HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 473 OF 2002. Union of India and another Petitioners Sikander Singh Respondent !Mr. Tashi Rabstan,CGSC. ^Mr. S.R.Sharma, Advocate Honble Mr. Justice Virender Singh-Judge Honble Mr. Justice Sunil Hali- Judge. Date: 11.02.2011 :J U D G M E N T:
Per Sunil Hali-J.
The petitioner-respondent was enrolled in
the Indian Army on 28.02.1991. During the
course of his service in the army, he mishandled
his loaded weapon of which he was
found to be negligent, as a result of which, he
suffered 14 days rigorous imprisonment.
Accidental shot fractured his right foot, as a
consequence of which, he was down-graded to
low medical category CEE (T) from 16th
December, 1997. The petitioner-respondent was
brought before the Release Medical Board on
21st October, 2000. The Board after examining
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the petitioner-respondent found that he was
suffering from the following disabilities:-
(i) GSW(Rt.) foot communicated-1 to
5% (Composite Fracture 2nd
Metatarsal (For life): Assessment
E 922 V 67;
(ii) Essential Hypertension 401 V467
: 30% (All disabilities for two years
30%.
After his discharge, the claim of the
petitioner-respondent for grant of disability
pension was forwarded to the Chief Controller
of Defence Accounts (Pension) Allahabad, who
rejected the same vide his communication dated
26.07.2001. This order was subject matter of
challenge in SWP No.2952/2001. The writ court
after hearing the parties found that the
petitioner-respondent suffered from essential
hypertension, which was assessed at 30%. He
was discharged in the exercise of power
conferred under Army Rule 13(3) Item III (v).
The writ Court found that the hypertension was a
disease, which could occur on account of
hazards of military service. Reliance has been
placed on various judgments of this Court
indicating that it is the environment to which a
person is subjected to, the diseases like mental
stress, depression and high blood pressure
occur.
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The stand of the appellant was that the
disease was constitutional in nature and not
attributable to military service. This submission
did not find favour with the writ Court, which
directed that the disability pension be released
in favour of the petitioner-respondent as the
malady of essential hypertension has occurred
on account of hazards of military service and
would be attributable or aggravated to by the
army service. It is this order of the writ Court
which is subject matter challenge before us
through the medium of the present appeal.
The controversy in this appeal is within a
very narrow compass. It is not disputed that the
petitioner-respondent was suffering from
essential hypertension and his disability was
assessed 30% by the Release Medical Board.
He would become entitle for grant of disability
pension in terms of Regulation 173 of the Army
Pension Regulations if the disability is above
20%. The only impediment in grant of disability
pension would be that the disease of which a
person is afflicted is not attributable to military
service. This could only be detected at the time
a person is initially recruited in the army. In case
said disease could not be detected at that stage,
the Release Medical Board was required to
append a certificate indicating that this disease
could not have been detected at the stage of
recruitment. No such certificate has been
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appended or produced before the court to
indicate that the said disease could not have
been detected at the time when the petitionerrespondent
was enrolled in the Indian army.
Having failed to do so, the appellant
cannot escape from its liability to pay disability
pension to the petitioner-respondent. The order
passed by the Chief Controller of Defence
Accounts (Pension), Allahabad rejecting the
claim of the petitioner-respondent, in the face of
the report submitted by the Release Medical
Board, was uncalled for. Learned Single Judge
has rightly stated that he could not be in a
position to state that the petitioner was not
entitled to disability pension once an expert has
found that he was suffering from disability which
was assessed more than 30%.
What has been stated hereinabove, we find
no force in this appeal. The same is,
accordingly, dismissed along with connected
CMP(s), if any.
Interim direction, if any, shall stand vacated
forthwith.
(Sunil Hali) (Virender Singh)
Judge Judge
Jammu
11.02.2011
Madan PS
