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2001 DIGILAW 309 (JK)

Darshan Singh v. Union Of India

2001-11-29

T.S.DOABIA

body2001
1. Primary hypertension was found to be the disease which led to the petitioner being boarded out of service. The matter was referred to the Controller of Defence Accounts That office has come to the conclusion that the disease in question is constitutional in nature and therefore, the petitioner is not entitled to disability pension. In this regard, it would be apt to refer to the stand taken by the respondents It is stated in para 3 of the objections that, during the year 1991 when the petitioner was with the Army Clerk Training School Aurangabad and was Naib Subedar at that time the Medical Authorities during routine Medical Examination detected that the petitioner was case of hypertension. Immediately thereafter the petitioner was admitted in the Military Hospital Aurangabad on 16.3.1991 and was placed in the Medical Category CEE Temporary petitioner was given the required treatment.� The petitioner was ultimately discharged from service in Dec™98. The case of the petitioner for sanctioning disability pension was sent to the Chief Controller of Defence Accounts (Pension), Allahabad but it is that office which has rejected the pension claims of the petitioner. The reasons given, as indicated above is that the disease is constitutional. 2. The fact that several factors including the environment to which a person is put leads to the diseases like mental stress, depression and high blood pressure is judicially recognized in the case of Church of God (Full Gospel) in India V. K.K.R. Majestic Colony Welfare Association and others, (2000)7 SCC 282, wherein the Supreme Court observed as under:- In these days, the problem of noise pollution has become more serious with the increasing trend towards industrialization, urbanization and modernization and is having many evil effects including danger to health. It may cause interruption of sleep, affect communication, loss of efficiency, hearing loss or deafness, high blood pressure, depression irritability, fatigue, gastrointestinal problems, allergy, distraction, mental stress and annoyance etc. This also affects animals alike. The extent of damage depends upon the duration and the intensity of noise.� In Harrison™s Principles of Internal Medicine Vol. 1, at page 1025, it has been mentioned that a number of environmental factors have been specifically implicated in the development of hypertension including salt intake, obesity, occupation, family size, and crowding. This also affects animals alike. The extent of damage depends upon the duration and the intensity of noise.� In Harrison™s Principles of Internal Medicine Vol. 1, at page 1025, it has been mentioned that a number of environmental factors have been specifically implicated in the development of hypertension including salt intake, obesity, occupation, family size, and crowding. These factors have all been assumed to be important in the increase in blood pressure with age in more affluent societies, in contrast to the decline in blood pressing with age in more primitive cultures.� Therefore, to say that hypertension is a constitutional disease would not be a right way of looking at the matter. There is nothing on the record to indicate that any family member of the petitioner was having this problem, and therefore, to say that the disease is genetic or for that matter constitutional would not be correct. The petitioner had joined the army in 1972. He was discharged inDec™98 i.e. he had put in almost 26 years of service with the respondent Union of India. In para 3 of the objections, as indicated above, the respondents have stated that the respondents first time noticed in the year 1991 that the petitioner is a case of hypertension. Therefore, it has to be presumed that the disease from which the petitioner came to suffer occurred on account of hazards of military service. This is because as noticed above, the different environmental factors can lead to occurrence of this disease. Any army personnel has to perform his duties at different stations during his service tenure, and therefore, the different environmental factors to which he was subjected to, as indicated above could lead to creation of the disease from which the petitioner came to suffer. Therefore, it can be safely conduced that the petitioner came to suffer from this malady on account of hazards of military service as there was no mention regarding this fact at the time of his entry into service. 3. The above position of law is well settled that in case a person is not suffering from any disease at the time of his entry into service, then the normal presumption is that the disease from which the concerned personnel came to suffer and which led to his discharge from has occurred on account of hazards of army service. 3. The above position of law is well settled that in case a person is not suffering from any disease at the time of his entry into service, then the normal presumption is that the disease from which the concerned personnel came to suffer and which led to his discharge from has occurred on account of hazards of army service. Such a view was taken by a Division bench of this court in the case of Union of India V. Rattan Lal, 1999(2) SCT 39. After taking note of the various judicial precedents in this regard, the Division Bench observed as under:- i/ That in case mention is not made regarding the disease or disablement at the time entry in service, then it is to be presumed that the disability occurred during the course of service. ii/ That disability would be on account of stress and strains of army service; iii/ If competent authority is to disagree with the finding recorded by the medical board visa-vis the disability or the percentage thereof, the matter should be referred to the Medical Board. iv/ As there is no finding recorded that the respondent writ petitioner was suffering from a disease which could not be detected at the time of entry into service, the appellant-Union of India cannot take a summersault and come to a contrary conclusion. v/ Delay in approaching the court is irrelevant.� 4. In Ex. Naik M.S. Penmaiah V. Union of India, 1998(3) SCT 755, the Karnataka High Court allowed disability pension. The reasoning given was that if a person was not suffering from the disease when he joined the service and when there is no entry that the person was suffering from any disorder or disability, then it is to be presumed that the disease had occurred on account of stress and strains of army service and the same is attributable to military service. In Ram Niwas Goswami V. Union of India, 222(2) SCT 490, the concerned employee was discharged from the Air Force on medical grounds. He was denied disability pension. There was no evidence on the record to indicate that the petitioner was suffering from any ailment at the time of his recruitment or prior thereto. The disease was diagnosed after five years of enrolment. The petitioner in the above case was held entitled to disability pension. 5. He was denied disability pension. There was no evidence on the record to indicate that the petitioner was suffering from any ailment at the time of his recruitment or prior thereto. The disease was diagnosed after five years of enrolment. The petitioner in the above case was held entitled to disability pension. 5. In the present case, as indicated above, the petitioner joined the service in 1972. At the time of his entry, there was no mention of any such fact that a perusal of reply submitted by the respondents, as indicated above, makes it apparent that the disease was detected first time in the year 1991 i.e. after about nineteen years of service rendered by the petitioner. Therefore, it is held that the disease from which the petitioner came to suffer occurred during the course of service and was a result of stress and strains of army service. 6. Again, the view is well settled that in case opinion is expressed by the Medical Board, then the Controller of Defence Accounts is not to sit over the opinion. In Janak Raj V. Union of India, 2000(2) SCT 456, the disability of the aggrieved Army personnel was determined by the Medical Board. The Controller of Defence Accounts however, rejected the claim. It was observed that the controller of Defence Accounts cannot sit over the findings of the Medical Board, as he is not an expert in this field. 7. In another case reported as Nk.Darshan Singh V Union of India, 2000(2) SCT 504, the claimant came to suffer from a paralytic stroke. It was a case of 100 percent disability. The recommendation was made by the Medical Board, which was negatived by the Controller of Defence Accounts. It was observed that the Medical Boards decision should prevail and the claimant was held entitled to family pension. 8. In the present case, the stand of the respondents is that the case of the petitioner was sent to the office of Chief Controller of Defence Accounts (P), Allahabad, which office rejected claim of the petitioner. 9. In view of the above stand taken and in view of the legal position noticed above 9 am of the view. i/ That the disease of hypertension from which the petitioner came to suffer and which led to his ouster from service had occurred during the course of service account of hazards of military service. 9. In view of the above stand taken and in view of the legal position noticed above 9 am of the view. i/ That the disease of hypertension from which the petitioner came to suffer and which led to his ouster from service had occurred during the course of service account of hazards of military service. This is because the different environment factors to which the petitioner was subjected to during the course of his service tenure, has led to occurrence of this disease ii/ That as there was no mention of the fact that the petitioner was suffering from any such disease at the time of his entry into service and the further fact that no other family member of the petitioner was found to be suffering from this disease the disease in question cannot be held to be constitutional and has occurred on account of hazards of military service. This petition is accordingly allowed. The petitioner is held entitled to disability pension by taking his disability at 20 percent. This percentage of disability would be provisionally fixed. The petitioner would have to appear before the Medical Board and if there is any increase, then he would be entitled to disability pension at the increased percentage of disability. The Medical Board for further examination would be held within a period of three months from the date a copy of this order is made available to respondents by the petitioner. Let the disability pension be released in favour of the petitioner within a period of two months from the date of receipt of a copy of this order by the respondents. In terms on arrears at the rate of 9%. If payment is not made as directed rates of interest would be 12%. Disposed of as such.