RSA No.2540 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2540 of 2009 (O&M) Date of Decision: September 04 , 2009 The Secretary,Ministry of Defence through Union of India and others ...... Appellants Versus Rajbir Singh ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Gurpreet Singh, Advocate for the appellants. **** 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? Ajay Tewari, J. This appeal has been filed against the judgment of the learned Lower Appellate Court reversing that of the trial Court and thereby decreeing the suit of the respondent for grant of disability pension. The respondent was invalidated out after 21 years of service on account of Sick Sinus Syndrome which is a heart disease requiring the implant of a pacemaker to control irregular heart beat. The following questions have been proposed:- i) Whether the plaintiff-respondent is entitled or disability pension as per Rules? ii)Whether disability pension should have been allowed at the backdrop of Release Medical Board holding that the invalidating disease is neither attributable to nor aggravated by Military service? It would be seen that both the questions are pure questions of RSA No.2540 of 2009(O&M) 2 fact. Learned counsel has, however, relied upon two decisions of the Hon'ble Supreme Court in Controller of Defence Accounts (Pension) and others v. S. Balachandran Nair reported as AIR 2005 Supreme Court 4391 and Union of India and another v. Baljit Singh reported as 1997(1) SLR 98. In the case of AIR 2005 SC 4391 (supra), S.Balachandran joined the Army in 1972 and developed illness in 1977 and was consequently invalidated out w.e.f. 18.3.80 on the account that he had developed 'anxiety neurosis'. The Hon'ble Supreme Court held as follows:- “12. In view of the legal position referred to above and the fact that the Medical Board's opinion was clearly to the effect that the illness suffered by the respondent was not attributable to the military service, both the learned Single Juge and the Division Bench were not justified in their respective conclusion. The respondent is not entitled to disability pension. However, on the facts and circumstances of the case, payment already made to the respondent made by way of disability pension shall not be recovered from him. The appeal is allowed but in the circumstances without any order as to costs.” The Hon'ble Supreme Court relied upon paras 2, 3 and 4 of Appendix II with the Pension Regulations. In the case of Baljit Singh (supra) the matter was regarding injury and the Hon'ble Supreme Court held that the injury suffered by the respondent therein was not attributable to Army Service. In the present case the learned Lower Appellate Court has relied upon clauses 9 and 20 of the same Appendix II which are to the following effect:- ONUS OF PROOF 9. The claimant shall not be called upon to prove the conditions of the entitlements. He/She will receive the benefit RSA No.2540 of 2009(O&M) 3 of any reasonable doubt. This benefit will be given more liberally to the claims in field/afloat service cases. CONDITIONS OF UNKNOWN AETIOLOGY 20. There is a number of medical conditions which are unknown aetiology. In dealing with such conditions the following guiding principles are laid down: (a) If nothing at all is known about the cause of the disease and the presumption of the entitlement in favour of the claimant is not rebutted, attributability should be conceded.” Learned Lower Appellate Court has also found that in the opinion of the Medical Board Ex.D2 no recital was there that the disease in question could not have been actuated or aggravated due to military service. In view of clauses 9 and 20 (Supra) the benefit of this beneficial legislation would have to go to the respondent. Learned Lower Appellate Court has also noticed that the sole witness appearing on behalf of the appellant himself conceded that as an army driver the respondent had to live under hard conditions including travel to hard living areas and, therefore, the causal connection between the disease and the service could not be ruled out. Consequently holding the above mentioned questions against the appellant, the appeal is dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE September 04, 2009 sunita