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2002 DIGILAW 91 (JK)

Shashi Kumar v. Union Of India

2002-04-08

T.S.DOABIA

body2002
1. Petitioner has been denied disability pension. He has approached this court. The disability from which the petitioner came to suffer has been indicated as generalised tonic clonic seizure 345. The disability has been assessed at 30%. 2. The stand taken by the respondent is that the petitioner is not entitled to disability pension as the disease from which the petitioner came to suffer is no! attributable to army service. in para 8 of the reply filed by the respondents it is slated that the claim of the petitioner for disability pension was forwarded to the office of chief controller of defence account (pension) at allahabad and this office has rejected the claim of the pelitioner. The reason given as indicated above is that the disease is constitutional and is not attributable or aggravated by (Sic). 3. The position of law is well settled that in case mention is not made of a disease at the time of entry of a person into service then the disease in question which leads to discharge of the person consented from service would be deemed to have occurred on account of hazards of army service. A Division Bench of this court in the case reported as union of india versus 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 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 into service. Therefore from the judicial precedents referred to above it can safely be concluded. (1) that the in case mention is not made regarding the disease or dissabelement at the time of entery in service then it is to be presumed that the disability occurred during the coures of service. (2) That disability would be on account of stress and strains of army service. (3) If competent authority is to disagree with the finding recorded by the medical bord vis-a-vis the disability or the precentage thereof, the matter should be referred to the medical board. (2) That disability would be on account of stress and strains of army service. (3) If competent authority is to disagree with the finding recorded by the medical bord vis-a-vis the disability or the precentage thereof, the matter should be referred to the medical board. (4) 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. (5) Delay in approaching the court is irrelevant". In Ram Niwas Goswami Versus 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 siffering from any ailment at the time of his recruitment or prior there to 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. 4. Again in Pritam Singh versus Union of India 2000 (2) SCT 862 the writ petitioner was discharged after seven years of service this was on the ground of schizophernic psychost a cataloic disorder. The disability was determined at 30 percent but actual garnt of disability pension was denied. Taking note of a decision given by a Division Bench of this court in the case of Balwant Singh versus Union of India LPA No, 521/98, decided on I7th nov 99 and some other decisions the petitioner was held entitled to disability pension. What was observed in paragraphs 6 of the judgment in Pritam Singh™s case (supra) is being reproduced below: "The Karnataka High Court in the case of Ex.Naik M.S. Pemmaiah versus Union of India 1998 (3) SCT755, 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 (he person was suffering from disorder or disability then it is to be 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 ." 5. The petitioner is accordingly held entitled to pension ." 5. In the case of Gurmukh Singh versus Union of India . 1999(3) SCT 139. the writ petitioner was found tobe well within his rights to claim disability pension . The petitioner was suffering from the malady of Neurosis. At the time of cnrolnicut, no mention was made regarding this fact. The argument that Neurosis was a contitutional 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 terms 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. In this view of the matter the respondents argument that neurosis being a constitutional disorder could not be attributed to military service or aggravated there by 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 bhag singh versus union of india and ors: 1996 (4) RSJ 55 had to say. "There is an annexure with the rules in appendix II to regulation 173 to pention regulation for the army part -I, 1961, which deals with classification of various diseases which are to be effected by climatic conditions affected by stress and strain affected by dietary compulsion, training, marchinng etc. and normally affected by stress and strain of military service, the disease know 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 be 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. 6. The above aspect of the matter was again taken note of by this court in writ petition OWP no 1215 / 99 titled Isher singh versus union of India and others decided on 21st Dec 2000. The petitioner in the above case was granted disability pension taking his disability at 40 percent. 6. The above aspect of the matter was again taken note of by this court in writ petition OWP no 1215 / 99 titled Isher singh versus 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. 7. The view is again well settled that in case opinion is expressed by the medical board, then the controller of defence account is not to sit over the opinion. In Janak Raj versus 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 account cannot sit over the finding of the medical board as he is not an expert in this regard. 8. In another case reported as NK. Darshan Singh versus 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 board, opinion should prevail and the claimant was held entitled to disability pension. Similar view has been expressed in Ex. Capt. Harbhajan Singh versus Union of India 2001(2) SCT 1123. As a matter of fact once a person is invalidated on medical ground the onus is upon the army authorities to prove that the disability suffered by the concered army personal was not attributable or aggravated by army service. Such a view has been expressed by the Punjab and Haryana High Court in the case of Vir Yagya Ditt versus Union of India 2001(2) SCT 801. 9. Such a view has been expressed by the Punjab and Haryana High Court in the case of Vir Yagya Ditt versus Union of India 2001(2) SCT 801. 9. Again in Hari Chand versus Union of India 2001 (2) SCT 5 24 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 justice are supposed tobe complied with. Similar view has been expressed in the case of Darshan Singh versus Union of india 2001 (2) SCT813. The disease from which the petitioner came to suffer on the face of it can be said to be attributable to army service generalised seizure has been held to be a disease which is attributable to army service in the case of Naresh Chand versus Union of India 2001 (2) SCT 618. Again Neurosis has been held to be a disease which is attributable lo army service in case of Ex. Sep. Satminder Singh versus Union of India 2001 (2) SCT525. In Mewa Singh versus Union of India 2001 (2) SCT 811, the diseases of seizure and Neuroses are. said to be the diseases which are attributable or aggravated by army service. Similar view has been expressed in the case of Hav. Raj Mal Singh versus Union of India 2001 (2) SCT 744 . Grandmal seizure has been held to be a disease, which is attributable to army service in the case of Nirmal Singh versus Union of India 2001 (1) SCT 1156. Generalised tonic clonic seizure 345 . V-67 has been held to be a disease which is attributable to army service in the case of EX. NK. AshokKumar versus Union of India and others SWP no 2097/2001, decided by this court on 26th March 2002 . In view of the above. the petitioner is held entitled to disability pension. Let this be calculated and paid to the petitioner within a period of two month from the date a copy of this order is made available to respondent by him . The petitioner would be entitled to interest on the arrears. In view of the above. the petitioner is held entitled to disability pension. Let this be calculated and paid to the petitioner within a period of two month from the date a copy of this order is made available to respondent by him . The petitioner would be entitled to interest on the arrears. The rate of interest would be 6 percent in case the disability pension is not released within the period stipulated above then the rate of interest would become 12 percent and this enhanced rate would be payable by the officer on whose account the delay occurs.