Punjab-Haryana High Court
Union Of India And Others vs No. 14436081A Ex. Gnr Sachdev Singh on 3 February, 2011
Union of India and others
....Appellants
Versus
No. 14436081A Ex. Gnr Sachdev Singh
.....Respondent
Present : Mr.S.S.Sandhu, Central Govt. Standing Counsel for the appellants.
Mr. Navdeep Singh, Advocate for the respondent.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
1. The Union of India and its officers have filed the present appeal under Clause X of the Letters Patent in order to challenge the judgment dated 9.10.2009 passed by the learned Single Judge whereby the writ petition (CWP No. 15664 of 2009) filed by the respondent for quashing the order of rejection of his disability pension claim was disposed of in terms of the decision of a Division Bench of this Court in . , LPA No. 547 of 2001 decided on 11.2.2009.
2. According to the respondent, he was enrolled in the Army on 4.1.2001 after having been found medically fit in all respects in the medical category 'AYE'. No note of any disease was made at the time of his enrollment either in the enrollment form or in the medical examination form by the recruiting officer. He was sent for one year's training which he successfully completed. Thereafter, he was assigned the duties of the Gunner which he performed to the satisfaction of his superior officers. In the year 2003 when his unit was stationed at Jalandhar, he became unwell and was admitted in Military Hospital where it was revealed that he was suffering from the disease called GENERALISED TONIC CLONIC SEIZURES. On the recommendations of the Medical Board which was held in Military Hospital, Ahmedabad, the respondent was invalided out of military service. His claim for disability pension was rejected on the ground that the disability was neither attributable to nor aggravated by military service and it being constitutional in nature, was not related to service. The appeal filed by him was dismissed. Even the second appeal filed by him met the same result. He then filed the aforementioned writ petition which came to be disposed of by the learned Single Judge vide impugned order dated 9.10.2009 in terms of the decision in the case of Ex. Sepoy Ranjit Singh (supra) wherein it was held that the disability due to two types of disease; (i) Schizophrenia and (ii) Generalised Seizures was attributable to the military service and, therefore, he was held entitled to disability pension from the date of his discharge from the military service. Relevant portion of the impugned order reads as under:-
"It is not in dispute that the issue involved in the present writ petition is squarely covered by a Division Bench judgment of this Court rendered in LPA No. 547 of 2001 in CWP No. 17043 of 1998 on 11.2.2009, wherein following observations have been made:-
"14. We are of the view that the judgment of the Hon'ble Supreme Court in case and case (supra) are distinguishable on facts. In the present case it has been admitted in the written statement there was an episode of Generalised Tonic Clonic Seizure on 11.10.1998 when the petitioner was in service and he was given treatment which continued thereafter. In the opinion of the Medical Board Annexure RA, there is no reason given as to how the said illness did not relate to the disability in question. The disability is clearly relatable to the episode which is duly admitted in the written statement. It may have been a different matter if such an episode had not happened. The opinion of the medical board in the present case was thus arbitrary in ignoring the admitted incident.
15. In (supra), it was held that the opinion of Medical Board must be self contained and well reasoned and supported by documentary proof and therefore, the opinion that the disease was not attributable to the military service was without any basis. Moreover, para 14 of 1982 Rules provides that if a person is fit at the time of entry into service, there will be presumption that the disease is due to military service though on facts it could be established that the disability existed prior to entry into service and the mere fact that such disease was not detected at the time of entry into service will not be conclusive. Similar view has been taken by this Court in and (supra) and the Madhya Pradesh High Court in (supra).
16. In view of the above, no fault can be found with the finding recorded by the learned Single Judge that the disability of the petitioner was attributable to the military service and he was entitled to disability pension from the date of his discharge from the military service.
17. The appeal is dismissed."
Accordingly, present petition is disposed of in terms of the aforesaid judgment. Petitioner shall also be entitled to the same relief. However, the payment of arrears shall be restricted from the date of discharge of the petitioner."
3. Though the appeal has been filed beyond the period of limitation prescribed and the appellants have filed a misc. application (CM No. 164-LPA of 2011) for condonation of delay of 409 days in filing the appeal yet we have heard learned counsel for the appellants on merits and perused the order passed by the learned Single Judge.
4. Learned counsel for the appellants has submitted that the Release Medical Board had opined that the disease suffered by the respondent was neither attributable to nor aggravated nor also connected with military service although it had assessed disability of 20% for life. The opinion of the Release Medical Board cannot be substituted by the Court to hold that the disease was attributable to or aggravated by military service. In this regard, he has placed reliance upon the judgment of Hon'ble the Supreme Court in the case of .
(Civil Appeal No. 1960 of 2008 decided on 13.3.2008) wherein it was held that once the Medical Board gives an opinion about the disease being neither attributable to nor aggravated by military service then the Court was not justified in holding otherwise.
5. In .
2006 (4) SCT 626, a Division Bench of the Delhi High Court held that the opinion of the Medical Board has to be self contained, well reasoned and supported by documentation and some rule of law in order to hold that the disability was neither attributable to nor aggravated by military service. Merely saying that the disease was constitutional is of no legal value. The decision in the case of (supra) was relied upon by a Division Bench of this Court in the case of (supra) to conclude that if a person was fit at the time of entry into service, there would be presumption that the disease was due to military service though on facts it could be established that the disability existed prior to entry into service and the mere fact that such a disease was not detected at the time of entry into service would not be conclusive. The decision in the case of (supra) was relied upon by the learned Single Judge while passing the impugned order whereby the writ petition filed by the respondent was disposed of in terms of the said decision, i.e. the disability was attributable to the military service and, accordingly, the army man held entitled to disability pension.
6. The decision in the case of (supra) was passed upon two earlier judgments of Hon'ble the Supreme Court, i.e. .
(1996) 11 SCC 315 and .
(2003) 2 SCC 382. In the
case of (supra), it was clearly held that in each case
where a disability pension is sought or claimed, 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. On that analogy even the authorities would be required to establish as a fact that the disease suffered by the army man was neither attributable to nor aggravated by the military service. The same is missing in the case in hand as apart from mentioning that the disease from which the respondent was suffering was neither attributable to nor aggravated by the military service, no details were given as to how such a conclusion was arrived at. Similarly, in the case of (supra), the army man had already been compulsorily retired on attaining the age of superannuation. For that reason the provisions of Regulation 53 of the Pension Regulations was left out of consideration and the opinion of the Medical Board that the diseases from which he was suffering were not found to be attributable to or aggravated by military service, was given precedence. Therefore, strictly speaking, the decision in the case of (supra) is not attracted to the facts and circumstances of the case in hand.
7. In view of the above, we do not find any ground to interfere in the impugned order passed by the leaned Single Judge whereby the respondent has been held entitled to the benefit of disability pension.
8. The appeal is without any merit and, accordingly, dismissed with no order as to costs.
ajay-I