Delhi High Court
Naik Tak Chand (Ex). vs Union Of India & Others. on 5 August, 1997
ORDER
CW No.3775/96
1. The petitioner joined the Indian Army in the branch of Army Signal Corps as a permanent combatant member in the rank of Signal's Man on 29th July, 1963. He was medically examined before entering the service. He was found fit in all respects. His medical record was declared is 'AYE' by the Medical Authorities. Petitioner worked in the Army Signal Corps. While working in the said branch, he suffered paralytic attack in 1975. He was transferred to medical hospital, Delhi Cantt. Where he got cured. He accordingly resumed his duties at his parent unit i.e., 192 Signal's Regiment, Sagar (M.P.). In 1978 after a lapse of three years he had another attack of paralysis. He was treated at Military Hospital, Jabalpur but could not recover from the said disease. Petition was accordingly medically boarded out on account of low medical category which was declared by the Army Medical Board on 4th December, 1979. His disatributed was assessed at 70% by the said Medical Board for a period of two years. Petitioner applied for the disability pension but the Controller of defense Accounts (P), Allahabad rejected the same on the ground that the disability of the petitioner was not attributable to service. The rejection was communicated to the petitioner vide letter dated 23rd July, 1990. Petitioner made various representations from 1990 till 1995 but all his representations met with the same fate. Accordingly, he filed this writ petition.
2. The respondents in their counter affidavit took the plea that the petitioner having been invalided and boarded out of service by the Medical Board held on 10th September, 1979 was not entitled to disability pension. He suffered the disease "ISCHEMIC CEREBRO VASCULAR ACCIDENT" (437) and that the said disease was constitutional and attributable to service nor aggravated by the military service.
3. Admitted facts on record are that the petitioner was discharged from service after having rendered 16 years and 128 days of service. That when the petitioner was inducted into service, he was medically examined. No disease of any kind and no disability was found nor any note was entered in his service record indicating that the petitioner was suffering from any disease. Except the Medical Board which assessed his disability at 70% for two years, no other Medical Board examined the petitioner. Petitioner never suffered from any disease for 16 years. According to counsel for the petitioner, the petitioner as Signal Man had to perform hard duties. Due to stress and strain of the duties of a Signal Man he contacted this disease.
4. On the other hand, Mrs. Rekha Palli while refuting the claim of the petitioner contended that under Regulation 173 of the Pension Regulations of the Army read with Rule 7(b) of Appendix II of the Pension Regulations, petitioner is not entitled to disability pension. Every disease occurring during the course of employment cannot be attributed to service.
5. In order to appreciate the contention of counsel for the parties, reference may be made to Regulation 173 and Rule 7(b) as quoted above. These read as under:-
Regulation 173: Unless otherwise specifically provided a disability pension may be granted to an individual who is invalided from service on account of disability which is attributable to or aggravated by military service and is assessed to 20% or over.
Rule 7(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.
6. The reading of Regulation 173 and Rule 7(b) of the Pension Regulations show that discharge of an individual from service for the case of disability ordinarily will be deemed to have arisen in service if no note of disability was made at the time of his entering into service or unless medical opinion holds that disease which led to his discharge could not have been detected by the medical examination prior to his acceptance of service. As pointed out above, no note of any kind of disease was entered in the record of the petitioner at the time of his entering the military service. It is also not the case of the respondent that the Medical Board which examined the petitioner at the time of his entering into service could not have detected this disease after his medical examination. It has not been the case of the respondents that this disease could not have been detected at the time of his entering into service. On the contrary facts which have come on record show that it was after ten years of service in the Army that he had the first attack in 1975. By getting the treatment he got cured. Thereafter the second attack occurred in 1978 i.e. after a gap of almost three years. He was in Singal's Unit. It has not been the case of the respondent that in the said unit there was no or could not be any stress on the petitioner or that the job of Signal Man does not involve any stress. Therefore, it cannot be said that the petitioner suffered from this disease prior to entering into service or Medical Board could not have detected the same had he been suffering from this disease at the time of entering into the service. In almost identical case, this Court in the case of Ex. Gdr. Subash Chander Vs. Union of India, 1995(1) AD (Delhi) 1305 held that non-mentioning of the disability at the time of entering into service show that he suffered the disease while in service and same was attributable to service. In that case petitioner Subash Chander suffered from mental disorder. His claim was also rejected by the CCDA (P) Allahabad on the ground that this was not attributable to service. This Court after analysing the provisions of Regulation 173 and Rule 7(b) of the Pension Regulation and further relying on various other decision namely Union of India Vs. Bodan Lal Yadav, 199(1) SLR page 390, Ex.Hav.Sinder Pal Singh Vs. Union of India & Anr., 1991(5) SLR 459, Ex.Hav/Clk. Wishwa Nath Vs. Union of India & ors., 1991(5) SLR 476 and Roshan Lal Vs. Union of India & Ors., 1992(3) SLR 662 concluded that the mental disorder of the petitioner could not be but due to the condition of service and it was attributable to service because at the time of his entering into service no note of disability was entered in his record. It was not the case of respondent that the Medical Board could not have detected the same. The observations of A.D.Singh, J. in the case of Ex.Gdr. Subash Chander (supra) squarely apply to the facts of this case.
7. Ms. Rekha Palli contended that paralytic attack cannot be attributed to service. The disease is constitutional. It could not have aggravated by military service. Every disease occurring during service cannot be attributed to service. To support her contention, she placed reliance on the decision of the Supreme Court in the case of Union of India & Anr. Vs. Baljit Singh, . There is no quarrel with the proposition that every disease occurring during the course of service cannot be attributed to service. Nor there is any quarrel with the proposition that petitioner's case has to be governed by Regulation 173 and Rule 7(b). But I am afraid in the facts of this case Ms. Rekha Palli cannot take any support from the decision of the Supreme Court in the case of Baljit Singh (supra) Admittedly, Regulation 173 and Rule 7(b) postulates as to how the disability pension has to be computed. Supreme Court observed as under:-
"It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to a wound, injury or disease which is attributable to military service or existed before or arose during military service and has been remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension."
8. In this case the petitioner for ten years had been performing his duties as Signal Man satisfactorily without suffering from any disease. The paralysis attack occurred in 1975 for the first time when he got cured. He was again put in perform the duties as a Signal Man inspite of the fact his medical category was lowered. He had a second attack after the lapse of three years. The disease according to petitioner got aggravated while performing the duties and hence attributable to service. Because of his continuation of the same job it aggravated and completely invalided him from service. It cannot be said that the attack which he had in 1975 and the second attack which he had in 1978 were not on account of his military service or the same did not aggravate because of military service. To my mind, the petitioner's case fulfills the conditions laid down under Regulation 173 and Rule 7 of Appendix II and is fully covered by the Judgment of this Court in the case of Ex.Gdr.Subash Chander (supra).
9. For the reasons stated above, the petition succeeds and rule is made absolute. The impugned order passed by the respondents thereby rejecting the pension of the petitioner dated 23rd July, 1990 is hereby quashed. Respondents are directed to give disability pension to the pension to the petitioner having regard to the extent of disability assessed by the Medical Board i.e. 70% for a period of two years and for the remaining period he be medically re-examined and whatever assessment is made by the reconstituted medical board on that basis he be paid the disability pension for the remaining period. Respondents will have the petitioner medically reexamined within a period of one month. Thereafter the amount of disability pension admissible to the petitioner be worked out by the respondent and be paid within a period of two months. Order accordingly.
10. The petition stands disposed.