JUDGMENT
Swatanter Kumar, J.
WP(C) 7162/2005
1. The petitioner has approached this Court under Article 226 of the Constitution of India praying that the letters issued by the respondents dated 28th June, 1968 and 16th March, 2004 wherein the petitioner was denied the disability pension, be quashed and the respondents be directed to grant to the petitioner disability pension with 40% disability. He also prays that the arrears of pension be also directed to be paid with interest @ 12% p.a.
2. The facts as they emerge from the record are that the petitioner was enrolled in the regular Army as a Sepoy Washerman on 9.12.1963. It is the case of the petitioner that he was not suffering from any disease at the time of his enrollment and was subjected to strict medical and physical standards as per army rules. The petitioner was posted in a field unit where he developed some health problems in March, 1967 and was treated at different places. As per the report of the medical board, the petitioner was found to be ailing from the disease of Schizophrenia Reaction. The board further recommended the petitioner to be invalided out of service with 40% disability. On 24.9.1967 as the Commanding Officer could not provide a sheltered appointment to the petitioner, discharge of the petitioner was sanctioned and case of the petitioner was recommended for grant of disability pension @ 40%. It is further the case of the petitioner that the disability pension claim was forwarded to CDA (P) for release of the pension but the same was rejected by the said authorities as the disease of the petitioner was said to be neither attributable to nor aggravated by military service. The petitioner claims that he had been approaching the respondents for grant of the said relief right from 1968 till 1998 and on 16th December, 2002, he submitted a notice of demand to the respondents. As no reply thereto was received, the petitioner filed a CWP No. 1685/2003 which was allowed by the court in terms of the judgment of this Court in the case of Ex. Ct. Jasbir Singh v. UOI and Ors. CW 5166/2000, decided on 6th March, 2003, wherein the respondents were directed to consider the case of the petitioner in accordance with rules. Vide letter dated 16.3.2004, the respondents again informed the petitioner that the petitioner was not entitled to the prayed relief. The petitioner again filed a writ petition in this Court being WP No. 8073/2004 which was disposed of vide order dated 14th May, 2004 issuing a direction to the respondents to supply documents to the petitioner. In furtherance to this order of the court, the documents were supplied and the petitioner has filed the present writ petition.
3. Vide letter dated 06th January, 2005, the photocopies of the invaliding medical board proceedings i.e. AFMSF-16 dated 17th July, 1967 and AFMSF-17 dt. 22nd July, 2003 were supplied to the petitioner. The order impugned in the present writ petition dated 16th March, 2004 reads as under:
MOST IMMEDIATE/COURT CASE
REGISTERED BY POST
Sena Chikitsa Corps Abhilekh
Army Medical Corps Records,
Lucknow- 2
Tele Mil : 6430
R/13902271/DPR/-1
No. 313902271 Ex. Sep Lilu Ram
Vill.-Jamawari, Post Jamawari
Tehsil Hansi, Distt. Hissar (Haryana)
IMPLEMENTATION OF COURT ORDER DATED 06 MAR 2003 PASSED BY HON’BLE HIGH COURT OF DELHI AT NEW DELHI IN CWP No. 1685/2003 FILED BY No. 13902271 EX. SEP LILU RAM v. UOI AND ORS.
1. In compliance with Hon’ble High Court of Delhi at New Delhi order dated 06 Mar 2003, your case for grant of Disability Pension has been carefully re-considered by appropriate and competent administrative, medical and legal authorities in the light of relevant regulations on the subject and the observations of the Hon’ble High Court in its order ibid.
2. It is evident from records that you were enrolled in the Army on 19 Dec. 1963 and were invalided out from service with effect from 23 Sep. 1967. The invaliding Medical Board considered your Invaliding Disability (ID) SCHIZOPHERNIC REACTION (NOT UNSOUND MIND) as neither attributable to nor aggravated by military service. As per Regulation 173 of Pension Regulations for the Army, 1961, Part-I, Disability Pension is granted to an individual on his invalidment from service only when his disability is viewed as either attributable to or aggravated by military service by the Invaliding Medical Board (IMB). In your case, the IMB had considered your ID as neither attributable to nor aggravated by military service. Moreover, Hon’ble Court has held that opinion of the Medical Board who has examined the individual should be respected.
3. In view of the above, you are not entitled to grant of Disability Pension in terms of above Regulations.
Sd/- S.R. Kamtikar)
Maj Gen.
Offg.OIC Records
4. As is evident from the bare reading of the above order that the petitioner was invalided out of service on 23rd September, 1967 and the Schizophrenic Reaction with a disability of 40% was said to be not attributable to or aggravated by military service, thus, the claim of the petitioner was denied.
5. One factor which the court cannot ignore is that the petitioner after having been invalided out of military service in the year 1967 chose to approach the court in the year 2003 for the first time and there is no document on record before us to show that the petitioner was pursuing any administrative or legal remedy right from 1968 till 2002. The petitioner himself is responsible for causing such inordinate delay in taking recourse to his remedies available to him in law.
6. The petitioner while relying upon Regulation 173 of Pension Regulations for the Army, 1961, Regulation 423 of the Regulations for the Medical Services of the Armed Forces, 1983 and para 54 of Guide to Medical Officers for Military Pension of Armed Forces has contended that psychiatric illness results from a complex interplay of endogenous (genetic/biological) and exogenous (environmental, psychosocial as well as physical) factors. The disease of the petitioner, thus, was attributable to the military service as he suffered the said disease as a result of stress and strain of the service and the disease of the petitioner emerged from the environmental factors.
7. Normally this contention of the petitioner would have to be considered with some merit but as per the report of the medical board, he was a habitual taker of Charas. This kind of habit even in normal circumstances, could environmentally introduce such a disease or certainly aggravate the same. In terms of the proceedings of the medical board, the disability of the petitioner was stated to be 40% ‘Schizophrenic Reaction 2.090’ for life but the same was said to be not pensionable and not attributable to or aggravated by military service. In terms of the judgment of the Supreme Court in the case of Controller of defense A/cs (Pension) and Ors. v. S. Balachandran Nair , the report of medical board has to be given precedence and would not normally be interfered by the court. No perversity in the report has been shown by the petitioner as the onus thereof would be upon the petitioner. In the present case, no material has been placed before us by the petitioner so as to demonstrate that the disease of the petitioner could be attributed to or aggravated by military service. A heavy onus is placed upon the petitioner to show the same which the petitioner has certainly failed to discharge in the present case.
8. In the counter affidavit filed by the respondents, it has also been stated that the medical board held on 17th July, 1967 certified the disability of the petitioner as constitutional disorder and not related to service. This finding is based upon the opinion of the experts and unless such an opinion apparently suffered from a perversity, the court would not interfere with such a medical report. The medical report while recording that the petitioner was unfit for further military service in relation to the condition of the petitioner and his treatment over the period, stated as under:
COMPLAINTS :- No complaints pertaining to his health.
PRESENT HIStorY: This individual was brought by his relative to M.H. DALHOUSIE for his abnormal behavior on 23-4-67 in that he has beaten his mother, he created disturbance in cinema. Was roaming about in bazar like a mental fellow, lost his money during his period. The individual was on A/ Leave
EXTRACT OF A.F.M.S.F. 10 REPORT DATED 28 th april 67:- Efficiency very poor not interested in his professional work from last few months. Maniac depressive type (?) locked fingers, starts singing of his own, runes away from hospital, collects useless items in pockets like broken blades, remains aloof, very served type, History of addiction to CHARAS for last three four years.
9. It is clear from the finding of the experts that the addiction to charas for the last three-four years was the principle cause for unhealthy conditions of the petitioner. To say that addiction to charas was, in any way, connected with the conditions of service and/or stress and strain of service, would be an argument fallacious at the face of it. The petitioner has even withheld this fact from the court that he was addicted to charas. Addiction to charas can neither be attributable to nor aggravated by military service.
10. Reference can also be made in this regard to a recent judgment of this Court in the case of Ex. Spr. Bhim Singh v. UOI and Ors. WP(C) No. 21671/2005, decided on 31.08.2006, where the court particularly keeping in view the short period of service rendered by the petitioner and the report of the medical board, had dismissed the writ petition for grant of a similar relief and held as under:
38. The learned Counsel appearing for different petitioners in these writ petitions have relied upon judgments of this Court in the cases of Ex.Ct. Jasbir Singh and Ors. v. Union of India and Ors. , Deepak Kumar Singh v. Union of India & Satpal Singh v. Union of India 1999 IV AD (Del.) 321. In addition to the above mentioned judgments, they have also relied upon the judgment of this Court in the case of Ex. Cfn. Sugna Ram Ranoliya v. Union of India and Ors. being CWP No. 3699/2004 decided on 27.7.06 , in support of their contention that all such diseases like Schizophrenia, mental disorder or Generalized Seizure would be attributable and/or aggravated by military service. They would, according to them, be entitled to receive disability pension in law. There is no doubt that in these judgments, various such diseases have been held to be attributable to and/or aggravated by military service but they have not been held as a proposition of law. It relates to the cases which have been referred to in those judgments. In those cases, there was no definite opinion of the Invaliding Medical Board or that of the Classified and/or Specialists to substantiate the plea of the respondents that the disease is neither attributable to nor aggravated by military service. The principles enunciated by the Benches in those judgments are to be applied to the facts of each case. Unless the material (opinion of the Medical Board) produced before the Court is ex facie unbelievable, absurd and is not in accordance with rules, regulations and instructions issued by the department, would have precedence. In the present cases, the medical experts have clearly indicated the diseases of the petitioners relatable to a period much prior to their joining the Army though it surfaced with gravity after their joining the Army. A person who was suffering from Generalized Seizure at the age of 10 or 12 years and had joined the Army and the disease manifested with greater gravity within few months or initial years of service, the Court cannot be expected to hold that such disease was attributable to or aggravated by military service particularly when the Medical Board in specific terms have recorded their findings against such attributability or aggravation. In the case of Controller of defense Accounts (Pension) and Ors. v. S. Balachandran Nair reported as the Supreme Court has held that precedence has to be given to the findings recorded by the Medical Board. In the present cases, the findings of the Medical Board are in conformity with the rules, regulations and guidelines meant for medical officers as the patients have been subjected to examination by a Specialist or a Classified Specialist prior to their being examined by the Medical Board. Due investigations have been conducted and the history given by the petitioners themselves relate such diseases much prior to a period of their joining the Indian Army.
11. In the present case also, the petitioner was enrolled in the year 1963 and was invalided in the year 1967. During that period, he had been admitted to hospital on different occasions and in terms of the report of the medical board, he was addicted to charas for the last three to four years. This obviously means that even at the time of induction into service or immediately thereafter, the petitioner was having tendency of Schizophrenia or addiction to charas and as such, we cannot accept the contention that the disability of the petitioner was, in any way, attributable to or aggravated by military service.
WP(C) 10690/2006
12. Cfn. Rajbir Singh was enrolled in the Indian Army in the Corps of EME on 2.5.1963. He was found fit in all respects and placed in medical category ‘AYE’. Upon successful completion of basic training, he was allotted the trade of Welder and posted to Station Workshop, Alwar (Raj.) in December, 1964. The petitioner served the organization sincerely with utmost dedication and to the satisfaction of all concerned. He developed medical problems in April, 1965 and was admitted to MH Alwar and thereafter was transferred to Delhi Cantt where initially he remained in coma for about 6 days. Thereafter, he was diagnosed to be a case of Schizophrenic Reaction (mental disorder) and was placed in permanent low medical category. The petitioner was invalided out of military service on the recommendation of the medical board on 26.9.1965 with disability of 40% for one year. According to the petitioner, he was entitled to receive disability pension as his disease was attributable to or aggravated by military service. The request of the petitioner was rejected by the authorities and respondent No. 4 vide his letter dated 30.4.1966 informed the petitioner that he was not entitled to receive disability pension as the disease was not attributable to military service. The petitioner also claims that right from 1966 till 1999, he was approaching the authorities. The petitioner being aggrieved with the action of the respondents filed a writ petition No. 55/2000 praying for issuance of a direction to the respondents for grant of disability pension. The matter was remanded to the respondents and the writ petition was allowed partially with costs of Rs. 2500/-. Except to pay the costs, no other action was taken by the respondents resulting in filing of another writ petition by the petitioner being CW No. 8225/2004 which was also disposed of vide order dated 21.5.2004 with a direction to the respondents to consider the case of the petitioner in terms of the judgments in the cases of Mahavir Singh Narwal v. UOI and Ors. CWP No. 2967/2000, decided on 5.5.2004 and Ex. Cfn Sugna Ram Ranoliya v. UOI and Ors. WP(C) No. 3699/2004, decided on 19.5.2004. Vide order dated 1.1.2005, the respondents have passed the following order while rejecting the claim of the petitioner which reads as under:
1. In compliance with Hon’ble High Court of Delhi at New Delhi order dated 21 May 2004 in CWP 8225/2004, your case for grant of disability pension has been carefully re-considered by appropriate authorities in the light of the relevant regulations on the subject and the observations of the Hon’ble High Court in its order dated 06 Mar 2003 in CWP No 5166/2000 title Ex Ct Jasbir Singh v. UOI
2. It is evident from the records that you were enrolled in the Army on 02 May 1963 and were discharged from service on medical grounds on 26 Sep 1965. The Release Medical Board, which had physically examined you, had considered your disability SCHIZOPHRENIC REACTION as neither attributable to nor aggravated by military service and assessed the degree of disablement of 40% for one year. As per Regulation 173 of Pension Regulations for the Army 1961 (Part I), disability pension is granted to an individual on his invalidment from service only when his disability is viewed as either attributable to or aggravated by military service by the Competent Medical Authority. In your case, the Medical Board, which had physically examined you, had itself considered your disability as neither attributable to nor aggravated by military service. Further Hon’ble Court has held that opinion of the Medical Board who has examined the individual should be respected. In view of the above, you are not entitled to grant of disability pension in terms of above Regulation.
13. Aggrieved from the said order, the petitioner has filed the present writ petition.
14. One factor which the court cannot ignore is that the petitioner after having been invalided out of military service in the year 1965, chose to approach the court in the year 2000 for the first time and there is no document on record before us to show that the petitioner was pursuing any administrative or legal remedy right from 1966 till 1999-2000. The petitioner himself is responsible for causing such inordinate delay in taking recourse to his remedies available to him in law.
15. Learned Counsel appearing for the petitioner in this case also, has relied upon Regulation 423 of the Regulations for the Medical Services of the Armed Forces, 1983 and Appendix II to Regulation 173 of the Pension Regulations for the Army, 1961, Part-I to contend that the disease of Schizophrenic Reaction was attributable to and aggravated by military service and it was the result of the conditions of service to which the petitioner was exposed.
16. As is evident from the admitted facts, the petitioner was enrolled in the year 1963 and was invalided within a period of two years i.e. in April, 1965 with 40% disability for one year in regard to Schizophrenic Reaction. The total service of the petitioner, thus, is nearly two years.
17. During the course of hearing, the respondents had produced the invaliding medical board proceedings of the petitioner wherein it has been shown that the petitioner had become restless, uncooperative and negativistic and he even became assaultive and destructive. His habits were dirty and he had to be fed under supervision. Gradual on-set of the disease was reflected in April, 1965 and then the disease had severely aggravated and it had become difficult to retain him in the army. The medical board descried it as a constitutional disability unconnected with service. There is no patent infirmity or perversity in the medical board proceedings. The court would normally abide by the opinion of the medical experts. There was a heavy burden upon the petitioner to show that the said disease was attributable to and/or aggravated by military service. The petitioner has failed to discharge his burden and the writ petition does not, in any way, show that the disease of the petitioner was attributable to military service and/or conditions of service under which the petitioner was serving.
18. In view of what we have stated above and particularly in light of the judgment of the Supreme Court in the case of Controller of defense A/cs (Pension) and Ors. v. S. Balachandran Nair (supra), we find no merit in the claim raised by the petitioner.
19. For the reasons afore-stated, both the above writ petitions are dismissed. However, in the facts and circumstances of the cases, parties are left to bear their own costs.
