Research › Search › Judgment

J&K High Court · body

2003 DIGILAW 122 (JK)

Union Of India v. Shamsher Singh

2003-05-06

MUZAFFAR JAN, S.K.GUPTA

body2003
1. Appeal has been filed, challenging the judgment passed by the learned Single Judge in OWP 404/2000 on 21.9.2001 It seems that the respondent, a non-commissioned officer, suffered from ailment in the year 1989, which is described in medical terms as "Recurrent Malignant Fibrous Hist-iocytoma". The respondent was administered conventional treatment in 1990, 1991, 1993 and 1995. The respondent also received adjuvant radiotherapy but in spite of available treatment the ailment persisted and respondent was declared unfit to perform military duties. The respondent applied for disability pension around 21.7.1997, which was refused on the ground that the disability of the respondent was neither aggravated nor could be attributed to military services but was due to constitutional disorder of the respondent. Aggrieved of the refusal, the respondent filed OWP No. 404 of 2000, which was considered by the learned Single Judge on merits and allowed, with the direction that the disability of the respondent was 100%, vide judgment dated 21.9.2001. It is the validity of this judgment which is under consideration. 2. The main submissions made in the memorandum of appeal are that the case of the respondent was considered by CCDA (P) Allahabad, in consultation with MA(P) attached to CDA(P) and was rejected on the firm finding that the disability was constitutional in nature and not related to military services. The respondent filed appeal against the order of rejection dated 7.8.1997, the submissions made in the appeal were considered and the appeal was rejected on the finding that the discharge of the respondent on the grounds of disability was neither attributed to military service nor aggravated by the same. Having filed the appeal, and availed alternative remedy, the writ petition would not be maintainable and this fact, although projected before the learned Single Judge, was not considered. On the finding of fact of the medical board and the settled position of law that even if mention was not made of the disorder at the time of entry in the service, the disorder of present nature being constitutional cannot be construed to have arisen during the currency of service. On these grounds, it is prayed that the judgment dated 21.9.2001, passed by the learned Single Judge, be set aside. 3. Heard learned counsel for the parties at length and perused the entire record. On these grounds, it is prayed that the judgment dated 21.9.2001, passed by the learned Single Judge, be set aside. 3. Heard learned counsel for the parties at length and perused the entire record. From the perusal of the impugned judgment it is plainly clear that the learned Single Judge has considered the objections taken by the present appellants and answered the same by a speaking, well reasoned and legally sound judgment. The main submission of the appellants that the disease was constitutional and not attributable to army services cannot be accepted for multiple reasons. 4. The learned Single Judge, while relying on the settled position of law that in case it is not shown that the disease existed at the time of entry into service, then in the normal course it has to be held that the decease occurred on account of hazards of the military service, has observed as under: "Even though, the medical specialists have been trying to cope up with the problem of cancer but still cancer in all forms is causing 19 percent of deaths throughout the world. In Parks Text Book of Preventive and social Medicine, 14 Edition, at page 261, it is stated that when the global figures are broken down between the developed and developing countries, the ranking changes, in the developed world, cancer is the second leading cause of death, next to cardiovascular diseases, accounting for 19 percent of all mortality. In the developing would, cancers rank fourth as a cause of death and accounts for 6 percent of all deaths. At page 262 while dealing with the cause which lead to this disease, it is stated as with other chronic diseases, cancer has a multifactorial actiology. It is stated that environmental factors are generally held responsible for 80 to 90 percent of all human cancers. Occupational exposures including exposure to benzene, arsenic, cadmium, chromium, vinyle chloride, asbestos, polycyclic hydrocarbons etc. are also said to be one of the causes which increases the risk factors. The learned author also makes mention of the fact that there are numerous other environmental factors such as sunlight, radiation, air and water pollution, medications and pesticides, which are related to cancer. Therefore, to say that the disease is constitutional, would be too broad a statement. Environmental factors have been indicated as a major cause for malignancy. The learned author also makes mention of the fact that there are numerous other environmental factors such as sunlight, radiation, air and water pollution, medications and pesticides, which are related to cancer. Therefore, to say that the disease is constitutional, would be too broad a statement. Environmental factors have been indicated as a major cause for malignancy. There is nothing the record to show that the petitioner was addicted to smoking or to excessive drinking. If this be the situation, then the conclusion is inevitable that malignancy from which the petitioner came to suffer was on account of hazards of military service." 5. No fault can be found with the above observations made by the learned Single Judge, in view of communication File No. G-3/95/114-15-97 dated 13.5.1997, submitted with the writ petition as Annexure `B, wherein it is endorsed that the disorder of `recurrent malignant fibrous histiocytoma has aggravated due to service factor. The relevant portion of the same is reproduced as under: "JD- Recurrent Malignant Fibrous Histiocytoma, side back (optd) on 18.10.89, Jabalput-Aggravated due to service factory, as per Med. Board." 6. It is settled position of law that the appellants, (Controller of Defence Accounts), who are not medical experts, cannot sit as if in appeal, over the opinion of medical experts. In the present case the Medical Board has given a clear finding that the disability suffered by the respondent was aggravated due to military service and if the appellants were not satisfied with the opinion of the Medical Board, they could have assailed that opinion which does not seem to have been done. Rejection of medical opinion, without complying with the above requirement, has been held bad by the Apex Court as reported in a case titled Union of India and others v. Dhir Singh Chhina, JT 2003 (1) SC 561. The relevant portion of the same is reproduced as under: "We have already referred to the opinion of the medical board which found that the two disabilities from which the respondent was suffering were not attributable to or aggated by military service. Clearly, therefore, the opinion of the medical board ruled out the applicability of the Regulation 53 to the case of the respondent. The disease from which he was suffering were not found to be attributable to or aggrated by military service, and were in the nature of constitutional diseases. Clearly, therefore, the opinion of the medical board ruled out the applicability of the Regulation 53 to the case of the respondent. The disease from which he was suffering were not found to be attributable to or aggrated by military service, and were in the nature of constitutional diseases. Such being the opinion of the medical board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the medical board has not been assailed in this proceeding and therefore, must be accepted." 7. For the reasons given above, we are unable to find any ground or reason to differ with the opinion taken by the learned Single Judge in allowing the writ petition vide judgment dated 21.9.2001. The appeal is without merit and is accordingly dismissed.