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2008 DIGILAW 95 (JK)

Shamsher Singh v. Union Of India

2008-04-01

NIRMAL SINGH

body2008
1. Brief facts of the case are that the petitioner was appointed in the Army on 19.3.1981 as Sepoy. After undergoing basic training at Banglore, he remained posted at various places. In October 1998, he was transferred to Goa. Petitioner stands discharged from service on 1.1.2002 under Army Rule 13(3) item III (V). He served the army for 20 years and 228 days. According to the petitioner, while entering into the army, he was found fit. No disease was noticed till August 1999. In August 1999, while his posting at Goa, the petitioner fell down. The Medical Officers of the Army referred him to Navy Hospital Vasco. After medical examination of the petitioner, the Medical Officers of the said hospital detected stone in the Kidney of the petitioner and referred him to Bombay Navy Hospital. He was operated upon in the said hospital on 23.9.1999 and stone was removed. Treatment report of the petitioner was sent to Unit Goa where he was posted. In December 1999, he was transferred to Akhnoor. Further facts of the case are that in the month of October 2000, petitioner again suffered from pain and he visited the Military Hospital for getting himself checked-up. Medical Officers of the said hospital referred him to Military Hospital Udhampur. The doctors after medical check up again detected stone in the kidney of the petitioner. He was again operated upon on 28.11.2000, he remained admitted in the said hospital for about one month. He was granted one and half months sick leave. Thereafter, he reported to Military Hospital Udhampur on 10.2.2001 and remained admitted there for 10/15 days. In the said hospital, Ultra sound of the petitioner was done and it was found that left Kidney of the petitioner has been removed. Vide report dated 31.10.2000, it has been categorically mentioned by the concerned Medical officer that both the kidneys are intact whereas vide report dated 28.11.2000 it has been mentioned by the Medical officer that left Kidney of the petitioner has been removed. In September 2001, medical board examined the petitioner but no report was furnished to him. He was discharged on medical grounds on 1.1.2002. Thereafter, the case of the petitioner for grant of disability pension was referred to Respondent No: 3. In September 2001, medical board examined the petitioner but no report was furnished to him. He was discharged on medical grounds on 1.1.2002. Thereafter, the case of the petitioner for grant of disability pension was referred to Respondent No: 3. Principal Controller of Defence Accounts (Pension), Allahabad, who rejected the same on the ground that the disability of the petitioner is neither attributable to nor aggravated by the military service. It is this action of respondents which is the subject matter of challenge in the present petition. Direction is thus sought to respondents to release disability pension in favour of the petitioner along with interest @ 18% on arrears and also to pay him compensation for removing the kidney of the petitioner without his consent. 2. Grievance of the petitioner is that the disability suffered by him is attributable to army service, and therefore, he is entitled for disability pension. It is stated that at the time of enrolment in the Army, he was found hale and hearty and was not suffering from any such disability. It is stated that in case an army personnel suffers from a disability which results to his invalidation out of service of which no note is made at the time of his entry into service, the same would be deemed to have occurred due to stress and strain of army service. Reliance in this regard is being placed on a judgment of this court reported as 1998(2) SCT 228, Col ML Sethi v. Union of India. It is thus submitted that the petitioner has been wrongly denied the disability pension. 3. On notice, counter has been filed by the respondents stating therein that the petitioner was enrolled in the Army on 19th March 1981. While serving with 10 Infantry Divisiona1 Signals Regiment, the petitioner was placed in low medical category SIHIAIP 3 El (Permanent) for the disease "LEFT STAG HORN CALCULUS WITH MULTIPLE CALCULUS (OPID)". In accordance with the existing rules, JCOs/OR placed in low medical category (Permanent) to whom no sheltered appointment is available or who are unwilling to continue in service, under the provisions of AO 46/80 are required to be discharged as fast as possible from service. Petitioner was unwilling to continue in service and accordingly he was not recommended for retention in service by the then Officer Commanding. Petitioner was unwilling to continue in service and accordingly he was not recommended for retention in service by the then Officer Commanding. Therefore, the petitioner was ordered for discharge from service with effect from 1 January 2002. Under the provisions of Army Order 3/89, he was brought before Release Medical Board on 8th October 2001 held at 170 Military Hospital. Said medical board recommended the petitioner to be released in low medical category SIHIAIP 3 El (Permanent) for disease "STAG HORN CALCULUS (LT) WITH MULTIPLE RENAL CALCULI (LT) OPT6D WITH PARTIAL NEPHRECTOMY DONE (OLD) 592. Under Rule 13 (3) item III (V) read in conjunction with Sub Rule 2A, the petitioner was discharged from service with effect from 1st January 2002 on medical grounds having been placed in medical category lower than `AYE ( Now SHAPE-I). It is further stated that disability of the petitioner was assessed at 50% for two years. On receipt of all medical documents, disability pension claim of the petitioner was forwarded to respondent No. 3 being the final pension sanctioning authority. The said authority in consultation with Medical Advisor Pension, came to the conclusion that the disability of the petitioner is constitutional in nature and accordingly rejected the claim of the petitioner vide letter No: G-3/57/117/3/02 dated 19th June 2002. Decision taken by respondent No: 3 was communicated to the petitioner vide Signal Records letter No: P/8028496/DP-2/NER dated 4th July 2002 with an advise to submit an appeal against the decision of respondent No: 3 within six months if desired by the petitioner. Petitioner, however, did not prefer any appeal within the stipulated period. It is further submitted that without submitting any appeal or serving any legal notice under section 80 CPCV, which is the alternate remedy available to the petitioner, he has filed the present writ petition. It is thus stated that the disability of the petitioner being constitutional in nature, his claim for disability pension has been rightly rejected by the competent authority. 4. Heard learned counsel for the parties and perused the record. Petitioner in paragraphs 3 and 4 of the petition has pleaded as under: - ".................In August 1999 when the petitioner was posted at Goa, the petitioner fell down. The Medical Officers of the Army referred the petitioner to Navy Hospital Vasco. 4. Heard learned counsel for the parties and perused the record. Petitioner in paragraphs 3 and 4 of the petition has pleaded as under: - ".................In August 1999 when the petitioner was posted at Goa, the petitioner fell down. The Medical Officers of the Army referred the petitioner to Navy Hospital Vasco. The Medical Officers of the Navy Hospital detected Stone in the petitioner and referred the petitioner to Bombay Navy Hospital. The petitioner was operated for Stone in Bombay Navy Hospital and the stone was removed on 23.9.1999. The petitioner was granted leave fro one and half month and during the leave period the petitioner was admitted at Military Hospital Jammu in the month of November, 1999. After few days of the treatment the petitioner was sent to the Unit at Goa for six months. The petitioner was transferred and posted in Akhnoor in December, 1999. 5. That the petitioner was not fully recovered in October 2000, the pain was again started and the petitioner visited the Military Hospital for treatment. After two days of treatment Medical Officers of the Military Hospital, Akhnoor referred the petitioner to Military Hospital, Udhampur. The Medical Officer again detected Stone and the petitioner was again operated upon on 28.11.2000. The petitioner remained admitted in the Military Hospital for about one month and thereafter the petitioner was granted one and half month sick leave. 6. The petitioner reported to Military Hospital, Udhampur on 10.2.2001 and remained admitted there for 10/15 days and ultra sound of the petitioner was done where it was found that left kidney of the petitioner has been removed. It is pertinent to mention herein that the Doctor in his report dated 31.10.2004 categorically mentioned that both the kidneys are intact. Doctor in his report on 28.11,2000 has categorically mentioned that left Kidney has been removed. The petitioner has not given consent for removing the Kidney, but the consent has been obtained for removing the Stone only. It is pertinent to mention herein that the petitioner was wrongly operated upon on right kidney....." 7. The respondents have not controverted the aforequoted pleadings of the petitioner and in reply to the said paragraphs, it has only been stated as under: - "That the averments of para No. 3 & 4 of the petition is a matter of record hence needs no reply." 8. The respondents have not controverted the aforequoted pleadings of the petitioner and in reply to the said paragraphs, it has only been stated as under: - "That the averments of para No. 3 & 4 of the petition is a matter of record hence needs no reply." 8. Therefore, it is admitted fact that the petitioner was admitted in the concerned military hospital for undergoing treatment regarding removal of stone from kidney, whereas, as noticed above, his kidney was removed without his knowledge and consent. It was only when the ultrasound was conducted second time that the petitioner came to know that his kidney has been removed. It is also not the case of the respondents that the kidney of the petitioner was removed after obtaining his consent or that the removal of the kidney was necessary to save the life of the petitioner. Therefore, by this act of the doctors of the military hospital, the petitioner has become permanently disabled while he was in service, and therefore, the said disability suffered by the petitioner on account of removal of his kidney, would be deemed to be attributable to military service. The respondents while rejecting the claim of the petitioner for grant of disability pension have not considered this aspect of the matter and thus have wrongly denied him the said benefit. 9. Even otherwise, the disability suffered by the petitioner for which he has been invalidated out of service i.e. Stag Horn Calculus (Lt) with Multiple Renal Calculi (It) OPTD with Partial Nephrectyomy Done (old) 592 is not a constitutional disease It is a common factor known to everyone that stone can develop in the kidney of human body due to various reasons. One main factor which results in stone formation is intake of polluted water. It has also been proved that environmental factors, nutrition and unhygienic conditions also result in stone formation. Sometimes intake of some vegetables like spinach, tomato, ladys finger etc. have also an affect of formation of stone in the kidney as these vegetables possess rich quantity of Calcium Oxalate crystals. The medical research has also not shown that if someone in the family is having such type of disease i.e. having stone in the kidney or gall bladder etc. then the other members are likely to suffer from the same. The medical research has also not shown that if someone in the family is having such type of disease i.e. having stone in the kidney or gall bladder etc. then the other members are likely to suffer from the same. It only depends upon ones living conditions, working atmosphere, adaptation to various environmental factors, nutrition etc. that one can develop this disease regarding stone formation. In Textbook of Surgery by Roshan Lall Gupta, MS FRCS(Edin)FRCS(Eng) FACS, Emeritus Professor of Surgery, University of Meerut, the various factors which lead to formation of urinary stones have been defined as under: - "There is a definite relationship to environmental factors such as climate, diet and economic conditions. The stones can form either in the kidney or the urinary bladder. The stone in the ureter is a transit stone and almost always forms in the kidney. Thus, the kidney or the ureteric stone is the upper urinary tract stone (UUT), and stone in the urinary bladder is the lower urinary tract (LUT) stone and may come from either the kidney or may form de novo in the urinary bladder. In India the stones are common in the north-west part of the country. In certain areas in this belt where the socioeconomic status is better or has become better, there is a higher incidence of kidney (UUT) stone than the stone in the urinary bladder (LUT)." 10. The medical research has also shown that the maximum urinary stones have calcium as their main ingredient and when dietary calcium is excessive, intestinal absorption adjusts and less calcium is absorbed into circulation and thus results in renal stone formation. 11. So far as climatic factors are concerned in the aforementioned Textbook, it has been stated as under: - "In a hot dry climate, there is excessive perspiration and a low output of urine, and this allows super saturation of urine and tendency to form stones." 12. Thus, as indicated above, it can be said that the urinary stone formation is mainly due to the factors like nutrition and environmental. The army personnel during their service tenure remain posted in different areas and it is very difficult for the body to adapt to different environmental conditions resulting in numerous fatal changes inside human body and this may sometime lead to developing number of diseases. The army personnel during their service tenure remain posted in different areas and it is very difficult for the body to adapt to different environmental conditions resulting in numerous fatal changes inside human body and this may sometime lead to developing number of diseases. Therefore, the disease aforementioned, by no stretch of imagination can be termed as constitutional in nature as has been observed by the respondent authorities in rejecting the claim of the petitioner for grant of disability pension. 13. For the reasons mentioned above, this petition is disposed of with the following observations:- 1/ That the disability suffered by the petitioner mentioned above, is not constitutional in nature and is held to be attributable to military service; 2/ That the disablement of the petitioner resulted due to removal of his kidney by the doctors concerned while he was in service, is also a factor which is to be taken note of and the said disability would also be attributable to military service; 3/ That the petitioner is held entitled to disability pension and the same shall be released in his favour by the respondents by taking the percentage of disability as assessed by the Invalidation Medical Board, within a period of two months from the date a copy of this order is made available to them by the petitioner; 4/ The arrears of disability pension shall also be released in favour of the petitioner within the period stipulated above; 5/ That in case, the disability pension along with the arrears is not released within the period aforementioned, then the petitioner shall be entitled to interest at the rate of 9% on the arrears and this interest shall be payable by the person on whose account the delay occurs; 6/ That as the kidney of the petitioner was removed without his consent to which effect there is no denial by the respondents, it is directed that the respondent No.4 shall constitute a Committee for holding an enquiry into the matter. The petitioner shall be afforded an opportunity of hearing in this regard and in case, it is proved that no consent was given by the petitioner for removing his kidney and the said act was done by the doctors concerns without the knowledge of the petitioner, then, appropriate action in the accordance with the rules shall be taken against the doctors concerned. Let this process be completed within a period of four months from the date, a copy of this order is made available to the respondent No.4 by the petitioner; 7/ The petitioner is also held entitled to the cost of petition which is fixed at Rs.5000/- to be paid to him by the respondents along with the arrears of disability pension. Disposed of accordingly.