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2004 DIGILAW 1717 (RAJ)

Union of India v. EX. SGT. Tej Pal Singh

2004-12-02

DINESH MAHESHWARI, RAJESH BALIA

body2004
JUDGMENT 1. - Heard learned counsel for the appellant. 2. This special appeal is time barred by 42 days and in application under Section of the Limitation Act has also been filed. 3. Issue notice of application under Section 5 of the Limitation Act. Mr. S.K. Nanda who had earlier appeared for the respondent before learned Single Judge accepts notice of this appeal on behalf of respondent. 4. Having heard learned counsel, we are satisfied that the appellant is prevented by sufficient cause from filing the special appeal within limitation. Accordingly, the application under Section 5 of the Limitation Act is allowed the appeal may be registered with its original number. 5. We have heard learned counsel for the parties on the merit of the appeal, we find that the respondent who has been admitted to the Air Force service on 22.5.1974. At the time of enrolment, the appellant was subjected to thorough Medical Examination and he was found fit and was classified as 'AYE'. After serving for almost 23 years, he was discharged from duties on 21.3 1997 finding him medically unfit as he was suffering from SCHIZO AFFECTIVE PYSCHOSIS. The medical report submitted along with writ petition by which the respondent was found medically unfit also shows that the petitioner's disease name is SCHIZO AFFECTIVE PYSCHOSIS and detected while in service somewhere in the year 1992 and for the first time it was also noticed that he has also suffered from SILENT MYOCARDIAL INFRACTION on 3.11.1996. The percentage of disability attributed to the respondent-petitioner for these two diseases was 20% and 11 to 14% and total percentage of disability was 30%. It is not certified by any one that such disease was pre-existing at the time of entering into service but could not have been detected. However, the petitioner was denied the benefit of disability pension by stating that the disability is not attributable to the Air Force Service. 6. It is not certified by any one that such disease was pre-existing at the time of entering into service but could not have been detected. However, the petitioner was denied the benefit of disability pension by stating that the disability is not attributable to the Air Force Service. 6. The learned Single Judge, when the denial of disability pension was challenged vide writ petition No. 1083/2001, found that in the facts and circumstances of the case, the benefit of disability pension could not have been refused because there is a presumption under the Rules that the diseases resulting in disability has occurred while the petitioner-respondent was in service and unless otherwise proved, it is to be presumed that the disability was attributable to the service of Air Force. The learned Single Judge has referred to Rule 7(b) which provides that in case of any doubt, it must be relied in favour of the claimant as it is a beneficial provision. On this premise, the learned Single Judge allowed the writ petition finding that there is no certificate of the competent authority that the disease with which the petitioner-respondent suffered was prior to joining service and it could not have been detected at the time of initial medical examination prior to he is being accepted in service, therefore, the disability was attributable to the service of Air Force and the he was held entitled for disability pension. 7. We are in agreement with the view expressed by the learned Single Judge which is in consonance with the view taken by various others Courts as well as by this Court in other matters. Reference in this connection may be made to decision of Kerala High Court in Madhvi Amma v. Union India (1992) 1 SLJ 165 of M/s. Dev Shy Bhanje Khona v. Mary Burno (1985) KLJ 104 and of Punjab High Court in Union of India v. Bodan Lal Yadav (1994) 1 SLR 390 and of Jammu & Kashmir High Court in Col. M.L. Shetty v. Union of India (1998) 2 SCT 228 and of this Court in Smt. Jeth Kanwar v. Union of India & Ors. S.B.C. W.P.No. 556/1992 decided on 20.11.1996 . 8. These cases have also been relied on by the learned Single Judge. M.L. Shetty v. Union of India (1998) 2 SCT 228 and of this Court in Smt. Jeth Kanwar v. Union of India & Ors. S.B.C. W.P.No. 556/1992 decided on 20.11.1996 . 8. These cases have also been relied on by the learned Single Judge. Similar view has been expressed by this Court while considering the scheme of Rules in detail in (Smt. Jani Suthar v. Union of India S.B. Civil Writ Petition No. 3531/1995 decided on 22.11.2004 . 9. In the facts and circumstances noticed above, we are in agreement with the findings of the learned Single Judge and find no force in this appeal. Accordingly, the same is hereby dismissed.Special Appeal Dismissed. *******