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2005 DIGILAW 2596 (RAJ)

B. L. Swarankar v. Union of India

2005-09-28

GOPAL KRISHAN VYAS, N.N.MATHUR

body2005
Judgment N.N. Mathur, J.-The instant special appeal is directed against the Judgment of the learned Single Judge dated 17th September, 1997 dismissing the writ petition. 2. The short facts giving rise to the instant special appeal are that the appellant joined the Indian Air Force as Sepoy on 16.02.1974. While in service, he suffered from the disease Schizophrenia. He was given treatment at Army Hospital, Delhi Centt during the period 06.08.1982 to 04.03.1983. He was discharged from the hospital on 20th September, 1983. He was again admitted to Army Hospital, Delhi Cantt because of the abnormal behaviour in his Unit. Thus, a Medical Board was constituted which recommended to discharge him from service. The recommendation is extracted as follows:- “This 30 years old CPL with about 9 years of service is an old case of “Schizophernia” was first admitted to this hospital in August, 1982. After treatment, he was retained in service in category “CEE” (Psychological) for 6/12 years w.e.f. 2 Mar, 1983. He was admitted on 11 September, 1983. Patient was in relapse. He was undergoing detention as he absented without leave. His CO report on AFMSF-10 dated 06 September, 1983 was poor. No physical abnormality was found. Mental status revealed features of relapse of his original disability in the form loss of touch with reality, paranoid and suicidal ideas, impaired Judgment and lack of insight.” Thus, the appellant was discharged from service by order dated. The appellant made a claim for grant of disability pension as admissible to him in accordance with the Rules in force, but his claim was rejected as informed vide communication dated 210.1984. The appellant made a representation to the higher authorities, which was rejected by the Government of India, Ministry of Defence by communication dated 09.06.1987. However, he was allowed disability benefits admissible under Air Force Group Insurance Society. Having failed before the Air Force Authorities the appellant filed a writ petition claiming disability pension primarily on the ground that the disease due to which he was medically ruled out and became unfit was attributable to Air Force Service. The learned Single Judge having held that the appellant failed to prove that the disease was attributable to Air Force Service or has been aggravated because of Air Force Service, dismissed the writ petition by the impugned order. 3. The learned Single Judge having held that the appellant failed to prove that the disease was attributable to Air Force Service or has been aggravated because of Air Force Service, dismissed the writ petition by the impugned order. 3. Assailing the Judgment of the learned Single Judge it is contended by the learned Counsel that the report of the Medical Board relied upon by the learned Single Judge only discloses the extent of disability of the appellant and not the reason of disability as to whether it was attributable to service or aggravated by the service. The learned Counsel submits that the appellant is entitled to disability pension under Paragraph 173 of Pension Regulations for Army Part I, 1961 (hereinafter referred to as the Regulation of 1961). He has also referred to Rule 7(b) of the Appendix II of the (Entitlement Rules) 1962. The learned Counsel has placed reliance on two decisions rendered by the learned Single Judge. The learned Counsel has referred to S.B. Civil Writ Petition No. 1083/2001 Ex. Sgt. Tejpal Singh vs. Union of India & Ors., decided on 21st February, 2004. Another decision is Chhatar Singh (Ex. Sgt) vs. Union of India & Ors., S.B. Civil Writ Petition No. 1400/1997 decided on 3rd January, 2005. The decision is based on a Division Bench Judgment of this Court dated 012.2004 rendered in SAW 1/2004. He has also placed reliance on the decision of Division Bench Judgment of Punjab and Haryana High Court in Union of India & Ors. vs. Shyam Lal Malhotra, reported in 1995 (6) SLR page 405. A decision of the Jammu & Kashmir High Court in Ramesh Lal Mullah vs. Union of India, reported in 1998 (4) SCT page 22. There is another Judgment of the learned Single Judge of the Punjab and Haryana High Court in Ex Constable Kushal Singh vs. Union of India, reported in 2001(1) Administrative Total Judgment s page 72. On the other hand it is submitted by Mr. V.K. Mathur learned Assistant Solicitor General that it was for the Medical Board to opine with regard to the nature of the disease that had disabled the appellant. In the instant case the Board has given a categoric finding that the appellant was not fit for AIR Force Service. On the other hand it is submitted by Mr. V.K. Mathur learned Assistant Solicitor General that it was for the Medical Board to opine with regard to the nature of the disease that had disabled the appellant. In the instant case the Board has given a categoric finding that the appellant was not fit for AIR Force Service. He has relied upon a decision of the Apex Court in Union of India vs. Baljit Singh, reported in 1996 (11) SCC page 315. He has also submitted that the appellant is not entitled to pension as he has not completed 10 years service to be qualified for pension. 4. We have heard learned Counsel for the parties and considered the rival contentions. Regulation 173 and Rule 7(b) of Appendix II (Entitlement Rules) which has material bearing on the controversy are extracted as follows:- “173. Unless otherwise specifically provided a disability pension may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over.” “7(b). A disease which has led to an individual discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individuals acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service the disease will not be deemed to have arisen during service.” A combined reading of the Regulation 173 and 7 (b) of Appendix II shows that because of disability which has led to the person concerned being discharged from service deemed to have arisen in service if no note of it was made at the time of entry in the Armed Forces or that he was suffering from such disability or unless a note is recorded at a subsequent date that the disease in question was such as could not have been detected by medical examination before he had joined the service. In the instant case, there is no note in the service record of the appellant that at the time of entry in Air Force he was suffering from such disability. In the instant case, there is no note in the service record of the appellant that at the time of entry in Air Force he was suffering from such disability. Thus, it has to be presumed that the disease the appellant suffered from and due to which he was required to be discharged has arisen during his service on account of stress, as such the same was attributable to his Air Force Service. 5. As far as the decision of the Apex Court in Baljit Singhs case is concerned, the same has no application to the facts of the case. It was a case dealing with an injury and not the disease. Thus, the learned Single Judge has committed an error in holding that the appellant has failed to prove that disease is attributable to Air Force Service or has been aggravated because of Air Force Service. In our considered view the onus of proof with regard to the claim to disability pension did not rest upon the claimant and, in fact lay with the Air Force authorities in case his claim was to be denied. 6. It is next argued by Mr. V.K. Mathur learned Counsel for Indian Air Force that the appellant is not entitled to pension as he has not completed 10 years of qualified service. It is not in dispute that the appellant is short of 13 days of qualified service. There is a provision for condonation of deficiency in service for eligibility to service/reservist Pension Rules. Rules 114 and 115 reads as follows:- “114. Except in the case of : .(a) An individual who is discharged at his own request. .(b) An individual who is eligible for special pension or gratuity under Regulation 144, or .(c) An individual who is invalided with less than 15 years service, deficiency in service for eligibility to service pension or reservist pension or gratuity, in lieu, may be condoned by a competent authority upto six months in each case.” “115. (a) Airmen who have former service to their credit may be allowed by the competent authority to reckon to the extent specified in the table below such service towards pension when earned by requisite qualifying service subject to the fulfillment of the conditions stated in Column 4 of the table.” 7. It is submitted that the said rules has no application to disability pension. It is submitted that the said rules has no application to disability pension. Be that as it may, this Court in its equity jurisdiction has ample power to condone the period of 13 days in exercise of powers under Article 226 of the Constitution of India to cover up the qualified period of service. Accordingly, in order to secure ends of justice, we condone the short period of 13 days and held the appellant qualified for disability pension. 8. Consequently, the special appeal is allowed. The order of the learned Single Judge dated 17th September, 1997 is set aside. The writ petition is allowed. The appellant will be entitled to disability pension under the rules referred to above. The respondents are directed to pay disability pension to the appellant from the date it fell due within a period of four months from today. No order as to cost.