IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.M. No.614 of 2008 in/and L.P.A. No.174 of 2008 (O&M) Date of decision: 3.7.2009 Bakshish Singh. -----Appellant Vs. Union of India & Ors. -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MRS JUSTICE DAYA CHAUDHARY Present:- Mr. Gaurav Chopra, Advocate for the appellant. Mr. Suveer Sheokand, Advocate for respondents. ----- ORDER: 1. Delay condoned. Heard on merits. 2. This appeal has been preferred against judgment of the learned Single Judge, rejecting the claim of the appellant for disability pension, mainly on the ground that the appellant had not completed 10 years qualifying service, stipulated under Regulation 198 of the Pension Regulations for the Army, 1961 (for short, “the 1961 Regulations”), reproduced in para 9 of the appeal. LPA No.174 of 2008 3. The appellant was enrolled in the Army on 20.5.1969. He was medically examined and found fit for recruitment. He served the Army from 1969 to 1977. On 28.12.1977, medical opinion was given that the appellant should be released from Army service on account of the disease of “Hysterical Reaction”. The disability was found to be 20%. Accordingly, the appellant was discharged from service w.e.f. 5.4.1978. He applied for disability pension under Regulation 173 of the 1961 Regulations and the said claim having not been accepted, he preferred a writ petition in the year 2001, which has been dismissed on the ground that the appellant had not rendered the qualifying service. 4. Learned counsel for the appellant submits that Regulation 198 of the 1961 Regulations, laying down qualifying service of 10 years, was not applicable to claim disability pension under Regulation 173, when disability was attributable to Military service. Regulation 197, in turn applies to invalidation out of service on account of disability not attributable to or aggravated by service. 5. It is submitted that learned Single Judge while dismissing the petition has recorded a finding in favour of the appellant on the issue of disability being attributable to Army service. The relevant observation is as under:- “Another inference, which will necessarily have to be drawn from the manner in which this medical condition appears to have surfaced on 20.9.1970, is that in all probability the same was attributable to the 2 LPA No.174 of 2008 service, which he had put in the army after his induction in it on 20.5.1969, on which date, he was found not suffering from this malady.” 6. Learned counsel for the respondents oppose the claim in the appeal by relying on judgment of the Hon’ble Supreme Court in Union of India & Ors. v. Keshar Singh 2007 (12) SCC 675. He submits that finding that the disease was attributable to Military service, was not correct, in view of medical opinion. Medical opinion in that regard should not be disregarded. The medical opinion relied upon is Annexure R-1, to the following effect:- Opinion of the Psychiatrist Captain L Bhattacharya, Command Hospital (WC) Chandigarh on 28.12.1977 This Inf/Sep aged 27 years with about 8½ years of service is an old case of Hysterical Reaction in Med Cat (CEE) (P). He has improved to some extent than before but still remains symptomatic and gets occasional attacks of tremulousness of limbs and trunk. Fit to be released in med cat (CEE) (Psychiatric) Permanent. Neither attributable nor aggravated by military service being constitutional in nature. Sd/- XXXX (L Bhattacharya) Capt. AMC Psychiatrist” 7. The following questions arise for consideration:- 3 LPA No.174 of 2008 i) Whether claim of the appellant falls under Regulation 173, which does not require any qualifying service or under Regulation 198, which requires qualifying service? ii) Whether the medical opinion, to the effect that the disease was not attributable to Army, can be held to be conclusive? Re.(i): We find that the disability pension for disease attributable to Army service and invalidation pension for disease not attributable to Army service, were two independent concepts dealt with under Regulations 173 and 197 of the 1961 Regulations. Requirement of qualifying service is applicable only to claim under Regulation 198, when disease is not attributable to Army service and not to claim under Regulation 197. We are, thus, unable to uphold the view taken by the learned single Judge that in absence of qualifying service of 10 years, claim for pension under Regulation 173 could not be upheld even when disability was attributable to Army service, as held by learned Single Judge. Re.(ii): Though medical opinion relied upon on behalf of the respondents is to the effect that the disease was not attributable to Army service and the medical opinion has to be given due weight, as held by the Hon’ble Supreme Court in Union of India & Ors. v. Keshar Singh (supra), there has to be some 4 LPA No.174 of 2008 discernible basis of medical opinion. Mere mention of words ‘not attributable to Army service’ without giving any reasons, cannot be accepted as conclusive. This aspect has been considered in the judgment of this Court dated 1.7.2009 in Union of India & another v. No.727213 Ex-Airman, B.S. Rana. Therein, after referring to various judgments of the Hon’ble Supreme Court, it was held as under:- 8. In a recent judgment in Union of India and others v. Ex. Sepoy Ranjit Singh, LPA No.547 of 2001, decided on 11.2.2009, the matter was considered by this Court and it was held that if the circumstances give rise to an inference that disease was attributable to the Air Force Service, negative opinion of the Medical Board given without any basis could not be treated as conclusive. After referring to judgments in Union of India and another v. Baljit Singh, 1996(2) SCC 316, Controller of Defence Accounts (Pension) and Others v. S.Balachandran Nair, AIR 2005 SC 4391, Navin Chandra v. Union of India and others, 2006(4) SCT 626 (Delhi), Union of India and others v. Hemant Kumar, 2009(1) RSJ 196 (MP) and Joginder Singh v. Union of India and others, CWP No.7323 of 2007, decided by this Court on 4.12.2007, it was observed:- “14. We are of the view that the judgments of the Hon’ble Supreme Court in Baljit Singh’s case and S.Balachandra Nair’s case 5 LPA No.174 of 2008 (supra) are distinguishable on facts. In the present case it has been admitted in the written statement (that) there was an episode of Generalised Tonic Clonic Seizure on 11.10.1998 when the petitioner was in service and he was given treatment which continued thereafter. In the opinion of the Medical Board Annexure RA, there is no reason given as to how the said illness did not relate to the disability in question. The disability is clearly relatable to the episode which is duly admitted in the written statement. It may have been a different matter if such an episode had not happened. The opinion of the medical Board in the present case was thus arbitrary in ignoring the admitted incident. 15. In Naveen Chander (supra), it was held that the opinion of Medical Board must be self contained and well reasoned and supported by documentary proof and therefore, the opinion that the disease was not attributable to the military service was without any basis. Moreover, para 14 of 1982 Rules provides that if a person is fit at the time of entry into service, there will be presumption that the disease is due to military service though on facts it could be established that the disability existed prior to entry into service and the mere fact that such disease was not detected at the time of entry 6 LPA No.174 of 2008 into service will not be conclusive. Similar view has been taken by this Court in Joginder Singh and Ex Sepoy Bhola Ram (supra) and the Madhya Pradesh High Court in Hemant Kumar (supra). 16. In view of the above, no fault can be found with the finding recorded by the learned Single Judge that the disability of the petitioner was attributable to the military service and he was entitled to disability pension from the date of his discharge from the military service.” We, thus, hold that in absence of any reason whatsoever for the opinion that the disability was not attributable to Army service, medical opinion cannot be treated as conclusive. The judgment in Union of India & Ors. v. Keshar Singh (supra) is distinguishable on facts. We affirm the finding recorded by the learned Single Judge that the disease in this case was attributable to Army service. 8. Before parting with this order, we may also notice the contention of learned counsel for the respondents that there was delay in filing the appeal. The appellant was discharged from service in 1978 and the writ petition was filed in the year 2001. In the matter of pension, mere delay cannot always be a ground to reject the claim, particularly when a person has served the Army and suffered disability attributable to Army service. We, 7 LPA No.174 of 2008 therefore, do not find any merit in this submission. However, claim for arrears has to be limited to three years preceding the date of filing the writ petition. Reference in this connection may be made to judgments of the Hon’ble Supreme Court in Shiv Dass v. Union of India and others AIR 2007 SC 1330 and Union of Indiaand others v. Tarsem Singh 2008(8) SCC 648. 9. Accordingly, we allow this appeal and direct that pension of the appellant be worked in accordance with law by treating him eligible for disability pension, within four months from the date of receipt of a copy of this order. Arrears will be admissible for three years prior to filing the writ petition and thereafter. (ADARSH KUMAR GOEL) JUDGE July 03, 2009 ( DAYA CHAUDHARY ) ashwani JUDGE 8