Punjab-Haryana High Court
Ex. Havildar Om Chand vs Union Of India on 20 February, 2001
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. The petitioner-Om Chand has filed the present writ petition under Articles 226/227 of the Constitution of India and it has been prayed by him that a writ in the nature of Certiorari be issued by quashing the orders Annexure P-4 dated 14.3.1996 and letter dated 22.7.1957 respectively. It has been further prayed by the petitioner that a writ of mandamus be issued to the respondents to grant disability pension in accordance with the rules and regulations along with interest at the rate of 18% per annum.
2. The case set up by the petitioner is that he was enrolled in the Indian Army on 8.8.1947. He was discharged from the Army on account of the medical grounds on 30.4.1957. He suffered Duodenal Ulcer disease with 40% disability and epilepsy Idiopathic disease with 20% disability. The disability pension of the petitioner was rejected by the Government of India, Ministry of Defence on 22.7.1957 and he was paid Rs. 480/- as gratuity. The petitioner made a representation and the same was rejected on 14.3.1996 on the plea that the benefit of disability pension cannot be granted to him.
3. Notice of the petition was given to the respondents. In short, the defence of the respondents is that the disease suffered by the petitioner is not attributable to the military service. Moreover, it is not proved on record that the petitioner suffered disability to the ex-tent of 20% or more as the records in this case have been destroyed.
4. I have heard Mr. Krishan Singh Dadwa!, Advocate for the petitioner and Mr. Anil Rathee, Advocate, for the respondents, and with their assistance 1 have gone through the record of the case.
5. Learned counsel for the petitioner invites my attention to Annexure P-4 and submits that upto the year 1996, the record of the Government with regard to the disability pension was in the custody of the respondents and now the respondents are making excuses that the record of disability pension suffered by the petitioner is not in its possession. Moreover, it is never stated in Annexure P-4 that since the disability pension of the petitioner was less than 20%, therefore, the petitioner was not entitled to the relief. Mr. Anil Rathee, learned counsel for the respondents submitted that, in fact, the case of the petitioner is not attributable to the military service and that it is a constitutional disease-On the contrary, it is for the petitioner to show and establish his case. Since he has not placed on record as proof to the disability of the petitioner as 20% or more. Moreover, the disease of epilepsy is not attributable to the military service nor it is aggravated. Further, it has been pleaded by the learned counsel for the respondents that if his contention prevails upon the mind of the Re-Survey Medical Board, the petitioner is entitled to disability pension only for 38 months prior to the date of the filing of the present petition.
6. I have considered the rival contentions of the learned counsel for both the parties and in my opinion, it stands established on the record that the petitioner suffered disability to the extent of 20% or more and that the disease suffered by the petitioner is attributable to the military service. Annexure P-4 was issued on 14.3.1996. In para 2 of Annexure P-4, it is written as follows:-
"Your case has been re-examined and found that as per this office record you were enrolled on 8.8.1947 and invalided out of service on 1.3.1957 having been declared medically unfit to continue in service. Your disability pension claim was also submitted to Chief CDA (P), Allahabad (UP) which was rejected by them with the reason that the disability you were suffering was neither attributable to nor aggravated by military service."
7. In this view of the matter, I hold that the petitioner must have suffered disability to the extent of 20% or more and, therefore, he is entitled to disability pension.
8. With regard to the second defence of the respondents that the disease is not attributable to the military service also stands repelled. This Court is of the opinion that these types of invariable diseases are suffered by the jawans on account of their strenuous exercise and training given to them. It has not been shown that at the time of entry of the petitioner into service, there was hardly any finding of the Re-Survey Medical Board with regard to the medical unfitness of the petitioner rather it has to be inferred that the petitioner was medically examined and was found fit in all respects.
9. With regard to the first stand of the respondents that this petition deserves to be dismissed on the ground of delay and laches and that the petitioner will be entitled to the benefit of disability pension only for 38 months prior to the date of filing of the petition. We all know that the benefit of disability pension is a recurring cause of action.
10. In this view of the matter, this writ petition is hereby allowed and directions are given to the respondents to release the benefit of disability pension to the petitioner for 38 months by assessing the disability of the petitioner at 20% or more within 3 months from the date of the receipt of the copy of this order, failing which the respondent-authorities shall be liable to pay interest at the rate of 12% per annum. The petitioner shall appear before the Re-Survey Medical Board which shall be re-constituted by the respondent-authorities within 3 months. If the disability of the petitioner is reduced to less than 20% by the Re-Survey Medical Board, of course, the petitioner shall not be given the future benefits. No order as to costs.
11. Petition allowed.