Punjab-Haryana High Court
Ex-Nk Budh Ram vs Union Of India And Others on 14 December, 2000
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Ex-Nk Budh Ram through this writ petition under Articles 226/227 of the Constitution of India has made a prayer for the issuance of a writ of certiorari or any other suitable writ, order or direction seeking quashment of orders Annexure P1 dated 17.2.1987 and Annexure P6 dated 8.1.2000 vide which his case for disability pension has been rejected by the respondents.
2. The case set up by the petitioner is that he was born on 12.2.1941 and was enrolled in the Army after having found medically fit in all respect on 12.2.1963. He was discharged from the Army in medical category 'A' and fit in all respects in the year 1968 and was not granted any type of pension for the service in Army from 12.2.1963 to 10.3.1968. He was re-enrolled in the Defence Security Corps at Ludhiana which is also a part of Army and was found medically fit in all respects at that time. He was operated upon for Cataract in the right eye in the year 1980 and was downgraded to the lower medical category temporary. The eye sight of the petitioner was, however, affected due to the operation for cataract. In the year 1982 he was placed in the lower medical category 'C' (Permanent). The left eye of the petitioner was affected due to aggravation of the disease and the same was also operated upon for Cataract in Military Hospital, Calcutta in 1983. He was invalidated by the Medical Board which held its meeting at Jalandhar and the petitioner was not granted extension of service in the year 1985. He was ultimately discharged from the service in lower medical category 'C'(P) with 30% disability. He was about 45 years of age at the time of discharge on 31.10.1985. The service element of the petitioner was released by the CCDA(P) w.e.f. 1.11.1985 but his claim for disability pension was rejected on 29.1.1987. He filed representation to the respondents on 6.6.1996, however, no action was taken. He also served a notice even in the year 1999, but to no effect. Hence the present writ petition.
3. The notice of the writ petition was given to the respondents, who filed the reply and denied the allegations. According to the respondents, the petitioner is not entitled to the benefit of disability pension as he was discharged from the Army on completion of service. It was also the stand of the respondents that the disease suffered by the petitioner is not attributable to the Army service.
4. I have heard Mr. B.S. Sehgal, Advocate forme petitioner, Mr. Kamal Sehgal, Advocate for the respondents and with their assistance have gone through the records of this case.
5. The principal point for determination in this case is whether the disease suffered by the petitioner is attributable to the Army service or the disease has been aggravated during the Army service or not. The learned counsel for the petitioner invites my attention to annexure P1, the letter dated 17.2.1987 issued by the respondent-authorities, and in para No. 1 of the same it has been stated as follows :
"Your disability pension claim has been rejected by the CDA(P), Allahabad under his letter No. G3/86/9942/VII-A dated 29th January, 1987 as your disability is niether attributable to nor aggravated by military service. Therefore, you are not entitled to get disability pension."
6. Thus the reading of above para would show that it was never stand of the respondents that the petitioner has been boarded out from the service or has been dis-
charged on completion of his tenure. Rather the stand of the respondents is that the disability is not attributable to the Army Service.
7. Now the point for determination is whether the disease suferred by the petitioner can be said to be attributable to the Army Service or not. We all know that when a person joins the Army, he is subjected to rigorous medical tests with regard to all the human body. He is examined and probed thoroughly and eye sight of the person is bound to be examined. Initially the petitioner was placed in category 'A'. Meaning thereby he was fully fit at that time. In these circumstances, a presumption and assumption has to be drawn in favour of the petitioner that the disease was suffered by him white he was serving the Army and support in this regard can be drawn from Ex-Sep. Surjit Singh v. Union of India and others, 1996(2) RSJ, where in para Nos. 8 and 9 the Hon'ble Lordship was pleased to hold that "whenever a person is discharged from Army on account of reasons of health and physical disability, it has to be assumed that the service conditions have contributed to his physical condition. Unless this presumption is rebutted by proper medical evidence, the individual is entitled to the grant of disability pension." The learned counsel for the respondents, however, places reliance upon Union of India v. Baljit Singh, 1997(1) S.L.R. 98 : 1997(1) SCT 386 (SC), a judglnent of the Hon'ble Supreme Court and submits that it is for the petitioner to make out a case that his liability is attributable to the Army Service and if that case is not made out, the respondents are not entitled to release disability pension or the benefit of service element. The judgment of the Hon'ble Supreme Court been considered by me and it can be safely distinguished. This judgment says that initial onus is upon the petitioner who knocks the door of Court in order to claim disability pension. The initial onus has been successfully discharged, moment the petitioner alleges and it is not confronted by the respondents that he was fully fit at the time of his entry into the service. In these circumstances, it is for the respondents to show by cogent, reliable and satisfactory evidence that the disease sufer-red by the petitioner was not attributed while he was serving the Army. The learned counsel for the respondents has not been able to show to me from any record that at the time of initial entry the petitioner was suffering from the present disease. Moreover, we all know that Jawans in our country perform arduous duties and there are certain weapons which throw lot of artificial light. These types of disease (Cataract) can be easily suffered by the Jawans while serving in arduous conditions.
8. The Seamed counsel for the petitioner further invites my attention to Virender Kumar v. Union of India and others, 1992(2) SCT 310 : 1992(2) SLR 512 (P&H) in which a Navy Jawan was operated upon for complicated cataract and it was held that the disease of cataract is attributable to the Navy service. Yet my attention has also been invited to the judgment Mohan Lal v. Union of India and others, 1995(4) SCT 754; 1995(5) SLR 183 (P&H) (DB) in which point involved was whether the disease of cataract is attributable to Army Service or not and the answer was in affirmative by the Hon'ble Division Bench of this Court.
In this view of the matter, I hold that the petitioner is entitled to the benefit of disability element only for a period of 38 months prior to the date of institution of the present writ petition. Consequently, this writ petition is partly allowed and directions are give to the respondent-authorities to release the benefit of disability element to the petitioner for 38 months prior to the date of institution of the writ petition and for subsequent period of filing of the writ petition within three months from the receipt of the copy of this order, failing which the respondent-authorities shall pay interest @ 12% per annum. The petitioner shall appear before Re-survey Medical Board as and when called upon by the respondent-authorities. There shall be no order as to costs.
9. Petition partly allowed.