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High Court of Calcutta
Pratap Kumar Ray, Dipankar Datta, JJ.
Union of India – Appellant
Versus
Rajat Kumar Ghosh – Respondent
F.M.A. No. 1735 of 2003
Decided on : July 16, 2012
Invalidation of service and striking off the name of the writ petitioner/respondent from the strength of the Group centre dated 7th May, 1993 read such: OFFICE OF THE ADDL. DIG, GROUP CENTRE, C.R.P.F., DURGAPUR-14 (W.B.) No. M. III-8/93-ESTT-8 Dated, the 7 May, 1993 INVALIDATION FROM SERVICE (OFFICE OFFER) No. 850773278 CT R.K. Ghosh of this Group Centre is a case of Schizo- phrenia. He developed psychiatric illness 4 years back and was treated in Base Hospital-One, CRPF, New Delhi. Since then he has developed 3-4 relapses of psychiatric CRPF. He has been finally diagnosed as a case of Schizo-phrenia. In addition he is a chronic case and even then he has shown improvements, residual symptoms like socall with drawal, impulsivity and lack of initiative persist. He has not fully recovered even after a course of 7 ECTS and adequate treatment with antipsychatric medication. As per the opinion of the Medical Board, Group Centre, CRPF, Durgapur-14, the above named individual has been declared completely and permanently incapacited for further active service of any kind in the CRPF. The above named individual was issued with notice No. M.III- 8/93-Estt-8 dated 31.3.93 as per rule which was served on 1.4.93. The individual has not dis-agreed with the opinion of the Medical Board as he has not submitted any application against invalidation. 2. No. 850773278 Ct R.K. Ghosh of this GC is hereby invalided out from service w.e.f. 7.5.93 (AN). He is struck off strength of this Group Centre from the same date. Ex-postfacto approved is a hereby also accorded for retention/notice period in service w.e.f. 27.3.93 to 7.5.93 for bonafied Govt. Service. (Mahendra Prasad) Addl. DIG No. M. III-8/93-ESTT-8 Dated the, 7 May, 1993 No. 850773278 Ct R.K. Ghosh, GC, CRPF, Durgapur through AC (Hor), GC. (Mahendra Prasad) Addl. DIG Internal PRI, Risk Fund/M.O.-I/C/AC (Hqr)/AC (Adm)/ HC(SR)/HC (Cash)/HC (Pay)/I/C-Pension, FOC-GC for information and necessary action.
Fact of the Case:
The writ petitioner was declared medically unfit by the Medical Board. The respondent authority relying on the report of the Medical Board removed the writ petitioner from service. The order or removal was impugned by the writ petitioner before this Court in C.O. 4056 (W)/1996 wherein this Court by an order dated April 26, 1996 upheld the order of removal and directed the respondent authority to consider the case of the writ petitioner for extending retiral benefits.
Finding of the Court:
The learned Trial Judge allowed the second writ application partly by quashing the impugned decision refusing to grant disability pension and invalid pension, but did not pass any order of reinstatement in service or re-employment in service. The judgment of the second writ application has not been attacked by preferring any appeal by the writ petitioner, as such at the present moment in this appeal preferred by the Union of India and other officers of CRPF, there is no scope to consider the prayer for re-employment on the basis of representation of the writ petitioner with supporting opinion of medical officer who attended him in a Government Hospital.
Issues: Whether the writ petitioner is entitled for invalid pension and disability pension under the CCS (Pension) Rules, 1972 and the CCS (Extraordinary Pension) Rules, respectively.
Ratio Decidendi: 1. Invalid pension is a separate and different category, which is not related with other category of pensionary benefits detailed above. Rule 49 under Chapter VII of the said Rule deals with quantification of amount of Pension. There is no specific minimum service period that could be considered as qualifying service for pension, but under Rule 49 sub rule (2) clause (b) those with qualifying service of less than 10 years would be granted gratuity only and pension is available to them who will render service for more than 10 years on the basis of provision laid down in the said Rule 49. 2. On the basis of the aforesaid statutory provision, it appears that invalid pension is a separate category of pension which has no connection with reference with other category of pension as mentioned in the statute and thus the grant of invalid pension is not dependent upon or its quantification is not conditioned with minimum 10 years qualifying service. 3. Schizophrenia is also coming within the category of disease "psychosis" which is schedule disease under Schedule IA entitling the patient concerned for an award of disability pension under Rule 9(2) of the said Extraordinary Pension Rules.
Final Decision: The appeal assailing the judgment of the learned Trial Judge stand disposed of accordingly by modifying the order to the extent as discussed and granting appropriate relief to the writ petitioner/respondent exercising power of appellate jurisdiction inspired by the principle flowing from Order XLI Rule 33, Civil Procedure Code.
PRATAP KUMAR RAY, J.
1. ASSAILING the judgment and order dated 15th May, 2002 passed by the learned Trial Judge in W. P. No.1064 (w) of 1999, this appeal has been preferred by the Union of India and officers of Central Reserve Police Force. The judgment under appeal read such:-
"The writ petitioner was declared medically unfit by the Medical Board. The respondent authority relying on the report of the Medical Board removed the writ petitioner from service. The order or removal was impugned by the writ petitioner before this Court in C.O. 4056 (W)/1996 wherein this Court by an order dated April 26, 1996 upheld the order of removal and directed the respondent authority to consider the case of the writ petitioner for extending retiral benefits. In terms of the said order dated April, 26, 1996 the respondent authority considered the matter and passed the following order; 2. In this connection it is unformed that a central Govt. Employee is covered under CCS (Pension) Rules 1972. You were invalided from service after serving less than 10 years in CRPF. A Central Govt. Employee who served for less than 10 years is not eligible for Invalid Pension as per Rule 38 of CCS (Pension) Rules, 1972. Hence you are not entitled for Invalid Pension. 3. As regards disability pension, it is informed you that you were a patient of "Schiz-phrenia" for which you were invalided from service after declaring completely and permanently incapaciated for further active service of any kind in the CRPF by a board of Medical Officers at GC, CRPF. Durgapur. The disease for which you were invalided, do not find place under the Head "Diseases affected by stress and strain" of schedule I-A of CCS (EOP) Rules incorporated as Appendix-3 of Swamy's pension compilation incorporation CCS (Pension ) Rules corrected upto 1/3/01. Hence, you are not eligible for disability pension. 4. However, as per entitlement, the following payments have been made to you:- i) CGEGIS Rs.2,324/- ii) Terminal Gratuity Rs.3,430/- iii) RF final payment Rs.15,000/- It appears from the order impugned dated April, 26, 1996 quoted (Supra) the writ petitioner was denied pension on the ground that he had served less than 10 years and as such,/ he was not entitled to pension as per Rule 38 of the CCS (Pension) Rules, 1972. I have perused Rule 38, I do not find any period mentioned in the said rule which could disqualify the writ petitioner from availing pensionary benefits having served the force for less than 10 years. Mr. P.K. Sen, learned Counsel, appearing for the respondent authority, could not impress upon me as to why the writ petitioner could be denied retiral benefits for having served less than 10 years. Mr. Sen, learned Counsel, has relied on an Apex Court judgment Union of India and Others Vs. Rakesh Kumar reported in 2001 Vol. 3 Supreme Page: 48 wherein the Apex Court denied the pensionary benefit to the members of the force for having served less than 20 years. In those cases the writ petitioners resigned from service after having served less than 20 years. The Apex Court considered the Rule 48A of the CCS (Pension) Rule which provides for minimum 20 years qualifying service for a government servant to avail the pensionary benefit. Under Rule 49 of the Pension Rule if the qualifying service was less than 20 years the government servant was not entitled to get pensionary benefit. Considering such provision the Apex Court held that a member of the force should resigned after serving less than 10 years could not be entitled to get pension. In my view, such provision has no application in the instant case and as such, the Apex Court decision has no application herein. Resignation is a voluntary act on the part of the employee whereas invalidated retirement on invalidation at the direction of the respondent authority is not a voluntary act on the part of the employee concerned. In the instant case the respondent authority considering the report of the Medical Board could have offe
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