Karnataka High Court
Ex. Naik, M.S. Pemmaiah vs Union Of India (Uoi) And Ors. on 13 August, 1997
Equivalent citations: ILR1998KAR151
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER H.L. Dattu, J.
1. "Law is the king of kings, mightier than sword. For with its help even the weak may triumph over the strong."
(Kathopanishad) With that fond hope and faith in this institution and realising the present is darker, but it is darkness before dawn-the inevitable sunrise, petitioner, an ex-Army man, trained as a paratrooper in 17, Para Field Regiment, Artillery, thrown into silence sufferance and unherd condemnation is knowcking at the doors of this Court, because he feels that he has grievance and this Court would grant him the necessary relief.
2. Petitioner has commenced the judicial proceedings with the filing of petition dated 28.3.1994. It is his case before this court that he is eligible and entitled for payment of disability pension as provided under the Pension Rules. This claim is rejected by the opposite party on the ground that the petitioner has not been invalidated from service on account of disability which is attributable to or aggravated by Military Service. The above reasoning is reiterated by respondents even before this Court by filing their 'Uttara Paksha'.
3. On the conclusion of the trial and after careful consideration of the rival contentions urged by learned Counsels for the parties to the lis, in my opinion, petitioner is the winner and is entitled to a 'Java patra' for the following reasons.
4. Petitioner had sought and had obtained enrolement into the Regiment Artillery in the trade of 'Radio Operator' in he Indian Army. Petitioner was then selected to be trained as a 'Para trooper' and joined the 17 para Filed Regiment, Artillery, a unit of Artillery Para Troopers. In recognition of his competence and perfomance, petitioner was appointed as Lance Naik and thereafter promoted to the noncommissioned Officer's rank of Naik. As a Para troopers and Radio operator, Petitioner had taken part in the Indian Army Operations in Srilanka and Maldives Islands. Sometime in the month of June, 1990, petitioner suffered some disorientation accompanied by a total black out of his mind. Consequently, he was admitted in Military Hospital at Agra and then was transferred to the Command Military Hospital at Lucknow for Pshychiatric attention on 2.6.1990 and he was under treatment till 22.10.1990. In the interpegnum, an invalidment Medical Board was held at Military Hospital, Lucknow. The invalidment Board proceedings has been approved by Deputy Director of Medical Services at Lucknow by its letter dated 10.10.1990 for invalidment of the petitioner placing in the Medical category 'EEE', Accordingly, petitioner was discharged from service on 23.10.1990.
5. Claim for grant of disability pension was made by Officer-incharge Artillery records on the ground that the petitioenr's disability is attributable to or aggravated by Military Service. This claim was rejected by the competent authority by its order dated 7.10.1991 and the same was communicated by Officer-in-charge of Artillery records to the petitioner by its latter dated 31.10.1991. The rejection off the claim for disability pension is mainly on the ground that the petitioner's disability 'schizophrenia' was not attributable to nor aggravated by Military Service. Aggrieved by this rejection order petitioner had filed an appeal to the Ministry of Defence, Government of India vide his memorandum dated 12.3.1992. Even this appeal come to be rejected by the 1st respondent on 5th August, 1993 holding that no reasonable grounds were found in the petitioner's appeal to alter the decision rejecting the claim as already taken. It is these orders which has brought the petitioner before this Court, aggrieved by the same.
5a. Learned Counsel Col. V.K.K. Nair (Retd.) appearing for the petitioner submits that the rejection of petitioner's claim for disability pension is arbitrary, capricious, untenable and contrary to the provisions of the Pension Entitlement Rules appended to the Pension Regulations (Army) 1961 and further submits that the appellate authority without proper application of mind has mechanically rejected the appeal of the petitioner and therefore the orders are in total violation of Articles 14, 16 and 21 of the Constitution of India. In support of his contention, the Learned Counsel relies upon several decisions of various High Courts. To note a few (1) 1993 SLR 412, (2) ROSHAN LAL vs. UNION OF INDIA AND OTHERS, 1992(3) SLR 662 (3) EX-HAV/ CLK VISHWANATH vs. UNION OF INDIA AND OTHERS, 1991(5)SLR 476 (4) MANIPAL ACADEMY OF HIGHER EDUCATION vs. THE STATE OF KARNATAKA AND OTHERS, 1994(1) SLR 340 and (5) SUBASH CHANDER (EX BDR) vs. UNION OF INDIA AND OTHERS, 1996(1) SLR 82.
6. Learned Counsel Sri Papegowda, appearing for the respondent justifies the impugned orders and further submits that the claim for disability pension of the petitioner was rightly rejected by the authorities since the disability of the petitioner was neither attributable to nor aggravated by Military Service.
7. The question is whether the petitioner who was discharged from service on the ground of mental disorder is entitled to disability pension.
8. Disability pension is not a regular pension but it is a casualty award/compensation for any disability caused during the performance of duties of service. Before an award can be made for a disability claimed the same should be related to service and at least casual connection must be established between disability and Military Service, Para 423(c) of the Regulations for the Medical Services of the Armed Forces Act, Regulation 173 of the Pension Regulations and Rule 7(b) of Appendix II to Pension Regulations given an indication how to approach this problem.
9. Before I advert to data of the present case, let me just notice how the aforesaid provisions have been understood and interpreted by various Courts. The Delhi High Court in SUBHASH CHANDER vs. UNION OF INDIA AND OTHERS, 1996(1) SLR 83 was pleased to observe as follows:
"A conjoint reading of the aforesaid Regulation 173 and Rule 7(b) leave no manner of doubt that if no note of the disease was made at the time of individuals acceptance for Military Service or no note of it was made at the time of his discharge that the disease was such as could not have been detected on medical examination prior to his acceptance for service, the disease will be deemed to have arisen during service."
10. In UNION OF INDIA vs. BODAN LAL YADAV, 1994(1) SLR 390 the Punjab and Haryana High Court was pleased to observed thus:
Regulation 173 of the Pension read with paragraphs 423(c) of Regulations for the Medical Services of the Armed Forces Shows that the cause of disability which leads to the person concerned being discharged from service will be deemed to have arisen in service, if no note of it was made at the time of his entry in the armed forces or unless a note was recorded at a subsequent date that the disease in question was such as could not have been detected by Medical examination before he had joined the service."
11. This Court in the case of M.K. JOSEPH vs. UNION OF INDIA AND OTHERS, W.P.No. 9539/93 DD 19th March 1996 disposed off on 19.3.1996 was pleased to observe as follows:
"The aggregate effect of these rules is that a claimant is entitled to disability pension even if the disease be contracted prior to his acceptance into service but provided it aggravated due to stress and strain of duties; that the benefit of reasonable doubt will be extended to the claimant if and when a claim is made and that every illness that led to the claimant's discharge will be deemed to have arisen in service, if it was not noted so at the time of the individual's acceptance in service. The underlining stress in these rules is clear; that a claimant be awarded the disability pension unless it is shown, for reasons to be stated in writing, that the disability was incurred prior to the entry into service and that the defect or the disease could not have been detected by a medical examination prior to the entry into service."
12. Keeping in view observations made by the Courts which had occasion to deal with more or less similar case, let me now advert to facts of the present case. To understand and to appreciate the contention raised by learned Counsel, it will be appropriate to recapitulate briefly the facts as stated in the petition. Petitioner joined Army service in the Regiment Artillery in the trade of Radio Operator on 14.12.1981. He was then selected to be trained as 'Paratrooper' and joined the 17 Para Field Regiment Artillery, a unit of Artillery Paratroopers. After a rigorous training, he was awarded grade-11 and further upgraded to Grade I - Radio Operator. In recognition of his qualifications, competence and performance, petitioner was promoted to the non commissioner officer's rank of Naik. Petitioner remained in Medical Category "AYE" upto June 1990. While posted at Para Field Unit of Artillery some time in the month of June, 1990, petitioner suffered some disorientation accompanied by a total blank out of his mind. Petitioner was admitted to Military Hospital at Agra and then transferred to the Command Military Hospital at Lucknow for Pyshiatric attention on 2.6.1990 and he was diagnosed as a case of "SCHIZOPHERNIA". He was recommended to be invalidated out from service in Medical category 'EEE' by the Medical Board held at Military Hospital, Lucknow on 26.9.1990. The proceedings of the Board were approved by the competent authority on 10.10.1990. The petitioner was invalidated out from service on 23.10.1990 after having been found medically unfit for further Military Service. His claim for disability pension was initiated but was finally declined on the ground that the disability was not attributable to military service by C.C.D.A. (D) by its order dated 31st October, 1991. His subsequent appeal to the Ministry of Defence was also rejected on the ground that the from which petitioner suffered is constitutional and attributable to army service. Now, the question whether the petitioner who was dishcarged from service on the ground of mental disorder is entitled for disability pension? To answer this precise question, provisions which require to be noticed are para 423(c) of the Regulations of the Medical Services of Armed Forces Act, Regulations 173 of the Pensions Regulations and Rule 7(b) of Appendix II to pension regulation.
13. Relevant clause of para 423 of the Regulations reads as under :
"(c) The cause of disability or death resulting from a disease as attributable to service when it is established that the disease arose during service on the conditions and circumstances of the disease. Cases in which it is established that the service conditions did not determine or contribute to the onset of the disease but influenced the subsequent cause of the disease will be regarded as aggravated by service. A disease which 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 service in the aimed Forces. However, if medical opinion holds, for the 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."
14. Regulation 173 of pension Regulation reads as under :
"Regulation 173 : Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 percent or over."
15. It is relevant also to reproduce Rule 7(b) of Appendix II (Entitlement Rules), which reads as under :
"(a) In respect of disease, the following rules shall be observed-
(b) A disease which has led to an individual discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of 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. "
16. A conjoint reading of the provisions reproduced above show that the disease which leads to an individual's discharge is ordinarily deemed to have arisen in service, if no note of it was made at the time of the individual's acceptance for service in the Armed Forces or unless a note is recorded at a subsequent date that the disease in question was such as could not have been detected by medical examination before he had joined the service. The only exception mat can be made in a case where it is held for reasons to be stated is that the disease could not have been detected on medical examination at the time of individual's acceptance in service. When petitioner sought and obtained, enrolment into the Regiment Aritellery on 14.12.1981, petitioner was in medical category 'AYE'. He continued to be medically fit till June 1990. Admittedly petitioner suffered from 'SCHIZOPHERNIA' a type of mental illness and a form of psychosis disease and because of this disease petitioner was invalidated from service. At the time of entry into service, there was no note that the petitioner was suffering from any disability and also there is no note that is recorded by Medical Board on a subsequent date that the disease in question was such that it could not have been detected on medical examination before he had joined the service. In view of these facts, it is to be presumed that the disease that the petitioner suffered from and which has led to his discharge had arisen during his service and as such the same was attributable to Military service.
17. Since the respondents have not justified the dental of disability pension to the petitioner in the context of the provisions noticed by me earlier, I am of the view that the denial of disability pension to the petitioner is illegal and the decision arrived at by the respondents requires to be quashed.
18. For the reasons stated, Writ Petition is allowed. The impugned order dated 5th August, 1993 is quashed. Respondents are directed to give disability pension to the petitioner having regard to the extent of disability with effect from the date of discharge within two months from the date of receipt of a copy of this Court's order. Petitioner is entitled to the costs of this litigation which is quantified at Rs. 3000-payable by the respondents to the petitioner.