RSA No.4896 of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
RSA No.4896 of 2002 (O&M)
Date of Decision: 14.10.2009
Union of India and others .....Appellants
Vs.
Chattar Singh ....Respondent
....
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
****
Present : Ms. Geeta Singhwal, Advocate for the appellants.
Mr. Bhim Sen Sehgal,Advocate for the respondent.
….
RAJIVE BHALLA, J (Oral)
CM No.10602-C of 2009
Prayer in this application, filed by the respondent, is to decide
the appeal in terms of a judgement in LPA No.174 of 2008 Bakshish Singh
Vs. Union of India and others, decided on 3.7.2009.
Counsel for the appellants states that she has no objection, if
the appeal is taken up for hearing.
The application is allowed and the appeal is taken up for
hearing.
RSA No.4896 of 2002
The Union of India challenges the judgement and decree dated
8.8.2002, passed by the Additional District Judge, Gurdaspur, accepting the
RSA No.4896 of 2002 2
appeal filed by the respondent, setting aside the judgement and decree
passed by the Civil Judge (Junior Division), Gurdaspur and as a
consequence, decreeing the suit filed by the respondent.
The plaintiff-respondent filed a suit for declaration that he is
entitled to disability pension from the date of his discharge from military
service i.e. 22.10.1966. In response, the Union of India, asserted that as per
the opinion of the discharge medical board, the disability i.e.
“HYSTERICAL REACTION to the extent of 30%” is a constitutional
disorder and is not attributable to military service.
After considering the pleadings, the evidence adduced and the
arguments addressed, the trial court dismissed the suit by holding that as the
medical board has recorded an opinion that the disease is a constitutional
disorder, not attributable to military service, the respondent cannot be
granted any relief.
Aggrieved by the aforementioned judgement and decree, the
respondent filed an appeal. Vide judgement and decree dated 8.8.2002, the
learned Additional District Judge, Gurdaspur, accepted the appeal, set aside
the judgement and decree passed by the trial court and decreed the suit. The
first appellate court held that as the appellants have failed to prove that the
respondent was suffering from this disease on the date of his enrolement in
the army, he is entitled to disability pension.
Counsel for the appellants submits that the opinion of a
discharge medical board is final and, therefore, the first appellate court
could not have accepted the appeal. Counsel for the respondent, however,
submits that”HYSTERICAL REACTION” is not a constitutional disease
and may develop during military service. It is further argued that a Division
RSA No.4896 of 2002 3
Bench of this Court has held in LPA No. 174 of 2008 Bakshish Singh Vs.
Union of India and others, that if the opinion of a discharge medical board
is not supported by reasons or documentary proof, it cannot be treated as
conclusive. Counsel for the appellants does not deny the above judgement
but states that as “HYSTERICAL REACTION” is a constitutional disease,
the respondent is not entitled to any relief.
I have heard counsel for the parties, perused the impugned
judgement and decree. The substantial question of law that arises for
adjudication is “-
“Whether the respondent/plaintiff is entitled to the
disability pension under Regulation 173 of Army
Regulation 1961 where the expert opinion in the form of
medical board proceedings held that the disability is into
attributable to service and has not been aggravated and is
not connected with service and thus is constitutional in
nature ?
The above question has been answered by a Division Bench of
this Court in LPA No.174 of 2008 Bakshish Singh V. Union of India and
others by holding as follows :-
“Though medical opinion relied upon on behalf of the
respondent is to the effect that the disease was not
attributable to Army service and the medical opinion has
to be given due weight, as held by the Hon’ble Supreme
Court in Union of India and others V. Keshar Singh
(supra) there has to be some discernible basis of
medical opinion. Mere mention of words `not attributable
RSA No.4896 of 2002 4to Army service’ without giving any reasons,cannot be
accepted as conclusive. This aspect has been considered
in the judgement of this court dated 1.7.2009 in Union of
India & another V. No.727213 Ex.-Airman B.S. Rana.
Therein, after referring to various judgements of the
Hon’ble Supreme Court, it was held as under :-
8. In a recent judgement in Union of India and others
V. Ex.Sepoy Ranjit Singh, PA No.547 of 2001, decided
on 11.2.2009, the matter was considered by this Court
and it was held that if the circumstances give rise to an
inference that disease was attributable to the Air Force
Service, negative opinion of the Medical Board given
without any basis could not be teated as conclusive. After
referring to judgements in Union of India and another V.
Baljit Singh, 1996(2) SCC 316, Controller of Defence
Accounts (Pension) and others V. S.Balachandran Nair,
AIR 2005 SC 4391, Navin Chandra V. Union of India
and others, 2006(4) SCT 626 (Delhi), Union of India and
others V. Hemant Kumar, 2009(1) RSJ 196 (MP) and
Joginder Singh V. Union of India and others, CWP
No.7323 of 2007, decided by this court on 4.12.2007, it
was observed :-
“14. We are of the view that the judgements of the
Hon’ble Supreme Court in Baljit Singh’s case and
S.Balacnandra Nair’s case (supra) are
distinguishable on facts. In the present case it has
RSA No.4896 of 2002 5been admitted in the written statement (that) there
was an episode of Generalised Tonic Clonic
Seizure on 11.10.1998 when the petitioner was in
service and he was given treatment which
continued thereafter. In the opinion of the Medical
Board Annexure RA, there is no reason given as to
how the said illness did not relate to the disability
in question. The disability is clearly relatable to the
episode which is duly admitted in the written
statement. It may have been a different matter if
such an episode had not happened. The opinion of
the medical board in the present case was thus
arbitrary in ignoring the admitted incident.
15. In Naveen Chander (supra), it was held that
the opinion of Medical Board must be self
contained and well reasoned and supported by
documentary proof and therefore, the opinion that
the disease was not attributable to the military
service was without any basis. Moreover, para 14
of 1982 Rules provides that if a person is fit at the
time of entry into service, there will be no
presumption that the disease is due to military
service though on facts it could be established that
the disability existed prior to entry into service and
the mere fact that such disease was not detected at
the time of entry into service will not be
RSA No.4896 of 2002 6conclusive. Similar view has been taken by this
court in Joginder Singh and Ex.Sepoy Bhola Ram
(supra) and the Madhya Pradesh High Court in
Hemant Kumar (supra)
16. In view of the above, no fault can be found
with the finding recorded by the learned Single
Judge that the disability of the petitioner was
attributable to the military service and he was
entitled to disability pension from the date of his
discharge from the military service.”
We, thus,hold that in absence of any reason whatsoever
for the opinion that the disability was not attributable to
Army service, medical opinion cannot be treated as
conclusive. The judgement in Union of India & Ors. V.
Keshar Singh (supra) is distinguishable on facts. We
affirm the finding recorded by the learned Single Judge
that the disease in this case was attributable to Army
service.”
It is, therefore, apparent that in the absence of any reasons or
material to support its conclusion, the opinion recorded by a Medical Board
cannot be held to be conclusive. The question of law framed in the present
appeal is squarely covered by the aforementioned judgement and is
answered accordingly.
It would be necessary to mention that the appellant in the case
before the Division Bench and the respondent in the present case both
RSA No.4896 of 2002 7
suffer from “HYSTERICAL REACTION to the extent of 30%”. The
respondent was admittedly hale and hearty when he entered military service.
During his service, he developed HYSTERICAL REACTION and was
eventually discharged with 30% disability. The respondent was refused a
disability pension on the opinion of the medical board that this disease is
constitutional and not attributable to military service. The medical opinion
is not supported by any reasons or material and is, therefore, not conclusive
of the opinion that the disability is not attributable to military service. The
Division Bench discarded a similar opinion allowed the appeal and granted
disability pension to the appellant therein by holding that the opinion of the
medical board is not binding. Counsel for the appellants does not deny that
the factual and legal situation in the present case is identical.
As the controversy in the present case is squarely covered in
fact and in law by the judgement in LPA No.174 of 2008, the appeal is
dismissed with no order as to costs.
14.10.2009 (RAJIVE BHALLA) GS JUDGE