board was held in MH Ahmedabad in April, 2001, which assessed the disability of the petitioner at 30%. The petitioner was invalided out of service on 31st July, 2001. The petitioner claimed disability pension and made several representations to various authorities. However, he did not get any satisfactory reply. The petitioner then sent a petition through his counsel on 6th October, 2004 In reply to this petition, the respondents passed an order dated 6th November, 2004 and also annexed with it an extract of PCDA(P)'s order dated 8th July, 2002 wherein it was recorded that the injury suffered by the petitioner was not attributable to military service as the same was due to accidental injury at Railway Station as per injury report dated 1st September, 1999. The documents of the Medical Board were not furnished to the petitioner on the ground that they were confidential. The claim of the petitioner for grant of disability pension was declined. Before filing the present writ petition, the petitioner also served a notice through his counsel on 9th December, 2004 but of no avail.

(3.) The respondents have filed detailed counter affidavit. The facts are not disputed. However, it is stated that in terms of judgment of Supreme Court in Ex Sapper Mohinder Singh Vs. Union of India (CA NO. 164/91 decided on 12th January, 1993) the findings of the Medical Board, which conducted the medical examination of the petitioner has to be given importance and the disability of the petitioner was described as under :-