Government Of India vs J Prakash on 2 December, 2010

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Karnataka High Court

Government Of India vs J Prakash on 2 December, 2010

Bench: A.S.Bopanna

I

PRESENT

AND

THE HONBLE MR. JUSTICE?-§A.I'S'. I_B'OPAI\INA  

WRIT APPEAL NO.432/EO1:G..(S--RESjAI" ' I I

§_E'1_._Y.\I_E.E.1§..I

1.

1.

GOVERNMENT 01%' imnm"

IN THE HIGH COURT OF' KARNATAKA, BANGALORE

DATE1) THIS THE 2"" DAY OF DECEMBER, 2010

THE HONBLE MR. J. s. KHEHAR, CHIEF'   

MINISTRY OF' DEFENCE'-_L  I' '

SOUTH BLOCK. DHQ V
NEW DELI-IE:--- 11001-1. 

   "I
AND CEN'i'RE"*l.._ J   
SAN 3,5a(§'0}%i,6 _ .  I

CI;1'IEI<'-- CIONT}§:()EILE:R' (F
DEFENCE ACCOU"N'l'f;S

V{PVENSI"O1\jfS]V,..DRAUPADI MARC}
I _;_AL1;A1«1ABA:) '(U.P}V

 {B'gr.$R1§".ILLA;:1_PRAsAD. C.G.S.S.C)

 SHR1 -.J5PRAKAsH

AGED 40 YEARS
{EX SAPPER NO. 153094147X]

I 'No. L 136, 11'?" CROSS
= -=L.N. PURAM

BANGALORE -- 560 021

GOVERNMENT OF KARNATAKA
MINISTRY OF HOME

I

 APPELLANTS



VIDHANA SOUDI-IA
BANGALORE -- 560 001 ...RESPONDEN'I'S

(BY SR1 B VEERAPPA, AGA. FOR R2 )

THIS WRIT APPEAL IS FILED U/S 4 OF,_j'-<§H.E

KARNATAKA HIGH COURT ACT PRAYING TO  .Ai3IDE* V.
THE ORDER PASSED IN THE W.P.NO. 

DATED 15/O6/2009 .

THIS APPEAL COMING ONWV bFOR.'''PRETI;Z.MI:NAR3f 1'  1'
HEARING THIS DAY, A. s. BOPANNA  p'gm'ERED.0T¥1E

FOLLOWING:   A 
JUDGMENgg

The Respondent   'arid 4"' in

W.P.N0.39297/2002 i:Divi'~-..t;his 'int}a~eourt. appea1Vvasssa:T1:i:1g ¢s1§g;1*e$~ dat-ed 15.06.2009. By the said .t;he Judge has allowed the writ petitiofi' quaishediithe impugned communication ""~daté§:i'* 12.07,1909i0~d(A:mexure~H to the writ petition]. held that the petitioner's disability is atti*LifOut:e113ie':'..--{i0 military service and he is e1:1titled to 3"""~.__V"disability: pension from the date of discharge. Further G:."C.OnseAquential relief is also granted. A

2. Heard Sri Y.I-iariprasad. Central Government Standing Counsel and perused the writ appeal papers.

3. The entire submission of the 1earned~~--coaiis~e1"

revolves around the stand taken by the the effect that the disability did" "'ooc'J'ur._':

military service. In this regard, it contended:t1iat':'the first respondent herein was enrolled on' ~28'.'G2. and after training. was i"«3'.,v_11t§i1ﬁ..eeringf Regiment on 26.0-4.1993.__ Duringhis,'sen:-ie§;..Z'._'1v;.e" had availed annual leave' i:he10.04.1995 to " the first respondent herein had 's1iifered_fheadf"injury on 25.05.1995 while he was on leave' Thereafter he had rejoined duty and in

9. °view~ of his "c.ornp1ain'tfof head ache, he had been treated referred to the medical board on

24. is contended that the appellants in fact pflaeied the first respondent in the Low Medical e._fC?_ateg'ory CEE (temporary) for six months with effect if ~«frorr1 24.11.1995 and had oniy thereafter discharged him on 24.08.1996 as he was unfit. It is therefore i contended that the medical health and the disability recorded by the Medical Board is not attributable to military service and he is not entitled to pension as sought for by the first respondent ' communication dated 12.07.19953:iri1p.ugned_iin.*the petition was justified and the learli<ie<:il.lSingl€ .vlJ'r1.,dge"

committed an error in quashi11g""the same; if

4. Having heard the learned--.Vcoun'sel, insofar as the narration of the vv-ithjregard to the enrolment of the'-first resp.ofn.den't_ iriV'mai;iitary service on 28.2. availed leave during the period'- A1oafijsss..:yj*mi~ 29.5.1995, as also the exa1nAir1atioIi"'t.h'e respondent by the Medical . if f"Boa'rd. on 22131 1. 1f9m9'5fvand the subsequent discharge on not appear to be in dispute. The question'l1o€jifever is as to whether the said discharge is account of disability suffered due to military service Uzi that aspect of the matter, the contention of the it "appellant is that the first respondent had suffered a head injury on 25.5.1995 while he was on annual leave at 5 and it is therefore asserted that the injury suffered nor aggravation of the saine is due to military service.

5. The said reason assigned by the appellant herein in their impugned communication dated 12.07.1999 was seriously disputed by respondent herein in his writ petition and fwas. V' contended that he had not his annual leave to the extentv4'to:"-disable_;hirn 99 according to him, the disabiii'ty;"iis due.to"*ethe rigorous exercise, he had undergone in the"

ofthe rival contentions, the learned single,J{idg'e.'._i1:.,'i;;ct has referred to the manner A in wk?-;ichf'the di'scha_1_jg.e was made and has also noticed that..Vp1.~.io1: itofthe discharge, he was kept in the Low ~ CEE. Reference is also made to the W_fact lthat; the first respondent was admitted to the '~:f1'«i,iiita_ry Hospital, Arnbala on 30.10.1995. Though the contention as noticed above had been raised on behalf of the appellant, the records to dispute the contention of 4;

aggravation due to rigorous exercise, had not been produced. In fact the learned Single Judge has made pointed reference to the fact that the learned _c0ii~nseVl who had represented the appellants in the ~ sought time to make further _e.f.:fort v4_'_the_ ll documents to ascertain the fa.ct respondent herein had ur1d_e::gone"' rigv0_ro1._1s'.__:'military " V exercises which aggravated hi-s---co:nditi_on..l lSubs.e:§quently the appellants herein 01.06.2009 in the writ to by the Commanding regiment, but by any document. In that documents, the learned Single Judge' h[ae.rro£ieed'"the recording in the document 'C V. *Was'" ..a.vailal5lelV at page-43 to the writ papers of the minutes in the office of the Chief Controller of Defence Accounts wherein it is noted as f'pMedi--c'a.l Board has opined that ID aggravated due to edit/IS" -{the said document is available at page 75 of the

-writ appeal papers as an attachment to AnneXure--F']. Since the relevant documents which would have al

0. assisted in clinching the issue had not been produced and since such observation of Medical Board as recorded was available on record, the learned-'B-i'r;«gIeA Judge Was of the view that the discharge" "

account of invalidation during rnilttary-*.servic_e;'tif'

7. In our view, the rnanner:.pinf_'Avvhich. the had been considered _ con'clusion,_'h.as*~ been arrived at by the learned Single cannot..be'he1d as erroneous for the reason that' vehement contention of 'the invalidation is due to by first respondent, while he wa§_¢'{1lgnnualfjlea*.re;«.r1either the same has been estab,lishedll"n.or'Villas'? been proved that the first l"resp'ond~e'ntV'l' ~_has not undergone rigorous exercises 9' very averment in this appeal would indi"e.ate.__"thvat the appellants have contended that the Vlpp.'rnepdical'V-specialist of the army hospital, Delhi on review "opined that he was found to have developed "secondary somatisation features on account of head injuiy he may have suffered during annual leave. 3:

Accordingly. the appeal being devoid of merit is dismissed.

Since the appeal itself is disrnisseqj;.:: "rh'€_' applications in M:sc.w.1634/2010 and 1635-/:i9.0vil:«Q'. * stand disposed of as unrlecessaryg Cmei Index: Y/'N

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