HIGH COURT OF JAMMU & KASHMIR AT JAMMU LPA (SW) No. 15/2007 Date of Decision : 25.11.2008 Union of India & Ors. vs. Jagdish Singh Coram: Hon’ble Mr. Justice Y.P. Nargotra, Judge And Hon’ble Mr.Justice Vinod Kumar Gupta, Judge Appearing Counsel: For the appellant(s): Mr.V.K. Magoo ,Advocate For Respondents : Mr.P.S.Pawar,Advocate __________________________________________________ i/ Whether to be reported in press, Journal/Media : Yes/No ii/ Whether to be reported in Digest/Journal : Yes/No Per Vinod Kumar Gupta J. The appellants have preferred this Letters Patent Appeal against the order dated 3.5.2006 passed in SWP No. 1149/2004 whereby the learned Single Judge after allowing the petition of the respondent has held that the respondent is entitled to disability pension and ordered for release the same. The material facts for disposal of this appeal are that the respondent Jagdish Singh was enrolled in the Army on 31st March 1979 and after completion of basic military training, he was posted to 8th JAK Riffle on 9.2.1980. He was invalided out of service on August 20, 1995 on medical ground and was placed in 2 medical category “EEE”. He was diagnosed as a case of Schizophrenia-295 and his disability was assessed at 70%. Respondent applied for disability pension which was rejected by the Controller of Defence Accounts ( Pension), Allahabad on the ground that the disability suffered by the respondent was neither attributable to nor aggravated by military service. The respondent preferred an appeal against the decision of Pension Sanctioning Authority before the Government of India, Ministry of Defence, which was also dismissed. The respondent thereafter filed SWP No. 1149/2004 in this court seeking direction to the appellants herein to grant and release the disability pension in his favour. The learned writ court vide order dated 3.5.2006 has allowed the writ petition and held the respondent to be entitled to the disability pension. Being aggrieved by this order, the appellants herein have preferred this Letters Patent Appeal. We have heard the learned counsel for the parties and perused the record. The learned counsel for the appellants have contended that the Medical Board has given its opinion that the disability of the petitioner was not attributable to the Military service nor it was aggravated thereby and thus the respondent is not entitled to disability pension. He has further argued that the disease is constitutional in nature. On the other hand, the learned counsel for the respondent has submitted that since at the time of induction of 3 respondent into army he was medically fit at that time, therefore, it is to be presumed that the respondent has suffered the disease during his service because of the conditions of military service and thus the respondent is entitled to disability pension. From the report of the Medical Board it is apparent that the respondent was invalided out of service on 19.8.1995 on account of disease namely, Schizophrenia and partial amputation of tongue. There is nothing on record to show that the respondent was suffering from any such disease at the time of entry into the Military service. Regulation 173 of Pension Regulations for Army 1961 provides conditions on which disability pension can be granted to any person who is invalided out of service on account of any disability. This regulation reads as under:- “Primary conditions for the grant of disability pension. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service and is assessed at 20 per cent or above.” The question whether a disability is attributable to or aggravated to by military service shall be determined under the rule in Appendix-II.” This regulation clearly lays down that the disability pension is granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service and is assessed at 20% or above. 4 Now the question involves in this appeal is whether the respondent suffered the disease because of stress and strain of military service and the same is attributable to or aggravated by such service. In this case as stated above the respondent was not recorded to be suffering from the disease of Schizophrenia when he was enrolled in the service. He suffered this disease during the service and the learned writ court after relying upon number of decisions of this court and Hon’ble Supreme Court, has come to the conclusion that the respondent suffered the disease of Schizophrenia which was the result of stress and strain of military service and the same is attributable to and aggravated by the said service. In our view, learned writ court was right in holding so because if a person contracts a disease during his military service, it is presumed that the person suffered this disease due to the conditions of military service and is attributable to or aggravated by military service in case it is not rebutted otherwise. The contention of learned counsel for the appellant that the respondent was suffering from a disease which is constitutional in nature and as such it cannot be said that this disease has arisen during service or its being aggravated due to conditions of military service, cannot be accepted. As stated above, there is nothing on record to show that any note was made at the time of respondent’s entry into military service that he was suffering from any such disease. The disease on account of which the respondent was invalided out though constitutional in nature yet to be deemed to 5 have arisen during service on the basis of presumption because no note of such disease was recorded in medical report of the respondent at the time of his entry into military service. Even if this disease was dormant at the time of entry of respondent into military service, still it is to be accepted that this disease has aggravated by stress and strain as a result of conditions of military service. The same view was taken by the Division Bench of this court in LPA(SW) No. 212/2006 entitled Union of India & Ors. Vs. Ravinder Kumar decided on December 31, 2007. One of us ( Y.P. Nargotra J.) held after discussing the rules and regulations and different judgments of Hon’ble Supreme Court as under:- “Thus any such disease which under clause ( c) is to be presumed to have arisen during service if falls in any of the categories of the diseases indicated in Annexure-III, it may be presumed to have aggravated by the facts indicated against such disease in Annexure-III. For instance in B category of Annexure-III diseases have been indicated which are affected by stress and strain. Thus if an individual is found to suffer from psychosis with disability of 20% or more during service and such disease even if constitutional in nature is to be deemed to have arisen during service in terms of Clause (c), and that it was aggravated by stress and strain. As in terms of Rule 9 of Appendix-II the claimant is not required to prove his entitlement, therefore, if there is no material before the Pension Sanctioning Authority that stress and strain was not involved in discharge of the military duty, it would have no option but to concede the aggravation by accepting that stress and strain was caused by the military duty. ……………………… In the instant case the disease on account of which the respondent was invalided out 6 though constitutional in nature yet to be deemed to have arisen during service on the basis of presumption under clause (c) of Regulation 423 falls in category-B of Annexure-III to Appendix- II being a neurotic disorder, is to be accepted to have aggravated by stress and strain. No material has been placed on record by the appellant to show that stress and strain could not have been the result of conditions of military service, therefore, it has to be accepted that the stress and strain which aggravated the disease was due to the conditions of military service.” For the foregoing reasons, we would hold that the learned writ court was correct in holding that Schizophrenia from which respondent suffered is a disease which was the result of stress and strains of military service and the same is attributable to and aggravated by the said service and thus the respondent is entitled to disability pension. This Letters Patent Appeal of the appellants is without any merit and deserves dismissal. Accordingly, this LPA alongwith connected CMP is dismissed. ( Vinod Kumar Gupta) ( Y.P. Nargotra) Judge Judge Jammu 25.11.2008 Chuni/cs 7