Research › Search › Judgment

J&K High Court · body

2004 DIGILAW 22 (JK)

Balram v. Union Of India

2004-02-16

PERMOD KOHLI

body2004
Aggrieved of an order No. G3/53/1093/11/99 dated 1.3.2000 issued by the Chief Controller of Defence Accounts (Pension), Allahabad whereby claim of the petitioner for disability pension has been rejected, petitioner has approached this court seeking quashment of the aforesaid order and consequently a direction in the nature of mandamus for grant of disability pension with interest. 2. As per averments made in the petition, petitioner joined Army service as recruit on 24.9.1982and was allotted No. 14480430Y. After undergoing training at Artillary Centre, Hyderabad, petitioner was posted in 121 Med Battery, thereafter to 285 Med Regiment. He claims to have remained posted in Srinagar, Punjab, Assam and Leh. It is also averred in the writ petition that the work of the petitioner was highly appreciated by his superiors and on the basis of his seniority and work, he was promoted as Naik in the year 1994. It is also stated that at the time of entry into Army, he was examined by a Board of Officers and Doctor. He was found fit in all respects. It was only in the year 1988, the petitioner fell ill and he was brought in medical category and finally invalidated out from service by the Medical Board on 28.6.1999. Petitioner has put in 16 years and 278 days of service in the Army. Petitioners case was considered for grant of disability pension and rejected by the Chief Controller of Defence Accounts( Pension), Allahabad vide Order No. G3/53/1093/11/99 dated 1.3.2000 on the ground that disability was neither attributable to nor aggravated by the military service and constitutional in nature and not related to service. This rejection order was served upon petitioner vide No. DP-5/941/Pen-2 dated 23.3.2000. Petitioners discharge has been ordered under rule 13 sub rule (3) item ( iii) having been found medically unfit for further service. Petitioner claims to have received medals i.e " Sainya Seva Medal Assam Bengal", "9 Years Long Service Medal", " Special Service Medal J&K OP Rakshak" and High Altitude Medal J&K." It is further alleged that the disease suffered by the petitioner, was due to stress and strain by military service. 3. Respondents in their objections, have refuted the claim of the petitioner, primarily on the ground that petitioner was suffering from "Schizophrenia". He was transferred to various military hospitals for medical treatment. 3. Respondents in their objections, have refuted the claim of the petitioner, primarily on the ground that petitioner was suffering from "Schizophrenia". He was transferred to various military hospitals for medical treatment. Details of treatments received by the petitioner in various military hospitals and the period as also by which hospital diagnosed, is also indicated in the reply. Since the petitioner did not recover from the disease, he was brought before the Invaliding Medical Board at Military Hospital, Jallundhar Cantt on 26.5.1999 to assess the cause, nature and degree of his disablement. The duly constituted Invaliding Medical Board viewed the disease suffered by the petitioner and was of the opinion that it is neither attributable to nor aggravated by military service and the same is due to genetic pre-disposition. The disability of the petitioner was assessed at 50% for five years. The claim of the petitioner for disability pension was submitted to PCDA(P) Allahabad vide Artillery Records Letter No. 14480430/DP-5104/Pen-2 dated 27.10.1999 for adjudication. The PCDA(P), Allahabad after careful consideration of the claim in consultation with Medical Advisor (Pension), rejected the claim of the petitioner being neither attributable to nor aggravated by military service vide its communication dated 1.3.2000, which was conveyed to the petitioner vide order dated 23.3.2000 with an advise that he could prefer an appeal against the rejection order to the Government of India, Ministry of Defence (Pen-A), New Delhi within six months from the date of rejection of his claim. It is also the case of the respondents that case of petitioner is not covered by para 173 of Pension Regulations for the Army,1961 Part-1. As regards the normal pension and terminal benefits are concerned, the same have been granted in favour of the petitioner, as indicated in the reply. 4. Para-173 of the Pension Regulations for the Army, 1961 Part-1 deals with the grant of disability pension, which is reproduced hereunder:- " EXTRACT FROM THE PENSION REGULATIONS PARA 173 FOR THE ARMY 1961( PART-1) Primary conditions for the grant of Disability Pension. 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 percent or over. 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 percent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II Individuals Discharged on account of their being permanently in low medical category. 173-A Individuals who are placed in lower medical category ( other than E ) permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who having retained in engagement shall be deemed to have been invalided out from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations. Note: The above provision shall also apply to individuals who discharged on that account before the completion of the period of their extension. Reservists discharged on account of being placed in a low medical category. 173-B A reservist who is placed permanently in a lower medical category (other than E) and is discharged from the reserve on that account shall be deemed to have been invalided out of service for the purpose of entitlement rules laid down in Appendix II to these Regulations." This rule is to be read alongwith Pension Entitlement Rules 1982. Rule 14 of the aforesaid Rules is relevant for the purpose of present petition, which reads as under : "Rule 14 In respect of diseases, the following Rules will be observed: (a) For acceptance of a disease as attributable to Military service, the following two conditions must be satisfied : (i) That the disease has arisen during the period of Military service, and (ii) That the disease has been caused by the conditions of employment in Military service. (b) If medical authority holds, for reasons to be stated, that the disease although present at the time of enrolment could not have been detected on medical examination prior to acceptance for service, the disease, will not be deemed to have arisen during service. (b) If medical authority holds, for reasons to be stated, that the disease although present at the time of enrolment could not have been detected on medical examination prior to acceptance for service, the disease, will not be deemed to have arisen during service. In case where it is established that the conditions of military service did not contribute to the onset or adversely affect the course of disease, entitlement for casualty pensionary award will not be conceded, even if the disease has arisen during service. (c) Cases in which it is established that conditions of military service did not determine or contribute to the onset of the disease but, influenced the subsequent course of the disease, will fall for acceptance on the basis of aggravation. (d) In case of congenital, hereditary, degenerative and constitutional diseases which are detected after the individual has joined service, entitlement to disability pension shall not be conceded unless it is clearly established that the course of such disease was adversely affected due to factors related to conditions of military service." 5. In terms of the Pension Regulations Para-173 for the Army 1961, a person is entitled to disability pension on being invalidated out of service on account of disability, which is attributable to or aggravated by military service in non- battle casualty and is assessed at 20% or over. This para further provides that whether the disability is attributable to or aggravated by military service shall be determined under the rule in Appendix-II. That takes us to Rule 14 of Entitlement Rules,1982, quoted hereinabove, wherein two situations must simultaneously exist for the entitlement of disability pension viz; (i) that the disease has arisen during the period of Military service, and (ii) that the disease has been caused by the conditions of employment in Military service. 6. The claim of the petitioner is to be examined on the touch stone of the aforesaid Para-173 and Rule-14. Petitioner has made specific averments in the writ petition that at the time of entry in the Army, he was examined by the Medical Board of Doctors and found him fit. He has further specifically averred that till 1998, he was fit and serving with full dedication. He has served in hard stations like Srinagar, Assam, Punjab and Leh and has also received medals for his efficient performance of duty. He has further specifically averred that till 1998, he was fit and serving with full dedication. He has served in hard stations like Srinagar, Assam, Punjab and Leh and has also received medals for his efficient performance of duty. These averments have not been denied in the reply and thus deemed to be admitted. The only ground for rejection of the claim of the petitioner as indicated in the impugned communication dated 1.3.2000 and in the reply filed by the respondents is, that the disability suffered by the petitioner is neither attributable to nor aggravated by military service and is due to genetic pre-disposition. The disease "Schizophrenia" is defined in medical dictionary as follows: "A major mental disorder of unknown cause typically characterized by a separation between the thought processes and the emotions, distortion of reality accompanied by delusions and hallucinations, a fragmentation of the personality motor disturbances, bizarre behaviour." From the above, it appears that this disease relates to intermittent fits. Admittedly, petitioner joined Army in the year 1982 and continued till 1998, that means for a period of 16 years. If the contention of the respondents is accepted, then there is no question of petitioners demonstrating the affects of genetic pre-disposition for a long period of 16 years. It is even a common sense that disease like `Schizophrenia could remain in dormant for such a long period despite being inherent in the composition of body. Petitioner has served at hard stations like Srinagar, Leh, Assam and Punjab. A member of the security force/army serving in these places, is bound to have stress and strain of the service. The virus of the disease can be conveniently transferable to another of the duty performed by such a member of the force while serving in these stations where they have to perform tedious, hard and cumbersome duty. The affect of such duty can have its impact on the mind of a person and may result into disease like the one suffered by the petitioner. 7. The petitioner has relied upon number of judgments of this court in cases titled Ex NK Ganesh Singh v. Union of India and Others, passed in OWP No. 655/2000; Mani Ram v. Union of India and others, passed in SWP No. 549/2003; Col M.L. Sethi v. Union of India, passed in OWP Nos. 7. The petitioner has relied upon number of judgments of this court in cases titled Ex NK Ganesh Singh v. Union of India and Others, passed in OWP No. 655/2000; Mani Ram v. Union of India and others, passed in SWP No. 549/2003; Col M.L. Sethi v. Union of India, passed in OWP Nos. 1073/93 and 704/92; Shajja Singh v. Union of India and Others, passed in OWP No. 279/2000 and Ex- Sepoy Madan Lal v. Union of India and Others, passed in SWP No. 732/2001. A Division Bench of this court in case LPA(OW) 94/2003 titled Union of India and Others v. Ex Naik Ganesh Singh decided on 16.10.2003, held as under: "Be that as it may, the fact remains that even if it is accepted that the respondent was suffering from the said disease, when he came to be inducted in the army and if medical experts who examined him at the time of his induction have not recorded the existence of such disease, it can be presumed that such disease was not active and was dormant. It serving in military since 1981 in the State of J&K.It is also a known fact that State of J&K is in turmoil since 1989 due to militancy with which the respondent and like him other security personnel are engaged in fighting militancy. Due to the nature of duty, which a security personnel has to perform under constant threat of militant, stress and strain is normally bound to occur and in that case it is not unlikely that psychiatric disease which remain dormant got aggravated and if this is so, respondents case would fall within the meaning of expression "Disability aggravated", entitling him to disability pension under rule 173(supra)." 8. Respondents have placed reliance upon judgments titled Col. M.L. Sethi v. Union of India passed in OWP No. 1073/93 and Ex Hav. Kanwar Singh v. Union India, 2002(5) SLR 746. 9. I have examined the aforesaid judgments. The Apex Court on consideration of the facts of the cases, declined to interfere with the finding of the High Court. However, no proposition of law has been laid down. 10. In view of the facts and circumstances referred to above, I am of the considered view that the claim of the petitioner has been wrongly rejected. The petitioner is found entitled to disability pension as payable under rules. 11. However, no proposition of law has been laid down. 10. In view of the facts and circumstances referred to above, I am of the considered view that the claim of the petitioner has been wrongly rejected. The petitioner is found entitled to disability pension as payable under rules. 11. This petition is accordingly allowed. A direction is issued to respondents to assess the disability pension payable to the petitioner, keeping in view the number of years of service put by him in the Army, percentage of disability and other relevant factors. Let claim of the petitioner be considered and decided within a period of three months.