{"id":151213,"date":"1998-09-24T00:00:00","date_gmt":"1998-09-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/alexander-mathew-maj-vs-union-of-india-ors-on-24-september-1998"},"modified":"2016-12-28T05:39:27","modified_gmt":"2016-12-28T00:09:27","slug":"alexander-mathew-maj-vs-union-of-india-ors-on-24-september-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/alexander-mathew-maj-vs-union-of-india-ors-on-24-september-1998","title":{"rendered":"Alexander Mathew (Maj.) vs Union Of India & Ors. on 24 September, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Alexander Mathew (Maj.) vs Union Of India & Ors. on 24 September, 1998<\/div>\n
Author: K Ramamoorthy<\/div>\n
Bench: K Ramamoorthy<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 K. Ramamoorthy, J.  <\/p>\n
 1.     The Petitioner who was discharged from service on 07.04.1994 had  been granted service pension. The disability pension has not been granted.  That is why he has filed the present writ petition claiming disability  pension. According  to the petitioner, the Medical Board which examined him in  1992 had given the opinion that the “due to stress and strain of  Fd\/Operational services”, which is found at page 44. The Medical Board examined him  again in  September 1993 and the opinion of the Medical Board and the opinion  of the  Commandant are found in page 60 of the type set. At page 60 in  column no 3(c), it is stated as under:\n<\/p>\n
      3(c)  In respect of each disability shown as aggravated under  B, the Board should state fully:\n<\/p><\/blockquote>\n
      (I) The specific condition and period in service which aggravated the disability.\n<\/p><\/blockquote>\n
      The stress & Stain of military service.\n<\/p><\/blockquote>\n
      (II) Whether the effects of such aggravation still persist.\n<\/p><\/blockquote>\n
      (III)  If the answer (II) is the affirmative, whether  effect  of aggravation will persist for a material period.\n<\/p><\/blockquote>\n
      Yes.\n<\/p><\/blockquote>\n
 2.   At page 66 in the Medical examination report in Column 5 it is  stated as under:\n<\/p>\n
      5. Any other information you will give about your health:\n<\/p>\n
      The disease got aggravated due to stress and strain of  Fd\/Operational services.\n<\/p>\n
 3.   The  Commandant had expressed the opinion that at page 72 which is  in the following:\n<\/p>\n
      Do you consider the disability\/death aggravated by service  (Give reason):\n<\/p><\/blockquote>\n
      Yes   <\/p>\n
      The  officer  most of his service, spent Fd\/Op areas  in  diverse terrain  and  climate like Nagaland\/Manipur, J&K, Sri  Lanka  and Rajasthan  deserts which affected his health adversely. The  disease has aggravated due to stress and strain of Fd\/Op services.\n<\/p><\/blockquote>\n
 4.   On  28.03.1995, the Government of India, Ministry of  defense,  passed the following order:\n<\/p>\n
      No. 2(104)\/94\/L (PEN-C)  <\/p>\n
     Government of India  <\/p>\n
     Ministry of defense <\/p>\n
      To  <\/p>\n
     The Chief of the Army Staff,  <\/p>\n
     New Delhi.\n<\/p><\/blockquote>\n
      Sub: Claim to disability pension in respect of Maj.\n<\/p><\/blockquote>\n
     Alexander Mathew (IC-41825) (Retd.).\n<\/p><\/blockquote>\n
      Sir,  <\/p>\n
      I  am  directed to say that it has been decided  that  the  above mentioned officer who had been found suffering from the disability  viz. ID Rheumatoid Arthritics at the time of invalidment  out of  service  is not entitled to disability pension as the  ID  is considered  to be neither attributable to nor aggravated  by  his military service since the disease is constitutional in nature.\n<\/p><\/blockquote>\n
      The claimant may, if he so desires, prefer an appeal against  the decision taken on the disability within 6 months from the date of receipt of this letter by him. The appeal may be addressed to the Under Secretary, L(Pen-A), Room No. 207, Sena Bhavan, New Delhi.\n<\/p><\/blockquote>\n
      Yours faithfully,  <\/p>\n
      Sd\/-\n<\/p><\/blockquote>\n
     (N.N. Mathur )   <\/p>\n<\/blockquote>\n
 5.   There  was  an  appeal  and in the appeal  the  order  was  passed  on 03.04.1997. The order reads as under:\n<\/p>\n
      No. 7(1580)\/95\/D (Pen-A & AC)  <\/p>\n
     Government of India  <\/p>\n
     Ministry of defense  <\/p>\n
     New Delhi, the 3rd April 1997   <\/p>\n
      Major (Retd.) Alexander Mathew  <\/p>\n
     Plavila Putten Veedu,  <\/p>\n
     Thalachira (P.C),  <\/p>\n
     Kottarakkara (Telu.)  <\/p>\n
     Kollam (Distt.)  <\/p>\n
     Kerala – 691 546.\n<\/p><\/blockquote>\n
      Sub: Appeal against rejection of disability pension in respect of Major (Retd.) Alexander Mathew (No.IC-41825) of Army.\n<\/p><\/blockquote>\n
      Sir,  <\/p>\n
      I  am  directed to refer to your appeal dated 04.07.1995  on  the above subject and to inform you that the same has been  carefully considered by the First Appeal Committee.\n<\/p><\/blockquote>\n
      You  were invalided out of service on account of Invaliding  disease  (ID) – Rheumatoid Arthritics. The disability on account  of which  you  were  invalided out of service  is  a  constitutional disease. On perusal of your service\/medical documents, the Appellate Medical Authority has found that the onset of ID was in  Dec 1990 is peace area. You were admitted for ID in Jan 1992 and  was placed in low medical category. Your served in low medical  category  with periodic review and treatment but despite thereby  you had  rapid  progression of ID necessitating your  invalidment  in April 1994. During initial examination you gave family history of ID  (mother).  There is no evidence of undue physical  stress  or strain or exposure to extreme cold prior to onset of ID or thereafter which may cause aggravation. Medical Authorities as neither attributable to nor aggravated by duties of Military Service, you are not entitled to disability pension under the Rules.\n<\/p><\/blockquote>\n
      It  is, therefore, regretted that your request cannot be  acceded  to.\n<\/p><\/blockquote>\n
 6.   The learned counsel for the petitioner Mr. N.L. Bareja, submitted that the  Doctors  who had examined the petitioner had given the  opinion  after examining  the petitioner that the ailment was due to the military  service and  it  was also aggravated due to military service. The  learned  counsel submitted that government of India and the appellate authority cannot overrule the opinion of the Medical Board without examination of the petitioner by another set of competent Doctors and on the basis of material  available before  them apart from the opinion of the Medical Board which was in  September  1993.  The learned counsel for the petitioner  submitted  that  the Appellate  Authority  had also acted without any material  on  record.  The learned counsel submitted to differ from the opinion of the Medical  Board, the  Government and the Appellate Authority should have other  material  to come to a different conclusion. The learned counsel Mr. Bareja, relied upon the  judgement of this court in CW. No.2054 of 1994 dated 10.03.1994 (  Ex. Gdr.  Subash Chander Vs. Union of India and ors). The learned  counsel  for the  petitioner submitted that Clause 7(b) Appendix II of the  Regulations, it is stated:\n<\/p>\n
       7(b)  A  disease which had led to an  individual’s  discharge  or death will ordinarily be deemed to have arisen in service, if  no note  of it was made at the time of the  individual’s  acceptance for  military  service. However, if medical  opinion  holds,  for reasons  to be stated, that the disease could not have  been  detected on medical examination prior to acceptance for service the disease will not be deemed to have arisen during service.\n<\/p>\n
 7.   There is absolutely nothing on record to show that the petitioner  had any  such ailment at the time when he entered the service. Learned  counsel for  the petitioner also dealt with the assumption of the  government  that the  petitioner had a family history of such an ailment. According  to  the learned counsel for the petitioner, Mr. N.L. Bareja, there is absolutely no material and the mother of the petitioner had also filed affidavit to  this effect.\n<\/p>\n
 8.   The  learned  counsel for the petitioner relied upon the  judgment  of this court in Raghubir Singh Vs. Union of India & Anr.  and the judgment of this court in CW No. 2420\/94 (Cpt. Randhir Singh Gurra  Vs.
\nUnion of India and ors.) decided on 25.07.1997.\n<\/p>\n
 9.   In the counter affidavit the stand taken is that the family history of the petitioner showed that the petitioner was proned to such an ailment and that was constitutional and it was not due to military service nor was  the disease aggravated by the military service. It is stated:\n<\/p>\n
      In reply to paras 13 and 14, it is submitted that as per regulation 48 of  PRA Part 1, 1961 an officer is entitled to disability pension if he  is retired from military service on account of his disability which is considered  attributable to or aggravated by military service and is assessed  at 20% or more. The question whether a disability is attributable to or aggravated  by mil service is determined under the rule contained in Apex II  to PRAP Pt.1 1961. These rules have been amended during 1983 known as  Revised Entitled Rules, 1982. As per para 17 & 27(c) of the RER 1982 recommendation of  RMB\/IMB  are recommendatory in nature and can  be  reviewed\/revised  by appropriate  medical  authority i.e. DDG(Pens) who  is  higher  appropriate Medical  authority  i.e. DDG(Pens) who is higher medical authority  in  the office  of DGAFMS. In this case, IMB has recommend the ID as aggravated  by stress and strain of military service and disability recommended at 50% for one  year, however, Pension sanctioning Authority on advise of  JDAFMS  i.e higher medical authority in the office of DGAFMS who exercised their  power conferred upon them under para 17 & 27(c) of RER 1982 viewed ID as  neither attributable  to nor aggravated by military service and disability  pension to  the officer for ID was therefore not recommended. Detailed  reason  for rejecting disability pension claim are given in comments to para 3 and 4.\n<\/p>\n
 10.  Learned  counsel for the respondents Ms. Rekha Palli relied  upon  the judgment  of  the Supreme Court in Union of India and  another  Vs.  Baljit Singh 1996 (22) S 315.\n<\/p>\n
 11.  The  learned counsel for the petitioner submitted that the Doctor  who had  examined  the petitioner and who constituted the Medical  Board  after examination the petitioner had come to the conclusion that the ailment  was due  to  military service and was aggravated. In the  decision  in  Subhash Chander  Vs. Union of India & Ors. (CW No. 2054\/94) decided by Hon’ble  Mr. Justice Anil Dev Singh dealing with Regulation 173 applicable to the  other personnel other than the officers held:\n<\/p>\n
      In Union of India and others Vs. Bodan Lal Yadav 1994(1) S.L.R. 390 it was  held by the Punjab and Haryana High Court that Regulation 173  of  the Pension  Regulations  read  with paragraph 423(c) of  Regulations  for  the Medical Services of the Armed Forces, 1962 show that the cause of disability  which leads to the person concerned being discharged from service  will be deemed to have arisen in service, if, no note of it was made at the time of his entry in the armed forces or unless a note was recorded at a  subsequent  date  that the disease in question was such as could not  have  been detected by medical examination before he had joined service. Allowing  the writ  petition  the Division Bench of the Punjab & Haryana High  Court  observed that there was no material on record to show that the writ petitioner  was  found to have been suffering from the disease at the time  of  his entry into service nor was there any note in his medical examination at the time of discharge to the effect that he was suffering from this ailment  at the time of his entry into service or that it could not be detected at that time.\n<\/p>\n
 12.  The  Learned  Judge had referred to the case taking the same  view  as under:\n<\/p>\n
      To  the similar effect are the following judgments of the  Punjab and Haryana High Court:\n<\/p><\/blockquote>\n
      1. Ex. Hav. Sinder Pal Singh Vs. UOI and another 1991(5) SLR 459.\n<\/p><\/blockquote>\n
      2. Bodan Lal Yadav, Ex.Singnalman No. 6279466 Vs. Union of  India through Secretary, Ministry of defense, New Delhi and ors 1992(3) SLR 758.\n<\/p><\/blockquote>\n
      3.  Ex. Hav\/Clk Wishwa Nath Vs. Union of India and  others.  1991 (5) SLR 476.\n<\/p><\/blockquote>\n
      4. Roshan Lal Vs. Union of India and others 1992(3) SLR 662.\n<\/p><\/blockquote>\n
 13.  The  Learned  Judge directed the payment of disability  pension.  With great respect I agree with the view taken by the learned Judge. In Raghubir Singh  Vs.  Union of India & Anr. , the Division  Bench  of this  Court dealing with the claim of disability pension by a soldier.  The argument on behalf of the respondents before the Division Bench that the DA was the final authority to decide the disability pension and that cannot be interfered with this. Dealing with this point the Division Bench held:\n<\/p>\n
       Learned counsel for the respondents has attempted to scuttle  the merits  of  the petitioner’s claim by contending that DA  is  the final Authority to decide the disability pension and as such  the DA has rightly disallowed the disability pension to the petitioner. Now the question is ” Can the DA override the medical opinion of  the invalidating Medical Board”. The Apex Court had an  occasion  to consider the said question in Ex. Sapper Mohinder  Singh Vs.  Union of India Civil Appeal No. 164\/93 (arising out  of  SLP No. 4233\/92) decided on 6.2.1995 and it was held that the opinion given  by the invalidating Medical Board with regard to  the  assessment of disability of an incumbent should be respected  until a  fresh  Medical  Board examines the incumbent and  comes  to  a different  conclusion. Similar view has also been taken by  Division  Bench  of  this Court in Civil Writ  Petition  No.  2811\/93 decided  on  6.2.1995. Consequently, we are of the  opinion  that under  the  rules, the DA has no power to  override  the  medical opinion  of  the  invalidating Medical Board.  If  the  Competent Authority is not satisfied with the medical opinion of the invalidating Medical Board, it may refer the case of the incumbent for re-examination  by a properly constituted Medical Board  for  re-assessment  of the disability. Thus the impugned order of the  DA (P)  is  liable to be quashed and set aside. There  is  no  other ground on which claim for disability pension can be denied.\n<\/p>\n
 14.  In  Capt. Randhir Singh Gurra Vs. Union of India CW No. 2420  of  1994 decided on 25.07.1997. The Division Bench consisting of Hon’ble Mr. Justice Devinder Gupta and myself dealt with the scope of Rule 7. It was held:\n<\/p>\n
      As  per the medical report the petitioner had no past history  of the stated ailment. Even there is no history of mental illness in the  family  though parents of the petitioner were stated  to  be alive.  Petitioner’s personal history as recorded states that  he was  enrolled in September, 1980 and married in 1989. His  habits are  stated to be clean. The stated illness was detected only  in January, 1990. The opinion states:\n<\/p><\/blockquote>\n
      OPINION:\n<\/p><\/blockquote>\n
      This 28 years old Corporal had a Schizophrenic breakdown in early Jan  90 whose illness had a gradual onset, manifesting in  social withdrawal, pre-occupation with self, lack of confidence, initiative and drive, emotional instability, depressed mood with active suicidal  ruminations, lack of insight and impaired judgment.  He has  poor  motivation towards service dur to a week ago.  he  has been  treated  intensively for over a year, but the  response  to treatment has been very poor. Keeping him in service is going  to be  a  liability  to State, hence  recommended  invalidment  from service in category ‘EEE’ (phychological).”\n<\/p><\/blockquote>\n
      In  the  light of presumption as is required to be  raised  under sub-rule  (b) of Rule 7 while agreeing with the  medical  opinion and  affirming petitioner’s discharge due to non availability  of alternative  employment suitable to the petitioner’s low  medical category, the Commanding Officer in Form AFMSF 16 against  Column 21 thereof recommended petitioner’s case for sanction of  invalid pension.  Neither in the counter affidavit, nor in the  order  of second  respondent, which is under challenge, is it  stated  that any  note was made at the time of petitioner’s acceptance in  Air Force  service  that he was suffering from ailment  in  question. There  is also no medical opinion by the Medical Board  that  the disease could not have been detected on medical examination prior to  the petitioner’s acceptance for service. Rather  the  medical opinion is otherwise.\n<\/p><\/blockquote>\n
      Supreme  Court  in Ex. Sapper Mohinder Singh Vs. Union  of  India (Civil  Appeal No. 164 of 1993 – decided on 14.01.1993)  observed that  assessment  of disability pension at a particular  rate  by medical  board must be respected by the Chief Controller  of  defense, Accounts (Pension) until a fresh medical board examines an individual again and comes to a different conclusion.\n<\/p><\/blockquote>\n
      Instead  of raising the presumption as is required to  be  raised under  sub-rule (b) of Rule 7 the Controller of defense  Accounts in the impugned annexure P-2 dated 12.01.1993 required the  petitioner  to  substantiate his claim that why the  petitioner  felt  that the disability was connected with the Air Force Service. The disease  in  question  is psychotic  condition  characterised  by withdrawal from reality and accompanied by highly variable affective, behavioural and intellectual disturbances and onset of such condition due to the effect of stress and strain cannot be  ruled out. When it is the case of the parties that the onset of disease was  during the course of service, there was no reason  with  the Controller  of defense Accounts not to accept the  recommendation of  the Commanding Officer which was in consonance with  presumption  which is to be raised. it ought to have been  accepted  and for  that reason the impugned order is liable to be  quashed  and set aside.\n<\/p><\/blockquote>\n
 15.  Union  of  India and another Vs. Baljit Singh In 1996 (11) S  315  the Supreme Court dealt with Regulation 173 with reference to  non-commissioned officer.  That is a case where disability pension was claimed on the  basis of injury sustained by the individual. The Supreme Court dealing with  this claim of disability pension observed:\n<\/p>\n
      He  further  contends that as per the medical report  the  injury  was sustained  by him while he was in service and that, therefore, it has  been presumed that it was during service and accordingly must be attributable to military  service. On a consideration of the rules, we think that the  contention of Shri Malhotra merits acceptance. It is seen that various  criteria  have been prescribed in the guidelines under the Rules as to when  the disease or injury is attributable to the military service. It is seen  that under  Rule 173 disability pension would be computed only  when  disability has  occurred  due to a would, injury or disease which is  attributable  to military service or existed before or arose during military service and has
\nbeen  and remains aggravated during the military service. If  these  conditions are satisfied, necessarily the incumbent is entitled to the disability  pension.  This is made amply clear from clauses (a) to (d)  of  para  7 which contemplates that in respect of a disease the Rules enumerated thereunder  require  to be observed. Clause (c) provides that if  a  disease  is accepted as having arisen in serivce, 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. Unless these conditions are satisfied, it  cannot  be said  that the sustenance of injury per se is on account of military  service.  The  conclusion  may not have been satisfactorily  reached  that  the injury though sustained while in service, it was not on account of military service.  In each case, when a disability pension is sought for and made  a claim,  it must be affirmatively established, as a fact, as to whether  the injury  sustained was due to military service or was aggravated which  contributed  to invalidation for the military service. Accordingly, we are  of the  view  that  the High Court was not totally correct  in  reaching  that conclusion.  However, having regard to the facts and circumstances of  this case, we do not think that it is an appropriate case for interference.\n<\/p>\n
 16.  The  ratio laid down by the Supreme Court is not at all applicable  to the  facts  of this case. When the medical Board had  given  a  categorical opinion,  it is not open to the Government and the appellate  authority  to take  a  different view without any material to prove contra.  The  learned counsel  for the respondents Ms. Rekha Palli submitted that the  Government and the appellate authority had the powers to over-rule the opinion of  the medical board. In law there is difference between the jurisdiction to  pass order and the exercise of the power. The learned counsel for the petitioner Mr.  N.L. Bareja does not dispute the existence of the power.  The  learned counsel  for the petitioner only challenged the way in which the power  had been exercised. I am of the view, that the view taken by the Government and the  appellate authority is not rational. There is no opinion on record  to show as required in clause 7B that the disease could not have been detected on medical examination prior to acceptance for service.\n<\/p>\n
      Therefore, the order of the Government dated 28.03.1995 and the  order in  appeal  passed on 03.04.1997 are liable to be set aside  and  they  are quashed.  Accordingly,  the writ petition is allowed. The  respondents  are directed  to  pay to the petitioner disability pension in  accordance  with rules and regulations including arrears and the payment shall be made on or before 31.12.1998. There shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Alexander Mathew (Maj.) vs Union Of India & Ors. on 24 September, 1998 Author: K Ramamoorthy Bench: K Ramamoorthy ORDER K. Ramamoorthy, J. 1. The Petitioner who was discharged from service on 07.04.1994 had been granted service pension. The disability pension has not been granted. That is why he has filed the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-151213","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nAlexander Mathew (Maj.) vs Union Of India & Ors. on 24 September, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/alexander-mathew-maj-vs-union-of-india-ors-on-24-september-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Alexander Mathew (Maj.) vs Union Of India & Ors. on 24 September, 1998 - 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