Allahabad High Court
No. 2788858-(P) Ex Receuit Babu Ram S/O ... vs Union Of India (Uoi) Through Secretary, ... on 25 October, 2005
Equivalent citations: 2006 (1) ALJ 410, (2006) 37 ALLINDCAS 545, 2006 (1) AIR BOM R 138, (2006) 108 FACLR 257, (2006) 5 ALL WC 4923
Author: Tarun Agarwala
Bench: Tarun Agarwala
JUDGMENT Tarun Agarwala, J.
1. The petitioner was enrolled in the Army on 26.8.91 and was sent for training in the Maratha Light Infantry Centre, Belgaum. At the time of his enrolment, the petitioner was medically checked and was found fit and was given an " A" medical category.
2. Within two months of his joining, the petitioner was admitted in the hospital on 14.11.1991 and remained under treatment upto 10.6.1992, where his disease was diagnosed as an "ADJUSTMENT REACTION WITH DEPRESSIVE MOOD-309". As a result of this diagnosis, a medical report dated 10.6.92 was issued invaliding the petitioner out of service on the ground of " personality disorder". The petitioner thereafter moved an application claiming Disability Pension which was rejected by an order dated 1.9.1993 on the ground that the disability which the petitioner had suffered during his service in the Army was not attributable to the Military Service and, therefore, disability pension was not admissible nor payable under the Rules. It transpires that the petitioner preferred an appeal, which remained pending, and eventually, the petitioner filed writ petition No. 2961 of 2001 which was disposed of by an order dated 22.1.2002 directing the appellate authority to decide the appeal within three months. Based on the aforesaid direction, the appellate authority by its order dated 1.8.2001 rejected the appeal of the petitioner. Consequently, the present writ petition has been filed praying for the quashing of the orders dated 19.11.1993 and 1.8.2003 and further praying for a writ of mandamus commanding the respondents to pay the disability pension with interest.
3. Heard Sri Rajesh Yadav, the learned counsel for the petitioner and Sri S.K. Tripathi, the learned counsel for the respondents.
4. Disability Pension is payable to a person, who had been invalidated on account of a disability which occasioned on account of an injury or an illness. The grant of a disability pension is, therefore, not dependant upon any length of service. Disability Pension is payable under paragraph No. 173 of the Pension Regulation which reads as follows.
" 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 percent or over.
The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II"
5. The aforesaid provision contemplates that an invalidation from the military service should be on account of a disability which is attributable to or aggravated by military service and is assessed at 20 percent or more. The question, whether a disability was attributable to or aggravated by military service, would be determined under the rules in Appendix II. The entitlement Rules, under Appendix II, provides the basis for awarding a disability pension. Rule 1 contemplates that any invalidation from the service is a necessary condition for the grant of a disability pension. Rule 2(a) provides that a disablement would be accepted as due to a military service provided it is certified that the disablement was attributable to the military service or existed before or arose during the military service and had been aggravated by the military service. Rule 3 indicates that the disability must have a causal connection with the military service. Rule 4 lays down that in deciding the issue of entitlement, all direct or indirect evidence would be taken into account and the benefit of reasonable doubt would be given to the claimant.
6. From the aforesaid, it is clear that an employee who suffers from a particular disease may be invalidated from the service and if the said disease was aggravated after entering the service which has resulted in his discharge from the service due to that disability, it would entitle him to claim a disability pension. These rules clearly indicates that even a disease which was contracted prior to the entry into the service can be made a basis to claim disability pension provided it is proved that the disease was aggravated after the entry into the service.' In other words, the military service should be the contributing factor to aggravate the disability.
7. The petitioner claims disability under Rule 7 which reads as under:-
" (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 course of the disease, will fall for acceptance on the basis of aggravation.
(b) A disease which has led to an individual's 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.
(d) In considering whether a particular disease is due to military service, it is necessary to relate the established facts, in the aetiology of the disease and of its normal development, to the effect and conditions of service e.g., exposure, stress, climate, etc may have had on its manifestation. Regard must also be had to the time factor. ( Also see Annexure I).
(ii) Common diseases known to be affected by stress and strain. This should be decided with due reference to the nature of the duties and individual has had to perform in military service. It may be that in some cases the individual had been engaged on sedentary duties when they will normally not qualify."
8. Clause (b) of the Rule 7 indicates that if no note of a disease was made at the time of the employees enrolment in the military service, a disease shall be deemed to have arisen while in service. However, this assessment is displaced only if the medical opinion, for the reasons to be recorded in writing, holds otherwise that the illness could not be detected at the time of the enrolment in the service.
9. From the aforesaid, it is clear that an employee who has been invalidated from the service is entitled to a disability pension, even if he was suffering from the disease prior to his enrolment in the service and that the said disease was aggravated due to stress and strain while in employment'. If a note of the disease was not made at the time of a person's enrolment in the military service, the said disease would be deemed to have arisen in course of the employment. However, this presumption can be dispensed with, if the medical doctors opines, that the disease could not be detected on the medical examination at the time of the enrolment of the employee. The Rules further indicates that whether a particular disease is due to the military service or not it would be necessary to relate the established facts in the aetiology of the disease and of its normal development to the effect that the conditions of service such as exposure, stress, climate etc. may have had on its manifestation and in this regard the time factor is also an essential element.
10. In the light of the aforesaid provisions, the learned counsel for the petitioner submitted that since no note of the said disease was made by the respondents at the time of the enrolment of the petitioner in the service, therefore, the invalidation of the petitioner on the ground that the disease which had occurred was not attributable to the military service and therefore, the petitioner was entitled to a disability pension under Regulation 173 read with Rule 7 of Appendix II of the said Regulation. On the other hand, the learned counsel for the respondents submitted that the petitioner was invalidated on account of a constitutional disorder and that the said disease was not attributable to the military service. Further, personality disorder was detected at the initial stage of his enrolment itself and therefore, the conditions of service did not attribute to the manifestation of this disease. The learned counsel for the respondents submitted that even if the disease was accepted to have arisen in service, it cannot be established that the conditions of military service determined or attributed to the onset of the disease and that the stress and strain had led to the manifestation of the disease since the disease was detected at the initial stage of training.
11. In support of the submission, the petitioner has relied upon the decision in Ram Niwas v. Union of India, 1997(1) E.S.C. 477, Ex. Gnr. Dharam Vir Singh v. Union of India and Ors. , 2002(2) UPLBEC 1734, Mahaveer Singh Rawat v. Union of India and Ors. , 2001(1) UPLBEC 626, Inder Jang v. Union of India and Ors. , 1999(3) UPLBEC 2010, Yashpal Singh Mehra v. Union of India and Ors. , 1998(1) UPLBEC 708, Anil Kumar Mishra v. Union of India, 1996(2) UPLBEC 761, in which it was held that the disease was attributable to the military service coupled with the fact that no note of the said disease was made at the time of enrolment and, therefore, the employee was entitled to a disability pension under Rule 7(b) of Appendix II of the said Regulations.
12. In the light of the aforesaid judgements, it is necessary to consider the facts of the present case which eventually led to the discharge of the petitioner from the service. The petitioner was enrolled in the Army at a young age. At the time of his enrolment, he was found to be medically fit and was not found to be suffering from any illness or disease. The enrolment of the petitioner was done after a thorough and intensive medical examination. According to the petitioner, during his training he was badly treated by his seniors and was physically and mentally tortured in the training centre. The petitioner has alleged that he was strapped and hung upside down and that he was harassed, man-handled and beaten by his seniors. The persistent ragging of the petitioner, while undergoing training led him to a mental breakdown resulting in his hospitalisation and eventually discharge from the service. From a perusal of the psychiatric report, it is clear that an attempt has been made to diagnose the reason for his maladjustment in the army environment, but no effort had been made by the Army Authorities to locate and address the reasons for subjecting the petitioner to such a harassment.
13. The psychiatric report indicates that the petitioner had no past history of any mental or physical illness. The examination of his mental state of mind indicated that he was passively co-operative and observed normal military manners and was clean and coherent and that there was no psychotic features and that sensorism was clear and that his insight and judgment was intact and that the initial examination did not show depression. However, subsequent interviews revealed that he had a deep resentment towards his seniors, who allegedly harassed the petitioner. The report further indicates that the onset of the petitioner's problem was during the training period when he felt himself to be a misfit and was ill treated by his superiors, which led to a depressive mood and strong demotivation for the service. The report clearly indicates that the petitioner did not have a past history of a mental illness and that the stress of basic military training and maladjustment to the service environment appears to have contributed to the onset of the psychiatric illness.
14. The entire report concentrates on the petitioner's adjustment in the military environment and, brought into the forefront, his maladjustment in the military service. But the cause which led to this depressive mood behaviour and his adjustment in the military environment has not been considered. The petitioner alleged that he was harassed, tortured and hung upside down by his superiors in the training centre. This fact has not been considered by the authorities and has been ignored completely. The allegations made by the petitioner appears to be correct. The physical examination of the petitioner, as per the medical report, indicates that he had contusions over the neck (around), over the forearms ( near wrist) and around the ankles. The contusions on the forearms and the ankles indicates that the petitioner was tied and hung. The petitioner cannot tie his arms and ankles and then hang himself. Consequently, some else had tied his hands and ankles and thereafter hanged the petitioner.
15. An analysis of the psychiatry report clearly indicates that the onset of the petitioner's problem and the disease was attributable to and was aggravated by the military service. Even if, the petitioner was suffering from the disease prior to his enrolment in the service, the disease was aggravated due to the harassment and maltreatment of the petitioner by others in the training centre.
16. Apart from the aforesaid, it is clear that at the time of the enrolment of the petitioner in the Army Service he was not found to be suffering from any ailment and no note of this disease was made by the Medical Board. Therefore, under Rule 7, if no note was made regarding a particular illness at the time of the enrolment of an employee in the military service, the illness was deemed to have arisen while in the service. The judgments cited by the learned counsel for the petitioners are squarely applicable.
17. In view of the aforesaid, the action of the respondents in not granting the disability pension is not only erroneous, but is also arbitrary and is against the Pension Rules. Pension is no longer a bounty and is a right of the individual under Article 21 and 41 of the Constitution of India.
18. In view of the aforesaid, the writ petition is allowed. The impugned orders dated 19.11.1993 and 1.8.2002 are set aside and the respondents are directed to pay disability pension to the petitioner within three months from the date of production of a certified copy of this order.