IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 WA.No. 1221 of 2009() --------------------- AGAINST THE JUDGEMENT IN OP.12679/2003 Dated 04/01/2008 .................... APPELLANTS/ RESPONDENTS ------------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY MINISTRY OF DEFENCE, NEW DELHI. 2. CHIEF CONTROLLER OF DEFENCE ACCOUNTS PENSION ALLAHABAD. 3. OFFICER I/C RECORDS EM.E.RECORDS, SECUNDERABAD. BY ADV. SMT.MOLY.E.V., CGC RESPONDENT/PETITIONER: ------------------------------ EX.NO.7119248 R.SATHEESAN, PUTHENPURAYIL HOUSE, ULIYAKOVIL, P.O.KADAPPAKKADA, KOLLAM. BY ADV. SRI.MARTIN G.THOTTAN AND BY ADV. SRI.M.P.VARKEY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J. .............................................................................. W.A.No. 1221 OF 2009 ......................................................................... Dated this the 7th March, 2011 J U D G M E N T J. Chelameswar, CJ. Aggrieved by the judgment dated 04.01.2009 in O.P. No.12679 of 2003, the respondent Union of India is in appeal. The sole respondent is an ex-service man. He was enrolled in the Indian army on 28.03.1972. In the year 1981, during a regular firing range training, the petitioner fell down unconscious and was hospitalised. He was referred to the Military Hospital, Calcutta and he was there as an inpatient for four months. It was diagnosed that he was suffering from Neurosis-300. He was thereafter examined by the 'Release Medical Board' and found invalid and unfit for rendering service on medical ground. 2. He was discharged w.e.f. 23.08.1981. The respondent, it appears that, made an appeal to the first appellant herein claiming the invalid pension, which was rejected and by communication dated 07.08.1999 of the third appellant, the respondent was informed that his claim was not entertained because it was time barred. Aggrieved by the same, the respondent filed a petition before the Govt. of India. W.A.No. 1221 OF 2009 2 3. However, by communication dated 01.04.2002 the respondent was informed that he was not entitled for claiming the disability pension. The relevant portion of the communication is extracted in the judgment under appeal, which reads as follows: “On perusal of your service/medical documents, the committee has found that your invalidating disability 'Neurosis' is a constitutional disorder, which is neither attributable to nor aggravated by military service. Therefore, you are not entitled to disability pension as per Regulation 173 of Pension Regulations for Army Part-I, 1961. Accordingly, the ACFA has not accepted your appeal”. 4. Therefore the respondent approached this Court by way of Original Petition. Though the Original Petition was pending for five years before this court, the appellants did not care to file a counter affidavit in the Original Petition. By judgment under appeal, a learned Judge of this Court declared as follows: “For the reasons stated above, I quash Ext. P5 and declare that the petitioner is entitled to payment of disability pension. The respondents W.A.No. 1221 OF 2009 3 shall take steps to compute and disburse the disability pension payable to the petitioner. Arrears of disability pension payable to the petitioner shall be paid within three months from the date of receipt of a copy of this judgment. I further direct that the respondents shall continue to pay the petitioner the disability pension in accordance with the rules every month.” Hence the appeal. 5. The only submission made by the learned Counsel for the appellant is that under Regulation 173 of the Pension Regulations for Army Part-I, 1961, the respondent is not entitled for the pension. The Regulation is not placed before this Court. Though it is a argued that the Regulation stipulates that a person to be entitled for the disability pension, the disability must be such, that is attributable to the service rendered by such a person. For the purpose of the present order, we should presume that such a legal requirement exists that the disability must be attributable to the service. 6. Called upon to explain the factual basis of the conclusion that the disability of the respondent is not attributable to the service, the learned counsel for the appellant referred to W.A.No. 1221 OF 2009 4 a+9++654+654 document Ext.R1/5 in Annexure A3, filed along with the counter affidavit in the Original Petition. The title of document is 'Opinion of the Medical Board'. A perusal of the document does not disclose any information which enables anybody to come to a conclusion whether the disability is attributable to the service or not. The document undoubtedly certifies that there is disability of 40% , characterised as 'Neurosis-300'. Except a bald statement at Column No. 2(d) that the disability is 'constitutional disorder not connected with service', it does not indicate as to how such a conclusion is reached. The appeal of the respondent was rejected on the sole ground of the above mentioned certificate. In the said circumstances, we do not see any reason to interfere with the judgment under appeal. Appeal is dismissed. J. CHELAMESWAR, CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk