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2002 DIGILAW 92 (JK)

Harbans Lal Raina v. Union Of India

2002-04-08

T.S.DOABIA

body2002
1. Petition stands admitted. 2. The facts as stated by the respondent in the counter affidavit filed by them even if taken on its face value would not disentitle the petitioner to claim disability pension and other pensionary benefits. 3. In the brief history of the case as given by respondent, it is submitted that the petitioner was enrolled in the indian Air Force on 21st May 82. He was discharged from service on 4th March 96 . This was under Rule 15 of the Air Force Rules of 1969. His retention in the Air Force was found to be unsuitable being a habitual offender. By that time the petitioner had rendered 13 years and 194 days of service. A Release Medical Board was also constituted. The petitioner was found suffering from the disease know as Other Non-Organic Psychosis. The disability was assessed at 30 percent. The claim of the petitioner for grant of disability, pension was forwarded to the Pension sanctioning authority at Allahabad. This was rejected on 11th Sept 97. This was on the ground that the disease from which the petitioner came to suffer is neither attributable nor aggravated to by the army service. The petitioner preferred an appeal but this was also rejected. 4. In para 3 of the reply , it is submitted that the petitioner was admitted in the Command Hospital at Udhampur for Psychiatric evaluation . The petitioner, as indicted above, was found unsuitable being a habitual absentee and also because he was suffering from Other Non-Organic Psychosis ailment. The respondents have placed on record the Medical Board proceedings invaliding all ranks. In this it has been mentioned that the petitioner is to be released from service in medical category CEE(P). Earlier his disablement was found to the extent of 30 percent. 5. Before proceeding further it would be apt to mention that the stand taken by respondent that the petitioner was discharged because he was found to be unsuitable for retention in the Air force being a habitial of fender for absence without leave is not borne out by the entries made in the service book. At page 14 of the service book the reason for removal has been given "unsuitable for retention in the Air force". His character and general behaviour during service has been indicated as very good his trade proficiency has been found tobe satisfactory. At page 14 of the service book the reason for removal has been given "unsuitable for retention in the Air force". His character and general behaviour during service has been indicated as very good his trade proficiency has been found tobe satisfactory. Therefore to say that the services of the petitioner were brought to an end because he was a habitual absentee is not borne out by the service record made available to the petitioner at the time of his discharge. Therefore the apparent reason for his being discharged from service is the medical ailment from which the petitioner came lo suffer This medical ailment has been indicated as other non organic psychosis (old ) V-67. 6. The law is well settled that in case no note is 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 concerned from service would be deemed to have arisen 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. 7. In the present case there is nothing on the record to inddicate the write 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 aliment 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. it is also not the case of the appellant union of india that the aliment 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 dissablement at the time of entry in service, then it is to be presumed that the disability occurred during the coures of service, (ii)that disability would be on account of syress and strains of army service, (iii) 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, (vi) as there is no finding recorded that the respondent writ petitioner was suffering from a diseases 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. 8. 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 dissability 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. 9. Again in pritam singh versus union of India 2000 (2) SCT862 the writ petitioner was discharged after seven years of service. This was on the ground of Schizophernic Psychosts Catatoic 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 17th 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 Singhs 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) SCT 755 had allowed the disability pension where the concerned employee was suffering from schizophrenia. "The Karnataka High Court in the case of Ex. Naik M.S. Pemmaiah versus 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 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. In the case of Gurmukh Singh versus Union of India . 1999(3 )SCT 139, 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 negaitived 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-1,1961. 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. 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. The above aspect of the matter was again taken note of by this court in writ petition OWP no 1215/99 tilled Isher Singh versus Union of India and others, decided on 2Ist 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. So far as the disease of non organic Psy-chosis which the petitioner came to suffer is concerned this has been held to be attributable to army service in the case of Rajesh Kumar Upadhayay versus Union of India 2001 (1) SCT 166. 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. 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. 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. Again in Hari Chand versus Union of India 2001 (2) SCT 524, the view expressed is that once the disability is fixed at 20 percent, then 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 to be complied with. Similar view has been expressed in the case of Darshan Singh versus Union of India 2001 (2) SCT 813. In the present case, at the time of entry of the petitioner into service, no mention was made that the petitioner suffered from the malady of other non organic psychosis . The petitioner was enrolled in May 82. He was discharged on 4th March 96. i.e. after about 14 years of service . Therefore, taking note of the legal position discussed above and following the view expressed by the Madhya Pradesh High Court in Rajesh Kumar Upadhayays case (supra), the disease of Other Non Organic Pschosis from which the petitioner came to suffer and which led to his ouster from service is, held to be attibutable to army service. The petitioner is accordingly held entitled to disability pension by taking his disability at 30 persent as assessed by the Medical Board . The petitioner is accordingly held entitled to disability pension by taking his disability at 30 persent as assessed by the Medical Board . The stand taking by respondent Union of India that the petitioner was discharged from service as he was found to be a habitual absentee cannot be sustained because, as indicated above, such a stand is not borne out from the service record as made available to the petitioner the petitioner be paid disability pension within a period of three month from the date, a copy of this order is made available to respondents by the petitioner. He shall also be entitled to interest on the arrears at the rate of 6 percent. In case, the disability pension is not released within the period mentioned above then the rate of interest would be 12 percent and this enhanced component would be payable by the person on whose account the delay occurs.