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2009 DIGILAW 152 (MAD)

M. Venkatesh Perumal v. Union of India, rep. by its Secretary to Government & Others

2009-01-19

K.CHANDRU

body2009
Judgment :- Heard both sides. 2. The present writ petition has been filed seeking to challenge the order of the 1st respondent dated 27.01.2000 and 012. 2002 as well as the order of the 3rd respondent dated 03.04.1998 and for a consequential direction to grant the petitioner disability pension. The writ petition was admitted on 18.04.2005, but his prayer for interim direction was rejected by this Court. Pursuant to the notice from this Court the 3rd respondent has filed a counter affidavit dated 28.09.2005. 3. It is seen from the records that the petitioner was enrolled in the Indian Army with effect from 06.04.1988 and has served for a total period of 8 years and 8 months. While he was serving with the 603 ASC Battalion (AM), he was admitted to the Command Hospital (Western Command) at Chandimandir in two spells. In the first spell from 26.09.1995 to 110. 1995, he was admitted on the ground of low back ache. In the second spell from 112. 1995 to 04.04.1996, he was admitted for complaint of PIVDL – 4/5 (OPLD). 4. Once again the petitioner was admitted to the Command Hospital Air Force, Bangalore on 22.08.1996 by his family members for unprovoked physical aggression on his family members and neighbours. The senior Advisor Psychiatry diagnosed the ailment as a Schizophrenia. Therefore, he was considered to be unfit for further service in the Indian Army by the Release Medical Board and was recommended for invalidating out of service from the Army with effect 312. 1996 5. In terms of the Army Rule 13(3) read with Item III (iii) of the Army Rules 1954, it is stated that if a person is found medically unfit for further service, he can be discharged by the Commanding Officer but however, it has to be done only on the recommendation of the Invalidation Board. It was also stated by the Release Medical Board that the disease which he had suffered was neither attributable to nor aggravated by military service. It was a constitutional disease and not connected with the service. He was placed under the low medical category of EEE (Psy.) The Petitioners case for disability pension was forwarded to the higher authorities. 6. It was also stated by the Release Medical Board that the disease which he had suffered was neither attributable to nor aggravated by military service. It was a constitutional disease and not connected with the service. He was placed under the low medical category of EEE (Psy.) The Petitioners case for disability pension was forwarded to the higher authorities. 6. However, he was informed by an order dated 03.04.1998 that his disability pension claim was adjudicated by the CCDA(P) Allahabad in consultation with the medical advisor (Pension) attached to their office that his disability namely Schizophrenia was neither attributable to nor aggravated by military service is constitutional nature and not related to service. He was also informed that under the existing rules he was not eligible for any disability pension. He was also informed that he could file an appeal to the Government of India,(1st respondent) against that order. 7. The petitioner filed an appeal to the 1st respondent. The Government of India by its order dated 27.01.2000 rejected his appeal and informed the petitioner accordingly. The operative portion of the order reads as follows:- "The disability on account of which you were released from service is constitutional disorder. On perusal of your service/Medical documents, the Appellate Medical Authority has found that the ID is not connected with service. There is no history of CNS infection/Trauma. There is no close time relation with any service related stress to the onset of ID. In view of the fact that your disability has been regarded by the Medical Authorities as neither attributable nor aggravated by duties of military service, you are not entitled to disability pension under the Rule". 8. The petitioners second appeal to the Union of India was also rejected by an order dated 012. 2002. Rejection of his claim by these orders had prompted the petitioner to file the present writ petition. 9. The learned counsel for the petitioner submitted that the rejection of the petitioners claim was arbitrary and improper. He placed reliance upon the Judgement of the J.&K. High Court reported in 2001 (1) J&K Law Reporter 149 in Ex-Subedar Gurdass Singh vs. Union of India and others. But that case arose out of a disability caused due to an injury suffered when the petitioner in that case was travelling in a scooter which was hit by a tipper lorry. But that case arose out of a disability caused due to an injury suffered when the petitioner in that case was travelling in a scooter which was hit by a tipper lorry. The question arose in that case was whether the accident arose arising out of his employment and whether he was entitled for disability pension on account of the injury suffered by him. It was in that context the J&K High Court held that the injury was directly attributable to service and was eligible for pension. 10. Per contra, the learned counsel for the respondents placed their reliance upon the unreported Judgement of the Division Bench in the case of R.Paramasivam vs. Union and India in W.A.NO.3143 of 2004 dated 27.06.2005, where in identical circumstances this Court refused to judicially review the order of the Government rejecting the claim for disability pension. 11. In the aforesaid case in paragraphs 3 and 4, the Division Bench had observed as follows:- "3. This Court cannot sit as a Court of appeal over administrative decisions. The scope of judicial review of administrative decisions is very limited. It is true that while prior to 1947 the Courts would not undertake judicial review of administrative decisions, but after the historical decision of the House ofLords in the Wednesbury case (Associated Provincial Picture Houses Ltd., vs. Wednesbury Corporation, (1947) 2 All. L.R.680) the law was slightly changes and it was held that there can be judicial review of administrative decisions but that can only be done only on certain very limited grounds, vide State of N.C.T. of Delhi vs.Sanjeev, AIR 2005 SC 2080 . The Court cannot ordinarily sit in appeal over the decision of the administrator, but can only look into the manner of reaching the said decision. In the present case, we cannot question the decision of the Medical Board and we cannot sit in appeal over the same. 4. Our view get support from the decision of the Supreme Court in Union of India vs. Baljit Singh, (1996) 11 SCC 315 = 1997 (1) SLR 98 and the decision of the Punjab and Haryana High Court in Gurdip Singh (retd.) Subedar (Rony Lt) vs. Union of India, 1997 (5) SLR 341.". 12. 4. Our view get support from the decision of the Supreme Court in Union of India vs. Baljit Singh, (1996) 11 SCC 315 = 1997 (1) SLR 98 and the decision of the Punjab and Haryana High Court in Gurdip Singh (retd.) Subedar (Rony Lt) vs. Union of India, 1997 (5) SLR 341.". 12. Without going into the issue of limited judicial review, it may be stated that in Union of India vs. Baljit Singh reported in 1996 (11) SCC 315 , the Supreme Court had analysed Rule 173 of the Pension Regulations for the Army. It was observed that where the Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Courts direction to the Government to pay disability pension was not correct. It is necessary to refer to the following passage found in paragraph 6 of the order:- "6....... It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made ample clear from clause (a) to (d)of para 7 which contemplated that in respect of a disease the Rules enumerated thereunder required to be observed. Clause © provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service". 13. A similar question arose before the Allahabad High Court in respect of an Army Rifleman. In that case, the said person was enrolled as Rifleman on 111. 1976 and was discharged from Army on 110. 1986. It was found that he was suffering from Schizophrenia and the Medical Boards report indicated his non-suitability for continuance in the army. Medical Board opined that the disability did not exist before entering service and it was not connected with service. An appeal was preferred before prescribed appellate authority which was dismissed on 16.04.1989. The said person filed a writ petition which was allowed by learned Single Judge and the special appeal was dismissed. Both learned Single Judge and the Division Bench held that it was not mentioned at the time of entering to army service that the said person suffered from Schizophrenia and therefore it was attributable to army service. Both learned Single Judge and the Division Bench of the Allahabad High Court referred to para 7(b) of the Appendix II referred to in Regulations 48, 173 and 185 of the Pension Regulations, 1961 to hold that if any disease has led to the individuals discharge it shall be ordinarily deemed to have arisen in the service if no note of it was made at the time of the individuals acceptance for military service. Accordingly, it was held that the respondent was entitled to disability pension. 14. The said question was taken up before the Supreme Court by the 1st respondent Union of India. The Supreme Court reversed the decisions of the High Court vide its decision in the case of Union of India and Others vs. Keshar Singh reported in 2007 AIR SCW 2760. 14. The said question was taken up before the Supreme Court by the 1st respondent Union of India. The Supreme Court reversed the decisions of the High Court vide its decision in the case of Union of India and Others vs. Keshar Singh reported in 2007 AIR SCW 2760. Paragraph 11 of the said Judgement may be usefully extracted below:- "In view of the legal position referred to above and thefact that the Medical Boards opinion was clearly to the effect that the illness suffered by the respondent was not attributable to the military service, both the learned Single Judge and the Division Bench were not justified in their respective conclusion. The respondent is not entitled to disability pension. However, on the facts and circumstances of the case, payment already made to the respondent by way of disability pension shall not be recovered from him. The appeal is allowed but in the circumstances without any order as to costs". 15. Onceagain, the Supreme Court in its latest decision quoted with approval the Keshar Singhs case (cited supra) in Union of India and Others vs. Surinder Singh Rathore reported in 2008 AIR SCW 2890 = 2008 (5) SCC 747 . In paragraph 9 of the Judgment, it has been observed as follows:- The Medical Boards opinion was clearly to the effect that the ailment suffered by the appellant was not attributable to the military service and also not aggravated due to it. Learned Single Judge and the Division Bench were not justified in holding that the same was attributable to Military service and/or was aggravated because of service. The respondent is not entitled to disability pension. However, on the facts and in the circumstances of the case payment, if any, already made to the respondent by way of disability pension, shall not be recovered". 16. In the light of the above, there is no case made out for interfering with the impugned orders passed by the respondents. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs.