Nirbhay Kumar vs Union of India (UOI) and Others

Mohinder Pal, J.—Brief facts of the case are that the petitioner was enrolled as Constable in the Border Security Force (hereinafter referred to as ''the Force'') on February 20, 1989. At the time of appointment of the petitioner, he was medically examined and found fit. He served the Force for more than seventeen years and was compulsorily retired. In January, 1994, when the petitioner was deployed at Bhadarwah (Jammu & Kashmir), he complained of diminishing hearing in his right ear, for which he was referred to Medical College and Hospital, Jammu, as an Outdoor Patient for ten days. Later on, he took treatment from various hospitals, but his clinical condition did not improve. After about one year, his left ear also developed impaired hearing. Resultantly, he was diagnosed severe mixed hearing loss of both ears by the Unit Medical Officer and placed under low medical category with the advice to follow up treatment. After treatment, condition of the petitioner did not improve and finally he was produced before the Medical Board on January 24, 2005 for re-categorization. He was examined by the Medical Board on January 24, 2005 and was diagnosed as Sensory Neural Hearing Loss (Right-Left) with old healed fractures 5th, 6th , 7th and 8th ribs (left) and was placed under medical category SIH3AIPIEI permanently with 55% disability with the advice for review after two years vide Annexure P1. The claim of the petitioner for disability pension was rejected vide order dated August 02, 2006 (Annexure P3).

In this petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari to quash the order dated August 02, 2006 (Annexure P3). He ha also prayed for issuance of a writ in the nature of mandamus directing the respondents to grant 55% disability pension to him.

In the reply filed by the respondents, they have justified the impugned order on the ground that the disability of the petitioner is not at all attributable to or aggravated by the Government service. However, it was denied that the petitioner was compulsorily retired from service of the Force.

We have heard Ms. Sonia G. Singh, Advocate, appearing for the petitioner and Ms. Renu Bala Sharma, Advocate, appearing for the respondents and have gone through the records of the case.

In the written statement filed by the respondents, it has been admitted that on May 17, 2005, the petitioner had submitted an application that in the year 1993 during the course of firing in Bhadanvah (Jammu & Kashmir) area, his ear had damaged and that a Court of Inquiry be held and he be given disability pension. Further, the averment of the petitioner made in para No. 3 of the writ petition that in January, 1994, when he was deployed at Bhadarwah (Jammu & Kashmir), his hearing had impaired in right ear for which he was referred to Medical College and Hospital, Jammu, as an Out-door Patient for ten days, has not been denied by the respondents in the written statement. Rather, it is stated that "the petitioner had been getting treatment for his hearing problem at various hospitals from time to time. However, it is submitted that this hearing problem of the petitioner is not attributable to or aggravated by Government service." In the Medical Board Proceedings Part-II dated January 24, 2005 (Annexure P1), it has been categorically stated that, in the opinion of the Medical Board, the disability was contracted in service.

These facts unambiguously indicate that the petitioner sustained the disability during service, which was attributable to and aggravated by his service in the Force. While rejecting the claim of disability pension of the petitioner, it has been observed in the impugned order thus:

Considering the case in its entirety, nothing on record is available in the Unit that the individual diminished hearing of right ear occurred during conduct of firing in the year 1993 and later led to complete hearing loss of right year. Besides individual also could not provide information about the detail of firing in the year 1993. Further there is no evidence available in this office to the effect that he met with an accident while on leave during the year 2000 and sustained severe fracture injuries over 5th, 6th, 7th, 8th ribs (left side) as he never reported the matter regarding his accident after return from leave.

These observations cannot be sustained in view of the facts that the petitioner was not hearing-impaired and was medically fit at the time of his entry into service in February, 1989 and, for the first time, he complained of diminished hearing in January, 1994, when he was deployed at Bhadarwah (Jammu & Kashmir). He was then referred to Medical College and Hospital, Jammu. Thereafter, he continuously remained under treatment till he was relieved of his duties. The petitioner suffered loss of hearing in active service of the Force and the disability is attributable to and aggravated by his service in the Force. The order Annexure P3 has been passed without going into the basic cause of injury, resulting in 55% disability due to loss of hearing. The competent authority should have taken into account all the evidence, both direct and circumstantial, while deciding on the issue of entitlement of disability pension and the benefit of reasonable doubt should have been given to the petitioner, especially when he was in the field service of the Force.

For the aforesaid reasons, this petition is allowed, the impugned order dated August 02, 2006 (Annexure P3) is quashed and for his disability the petitioner is held entitled to 55% disability pension with all consequential benefits, which shall be paid to him from the date of his retirement. The respondents shall pay all the arrears to the petitioner within two months from the date of receipt of a copy of this order, failing which the petitioner will be entitled to interest at the rate of nine per cent annum.