LPA NO. 138 of 2003 in
CWP No.254 of 2001. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
LPA NO. 138 of 2003 in
CWP No.254 of 2001.
Date of Decision: 8.9.2008.
Union of India and others
..........Appellants.
Versus
Jai Sahib Punchouty
..........Respondent.
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE JASWANT SINGH.
Present: Mr.Kamal Sehgal,Advocate for Appellants-UOI.
None for the respondent.
JASWANT SINGH,J.
The present Letters Patent Appeal has been filed against the
order dated 23.7.2001, passed by the learned single Judge vide which the
writ petition filed by the respondent has been allowed and his claim for
disability pension granted.
Facts in brief are that the respondent, being fully medically fit,
was enrolled in the Indian Army as CFN (Apprentice) in the EME Wing, on
28.2.1977. Later on, he being placed in low medical category “BEE
(Permanent)” was discharged from service on 13.11.1987 on medical
grounds as having been diagnosed to be suffering from Neurosis Anxiety
with degree of disability assessed at 20% for two years. His claim for
disability pension was rejected vide order dated 15.1.1988 by the CDA (P)
LPA NO. 138 of 2003 in
CWP No.254 of 2001. 2
Allahabad, on the ground that his disease was not attributable to or
aggravated by military service. The said rejection order was communicated
to the respondent vide letter dated 29.2.1988 (Annexure P-2). Thereafter,
vide letter dated 10.4.2000 (Annexure P-6) respondent was informed about
the rejection of his appeal against the order dated 15.1.1988, declining
disability pension to him. Hence, the respondent filed CWP bearing No.254
of 2001, challenging the letters dated 29.2.1988 (Annexure P-2) and
10.4.2000 (Annexure P-6).
Learned single Judge after hearing rival submissions and
considering the pleadings as averred in the writ petition as well as written
statement held that the impugned orders dated 29.2.1988 (Annexure P-2)
and 10.4.2000 (Annexure P-6) were not sustainable in law. In support of
his findings, learned single Judge relied upon the ratio of the judgements
namely Santokh Singh Gill v. Union of India and others, 1992(3) RSJ 216
and Amrit Singh v. Union of India, 2001(1) RSJ 378.
Aggrieved against the judgement passed by the learned single
Judge, Union of India has filed the present Letters Patent Appeal, claiming
that the respondent did not fulfil the primary conditions for the grant of
disability pension as provided under Regulation 173 of Pension
Regulations for the Army 1961 (for short 1961 Regulations), as the Medical
Board had opined that the disease Neurosis Anxiety is not connected with
military service and therefore, constitutional in nature. It is further averred
that the Rule 14(d) of the of the Appendix II, (Entitlement Rules for
Casualty Pensionary Awards,1982 (for short Entitlement Rules 1982)
referred to in Regulation 173 of the 1961 Regulations provides that in case
LPA NO. 138 of 2003 in
CWP No.254 of 2001. 3
of constitutional diseases which are detected after the individual has joined
services, entitlement to disability pension can only be conceded if it is
clearly established that the course of such disease was adversely affected
due to factors relating to conditions of military service.
We have heard learned counsel for the appellants.
It is not disputed that Rule 14(d) of Entitlement Rules,1982 was
not relied upon by the appellants in their written statement. In para 14 of
the writ petition, the relevant rules of Entitlement Rules,1982 have been
reproduced, which have been admitted to be correct in the corresponding
para of the written statement. It is admitted that the respondent, at the time
of his enrolment in the Army service was fully fit and no note whatsoever,
was recorded to the effect that he was suffering from any disease. It is also
not in dispute that at the time of his discharge the Medical Board, while
opining that the disease-Neurosis Anxiety- was not attributable to or
aggravated by military service, did not record that the disease of the
petitioner could not have been detected on medical examination at the time
of his entry into service. It is also not in dispute that Clause (d) of Rule 14
was inserted by way of amendment vide Corrigendum No.1(1)/81/D(Pen-
C) dated 20.6.1996. Therefore, the argument of the learned counsel for the
appellant that it had to be clearly established that the disease of the
respondent was adversely affected relating to his condition of military
service is not sustainable. As per Regulation 7(b) of Entitlement
Rules,1982, governing the case in given conditions, there are certain
presumptions which are raised that the disease is attributable or aggravated
by military service.
LPA NO. 138 of 2003 in
CWP No.254 of 2001. 4
A Division Bench of this Court in A.J.S.Chaudhary v. Union of
India and others, 1998(8) SLR 615, while considering identical provision of
the 1961 Regulations read with Entitlement Rules,1982, which were in
force at that relevant time, in para 9 of its judgement opined as under:-
“A conjoint reading of the Regulations and the Rules
contained in Appendix II shows that an officer who is
retired on account of disability which is attributable to
or aggravated by military service and which is assessed
at 20 per cent or more is entitled to disability pension in
accordance with the regulations. The question whether
a disability is attributable to or aggravated by military
service is required to be determined as per rules
contained in Appendix II. A person who is invalided
from service on account of disability which is
attributable to or aggravated by military service and is
assessed at 20 per cent or above is also entitled to
disability pension. Those who are placed in lower
medical category (other than ‘E’) permanently and who
are discharged because no alternative employment
suitable to their low medical category could be
provided are also entitled to disability pension. Rule 3
of Appendix-II postulates the existence of a casual
connection between disablement and military service
before attributability or aggravation can be conceded.
In terms of Rule 4, direct as well as circumstantial
LPA NO. 138 of 2003 in
CWP No.254 of 2001. 5
evidence is required to be taken into account while
deciding the issue of entitlement to disability pension
and the benefit of reasonable doubt is to be given to the
claimant. The competent authority is required to adopt a
more liberal approach in granting benefit to the
claimant in field service cases. First part of Rule 7(b)
(re-numbered as 14(b) contains a deeming provision. It
lays down that the disease which has led to an
individual’s discharge or death will ordinarily be
deemed to have arisen in the course of service if no
note of it was made at the time of individual’s
acceptance for military service. However, the benefit of
this deeming fiction is not available to the claimant if
the medical opinion, for the reasons to be stated, hold
that the disease could not have been detected on
medical examination prior to the claimant’s acceptance
for service. Rule 7(c) (re-numbered as 14(c) lays down
that if the disease is accepted as having arisen in service
it must also be established that the conditions of
military service determined or contributed to the onset
of the disease and that the conditions were due to the
circumstances of duty in military service.”
The Division Bench after considering the case law on the
subject, allowed the writ petition and held that the petitioner therein was
entitled to disability pension.
LPA NO. 138 of 2003 in
CWP No.254 of 2001. 6
Another Division Bench of the Delhi High Court in Ex.Gnr
B.V.Rao v. Union of India and others, 2007(3)RSJ 383, wherein the
Invalidating Medical Board had recorded the petitioner therein as suffering
from Neurosis disease with disability as 30% for two years on 28.4.2005
and further described the disability as “constitutional” and not attributable
to and/or aggravated by military service. In paras 5 and 6 of the judgment it
was held by the Delhi High Court as under:-
“5. As far as the basic ingredients of Regulation
173 of the Pension Regulations for the Army,1961
are concerned, it is clear from the record that the
disability was suffered by the petitioner during
service and after he had put in more than 4 years of
service. He had no problems in terms of his health
in the first three years of his service and had
performed his duties to the satisfaction of all
concerned in terms of the various judgments of this
Court, “Neurosis” is an disease which could be
attributable to or at least be aggravated by the
military service. In the medical opinion of the
Expert it had been specifically noticed that the
petitioner did not suffer from any such ailment
prior to his joining the service nor was the disease
hereditary. Merely describing the disease as
“Constitutional” because they are unable to
pinpoint the cause of the disease, cannot be
permitted to work against or to the prejudice of the
petitioner. The presumption is in favour of the
petitioner and no reasons have been stated in the
Medical Report, so as to dis-entitle the petitioner
from the claimed relief. The concept of
“Constitutional disease/disorder” was discussed by
LPA NO. 138 of 2003 in
CWP No.254 of 2001. 7this Court in the case of Sh. Navin Chandra vs.
Union of India and others, 2006(7) AD 709 after
taking into consideration the opinion of different
experts from the Armed Forces. The Regulations
being a Welfare Law, has to be liberally construed
so as to achieve its object of granting pension
liberally to the members of the Force.
6. In view of the above position of law, we
allow this petition and direct the authorities to
consider and grant to the petitioner, disability
pension for 30% disability. However, payment of
arrears would be restricted to three years
immediately preceding the filing of this writ
petition. We further clarify that the respondents, if
they so chose, would be at liberty to subject the
petitioner to a Re-Survey Medical Board.”
In view of the above, we find no illegality in the order passed by the
learned single Judge. Hence the present Letters Patent Appeal is dismissed.
(Jaswant Singh)
Judge
8.9.2008. (Satish Kumr Mittal)
joshi Judget