Union of India & Ors. v. Ex JWO Nageshwar Tiwari

(iv) Tab Canagliflozin 100 mg OD

(v) Tab Amlodipine 5 mg HS

(vi) Tab Metoprolol XL 25 mg 00

Past Medical/Surgical History: As Above Family History: Nil relevant Personal History: Alcohol- Nil Tobacco: Nil On Examination: GC Good Height 165 Cms, Weight 76 kg, [BW 62 kgs, Waist 97 Cms, Hip 103 Cms, BMI 27,18 Kg/m[2], WHR 0.94, Over weight- < 2SD, Pulse 74 per min regular. BP- 104/66 mm of Hg. Chest 92 cms, Exp: 05 cms EYE: DV R L NV R L Without Glass 6/6 6/6 Without Glass N[6] N[6] With Glass - - With Glass - - Hearing R 600CMS L 600 cms Systemic Exam: Resp: Both lungs clinically clear. CVS: S I, S[2] Heard. No S[3],S[3], Murmur CNS: No Neurological Deficit PIA: Soft No OrganomegaJy Local Examination:- N/A Inv: Hb% 15.1, TLC-9000, DLC N 62 E 04 B 00, L 32 M 02 Urine RE/ME NAD, Sugar F-100 mg/dl, PP-168 mg/dl, Lipid Profile CH -112 mg/dl, TGL- 148 mg/dl, LDL 33.[8] mg/dl, Bun-10.[1] mg/dl, S Creatinine: 0.80 mg/dl, Total Bil.-0.84 mg/dl, Direct Bil.- 0.18mg/dl Hb A 1 c: 6.9%. ECG (R): TCU/474/21 dated 11 Jan 21-WNL, Fundoscopy: dated 4 Jan 21- BE WNL Referred to Med OPD at CH AF ‘B’ for Release Medical Board opinion. Date: 12 Jan 2021

5. Thus, we find that even the specialist who examined the respondent did not arrive at any conclusion that the DM-II and Primary Hypertension from which the respondent suffered was not attributable to military service.

6. In such circumstances, we have held in our decision in Ex Sub Gawas Anil Madso that the respondent would be entitled to disability pension.

7. We do not deem it necessary to reproduce our findings in the said decision, so as not to burden this judgment.

8. We have also been conscious of the fact that we are exercising certiorari jurisdiction over the decision of the AFT and are not sitting in appeal over the said decision.

9. The parameters of certiorari jurisdiction are delineated in the following passages of Syed Yakoob v K.S. Radhakrishnan[5]: 1963 SSC OnLine SC 24 “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v Syed Ahmad Ishaque[6], Nagandra Nath Bora v Commissioner of Hills Division and Appeals Assam[7] and Kaushalya Devi v Bachittar Singh[8].

8. It is, of course, not easy to define or adequately describe (1955) 1 SCR 1104 (1958) SCR 1240 AIR 1960 SC 1168 what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.” (Emphasis supplied)

10. Within the limited parameters of the certiorari jurisdiction and keeping in view the facts of the case outlined hereinabove, we find no cause to interfere with the impugned judgment of the AFT, which is affirmed in its entirety.

11. The present petition is, accordingly, dismissed in limine.

12. Compliance with the impugned judgment of the AFT, if not already ensured, be ensured within a period of four weeks from today.

C. HARI SHANKAR, J.