AMAR NATH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an application filed by the present appellant under Section 151 C. P. C. for hearing the case on an actual date. Notice of this application was issued to the other side. Learned counsel for the appellant contended that inspite of the order dated May 17, 1996 passed by the Hon'ble Acting Chief Justice directing the appeal to be heard within six months, the appeal s not been heard till date and pressed that the matter be heard. As the learned counsel appearing for the non-applicant-respondent had no objection, the appeal itself was heard on merits and judgment was reserved vide order dated March 3, 1998. Consequently, I proceed with the judgment.

(2.) THE controversy which arises for consideration in this Regular Second Appeal relates to the scope of the authority exercisable by the] respondents in grant or refusing to grant the disability pension to a person subjected to armed forces, who has been released on medical ground. The challenge is to the action of the respondent in withdrawing disability pension alongwith service element which was being paid to the appellant and thereafter declining to grant the disability pension with effect from May 22, 1953 when the appellant was admittedly examined by the medical board and his disability was described as 40% on the ground of arbitrariness.

(3.) AS is clear from the above narrated facts the parties are hardly at variance with regard to the basic facts. It is not disputed that the appellant was released from the army on the medical ground and was granted disability pension initially. This pension, however, was withdrawn in the year 1953, but was not challenged by the appellant till 1989. The appellant was subjected to re-survey by medical board in the year 1988 and his disability was found to be 40% vide exhibit P. 1. It is also not disputed before me that the appellant would be entitled to disability pension but for the opinion expressed by the Controller of Defence Accounts (P), Allahabad, which was recorded at the back of the appellant, was withdrawn. The appellant instituted the suit in the year 1989 basing his cause of action for the medical board held in 1988. The suit was obviously filed within limitation as far as the relief with regard to disability pension with effect from 1988 is concerned and it was so held by the learned trial Court and affirmed by the first Appellate Court. Exhibit P. 1, is the document dated July 18, 1988 issued by the competent authority clearly declaring the disability to the extent of 40% on re-assessment. The relevant portion of exhibit P. 1 reads as under :