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2002 DIGILAW 40 (JK)

Jhandu Ram (Ex. Sepoy) v. Union Of India

2002-02-28

T.S.DOABIA

body2002
1. Petitioner joined the Indian Army as a Recruit at Akhnoor in the State of Jammu and Kashmir on 26th April 57. He came to be discharged from service on 26th Nov 93. By that time, he had rendered 6 years and 215 days of service. In para 5 of the petition, it has been submitted that the petitioner during military training in the year 1953, suffered an injury. This resulted in a fracture in the leg and also a head injury. This was when the petitioner was taking a long jump. It is submitted that the petitioner was taken to military hospital, Palampur, and remained admitted there for a period of one month. A Medical Board was held. The petitioner was placed in category B (Temp). It is submitted that as the condition of the petitioner did not improve, he was placed in medical category "EEE". He was boarded out of service. His disability was assessed at 20 percent. He has not been allowed disability pension. The petitioner has challenged this action of respondents through the medium of present writ petition. 3. The fact that the petitioner suffered an injury is reflected in his service book. At internal page 9 of the certificate of service book, copy whereof is Annexure A, under column, (c), it has been mentioned as under: "Sustained in accidental injury of moderately .severe (fracture) of the head of Rt, Tibia-Attributable to Mil. service". 4. "The petitioner submits that as he suffered the injury during military service, and as the same has been declared as attributable to military service" by the respondent authorities, therefore, he cannot be denied disability pension. 5. In para 9 of the petition it is submitted by the petitioner that he was given disability pension from Nov [63 to Sept 66 but thereafter, this was denied to him. The reassessment of disability of the petitioner was done by the medical board at Military Hospital, Jammu Cantt on 5.4.68. Therefore, the petitioner has been representing to the respondents for grant of disability pension. It was vide Annexure G i.e. a communication dated 26th June 92, the petitioner was informed that his disability has been re-assessed at less than 20 percent and the claims of the petitioner for disability pension stand rejected. The petitioner as indicated above, has approached this court challenging the above action of respondent/Union of India. 6. As indicated above. It was vide Annexure G i.e. a communication dated 26th June 92, the petitioner was informed that his disability has been re-assessed at less than 20 percent and the claims of the petitioner for disability pension stand rejected. The petitioner as indicated above, has approached this court challenging the above action of respondent/Union of India. 6. As indicated above. It is not in dispute that the petitioner did suffer and injury. This was during the period when the petitioner was performing military duty. The injury was found attributable to army service. The disability was assessed at 20 percent and he was paid disability pension upto Sept, {68. Now he has been denied this benefit. 7. The position of law is well settled. Where an injury is suffered during the period a person is serving in the army, then, the injury would attributable to army service. This aspect of the matter is not in dispute. The petitioner was allowed disability pension. What led the respondents to come to a conclusion that the petitioners disability pension beyond three years is not to be allowed or that there - is decrease in the disability is not apparent. As a matter of fact, the claims of the petitioner were sent to be Pension Sanctioning Authority at Allahabad. It is this authority which has denied the claim of the petitioner. 8. It is again well settled that once a decision is arrived at by the army authorities or by the Medical Board, then the Controller of Defence Accounts is not supposed to sit in appeal over the view so expressed. 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 Controlled 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 expert in this regard. In NK. Darshan Singh V. Union of India, 2000(2) SCT 504, the claimant came to suffer from the paralytic stroke. It was a case of 100 percent disability. The recommendation was made by the Medical Board which was negated 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. Similar view has been expressed in the case of Ex. It was a case of 100 percent disability. The recommendation was made by the Medical Board which was negated 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. Similar view has been expressed in the case of Ex. Capt. Harbhajan Singh V. Union of India, 2001(2) SCT 1123. As a matter of fact, once a person is invalidated on medical grounds, the onus is upon the army authorities to prove that the disability suffered by the concerned army personnel was not attributable or aggravated by army service. Such a view was expressed by the Punjab Haryana High Court in the case of Vir Yagya Dutt V. Union of India, 2001(2) SCT 801. Again in Hari Chand V. Union of India, 2001(2) SCT 524, the view expressed is that once the disability is fixed at 20 percent, then, the Controller of Defence Accounts has no locus standi to reduce it and if it is to be done, then the principles of natural injustice are supposed to be complied with, similar view was expressed in the case of Darshan Singh V. Union of India, 2001(2) SCT 813. In view of the above, the petitioner is held entitled to disability pension as per the disability which was duty assessed at the time of the his discharge. It the respondents are of the opinion that the petitioners disability has to be re-assessed, then they would be at liberty to do so by constituting a Medical Board in this regard till this is done, the petitioner would keep on getting the disability pension at the percentage which was assessed at the time of his discharge. The petitioner would also be entitled to interest at the rate of 6 percent on the arrears. In case, the disability pension is not released in favour of the petitioner within a period of three months from the date, a copy of this order is made available to the respondents by the petitioner, then, the petitioner would become entitled to interest at the rate of 12 percent and this enhanced component of interest would be payable by the officer on whose account the delay occurs. 9. Disposed of accordingly.