-1- Civil Writ Petition No.7877 of 2006. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: April 03 ,2008. Manohar Lal ... Petitioner VERSUS Union of India through Secretary, Ministry of Defence, New Delhi and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.Manoj TanwarAdvocate, for the petitioner. Mr. S.K. Sharma, Advocate, for the respondents. -.- MOHINDER PAL, J. The petitioner was enrolled in the Army on December 12, 1963 and invalidated out of service on June 10, 1987 in low medical category EEE (Psy) due to his disability `Paranoid Schizophrenia'. Consequent upon invalidated out of service, the -2- Civil Writ Petition No.7877 of 2006. petitioner was granted service pension and other terminal benefits. The Invalidating Medical Board considered the disability of the petitioner as neither attributable to nor aggravated by the duties of military service, the disease `Paranoid Schizophrenia' being of constitutional disorder and unrelated to military service factors. The degree of disablement was assessed at 60 % for two years. The claim of the petitioner for the grant of disability pension was rejected by the respondents. Hence this writ petition. In the written statement filed by the respondents, it has been pleaded that the petitioner did not meet the primary conditions for grant of disability pension as laid down in Regulation 173 of the Pension Regulations for the Army, 1961 (Part – I) (hereinafter referred to as `the Pension Regulations'). It is further stated that disability pension claim of the petitioner was rejected by the P.C.D.A (P), Allahabad, vide letter No.G- 3/88/3003/ix/325 dated June 01, 1988. The petitioner preferred appeal dated November 13, 1988, against rejection of his disability pension claim, which was dismissed by the First Appellate Committee. Thereafter, the petitioner preferred second appeal dated May 20, 1995 which was also dismissed by the competent authority. We have heard Mr.Manoj Tanwar, Advocate, appearing for the petitioner and Mr.S.K. Sharma, Advocate, appearing for the respondents and have gone through the records of the case. While arguing before us, learned counsel for the petitioner has laid argued that when the petitioner was enrolled in the Army, he was having good physique and sound -3- Civil Writ Petition No.7877 of 2006. health. He served the Army for more than twenty three years. He suffered from `Paranoid Schizophrenia' during the service and, as such, the disease was attributable to and aggravated by military service. In Controller of Defence Accounts (Pension) and others v. S. Balachandran Nair, 2006 (1) Services Law Reporter 51, the Apex Court, after referring to its earlier decisions in Union of India v. Baljit Singh, 1996 (1) SCC 315 and Union of India v. Dhir Singh China, Colonel (Retd.), 2003 (2) SLR 400 (SC), held that where Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Court cannot direct the Government to pay disability pension. In that case, the respondent was having some kidney complications and the medical authorities found his illness as `anxiety neurosis'. After prolonged illness, the respondent was boarded out and the medical authorities were of the opinion that he became unfit for continuing in service and was put under the category of `EEE' meaning `unfit and useless' and was finally discharged from service. In Union of India and others v. Keshar Singh, 2007 (4) Services Law Reporter 100, the respondent had developed schizophrenia while in military service. The disability did not exist before entering service. The High Court had held the illness to be attributable to Army Service and directed grant of disability pension whereas the Medical Board had given a clear opinion that illness was not attributable to military service. The Apex Court held that both the learned Single Judge and the -4- Civil Writ Petition No.7877 of 2006. Division Bench were not justified in their respective conclusion that the respondent was entitled to disability pension. The Apex Court also referred to its earlier decisions in Baljit Singh case (Supra), Dhir Singh China case (Supra) and S. Balachandran Nair's case (supra). In the present case, the petitioner had joined the Army on December 12, 1963. He was invalidated out of service on June 10, 1987 due to `Paranoid Schizophrenia'. The Invalidating Medical Board had opined that this disease was neither attributable to nor aggravated by military service. The proceedings of Invalidating Medical Board were accepted by the competent authority. The disability pension claim of the petitioner was rejected for the reason that the disease was neither attributable to nor aggravated by military service. The petitioner preferred appeal against rejection of his disability pension claim, which was dismissed by the First Appellate Committee. The second appeal preferred by the petitioner was also dismissed. In these circumstances, the case of the petitioner is squarely covered by the observations of the Hon'ble Supreme Court in S. Balachandran Nair's case (supra). The matter can also be examined from another angle by referring to he relevant provisions of the Pension Regulations. Rules 7 (b) and 7 ( c ) of Appendix -II, referred to in Regulation 173 of the Pension Regulations reads as under:- “ 7 (b) A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note -5- Civil Writ Petition No.7877 of 2006. of it was made at the time of the individual's acceptance for military service. However, if medical opinion holds for reasons to be sated, 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. 7 ( c ) If a disease is accepted as having arisen in service, 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. “ Both Rules 7 (b ) and 7 ( c ) have to be read together. A perusal of these provisions makes it clear that if a disease has led to the discharge of individual, it shall ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for military service. An exception, however, is carved out in Rule 7 (b) itself that if medical opinion holds for reasons to be stated that the disease could not have been detected by Medical Examination Board prior to acceptance for service, the disease would not be deemed to have arisen during service. Similarly, clause ( c ) of Rule 7 makes the position clear that if a disease is accepted as having arisen in service it must also be established that the conditions of military service determined or contributed to the onset of the -6- Civil Writ Petition No.7877 of 2006. disease and that the conditions are due to the circumstances of duty in military service. In the instant case, there is no material placed on record by the petitioner in this regard nor it has been averred that the same was produced before the Invalidating Medical Board to show that the disease was attributable to or aggravated by military service. Regulation 173 of Pension Regulations reads as under:- “ Primary conditions for the grant of disability pension: 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or above. The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix - II. Relevant portion in Appendix – II reads as under:- “ 2. Disablement or death shall be accepted as due to military service provided it is certified that:- (a) The disablement is due to wound, -7- Civil Writ Petition No.7877 of 2006. injury or disease which - (i) is attributable to military service; or (ii) existed before or arose during military service and has been and remains aggravated thereby; (b) the death was due to or hastened by- (i) a wound, injury or disease which was attributable to military service, or (ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service. Note: The Rule also covers cases of death after discharge/invalidating from service. 3. There must be a casual connection between disablement or death and military service for attributability or aggravation to be conceded. 4. In deciding on the issue of entitlement all the evidence, both direct and circumstantial, will be taken into account and the benefit or reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service case.” -8- Civil Writ Petition No.7877 of 2006. Regulation 423 of the Pension Regulations is also relevant. The same reads as under:- “ 423. Attributability of service: (a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a Field Service/Active Service area or under normal peace conditions. It is, however, essential to establish whether the disability or death bore a casual connection with the service conditions. All evidence both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence is to be accepted as reasonable doubt, for the purpose of these instructions, should be of a degree of cogency, which though not reaching certainly, nevertheless carry the high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt., If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be -9- Civil Writ Petition No.7877 of 2006. dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of doubt could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas. (b) The cause of disability or death resulting from wound or injury, will be regarded as attributable to service if the wound/injury was sustained during the actual performance of “duty” in armed forces. In case of injuries which were self inflicted or duty to an individual's own serious negligence or misconduct, the Board will also comment how far the disability resulted from self-infliction, negligence or misconduct. ( c ) The cause of disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. -10- Civil Writ Petition No.7877 of 2006. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which 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 service in the armed forces. 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. (d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a medical board or by the medical officer who signs the death certificate. The medical board/medical officer will specify reasons for their/his opinion. The opinion of the medical board/medical officer, in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can -11- Civil Writ Petition No.7877 of 2006. be attributed to service, will, however, be decided by the pension sanctioning authority. (e) To assist the medical officer who signs the death certificate or the medical board in the case of an invalid, the C.O Unit will furnish a report on:- (i) AFMS F-81 in all cases other than due to injuries. (ii) IAFY – 2006 in all cases of injuries other than battle injuries. (f) In cases where award of disability pension or reassessment or disabilities is concerned, a medical board is always necessary and the certificate of a single medical officer will not be accepted except in case of stations where it is not possible or feasible to assemble a regular medical board for such purposes. The certificate of a single medical officer in the later case will be furnished on a medical board form and countersigned by the ADMS (Army)/DMS (Navy)/DMS (Air).” A perusal of the above provisions clearly reveals that under Regulation 173 of the Pension Regulations, disability pension would be computed only when disability has occurred due to wound, injury of disease which is attributable to military service or existed before or arose during military service and -12- Civil Writ Petition No.7877 of 2006. has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. It is amply clear from a perusal of clauses (a) to (d) of Regulation 423 of the Pension Regulations, quoted above, that in respect of a disease the Rules enumerated thereunder are required to be observed. Clause ( c ) provides that if a disease is accepted as having arisen in service, 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/disease per se is on account of military service. In view of the legal position, discussed above, and the fact that the Medical Board's opinion was clearly to the effect that the illness suffered by the petitioner was not attributable to the military service, we find no merit in this writ petition and dismiss the same. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE April 03, 2008. ak