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2001 DIGILAW 324 (JK)

Sohan Singh v. Union Of India

2001-12-07

T.S.DOABIA

body2001
1. Petitioner was placed in medical category FEE He has been boarded out of service but has not been paid the disability pension. He has accordingly approached this court. 2. The petitioner submits that he offered himself to join the Indian Army as Sepoy. He was subjected to written test and after he was thoroughly examined by the Board of Directors, who declared the petitioner as medically fit, he was enrolled as Sepoy on 15th Nov84. He was sent for training at Ahmad Nagar in Maharashtra. He was allotted War Tank Driver/Operator trade. He was posted with unit 5 Armed Regiment/AC, Ferozpur Cantt. The petitioner alongwith other army personnel was directed to undergo War Tank Driving in border area of Hussainwalla. It is submitted that while performing war tank driving exercises, he received injury on his right testicle, he brought this fact to the notice of Troop leader but no attention was paid to the complaint made by the petitioner. The petitioner, on the other hand, it is submitted was directed to carry on the exercise programme. However, on account of the injury sustained, there was swelling in his right testicle. The petitioner was accordingly admitted in the hospital. He was under treatment for quite sometime. As there was no improvement, the petitioner was put in medical category aforementioned and was boarded out of service on 13th Feb 90. The requisite averments in this regard are made in paragraphs 7 and 8 of the petition. The disability of the petitioner according to him was assessed to the extent of 80 percent. It is submitted that a recommendation was made by the Medical board as also by the army authorities to grant disability pension. This was, however, declined by the Controller of Defence Accounts. Petitioner after having failed to get the requisite relief from the respondent authorities and after consistent representations preferred by him met with no success. He has accordingly approached this court through the medium of present writ petition. 3. The stand taken by the respondents is that the medical board did assess the disability at 80 percent for two years. It is submitted that the petitioner was found to suffering malignancy. It has, however, been concluded that this was not on account of hazards of military service. The assertion made by the petitioner that he was found medically fit at the time of enrolment has not been denied. It is submitted that the petitioner was found to suffering malignancy. It has, however, been concluded that this was not on account of hazards of military service. The assertion made by the petitioner that he was found medically fit at the time of enrolment has not been denied. It is urged that certain inherited diseases cannot be identified at the time of original enrolment. It is accordingly submitted that the petitioner is not entitled to disability pension. 4. The legal position be now noticed. A Division Bench of this court in the case reported as Union of India V. Rattan Lal, 1999(2) SCT 39, considered this question in detail. After taking note of the various decisions on the subject, on page 43 the Division Bench concluded as under:- In the present case, there is nothing on the record to indicate that the writ petitioner-respondent was suffering from the ailment at the time of entry into service. It is also not the case of the appellant-Union of India that the ailment was such which could not be detected at the time of entry of service. Therefore, from the judicial precedents referred to above, it can safely be concluded. i/ that in case mention is not made regarding the disease or disablement at the time of 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 stress and strains of army service. iii/ if competent authority is to disagree with the finding recorded by the medical board (sic) vis-a-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 somersault and come to a contrary conclusion. v/ delay in approaching the court is irrelevant. In Ram Niwas Goswami V Union of India, 2000(2) SCT 490, the petitioner who was serving in Air Force was discharged from service on medical grounds. He was not paid the disability pension. There was no evidence on the record to show that the petitioner was suffering from any ailment at the time of his recruitment or prior thereto. The disease from which he suffered was diagnosed after five years of enrolment. He was not paid the disability pension. There was no evidence on the record to show that the petitioner was suffering from any ailment at the time of his recruitment or prior thereto. The disease from which he suffered was diagnosed after five years of enrolment. The petitioner in the above case was held entitled to disability pension. Again in Pritam Singh V. Union of India, 2000(2) SCT 862, the writ petitioner was discharged after seven years of service. This was on the ground of Schizophrenic Psychosis Catatonic disorder. The disability was determined at 30 percent but actual grant of disability pension was denied. Taking note of a decision given by a Division Bench of this Court in the case of Balwant Singh V Union of India, LPANo.521/98, decided on 17th Nov99, and some other decisions, the petitioner was held entitled to disability pension. What was observed in paragraphs 6 of the judgment in Pritam Singhs case (supra) is being reproduced below: - The Karnataka High Court in the case of Ex Naik M.S. Pemmaiah V Union of India, 1998(3) SCT 755, had allowed the disability pension where the concerned employee was suffering from Schizophrenia. In the aforementioned decision, the reasoning given is that if a person was not suffering from the disease when he joined the service and when there was no entry that the person was suffering from disorder or disability then it is to the presumed that the disease had occurred on account of stress and strain of army service and the same is attributable to military service. The petitioner is accordingly held entitled to pension.� In the case of Gurmukh Singh V Union of India, 1999(3) SCT 13 9, the writ petitioner was found to be well within his rights to claim disability pension. The petitioner was suffering from the malady of Neurosis. At the time of enrolment, no mention was made regarding this fact. The argument that Neurosis was a constitutional disorder of mind and therefore, could not be said to be attributable to military service was negatived by making following observations: - Psychoneurosis has been defined in Blacks Medical Dictionary, 36th Edition as a general term applied to various disorders of the nervous system and this term has further been elaborated in the definition of Neurosis given in the dictionary. It is, therefore, evident that the Neurosis is a species of Psychoneurosis. It is, therefore, evident that the Neurosis is a species of Psychoneurosis. In this view of the matter, the respondents argument that Neurosis being a constitutional disorder could not be attributed to military service or aggravated thereby is of no avail. Moreover, while dealing with the question as to whether Schizophrenia, could be said to be constitutional disorder. A Division Bench of Himachal Pradesh High Court in Bag Singh V. Union of India and Others, 1996(4) RSJ 55, had to say: There is an Annexure with the Rules in Appendix 11 to Regulation 173 to Pension Regulations for the Army Part-1, 1961, which deals with classification of various diseases which are to be effected by claimateic conditions affected by stress and strain, affected by dietary compulsions, training, marching etc. and normally affected by stress and strain of military service, the disease known as "Psychosis" and "Psychoneurosis" have been included. Needless to say these diseases relate to mental disorder of an individual Schizophrenia, with which the petitioner was suffering from and which disease he developed during his military service can definitely be said to the adversely affected by the stress and strains of the military service. The petitioner in the above case was granted disability pension taking his disability at 40 percent. The above aspect of the matter was again taken note of by this court in writ petition, OWP No. 1215/99 titled Isher Singh V. Union of India and others, decided on 21st Dec™2000. The petitioner in the above case was suffering from Neurosis (Depressive Reaction). As there was no mention of the fact that the petitioner was suffering from this malady at the time of his entry into service, he was held entitled to disability pension and the disease in question was held to be attributable to military service. Similar would be the position in the present case. As there was no mention of the fact that the petitioner was suffering from this malady at the time of his entry into service, he was held entitled to disability pension and the disease in question was held to be attributable to military service. Similar would be the position in the present case. As there was no mention of the disease i.e. Testicular Tumour from which the petitioner came to suffer at the time of his entry into service and further taking note of the plea put forward by the petitioner that he suffered injuries on his right testicle during the course of training which resulted in swelling and ultimately he was admitted in the hospital, it can safely be concluded that the Testicular Tumour which the petitioner developed was on account of stress and strain of army service and this disease is attributable to military service. 5. The view is again well settled that in case opinion is expressed by the Medical Board, then the Controller of Defence Accounts cannot 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 at 40 percent but the controller of defence accounts 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 regard. 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 opinion should prevail and the claimant was held entitled to family pension. 6. Coming to the facts of this case, the objections preferred by the respondents do indicate that the petitioner was initially admitted in Military hospital, Ahmed Nagar. This was in the year 1985. Petitioner remained under treatment upto April™85. He was admitted on 11th March™87 and discharged on 17th July™87. The petitioner was again admitted in the hospital at Pune (CH(SCH) Pune) on 14th Aug™ 87 upto 9th March 89 and then from 20th Sept™89 to Nov™89 in the same hospital w.e.f. 23rd Nov™87. The diagnosis was Malignant Tera Toma Stage-1 (186). Petitioner remained under treatment upto April™85. He was admitted on 11th March™87 and discharged on 17th July™87. The petitioner was again admitted in the hospital at Pune (CH(SCH) Pune) on 14th Aug™ 87 upto 9th March 89 and then from 20th Sept™89 to Nov™89 in the same hospital w.e.f. 23rd Nov™87. The diagnosis was Malignant Tera Toma Stage-1 (186). The above period was increased for further six months w.e.f. 8th March™89. The category was same i.e. CEE(T) and the disease was mentioned as Testicular Tumour (OPTD). This was observed to be attributable to Military service. He was ultimately placed in medical category EEE (Psy). Such is the stand taken by the respondents in paragraph 6 which is mentioned as the paragraph in reply to para 8 of the petition. As noticed above, there is a clear mention that the disease is attributable to Military service. As to what prevailed with the respondents to come to a different conclusion at a later stage is a matter which has not been explained by them. As per Harison™s Principles of Internal Medicine 2, several factors are known to predispose to development testicular tumor. What is said in this regard at page 1578 is being reproduced below:- Several factors are known to predispose to development of testicular tumor. Men with a history of cryptorchid (undescended) tests have a several-fold increased risk, intraabdominal testes being more at risk than high inguinal tests. Both the cryptorchid testis itself and the contraiateral normally descended testis are at risk, suggesting that some underlying testicular defect may predispose both to maldescent and to tumor development. Although the effectiveness of orchipexy in reducing risk is not established, it is generally agreed that a high inguinal testis should be brought into the secotum so that it can be followed carefully. Abdominal testis that cannot be treated in the manner should probably be removed. Other predisposing factors include a prior history of mumps orchitis, inguinal hernia in childhood, and a history of prior testicular cancer in the contraiateral testis. In the majority of cases no predisposing factor can be identified.� If the above paragraph is taken note of, then the symptoms as pointed out could well be diagnosed at the time of enrolment of the petitioner. These could be identified even on physical examination. In the majority of cases no predisposing factor can be identified.� If the above paragraph is taken note of, then the symptoms as pointed out could well be diagnosed at the time of enrolment of the petitioner. These could be identified even on physical examination. The fact that these symptoms were not there and the fact that these developed later on cannot be ruled out. As a matter of fact, the opinion expressed by the Medical Board at one stage was that his malady has occurred on account of hazards of military service. This as indicated above, is apparent from the perusal of paragraph 6 of the objections filed by the respondent. Therefore, in view of the above and in view of the legal position noticed above, I am of the opinion that the disease of testicular tumour from which the petitioner suffered has occurred on account of stress and strains of army service and is aggravated to military service. This is because the petitioner during training period was subjected to War Tank driving exercises which caused injury to his right testicle and this ultimately resulted in testicular tumour. There is no evidence and record that the petitioner was suffering from this disease at the time of his enrolment or prior thereto. This petition as such is allowed. The petitioner is held entitled to disability pension. This would be paid to him by taking his disability at 80 percent as assessed by the Medical Board. The petitioner shall, however, be subjected to a fresh examination by the Medical Board. The disability would be re-assessed and he would paid the disability pension accordingly. Let this examination be conducted within period of two months from the date, a copy of this order is made available to the respondents by the petitioner. However, till the disability is assessed afresh, the petitioner shall be paid disability pension on the percentage already assessed by the Board. The petitioner shall also be entitled to interest. The rate of interest would be 12 percent and in case the disability pension is not released within a period of two months from the date of receipt of a copy of this order, then the rate of interest would be 15 percent and this enhanced rate of interest would be payable by the person on whose account the delay occurs. Disposed of accordingly.