Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 45 (JK)

Madan Lal v. Union Of India

2009-02-06

SUNIL HALI

body2009
1. The petitioner was invalidated from service by the Medical Board on 7.11.2000. His medical category was lowered down from AYE to EEE. The injury is stated to have been incurred by the petitioner before his entry into the service and was not attributable to the Army service. He was found not to be entitled to receive disability pension. It is this order which is subject matter of challenge before this court. 2. Brief facts of the case are that the petitioner was enrolled in the Army service as a recruit/GD on 16.12.1999. He was subjected to physical as well as medical test at the time of his appointment and no disability was found at that point of time. It is alleged by the petitioner that while he was undergoing firing practice at training centre Jabalpur in the year 2000, he has suffered this injury as a result of which he was unable to hear anything. The petitioner was referred to Military Hospital, Jabalpur. The ENT Specialist diagnosed the petitioners illness as case of Bilateral CSOM (RT) and recommended to be invalidated from service on account of low medical category EEE. This report was confirmed on 1.8.2000 by the Air Commodore Consultant and H.O.D (ENT) Army Hospital, Delhi. This injury was held not to be attributed prior to the service in the Army. 3. The petitioners grievance is that he was found fit at the time of recruitment in the Army and this injury was not detected or found at that point of time. It was only during the firing practice that he incurred this injury, as such, he was entitled to receive disability pension. The other contention of the petitioner is that he is also entitled to shelter appointment in the Army. 4. On the other hand, respondents have stated in their reply that injury/disease of the petitioner was congenital and was not attributable prior to the acceptance of Army service. It is stated that infection being chronic in nature, which is not related to the military service. It is further stated that percentage of the disability of the petitioner was assessed at 20% for two years by the invaliding Medical Board. 5. I have heard learned counsel for the parties and perused the record. 6. The facts in the writ petition are not in dispute. It is further stated that percentage of the disability of the petitioner was assessed at 20% for two years by the invaliding Medical Board. 5. I have heard learned counsel for the parties and perused the record. 6. The facts in the writ petition are not in dispute. The only question required to be determined is, as to whether the petitioner is entitle to disability pension under the Army Rules or not. The Regulation 173 is reproduced as under:- Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 % or over. Plain reading of the above regulation reveals that a person is become entitled to disability pension, if he is invalidated out of service on account of disability, which is attributable to or aggravated by military service and assessed at 20 % or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules appended with Appendix-II. 7. The relevant entry in Appendix-II is contained in paragraph 2, 3 and 4 which reads as under:- 2. Disablement or death shall be accepted as due to military service, provided it is certified that:- (a) the disablement is due to wound, injury or disease which; (i) is attributable to military service; or (ii) existed before or arose during military service and has been and remains aggravated thereby (c) the death was due to or hastened by:- (iii) a wound, injury or disease which was attributed to military service, or (iv) the aggravation by military service of a wound, injury or disease which existed before or arose during military service. Note: The rule also covers cases of death after discharge/invaliding from service. 5. There must be a casual connection between disablement and military service or attributability or aggravation to be conceded. 6. In deciding on the issue of entitlement all the evidence, both direct or circumstantial, will be taken into account and the benefit or reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in the field service cases. 8. Aforementioned relevant entries indicate that injury or disablement or both shall be attributable to the military service, if conditions set out hereinabove above are satisfied. This benefit will be given more liberally to the claimant in the field service cases. 8. Aforementioned relevant entries indicate that injury or disablement or both shall be attributable to the military service, if conditions set out hereinabove above are satisfied. The aforementioned paragraphs clearly reveal that if the disease or injury exists prior to joining the military service and gets aggravated during the service in the army, it shall also be attributed to the military service. Any disease, which can not be detected at the entry level, in that eventuality, the medical opinion must record the reasons indicating that the disease could not have been detected on medical examination prior to acceptance of the service. The Regularization 7-(b) of the Army Rule is quoted herein below:- 7-(b). A disease which had 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 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. 9. Conjoint reading of the aforementioned regulations would reveal the following things:- A). No disability pension is payable, if injury is not attributable or arisen during the military service. B) That if the injury exists prior to the acceptance of the service, but aggravated during the military service, it shall be deemed to have arisen during service. C) That medical board must give reasons that disease could not have been detected on medical examination prior to acceptance of the service, in case injury or disease could not be detected at the time of acceptance of service. D) Admittedly the nature of injury carries illness of deafness and the same could have been easily detected at the time of his acceptance of the service. 10. The disability recorded by the Medical Board is Bilateral CSOM (RT) and this was because of chronic infection. It cannot be ruled out that as a result of firing, such an injury cannot be aggravated. While examining the report of Medical Board, it is stated that disease is due to chronic infection. The Medical Board was required to indicate the nature of infection and how it was co-related to the disease detected by it. It cannot be ruled out that as a result of firing, such an injury cannot be aggravated. While examining the report of Medical Board, it is stated that disease is due to chronic infection. The Medical Board was required to indicate the nature of infection and how it was co-related to the disease detected by it. 11. This, in my opinion is not sufficient compliance of Regulation 7-(b) of the Army Regulations. The Medical Board had to give reasons, but the same have not been given in the present case. In the absence of any reason by the Board, it can also be said that such disease or injuries can be aggravated during the military service. 12. The petitioner has relied upon the judgment of the Division Bench of this Court passed in LPA (OWP) No. 73/2000, entitled, Ex-Sepoy Balwant Singh vs. Union of India and ors., and judgments of Single Judge passed in OWP No. 1973/1983 and 704/1992, titled, Col. M. L. Sethi vs. Union of India and ors decided on 10.2.1998, and judgment reported in KLJ 179 entitled, Manjit Singh vs. Union of India and ors., wherein it has been held that if the illness or disease was not noticed prior to entry into service, it is deemed to have been suffered at the time of service. 13. I, therefore, hold that there is no compliance of regulation 7 (b) of the Army Regulation, as such, the order disentitling the petitioner from disability pension cannot be sustained. 14. Coming to the second contention of the petitioner that he is entitled to shelter appointment, is not sustainable. It is averred by the respondents in their reply that on account of low medical category of the petitioner, he can not be given shelter appointment, as such; shelter appointment was not commensurate with his medical category. 15. The disability of the petitioner is 20%, as such, he is entitled to disability pension. I, therefore quash order dated 1.8.2000 and accordingly, direct the respondents to grant disability pension in favour of the petitioner from the date he was discharged from service. Let this exercise be completed by the respondents within a period of four months from the date a copy of this order is served upon them. I, therefore quash order dated 1.8.2000 and accordingly, direct the respondents to grant disability pension in favour of the petitioner from the date he was discharged from service. Let this exercise be completed by the respondents within a period of four months from the date a copy of this order is served upon them. In case the disability pension is not released in favour of the petitioner, with in the above said period, petitioner shall be entitled to interest @ 7.5 %. Disposed of alongwith connected CMP, if any.