IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 OP.No. 1869 of 2000(V) ------------------------------- PETITIONER: ------------------- P.V.GEORGE S/O. P.N. VARKEY PLAMOOTTIL HOUSE PULIYOOR.P.O. CHENGANNUR, ALLEPPEY DISTRICT BY ADV. SRI.JOHNSON MANAYANI RESPONDENTS: ----------------------- 1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, CENTRAL SECRETARIAT, NEW DELHI. 2. THE OFFICER-IN-CHARGE OF RECORDS OFFICE, ARTILLERY RECORDS, NASIK ROAD CAMP, NASIK BY ADV. SRI.B.N.SHIVSANKAR SRI.TOJAN J.VATHIKULAM, ADDL.CGSC FOR RESPONDENTS. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 1869 of 2000(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE SERVICE PARTICULARS ISSUED BY THE FIRST RESPONDENT. EXT.P2 - TRUE COPY OF THE ORDER DATED 19.4.1990 ISSUED BY THE 2ND RESPONDENT. EXT.P3 - TRUE COPY OF THE PETITION DATED 29.5.1990 SENT BY THE PETITIONER TO HIS EXCELLENCY THE PRESIDENT OF INDIA. EXT.P4 - TRUE COPY OF THE LETTER DTED 26.7.1994 ISSUED BYTHE FIRST RESONDENT. EXT.P5 - TRUE COPY OF THE LETTER DATED 10.11.1994 ISSUED BY THE 2ND RESPONDENT. EXT.P6 - TRUE COPY OF THE LETTER DATED 7.12.1994 ISSUED BY THE FIRST RESPONDENT. EXT.P7 - TRUE COPY OF THE LETTER DATED 20.5.1995 ISSUED BY THE 2ND RESPONDENT. EXT.P8 - TRUE COPY OF THE LETTER DATED 3.7.1995 OF THE 2ND RESPONDENT. EXT.P9 - TRUE COPY OF THE JUDGMENT IN O.P. NO. 17488 OF 1995 DATED 16.8.1999. EXT.P10 - TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 24.11.1999. RESPONDENTS' EXHIBITS: EXT.R1(a) - TRUE PHOTOCOPY OF THE REPORT OF THE INVALIDING MEDICAL BOARD. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== O.P.No.1869 of 2000 ================== Dated this the 16th day of September, 2008. J U D G M E N T A discharged soldier of the Indian Army comes up before this court, a second time, seeking disability pension. He entered military service as a soldier on 12th June, 1954. He continued in military service till 7.5.1963. He was discharged from military service on medical grounds on detection of the disease 'Schizophrenia', which is a mental disorder. At the time when he entered service he had no such medical condition. It is only after nine years of service that he was detected with the disorder and discharged from military service. In spite of the same, the medical wing of the military service opined that this disease was not attributable to military service. Consequently, disability pension was denied to the petitioner. The petitioner challenged that decision in O.P. 17488/1995 before this Court. In that original petition, by Ext.P9 judgment, this court came to the prima facie conclusion that the disability suffered by the petitioner should be attributable to the military service and after considering the various provisions of the Entitlement Rules, this O.P.No.1869 of 2000 - 2 - court directed the 1st respondent to reconsider the matter in a pragmatic and lenient view and to pass fresh orders within the period mention therein. Pursuant that, Ext.P10 order was passed again holding that the disability suffered by the petitioner is not attributable to military service. The petitioner is challenging Ext.P10 order. 2. The petitioner's contention is that he having entered military service in full faculty of mind and worked in the military service for almost nine years, in the absence of any other reason it must be concluded that this medical condition arose only on account of military service. He also points out that the petitioner was working in the border areas of China and Pakistan where the petitioner was under extreme physical and mental tension which could be a very possible reason for contracting the particular disease. Therefore in the absence of any other possible reasons, the disability should be attributable to military service is the contention raised by the petitioner. 3. On the other hand the Central Government Counsel would contend that since the medical opinion produced as Ext.R1(a) specifically states that this medical condition cannot be attributable to military service, this court cannot go beyond the medical opinion to come to a different conclusion. He also refers O.P.No.1869 of 2000 - 3 - to the decisions of the Supreme Court in Bharath Metha v. State [2008 (5) SCC 752] and Controller of Defence Accounts (Pension) v. Balachandran Nair [2005 (4) KLT 703] in support of the Union of India v. Keshar Singh [2007 (3) KLT 171 (SC)] in support of his contentions. 4. I have considered the rival contentions in detail. 5. I am of opinion that the respondents cannot now again rely upon the very same medical opinion which was considered by this court while passing Ext.P9 judgment. In Ext.P9 judgment this court specifically came to the conclusion that prima facie disability contracted by the petitioner should be attributed to military service. A Full Bench of this court has in Baby.Y v. Union of India [ILR 2003(2) Kerala 493] held that once an employee prima facie shows that the disability is attributable to military service, the burden shifts to the respondent to prove otherwise. Here in this case this Court in Ext.P9 judgment has come to the conclusion that prima facie the disability should be attributable to military service. That judgment has become final and binding on the respondents. Therefore, naturally going by Full Bench decision referred to above the burden shifts to the respondents show that the medical condition of the petitioner cannot be attributed to O.P.No.1869 of 2000 - 4 - military service. The respondents have not chosen to provide any material in that regard, except the earlier medical opinion which was considered by this Court while entering a finding that prima facie the disability should be attributable to the military service. Therefore, it was incumbent on the respondents to prove with some other reliable material to the contrary. The respondents have sadly failed to do so. In such circumstances, the respondents have not discharged their burden as laid down in the Full Bench decision. Moreover, the Full Bench decision has specifically held that when an individual is physically fit at the time of enrollment and no note regarding any adverse physical factor is made at the time of entry into service and yet the individual is discharged before completion of the full tenure on account of his physical disability, the initial onus of proving that disability is not attributable to the army service shall be on the authority. That is exactly the case here. When the petitioner entered military service no note regarding any adverse physical factor which would even remotely suggest any mental condition was made on medical examination. In fact he worked for a full eight years and more in military service, during which time also no such condition was ever detected. It is not disputed by the respondents that the petitioner was working in the border areas. O.P.No.1869 of 2000 - 5 - It is common knowledge that in border areas soldiers would be constantly subjected to very severe physical and mental tension. It is not beyond comprehension that such extreme physical and mental tension may contribute to such mental disorders. That being so, I am satisfied that the petitioner has succeeded in showing that the disability suffered by the petitioner is attributable to military service. On the other hand the respondents have not been able to discharge their burden of proving otherwise by producing adequate material before this Court. Therefore, I am satisfied that the petitioner is entitled to disability pension. Accordingly, Ext.P10 is quashed. The respondents are directed to see that the petitioner gets his disability pension promptly. Arrears shall be paid within three months from the date of receipt of a copy of this judgment. The petitioner shall also be paid disability pension every month as is usually done in case of other military personnel eligible for disability pension. The writ petition is allowed as above. S.SIRI JAGAN, JUDGE rhs