IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 14697 of 2000(Y)
1. T.G.HARIDAS
... Petitioner
Vs
1. THE OFFICER-IN-CHARGE
... Respondent
For Petitioner :SMT.P.M.INDU
For Respondent :SRI.MURALEEDHARA KAIMAL, ADDL.CGSC
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :22/09/2008
O R D E R
S.SIRI JAGAN, J.
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O.P.No.14697 of 2000
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Dated this the 22nd day of September, 2008
J U D G M E N T
The petitioner is an ex-serviceman. He enrolled in the
military service on 30.3.1973. He was discharged on medical
grounds on 7.4.1981, on detection of the disease “Neurosis”.
However, military pension was denied to him on the ground that
the said disease is not attributable to military service. Exts.P3
and P5 orders passed in this regard are under challenge in this
original petition.
2. The contention of the petitioner is that the petitioner
was first posted at Alwar, Rajastan, where temperature was
extremely high and he was not used to such extreme
temperature. From Albar the petitioner was suddenly transferred
to Udhampur, in Jammu and Kashmir, where the climate was
extreme cold, which also he was not used to. At the time of
enrollment the petitioner was in excellent physical and mental
condition. Further, the petitioner in fact served in the boarder
areas where the petitioner was under tremendous physical and
o.p.14697/00 2
mental tension. The petitioner therefore, submits that the
development of the disease of Neurosis could have only been due
to military service, especially when there was no other plausible
reason for the same. The petitioner would further submit that in
so far as there is no dispute that at the time of enrolment the
petitioner was in excellent physical and mental condition, the
onus of proving that the petitioner’s disease developed because
of reasons not attributable to military service, is clearly on the
respondents. Therefore, the petitioner seeks quashing of Ext.P3
and P5 orders. The petitioner also refers to two decisions of this
Court in O.P.Nos.3490/1992 and 3518/1992, wherein this Court
held that the disease of Neurosis unless proved otherwise must
be taken to be attributable to military service.
3. The learned Central Government Counsel would argue
in support of the impugned orders with the help of the counter
affidavit filed in this original petition. He would also refer to a
decision of the Supreme Court in Controller of Defence
Accounts (Pension) v. Balachandran Nair [2005 (4) KLT 703]
wherein the Supreme Court has held that where medical board
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found that in the absence of proof of the injury/illness having
been sustained due to military service or being attributable
thereto, grant of disability pension is not warranted.
4. I have considered the rival contentions in detail.
5. In the counter affidavit filed there is no denial of the
specific averment of the petitioner that at the time of enrolment
and afterwards the petitioner was in excellent physical and
mental condition. There is also no case for the respondents to the
effect that from 1973 to 1981 there was any symptom in the
petitioner relating to the illness “Neurosis”. Therefore, during the
time when he was in service, no injury or illness occurred
otherwise than through military service, which could cause the
disease of neurosis in the petitioner. They have also no case of
any hereditary or constitutional trait in the petitioner which is
likely to lead to the disease of neurosis in the petitioner. A full
Bench of this Court in Baby v. Union of India [2003 (3) KLT
362] has held that when an individual is enrolled after having
been found to be in perfect health and no note regarding any
kind of disability has been registered at the threshold, he would
o.p.14697/00 4
be entitled to grant of disability pension. It is also stated in that
decision that in such circumstances the onus of proving that the
disability is not attributable to military service or that the
individual is not entitled to the claim of disability pension shall
normally lie on the authority. That decision is clearly applicable to
this case. Therefore, the onus of proving that the disease of
“Neurosis” which was detected in the petitioner is not attributable
to military service is squarely on the respondents. Apart from
relying on the medical board’s opinion which does not explain as
to why the disease cannot be attributed to military service, no
material whatsoever has been produced before me for
discharging that onus of proving the said fact. On the other hand,
in identical circumstances, two Single Judges of this Court had
held in the above said decisions that unless proved otherwise, the
disease of Neurosis should be held to be attributable to military
service. In the above circumstances, in the absence of any proof
to the contrary, I must hold that the disease of “Neurosis”
contracted by the petitioner is attributable to military service.
Accordingly, Exts.P3 and P5 are quashed, and the respondents
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are directed to sanction and pay disability pension to the
petitioner. Arrears shall be paid within three months from the
date of receipt of a certified copy of this judgment and the
petitioner shall be continued to be paid disability pension every
month. If the respondents do not pay arrears within the three
months as directed above, the amounts shall carry interest at the
rate of nine per cent per annum from the date of discharge till
the date of payment.
The original petition is allowed as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
o.p.14697/00 6
S.SIRI JAGAN, J.
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O.P.No.14697 of 2000-Y
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J U D G M E N T
22nd September, 2008