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2009 DIGILAW 362 (JK)

Harbans Singh v. Union Of India

2009-07-27

NIRMAL SINGH

body2009
1. Petitioner is seeking writ in the nature of mandamus commanding upon respondents to release disability pension in his favour w.e.f., the date, he was invalidated out of service on medical grounds. 2. Petitioner came to be enrolled in the army on 23rd of Sept76. After serving for about six years, he was invalidated out of service due to disability namely Non Organic Psychosis 298. 3. The grievance of the petitioner is that at the time of enrolment, he was not suffering from any such disease and it was only due to the stress and strain of army service that the petitioner came to suffer from the said disease. 4. It is stated that the petitioner was placed in Low Medical Category `EEE and was ultimately boarded out of service on 26th of Oct82, but was denied the disability pension. It is this non grant of disability pension, which is the subject matter of challenge in the present petition. 5. Learned counsel for the petitioner submits that at the time of enrolment, a proper medical check up is done by the concerned army authorities of the individual concerned. It is stated that the petitioner was not found suffering from any such disability which has led to his invalidation out of service and was quite hale and hearty. It is stated that under such circumstances, when no note is made that the individual concerned is suffering from any disease, then the disability from which an army personnel suffers and which leads to his invalidation out of service is to be taken a disability on account of hazards of army service. Reliance in this regard is placed on a Division Bench judgment of this court reported as 1999(2) SCT 39, Union of India v. Rattan Lal. It is thus submitted that the respondent Union of India has wrongly rejected the claim of the petitioner for grant of disability pension. 6. Respondents on notice have filed counter stating therein that petitioner after his enrolment on 23rd of Sept76, and completion of requisite training was posted to 3 JAK Rif on 29th of July77. He was invalidated out of service under Army Rule 13(3) item III(iii) w.e.f. 26th of Oct82, due to invaliding disability namely Non Organic Psychosis 298 and placed in Low Medical Category EEE. He was invalidated out of service under Army Rule 13(3) item III(iii) w.e.f. 26th of Oct82, due to invaliding disability namely Non Organic Psychosis 298 and placed in Low Medical Category EEE. It is stated that the claim of the petitioner for disability pension was forwarded to the CDA(P), Allahabad, on 7th of March83, but the same was rejected on the ground that the disability from the which the petitioner suffered is a constitutional disease not related to service. Against the said order, the petitioner had preferred an appeal, which was also dismissed. It is thus stated that the petitioner cannot have any grievance so far as non grant of disability pension is concerned because, the disability of the petitioner has been found aggravated by military service. 7. The disability in the present case from which the petitioner suffered and which led to his invalidation out of service, as noticed above, is Non-Organic Psychosis 298, which is a mental disorder. In Butterworths Medical dictionary Second Edition, the word Psychosis has been defined as under:- "Psychosis: A term applied generally to any kind of mental disorder, especially to those groups in which the disorder is more serious, more fundamental, and characterized by lack of insight, as distinct from psychoneurosis." The word Organic Psychosis is defined as under:- "Organic Psychosis: Psychosis attributable to organic disease of the brain." 8. There is an Annexure III to Appendix II in the Rules of Army Pension Regulations 1961, which deals with the classification of various diseases. Under column B, the diseases which are affected by stress and strain have also been classified. Psychosis and Psychoneurosis have also been mentioned at Sl.No.l under the above column to be the diseases which are so affected by the stress and strain of army service. As noticed above, the aforementioned diseases relate to mental disorder. The respondent authority while making its opinion that the disability of the petitioner namely Non Organic Psychosis is a constitutional disease not related to service, has not taken note of the Annexure referred to above, which clearly shows that Psychosis is a disease which is affected by stress and strain of army service. Therefore, the opinion so recorded by the Medical Board that the disability of the petitioner is not related to service cannot be accepted. 9. Therefore, the opinion so recorded by the Medical Board that the disability of the petitioner is not related to service cannot be accepted. 9. The respondents have annexed with the counter the summary of the case conducted by a Classified Specialist (Psychiatry) on 4th of Oct82. The past history and the family background of the petitioner has been stated in the said summary. The doctor concerned while dealing with the past history has observed as under:- "Past history: No history of psychiatric illness in the past." 10. It has been further observed that there is no history of Neurotic traits during childhood. A perusal of the said summary of the case which was conducted by the concerned doctor of the army authorities, shows that the petitioner had no symptoms of Psychosis (mental disorder) during his childhood or even at the time of his enrolment. Even, no one in the family of the petitioner was found to be suffering from such a disease. Under such circumstances, it is difficult to understand as to on what basis, the Medical board has expressed its opinion that the disease from which the petitioner suffered and which led to his invalidation out of service is a constitutional disease not related to the service. The proceedings conducted by the Medical Board, thus, appear to have been conducted in a casual manner without taking into consideration the summary of the case as also the Annexure concerned of the Rules of Army Pension Regulations, noticed above, which deals with the classification of diseases. 11. There is no dispute with regard to the proposition that this court should normally not interfere so far as an opinion expressed by the Medical Board is concerned and such a opinion should normally prevail unless and until it is manifest from the record that the opinion so recorded is not based on any material or the same is without any reasons. In the present case, as noticed above, there is nothing on record to show that the Medical Board expressed its opinion regarding non aggravation of the disability of the petitioner to military service on the basis of any record. On the other hand, the perusal of the record more particularly the summary of the case, noticed above and the relevant Annexure shows that the Medical Board has not rightly recorded its opinion. On the other hand, the perusal of the record more particularly the summary of the case, noticed above and the relevant Annexure shows that the Medical Board has not rightly recorded its opinion. Under such circumstances, as indicated above, it is difficult to accept the opinion of the Medical Board that the disability of the petitioner which led to his invalidation out of service is constitutional in nature. 12. Rule 14 of the Appendix II of the Entitlement Rules for Casualty Pensionary Awards, 1982, is relevant and is being, reproduced below:- "14. In respect of diseases, the following rule will be observed:- a/ 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 courses of the disease, will fall for acceptance on the basis of aggravation. b/ A disease which has led to an individuals discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individual `s 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. c/ 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." 13. A perusal of clause (a) noticed above, shows that in case it is established that the conditions of service did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, the same would be deemed to have been aggravated by military service. Similarly in terms of clauses (b) and (c) , a disease which leads to an individuals discharge from service would ordinarily be deemed to have arisen in service, if no note of it is made at the time of individuals entry into service. Similarly in terms of clauses (b) and (c) , a disease which leads to an individuals discharge from service would ordinarily be deemed to have arisen in service, if no note of it is made at the time of individuals entry into service. But in case, the medical opinion holds that the disease is such which could not have been detected prior to individuals entry into service, then the said disease would not be attributable to army service but in that case, the medical authority has to base its opinion by stating reasons, In terms of clause (c), if a disease is held attributable to army service, then, it has to be established that the conditions of service were such which contributed to the onset of the disease. 14. In the present case also, nothing has been placed on record by the respondents to show that there was any note to the effect that the petitioner suffered from the aforementioned disease prior to his entry into service or that the disease was such which could not have been detected under ordinary examination. Rather, as noticed above, the summary of the case conducted by the Specialist (Psychiatric) of the respondent Union of India, clearly shows that even there were no symptoms of such a disease during the childhood of the petitioner and no one in the family of the petitioner was having neurotic traits. 15. Even otherwise, it be seen that the petitioner in the present case was enrolled in the army in Sept76. For about three years, there was no complaint to the effect that the petitioner is suffering from any disease. It was only in July79, the petitioner was admitted in 22 Field hospital as he was found suffering from contusion chest Rt. Even at that point of time, no symptoms of any mental disorder were found in the petitioner. It was only in the month of April82, that he was diagnosed as a case of Neurosis and admitted in 166 Military Hospital on 5th of April82 where he remained under treatment upto 16th of April82. Thereafter, the petitioner was admitted in 167 Military Hospital on the same day and was shifted to Army Hospital New Delhi Cantt. It was only in the month of April82, that he was diagnosed as a case of Neurosis and admitted in 166 Military Hospital on 5th of April82 where he remained under treatment upto 16th of April82. Thereafter, the petitioner was admitted in 167 Military Hospital on the same day and was shifted to Army Hospital New Delhi Cantt. on 23rd of April82, as a case of Schizophrenia from where he was dispatched to home directly on 25th of Oct82 being a case of Won Organic Psychosis 298 and placed in low medical category EEE. A perusal of the said service history as stated in the counter shows that petitioner was having no symptoms of Psychosis (mental disorder) upto April82 i.e. for about six years of his entry into service. Therefore, under these circumstances, it is difficult to accept the opinion of the Medical Board that the petitioners disease is constitutional in nature that too when he was not having any symptoms of this disease during his childhood and there is no one in the family of the petitioner who was or is suffering from any such disease. 16. In view of the above discussion, it can safely be held that the disease namely Non Organic Psychosis from which the petitioner suffered after about six years of his entry into service and which led to his invalidation out of service is a disease which occurred due to the hazards of army service. Even otherwise, the disability of the petitioner as per entry 1 of column B under Annexure III to Appendix II of the Army Pension Regulation 1961, falls under the category of the disease which occur due to stress and strain of army service. 17. For the reasons mentioned above, this petition is allowed. The petitioner is held entitled to disability pension as per the assessment made by the Medical Board i.e. 40%. Let this disability pension be released in favour of the petitioner within a period of two months from the date, a copy of this order is made available to the respondent authorities by the petitioner or his counsel. Petitioner shall also be entitled to the arrears of disability pension but the said claim of the petitioner is restricted to three years prior to the date of filing of the petition. The arrears be calculated accordingly and released in favour of the petitioner within the aforementioned stipulated period. Petitioner shall also be entitled to the arrears of disability pension but the said claim of the petitioner is restricted to three years prior to the date of filing of the petition. The arrears be calculated accordingly and released in favour of the petitioner within the aforementioned stipulated period. In case, the needful as indicated above, is not done by the respondents, the petitioner shall be entitled to interest on the arrears of disability pension at the rate of 9% per annum and this shall be payable by the person concerned who is found responsible for not passing the appropriate orders in this regard. Disposed of accordingly.