Punjab-Haryana High Court
Krishan Singh vs Union Of India & Others on 17 September, 2013
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.5424 of 2012 (O&M)
Date of decision :17.09.2013
Krishan Singh
.... Petitioner
Versus
Union of India & others
.... Respondents
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE S.P. BANGARH.
Present: Mr. Rao D.S. Nirban, Advocate for the petitioner.
Mr. Rupinder Khosla, Assistant Solicitor General,
Government of India with Ms. Kamla Malik, Advocate for
the respondents.
***
S.S. Saron, J.
The petitioner was enrolled in the Army at Recruiting Office, Delhi on 07.8.1978. He was posted in 18 Rajput and was later assigned to the Mechanized Infantry. According to the petitioner, he was medically fit at the time of joining service and was in the medical category, "AYE". He was discharged from the Indian Army on 26.8.1982 on the recommendation of the Release Medical Board in the category, "EEE" on account of "Neurosis". He was suffered the said ailment due to service in a high altitude /field area of Jammu and Kashmir. The petitioner was admitted in Military Hospital, Rajouri and thereafter, his condition being serious, he was referred to Base Hospital, Delhi Cantt. There was no improvement in his health and he was medically boarded out with 20% disability on 26.8.1982 in the Low Medical Category, "EEE". The petitioner made several representations for grant of disability pension but there was no response. The petitioner then served a Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -2- legal notice through registered cover on 8.8.2005. The Major, Senior Record Officer for OIC Records sent a reply dated 27.9.2005 (Annexure P-1). It was submitted that claim of the petitioner for grant of disability pension was forwarded to PCDA (P) Allahabad vide letter dated 24.9.1982. The claim was rejected by PCDA (P) Allahabad vide letter dated 4.12.1982, which was communicated to the petitioner vide letter dated 28.12.1982. It was intimated that the petitioner had an option to file an appeal if he was dissatisfied with the order within six months i.e. by 4.12.1982. An appeal dated 22.6.2005 against rejection of disability pension was filed by the petitioner which was received on 25.7.2005. The same was forwarded to AG/PS 4 (d), Sena Bhawan, New Delhi vide letter dated 14.9.2005 along with documents. The petitioner was informed that the appeal was under consideration and he would be informed on receipt of directions from the authorities. Keeping in view the legal notice that was received, the Army Headquarters was requested to approach AGPS4 (d) for early finalization of the first appeal dated 22.6.2005. Thereafter, the Addition Director General Personnel Services, Adjutant General's Branch informed the petitioner regarding rejection of his appeal for claiming of disability pension. It was informed that the Committee had found that the Release Medical Board had appropriately held his invaliding disability 'Neurosis' as neither attributable to nor aggravated by military service. Therefore, he was not entitled to disability pension as per Regulation 173 of Pension Regulations for the Army Part-I, 1961 ('Regulations' - for short). Accordingly, the Appellate Committee on First Appeal (ACFA) had not accepted his appeal. In case the petitioner was dissatisfied with the decision of the Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -3- Committee, he was informed that he may prefer a second appeal to the Defence Minister's Appellate Committee on Pension through his Record Office within six months from the date of issue of the letter. He may also approach Kendriya Sanik Board, Ministry of Defence R.K. Puram, New Delhi for financial assistance, if admissible under the Rules, out of Raksha Mantri Discriminatory (sic.- Discretionary) fund. The petitioner, however, filed a civil suit in the Court of Civil Judge Narnaul on 12.11.2005 for grant of disability pension from the date of his discharge from the army. During proceedings in the suit, the defence of the respondents was struck off on 2.6.2006 for not filing written statement despite availing many opportunities. The civil suit pending in the Court of Civil Judge, Narnaul was transferred to the Armed Forces Tribunal, Chandigarh Bench at Chandimandir ("Tribunal" - for short). It was assigned Transfer Application No.527 of 2010. The learned Tribunal vide impugned order dated 26.5.2011 (Annexure P4) dismissed the transfer application of the petitioner. It was held that it could not be said that in the background of family circumstances of the petitioner, soon after his enrolment, he suffered from disability. The Medical Board was not in any error in finding it to be unconnected with service and a constitutional disease. If for weak constitution, the petitioner suffers ailment on account of family disturbance, it cannot be said to be attributable to or aggravated by military service. Thereafter, the petitioner filed a review application No.66 of 2011 (Annexure P-5). It was stated in the review petition that the facts/family history as recorded were not correct and he had not made any statement earlier that he was having domestic problems and feeling frustrations. It was also contended that since defence Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -4- of the defendants had been struck off, the facts pleaded by him were required to be taken as correct. Therefore, the order dated 26.5.2011 (Annexure P-4) was required to be reviewed. The learned Tribunal, however, found no merit in the review application (Annexure P-1) and dismissed the same vide order dated 14.10.2011 (Annexure P-6). The petitioner aggrieved against order dated 26.5.2011 (Annexure P-4) and 14.10.2011 (Annexure P-6) passed by the learned Tribunal has filed the present petition under Articles 226/227 of the Constitution of India seeking quashing of the said orders and for granting him disability pension from the date of his discharge i.e. 27.8.1982 along with interest @ 18% per annum.
Reply on behalf of the respondents has been filed. Objections were raised as to jurisdiction of this Court to entertain the petition. Besides, on merits it is stated that the petitioner deserted service with effect from 2.3.1980 to 8.5.1980 and after rejoining on 31.7.1980 he was awarded 28 days rigorous imprisonment in military custody. He was transferred to the Mechanized Infantry Regiment (13 Mechanized Infantry) on 1.11.1981. At the time of enrolment he was examined by the Recruiting Medical Officer as per AFMSF-2A (Primary Medical Examination Report) and he was found fit by Recruiting Medical Officer on 7.8.1978 (Annexure R-1) with medical category 'AYE'. While serving in 13 Mechanized Infantry, the petitioner was admitted in Military Hospital Rajouri for disease, "Neurosis". He was transferred to Base Hospital, Delhi Cantt. He was boarded out on 26.8.1982 with 20% disability in low medical category 'EEE'. The Medical Board assessed the disability of the petitioner as Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -5- neither attributable to nor aggravated by military service. The claim of the petitioner was rejected by the PCDA (P) Allahabad (Pensioning Sanctioning Authority) vide letter dated 24.9.1982 which was communicated to the petitioner with an advice to submit an appeal against rejection of disability pension claim, if not satisfied with decision of PCDA (P) Allahabad within six months, but no appeal was received from the petitioner till 24.7.2005 which was, however, received on 25.7.2005 and was forwarded to AGPS4
(d), IHQ of MOD (Army) New Delhi for their decision. The receipt of legal notice dated 8.8.2005 from the petitioner through his counsel is admitted. The legal notice and appeal was submitted to IHQ of MOD (Army) New Delhi vide letter dated 27.9.2005 for examination. The first appeal against rejection of disability pension was declined by IHQ of MOD (Army) AG/PS-4 (Imp-II) First Appellate Committee with the reasoning that disability 'Neurosis' was neither attributable to nor aggravated by military service. Therefore, the petitioner was not entitled to disability pension as per Regulation 173 of the Regulations. The petitioner being dissatisfied with the decision of the First Appellate Authority filed a civil suit at Narnaul for grant of disability pension from the date of discharge which was transferred to the learned Tribunal. The latter has dismissed the transfer application of the petitioner vide order dated 26.5.2011 (Annexure P4) which it is stated is based on sound reasoning and the writ petition is liable to be dismissed.
Learned counsel for the petitioner has contended that the decision making process adopted by the respondents-authorities is not in consonance with law and the petitioner being fully fit at the time of his recruitment to the Army and he having suffered Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -6- 'Neurosis' because of serving in the high altitude area, he was entitled for disability pension. It is submitted that the orders of the authorities and of the learned Tribunal be set aside and quashed and the petitioner be given his due disability pension.
In response, learned Assistant Solicitor General for Union of India has submitted that the case of the petitioner is not made out and he had barely rendered few years of service. Besides, he was a deserter from the Army and therefore, there is no equity in his favour. It is also submitted that disability suffered by the petitioner is not attributable to or aggravated by his army service and the experts even did not find it to be so. Therefore, claim for disability pension has rightly been declined and the petitioner is not entitled for any benefit.
We have given our thoughtful consideration to the matter and with the assistances of the learned counsel gone through the records. As already noticed, the petitioner was enrolled in Army at Recruiting Office, Delhi on 7.8.1978. He was posted to 18 Rajput Regiment. At the time of enrolment he was examined by the Recruiting Medical Officer as per AFMSF-2A (Primary Medical Examination Report - PMER) by the Recruiting Medical Officer on 7.8.1978 with medical category 'AYE' (Annexure R-1). A perusal of the report with respect to mental capacity to which the present petition relates shows as follows:-
"25. Mental capacity and emotion stability
(a) Speech: Normal
(b) Evidence suggesting:
(i) Mental backwardness
(ii) Emotional instability NIL"
Amit Khanchi
2014.02.28 15:30
I attest to the accuracy and
integrity of this document
High Court,Chandigarh
CWP No.5424 of 2012 (O&M) -7-
It is while the petitioner was serving with the 13 Mechanized Infantry that he was admitted in Military Hospital, Rajouri for the disease; 'Neurosis'. He was transferred to Base Hospital, Delhi Cantt. He was medically boarded out with 20% disability on 26.8.1982 in the Low Medical Category, "EEE" for his disease 'Neurosis'. The medical history and AFMSF-16 dated 27.7.1982 sanctioned on 9.6.1982 (Annexure R-2) is placed on record. Part-III of the opinion of the medical board which is a Photostat copy of the original record was perused by this Court during the course of hearing on 6.8.2013. It was observed that the opinion of the medical board may be containing certain erasures.
Learned counsel appearing for the respondents prayed for time to produce the original Medical Board opinion, copy of which had been attached with the written statement. The original records have been produced in Court and we have perused the same. However, though there appears to be certain over-writing over the word 'yes', over the word 'No' and also there is difference of space in the original as produced and in the photocopy as placed on record between the words 'Neurosis' and '(300)'. Besides, in respect of column 'd' which is to the effect; "in the case of a disability under C, the board should state what exactly in their opinion is the cause thereof". In the Photostat copy placed on record of the Court it is mentioned 'constitutional disease unconnected with service'. However, in the original that has been produced the word 'service' is written once whereas in the photocopy it is written twice. The column against which there appears to be over-writing is regarding the column in respect of the disability (for which) (sic.) the Medical Amit Khanchi 2014.02.28 15:30 Board on the evidence before it would express its views as to I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -8- whether:- (i) it is attributable to service during or under field service condition; or (ii) it has been aggravated thereby and remains so; or (iii) it is not connected with service. The board should state fully the reasons in regard to each disability on which its opinion is based.
Disability A B C
NEUROSIS (300) No No Yes
In respect of the above against column 'A' and 'B' it appears that the words 'Yes' has been changed to 'No' but no definite opinion can be given in this regard. However, in the Photostat copy that was produced there was space between the words 'Neurosis' and '(300)' which is definitely not there in the original that has been produced.
Be that as it may, since no definite opinion can be given. We leave it as it is. During the course of hearing, the learned Assistant Solicitor General for Union of India laid considerable emphasis relating to summary of the case which is as follows:-
" Summary of the case Disability : Neurosis (300) Complaints: (1) Disturbance of from sleep. 1½ months (2) No interest in i.e. from my job. Feb 82 (3) Palpitation History of illness:-
Individual states that from Feb 82 his sleep became disturbed gradually. He lost all interest in all activities and used to feel palpitation at times. Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -9- No organic cause was found. Enquiry had revealed his having domestic problems and feeling of frustrations.
Past History; He had similar problem in 1981 for which had taken treatment from civil while on leave and had responded.
Social History; Father died in April 80. Mother is blind and sick. Brother - Nil, Sister- One, No history of Psychiatric, Illness in family. Education-
Matric Standard. Service 3½ years. Married,
Denies of taking alcoholic drinks of smoking. His
AFMSF-10 reports shows that he remains worried and lost in thought.
OE; Thin build of average nutrition. PTR -
Normal. No tremors in extended fingers. No
enlarged thyroid gland. Pulse-82/M regular, BP-
120/70 mm of Hg.
Systemic Exam - NAD Mentally - Co operative,
talks slowly and relevantly. He is mildly depressed and remains preoccupied. Orientation, Attention and judgment is poor, insight is present. Investigation : Hb-15.5 gms, Urine- NAD TLC/DLC within normal limits.
Treatment ; Psychotherapy, psychotropic
drugs.
Progress ; Patient looks confidence in self and remains preoccupied.
Opinion of Lt. Col. V.K. Pande Classified Specialist Amit Khanchi 2014.02.28 15:30 (Psychiatry) on 30/6/82 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -10- Opinion ; This is a case of neurosis in a soldier having only three and a half years of service. He was admitted for disturbance of sleep and loss of interest in all activities of one and a half months duration. Clinical Examination had shown features of depression, feeling of frustration and guilt feelings.
He has been treated for a long time and still
has loss of confidence in self and remains
preoccupied.
He is considered unfit for further
service and he is recommended medical category EEE OR Neurosis.
Sd/- xxxxxxx (V.K. PANDE) LT. COL OPINION OF LT. COL. YASPAL CLASSIFIED SPECIALIST (MEDICINE & NEPHOLOGY) ON 05/07/82 Medically no obvious cause for the Psychiatric disability.
Sd/- xxxxxxx (YASPAL) LT. COL AMC Classified Specialist (Medicine & Nephrology) In view of above the OR is to be brought before a medical board.
(VK PANDE) LT COL AMC Army Hospital Delhi Cantt-10 Amit Khanchi 2014.02.28 15:30 Dated 26 July 1982"I attest to the accuracy and
integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -11-
It is primarily from the above that the learned Tribunal in its impugned order dated 26.5.2011 (Annexure P4) came to the conclusion that a look at Ex.P-14 that is the proceedings of Invaliding Medical Board showed that the Medical Board had opined the disease to be constitutional and unconnected with service. A reference was made to the specialist's opinion which it was observed contained the history of illness and includes the statement made by the petitioner. The same in fact is what has been reproduced above and it was observed that the history given out is that from February 1982, the petitioner had disturbed sleep gradually and he lost all interest in all activities and used to feel palpitation at time. However, no organic cause was found. The inquiry revealed that he had domestic problems and felt frustration. In the sequence, it was noticed by the Tribunal that he had similar problem in 1981 for which he had taken treatment from civil, while on leave and responded. In this very sequence, it was further noticed that the petitioner's father died in April 1980 and his mother was blind and sick. The Form AFMSF-10 reports that he remained worried and lost in thought. His medical examination revealed no abnormality. Therefore, in the view of the learned Tribunal it was observed that it cannot be said in the background of family circumstances that soon after his enrolment, he suffered from disability or that the Medical Board was in error in finding it to be unconnected with service and a constitutional disease. Besides, if for weak constitution, the petitioner suffered ailment on account of family disturbances, it could not be said to be attributable to or aggravated by military service.
Amit Khanchi2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -12-
The petitioner aggrieved against the order filed review application No.66 of 2011 (Annexure P-5) for review of the order dated 26.5.2011 (Annexure P-4) of the learned Tribunal. It was submitted that when the case was argued the facts mentioned in the medical history sheet were controverted by the counsel for the review applicant but these documents and true facts were not in the knowledge/possession of the counsel. When the order was conveyed to the petitioner he immediately contacted his counsel and apprised him of the true facts with documentary proof. It was submitted that the petitioner was hale and hearty at the time of joining the Army. He was posted in Jammu and Kashmir at Shera Bichu Post near Mahendra Post near the J&K Border, which was at a distance of about 300 k.ms. from Jammu City. He became a victim of the disease while he was posted in Jammu and Kashmir. The facts mentioned in the history sheet were totally wrong and beyond facts because the petitioner did not make any statement before the medical authority that he had a history of illness in the family. It is submitted that in the medical history it is mentioned that father of the petitioner died in April 1980 and his mother is blind and sick. However, the fact was that the father of the petitioner died in June 1963 itself and his mother was not blind upto the time of her death. There were no domestic problems of the petitioner. The statement of the petitioner mentioned in the medical history was totally wrong and the petitioner did not make such a statement. It was further stated that the learned Tribunal had dismissed the suit of the petitioner on the facts as mentioned in the medical history sheet whereas the factual position was as had been narrated by him in the review application. It was further submitted that there was Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -13- case law in support of the case of the petitioner wherein 'Neurosis' has been held to be attributable to military service. Besides, the defence of the respondents was struck off due to non-filing of reply in the civil suit. Therefore, the plea of the petitioner was not rebutted, whereas this fact had been lost sight of while deciding the case. The death certificate and affidavits of respectable of the village established that father of the petitioner died way back in 1963 and his mother was hale and hearty and was not blind or sick. There was no history of illness in the family as mentioned in the impugned order. The learned Tribunal vide order dated 14.10.2011 (Annexure P-6) dismissed the review application. It was noticed that the petitioner had produced a certificate of Registrar of Births and Deaths and also affidavits of two persons. Besides, he contended that since the defence of the defendants had been struck off, the facts pleaded by him were required to be taken as correct. Therefore, the order passed by the Tribunal on 26.5.2011 (Annexure P-4) was liable to be reviewed. The Tribunal, however, held that the contention of the petitioner was unacceptable for the simple reason that after defence of the defendant had been struck off vide order dated 2.6.2006, the case was fixed on 2.9.2006 on which date no evidence was led by the plaintiff. Then plaintiff examined himself on 10.5.2007 and the case was adjourned to 29.8.2007. On the latter date, one witness namely Havildar G.S. Mokshi was examined and the evidence was closed. He had produced the medical record of the plaintiff, the attested copy of which was Ex.P-15. Opinion of the Medical Board and other documents being Exs.P-16, P-17 and P-18 were placed on record. He was cross-examined by the counsel for the defendants. In the Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -14- first place, the documents relied upon in the order dated 26.5.2011 (Annexure P-4) were the documents produced by the plaintiff through PW-2. Therefore, the plaintiff had made no attempt from 29.8.2007 till filing of the review petition to contradict or assail the correctness of the documents. The matter was decided on the basis of material produced by the plaintiff himself and not on the basis of stand taken by the defendant. Simply because after the decision of the case, the plaintiff was able to either dig out some stories or invent some new factual stories, it was observed, could hardly furnish any ground to file review petition, more particularly on the face of the above sequence of the case of the events and things. The review petition was accordingly dismissed.
The primary reason taken by the Tribunal for declining the disability pension to the petitioner is his medical history that was produced on record which has been reproduced above. The said history mentions that the petitioner had similar problem in 1981 for which he had taken treatment from civil while on leave and he had responded. In case the petitioner had similar problem in 1981 it was evidently after he was enrolled in the Army on 7.8.1978. Besides, in the column of social history it is mentioned that father died in April 1980 and mother is blind and sick. However, it is also mentioned that there is no history of psychiatric illness in the family. Moreover, at the time of entering the service it was specifically noticed and recorded in column No.25 that there was no evidence suggesting mental backwardness or emotional instability. Therefore, merely because the father had died in April 1980 and mother is blind and sick even if it is to be taken correct as it is, would not mean that the disability of 'Neurosis' is not Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -15- attributed to or aggravated by military service specially when it is not denied by the respondents that the appellant had served in high altitude area of Jammu and Kashmir at Shera Bichu Post near Mahendra Post near J&K Border about 300 from Jammu city. The said facts regarding medical history were not even adverted to in the opinion of the Medical Board wherein it has been opined in case disability is under category 'C' i.e. it is not connected with service the Board should state what exactly in their opinion is the cause thereof and it is mentioned as 'constitution disease' unconnected with service.
In a recent decision the Hon'ble Supreme Court in Dharamvir Singh v. Union of India (Civil Appeal No.4949 of 2013 decided on 2.7.2013) considered in detail the position regarding entitlement of disability pension and whether a member of the Armed Forces can be presumed to have been in sound physical and mental condition upon entering service in absence of disability or disease noted or recorded at the time of entrance; besides, whether the appellant in the said case was entitled for disability pension. After examination of the rules applicable, it was concluded that in the absence of any evidence to show that the appellant in the said case was suffering from "generalized seizure (epilepsy)" at the time of acceptance of his service, it is to be presumed that he was in sound physical and mental condition at the time of entering the service and deterioration in his health had taken place due to service. Besides, the presumption would be that the disability of the appellant bore a casual connection with the service conditions. In para 28 of the judgment it was concluded as under:-
Amit Khanchi2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -16-
"28. A conjoint reading of various provisions, reproduced above, makes it clear that:
(i) Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).
(ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service [Rule 5 read with Rule 14(b)].
(iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally (Rule 9).
(iv) If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service Amit Khanchi determined or contributed to the onset of the 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -17- disease and that the conditions were due to the circumstances of duty in military service [Rule 14(c)].
(v) If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service [Rule 14(b)].
(vi) If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons [Rule 14(b)]; and
(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 --
"Entitlement: General Principles", including Paras 7, 8 and 9 as referred to above."
Accordingly, both the questions as had been formulated were answered in the affirmative in favour of the appellant therein and against the respondents. It was, therefore, held that a member of the Armed Forces is presumed to be in sound physical and mental condition upon entering service if there is no note or entry to the contrary in his records and in the event he is subsequently discharged from service on medical grounds, the onus of proof that deterioration in his health was not due to service Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -18- conditions lies on the employer and in case of reasonable doubt, the benefit thereof must go to the employee.
In the present case, there is as already noticed no material to show that the petitioner was suffering from any kind of disability when he entered service. Rather, the report with respect to the mental capacity and emotions stability, it was observed that the speech was normal and there was no evidence suggesting mental backwardness and emotional instability. Therefore, applying the rule in Dharamvir Singh's case (Supra) it is to be presumed that the petitioner was in sound physical and mental condition upon entering service and in the event of his being subsequently discharged from service on medical grounds any deterioration in his health is to be presumed due to service. The onus of proof is not on the petitioner but the onus of proof that the condition for non- entitlement is with the employer. Besides, the petitioner has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefits more liberally. In Dharamvir Singh's case (Supra) that disease was of "generalized seizure (epilepsy)". In the present case the invalidation from entering service is on account of 'Neurosis,' which is also a mental ailment.
In Kushal Singh (Ex. Constable) v. Union of India 2000 (7) SLR 736 (P&H) this Court considered the question of entitlement for disability pension where the petitioner therein had been invalidated out of service on account of 'Schizophrenia' which he had developed during service. The disability pension was denied to him. It was held that there was nothing on record to show that the petitioner was suffering from this disease at the time of joining service of the Central Reserved Police Force in February 1992. Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -19- Therefore, a reasonable inference could be drawn that the disease which he suffered was attributable to his service and was not congenial or constitutional one. The petitioner therein was held entitled to disability pension. In Kanta Devi v. Union of India and Others, 1999 (1) SLR 668 (P&H), the petitioner's husband was enrolled as a Sepoy in the Army on 20.6.1973. He was found physically and mentally fit at the time of joining service. He obtained the degree in law during service in the Army and also cleared his map reading course. His service record was good. He was discharged from the Army on 7.2.1989 on medical ground that he developed a disease known as "Non-Organic Psychosis". The disability pension he sought was declined on the ground that his disease was not attributed to Military service. He died on 2.3.1991. His wife (petitioner) pursued the case but remained unsuccessful. It was held that there was no history sheet to prove that he was suffering from mental illness earlier. Therefore, it could not be said that he was suffering from mental illness at the time of joining the service or that it was a constitutional disease and not attributable to Military service. It was held that his frustration might be due to strict disciplinary service and afflicted him with mental disease. The wife of the deceased husband was held entitled to her husband's disability pension from the date it became due. In Sepoy Hoshiar Singh (Ex.) v. Union of India and Others, 1997 (1) SLR 169 (P&H) the petitioner therein was suffering of 'Neurosis' and epilepsy when he was invalidated out of service. There was no medical evidence that he was suffering from such a disease at the time of entering into service or that it could not have been detected on medical examination. It was held that according to the provisions Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -20- of Regulation 173 read with the Appendix of the Pension Regulation 1961 it has to be assumed that the disease was attributable to the Army service. The action of the respondents in rejecting the claim of the petitioner therein for grant of disability pension it was held could not be sustained and the respondents were directed to release the disability pension in accordance with rules. In Ex. Sep Kaur Singh. V. Union of India and Others, 2002 (2) SLR 136 (P&H) the claim for disability pension was denied to the petitioner in the said case on the ground that the disease "Anxiety Neurosis"
from which he was suffering was neither attributed to nor aggravated by military service. Case of the petitioner that he suffered disability "Anxiety Neurosis" was during the course of his employment with the respondents which is attributable to military service. The disability suffered by the petitioner in the said case did not exist before entering into service. It was on account of environmental stress during the course of his employment. It was held that the petitioner was entitled to the benefit of disability pension. In Ex-Sepoy Satminder Singh v. Union of India through the Secretary and Others, 2001 (2) SLR 345 (P&H) the petitioner was invalidated out of service on medical grounds. The petitioner therein was suffering from Neurosis. His claim for disability pension was declined. This Court held that the petitioner was found fully fit while joining the Army and the disease of Neurosis suffered by the Jawan was due to arduous type of duties performed by him. He was held entitled to disability pension. In Gurmukh Singh v. Union of India and Others, 1999 (2) SLR 676 (P&H) the petitioner therein was invalidated out of service on the opinion of Released Medical Board and his disability was Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -21- assessed at 30%. His claim for disability pension was declined by the CCDA (P) Allahabad on the ground that the disease was not attributable to military service and his disability was found to be less than 20%. The petitioner was in the said case was suffering from Neurosis. Reliance was placed on the case of Gurmukh Singh v. Union of India and Others (CWP No. 6789 of 1998, decided on 20.4.1999), which also pertained to the disease of Neurosis. In the said case a reference was made to Black's Medical Dictionary 36th Edition and it was observed that Psychoneurosis has been defined as a general term applied to various disorder sof the nervous system and this term has further been elaborated in the definition of Neurosis given in the dictionary. Therefore, it was evident that the Neurosis is a species of Psychoneurosis. In this view of the matter, the argument of the respondents that Neurosis being a constitutional disorder could not be attributed to military service or aggravated thereby was to no avail. In view of the fact that there was some dispute with regard to the extent of the disability of the petitioner in the said case. A direction was issued that the petitioner therein would be examined by a competent Medical Board and if it was found that his disability was 20% or more, he would be entitled to disability pension from the date of his fresh medical examination.
A perusal of the above case law evidently shows that in various cases in which the Army service personnel was suffering from mental ailment and more particularly the disease of 'Neurosis' from which the petitioner in the present case has also been found to be suffering from were held to be entitled for disability pension. The recent judgment of the Hon'ble Supreme Court in Dharamvir Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -22- Singh's case (Supra) has settled the issue and the matter is no longer res integra and in the absence of disability or disease which is not noticed or recorded at the time of enrollment in the service of the Armed Forces it is to be presumed that the serviceman was of sound physical and mental condition at the time of entry into service. In case he is subsequently discharged from service on medical grounds the onus of proof that deterioration in his health was not due to service conditions lies on the employer and in case of reasonable doubt, the benefit thereof is to go to the employee. Therefore, there is no reason as to why the petitioner in the present case should not be held entitled to the benefit of disability pension.
The contention of the learned Assistant Solicitor General that the petitioner had deserted the Army and was a deserter, it may be noticed is not the ground for denying the benefit of disability pension. Besides, no material has been placed on record to show that on account of the fact that the petitioner had deserted the Army, he was disentitled for disability pension. It has only been pleaded that the petitioner deserted service from 2.3.1980 to
8.5.1980 and after rejoining on 31.7.1980 he was awarded 28 days' rigorous imprisonment in military custody. The petitioner having suffered the punishment for his act of misdemeanour, it cannot now be said that he is disentitled for disability pension. No reference to any provision of law or the rules and regulations have been made that on account of the rigorous imprisonment suffered by the petitioner for 28 days in military custody, he is not entitled for disability pension. Therefore, the said contention on behalf of the respondents is devoid of any merit and unsustainable. As regards jurisdiction of this Court to entertain petitions against the orders of Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -23- the learned Tribunal, it may be noticed that this aspect has been considered by a Division Bench of this Court in 15165 Flight Lieutenant Onkar Singh Bawa v. Union of India (2013-1) PLR 830 wherein it was observed as follows:-
"We are conscious of the fact that the statutory appeal against such an order is provided under Section 30 of the Armed Forces Tribunal Act, 2007 (for short 'the Act'), however, having regard to the Constitution Bench judgment of the Supreme Court in the case of "L. Chandra Kumar etc. v. The Union of India and others" AIR 1997 SC 1125 and also that of Delhi High Court in CWP No. 13360 of 2009 titled as "Colonel A.D. Nargolkar v. Union of India and Others" decided on 26.4.2011, following the aforesaid judgments in the context of this very act, we are deciding this petition on merits."
In view of the above, the question that this court has no jurisdiction to entertain and decide the petition is of no consequence.
It may, however, be noticed that the petitioner was discharged from the Army on the recommendation of the Release Medical Board on 26.8.1982 on account of Neurosis disease which he suffered. However, he filed the civil suit claiming disability pension from the date of his discharge in the Court of Civil Judge, Narnaul on 12.11.2005. Therefore, there being considerable delay in approaching the Court it would be just and expedient in the facts and circumstances of the case to limit his claim for disability Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh CWP No.5424 of 2012 (O&M) -24- pension to a period of three years preceding the date of the institution of the suit.
Accordingly, the writ petition is allowed, the impugned order dated 26.5.2011 (Annexure P4) and 14.10.2011 (Annexure P6) passed by the learned Tribunal are set aside and quashed and a direction is issued to the respondent to grant disability pension to the petitioner from three years preceding to the institution of the civil suit that was filed on 12.11.2005 and continue to pay the same in accordance with the Pension Regulations for the Army Part-I, 1961.
(S.S. SARON) JUDGE (S.P. BANGARH) JUDGE 17.09.2013 amit Amit Khanchi 2014.02.28 15:30 I attest to the accuracy and integrity of this document High Court,Chandigarh