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Judgment
Pramath Patnaik, J
In the caption writ application, the petitioner has inter alia prayed for direction commanding upon respondents for payment of compensation amount
on the ground of disability sustained during course of service alongwith penal interest from the due date, till its actual payment.Â
The factual matrix as has been delineated in the writ application, in a nutshell is that petitioner joined Border Security Force as Lance Naik. While
on duty on 20th March, 2003 because of abnormal behaviour, the petitioner was referred to MDM Hospital, Jodhpur where he was treated in the
Psychiatric Department and was diagnosed for as a case of Manic Depressive Psychosis hereinafter referred to in short as MDP. Thereafter, the
case of the petitioner was referred to Medical Board and the Medical Board assessed the disability of 55% vide medical proceeding in Annexure-1 to
the writ application. Because of his disability, the petitioner has been declared unfit for further service and he was given compulsory retirement on the
ground of medical disability. The petitioner submitted series of representation for payment of compensation and one of the representation has been
annexed as Annexure-2 to the writ application. Being aggrieved by the inaction/indifference of the respondents for non-payment of compensation, the
petitioner has been constrained to knock the doors of this Court for redressal of his grievances under Article 226 of the Constitution of India.
Learned counsel for the petitioner has strenuously urged that the respondent authorities are duty bound to pay the amount of disability compensation
on the ground that the petitioner has sustained disability while in service and as per Medical Board, the extent of disability is 55%. Inspite of such
disability there is stony silence on the part of the respondents in not paying the compensation to the petitioner, though the petitioner is suffering from
SCHIZO Affective Disorder (D). Learned counsel further submits that the petitioner was subjected to discrimination since similarly situated
constables working in Border Security Force have been paid compensation and petitioner without any rhyme and reason inspite of clear cut disability
report, has been deprived of getting the same and therefore, the action of the respondents is in breach of Article 14 of the Constitution of India.
Learned counsel for the petitioner during course of hearing has referred to decision rendered in W.P.(S) No.6315 of 2010 in the case of Oshihar
Prasad Vs. The Union of India & Others, order dated 30.08/2017.
Repudiating the averment made in the writ application, a counteraffidavit has been filed by the respondent nos.1 to 4. In the counter-affidavit, it has
been submitted that the present writ petition is not maintainable on the ground of lack of territorial jurisdiction. It has further been submitted that the
petitioner was diagnosed as a case of SCHIZO Affective Disorder (D) by psychiatric of MGM Medical College and Hospital. Therefore, the
petitioner was considered unfit for further service in the BSF. The Medical Board awarded medical category “S5H1A1P1E1†to the petitioner
and assessed his disability 55% (Permanent). After approval of the medical proceeding by competent authority, the petitioner was informed about
finding of the medical Board and decision to retire in accordance with Rule 25(3) of the BSF Rules, 1969 and was also informed by provision to make
a representation to the competent authority for review of his case, if he felt aggrieved about the proposed action against him. Despite opportunity
given, the petitioner neither appeared before Medical Officer, 10 Battalion BSF for preparation of part 1 nor reported to BSF Composite Hospital
Kadamtala for appearing before the Review Medical Board. The petitioner submitted an application for voluntary retirement from services with effect
from 30th April, 2008, which has been accepted by the competent authority and issued order for voluntarily retirement of the petitioner with all
consequential benefits under Rule 48 ‘A’ of CCS (Pension) Rules, 1972 with effect from 30th April, 2008. Accordingly, the petitioner has
retired voluntarily on 30th April, 2008 and he was awarded/sanctioned pensionery benefits and other financial benefits as per rule, such as Basic
Pension, Commuted value of Pension and Service Gratuity. It has further been submitted in the counter-affidavit that since the petitioner has prayed
for disability compensation but, same is not admissible. The said disability is due to natural causes and is not directly attributable to the Government
service and his case is covered under category ‘A’ of Ministry of Personnel, Public Grievances & Pensions, Dept. of Pension & Pensioners
Welfare Officer Memorandum dated 3rd February, 2000. As per the said memorandum, the cases covered under the category ‘A’ would
continue to be covered under the normal existing provision of CCS (Pension) Rule and he will not get any disability pension/disability compensation as
per the existing rules and also the petitioner was not interested to appear before the Review Medical Board in order to fix his disability and proceed
for retirement on medical grounds even though, he was given ample opportunity. It has further been submitted that the Medical Board opined that the
disability of the petitioner was not directly attributable to the service (Annexure-B). However, considering his more than 20 years of service in BSF,
instead of considering his grievance, he was medically boarded out by the Department, as per Medical Board proceedings. The petitioner has been
given an opportunity to seek voluntary retirement from services so that he may get maximum retirement benefits. Accordingly, the petitioner has
submitted an application for his voluntary retirement from services with effect from 30.04.2008, which has been accepted byÂ
the competent authority and issue order for voluntarily retirement of the petitioner with all pensionary benefits under Rule 48 (A) of CCS (Pension)
Rules, 1972 with effect from 30.04.2008 vide order dated 28.11.2007 (Annexure-D) and hence, the petitioner has no right for seeking disability
pension/disability compensation.
Learned counsel for the Union of India by referring to the counteraffidavit filed by the respondents has submitted that since the petitioner has
received the benefits under the provisions of CCS (Pension) Rules, he is not entitled to disability pension.
A rejoinder affidavit to the counter-affidavit has been filed by the petitioner wherein it has been submitted that the petitioner has undergone
disability during the course of service while he was posted at different places throughout his service tenure. This has to be seen and understood on the
basis of his postings at different places including his posting at Hazaribag Training Centre, Meru Camp from 01.01.1997 till 2000 where he was
assigned for the duty of Instructor. It has further been submitted that the disability mentioned has not been related to any particular time period, rather
it relates to all the period for which he remained in services while posted at different places. Therefore, it cannot be said that the petitioner has
contracted this psychological disease while he was posted at one particular place and this can very well be attributed to service rendered by him while
he was posted in Hazaribag Training Camp at Meru Unit of BSF alongwith other places. On the question of jurisdiction, it has been submitted that it is
well settled principle that jurisdiction of a court will be attracted even if a negligible part of cause of action happens within the territory. In the instant
case, the disability of psychiatric nature cannot be attributed at a particular time and place and therefore, it has to be said that it could have been
contracted at the time when the petitioner was employed in Hazaribag or at least when he got aggravated during his appointment and stay at
Hazaribag.
After having bestowed my anxious consideration to the rivalized submissions and on perusal of the documents on records, I am of the consideredÂ
view that the petitioner has been able to make out a case for interference due to the following facts, reasons and judicial
pronouncements:
(I)Â Before adverting to the claim of the petitioner, it would be apposite to dwell upon the issue as to whether the writ petition is maintainable on the
ground of territorial jurisdiction. It would be profitable to refer to Article 226 (2) which is quoted hereinbelow:-
'2':- The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.Â
(II) Indisputably, the petitioner was posted at Hazaribag Training Centre, Meru Camp in the State of Jharkhand from 1997 to 2000 and the petitioner
because of his physical disability being diagnosed as case of MDP in other words Schizo Affective Disorder as evident from Medial Board
Proceeding vide Annexure-1. Since, the said disability has occurred during the service career and because of his posting in the State of Jharkhand,
part of cause of action arose in the State of Jharkhand. Therefore, on the plain reading of Article 226 (2) of the Constitution of India, the writ petition
is maintainable on the ground of territorial jurisdiction.Â
(III) Now, the question arises as to whether the petitioner is entitled to disability compensation since he has sustained the physical disability during
course of employment. The nature of disability i.e. Schizo Affective Disorder and such a disorder, nothing conclusive has come during which place or
time the petitioner was afflicted by such disorder. From the pleadings available on record, it appears that any deficiency/deterioration/disability which
has not been recorded by the Medical Board during the service career or in course of his employment which is to be presumed that such disability has
been caused during course of employment. The view of this Court gets fortified by the decision of Hon'ble Apex Court as rendered in the case of
Sukhvinder Singh Vs. Union of India as reported in (2014)14 SCC 364, wherein the Hon'ble Apex Court has categorically held that any disability
not recorded at the time of recruitment was to be presumed to have been caused subsequently.Â
In view of the reason stated in forgoing paragraphs, the writ petition stands disposed of with a direction to the respondents to consider the case of
the petitioner for grant of payment of compensation on the ground of disability, in accordance with law, within a period of eight weeks, from the date
of receipt/communication of a copy of this order.Â