IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 OP.No. 23437 of 2002(M) -------------------------------- PETITIONER(S): ------------------- K.R.APPUKUTTAN NAIR, EX.1165 736 GNR (DMT),KUZHUVELIL KIZHAKKETHIL HOUSE, PERUMPULICKAL, MANNAM NAGAR P.O., PANDALAM, PIN-689 501. BY ADV. MR.SEBASTIAN PHILIP RESPONDENT(S): -------------------- 1. OFFICER-IN CHARGE RECORDS, TOPKHANA ABHILEKH, ARTILLERY RECORDS, NASIK ROAD CAMP. 2. CHIEF CONTROLLER OF DEFENCE ACCOUNTS (PENSION), ALLEHABAD, UTTER PRADESH. 3. DIRECTORATE GENERAL OF ARTILLERY, ARTILLERY-3, GENERAL STAFF BRANCH, ARMY HEAD QUARTERS, DHQ P.O.,NEW DELHI-110 011. ADV. MR.C.B.SREEKUMAR, ADDL.CGSC FOR 1 TO 3 MR.S.R.AJITH, ADDL.CGSC FOR R1 TO 3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 23437 of 2002 ORDER ONC.M.P.NO.39937 OF 2002 IN O.P.NO.23437 OF 2002 DISMISSED. 31.3.2009 SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF SUBSTITUTE DISCHARGE CERTIFICATE. EXT.P2: COPY OF MEDICAL CERTIFICATE ISSUED TO THE PETITIONER DATED 20.10.'87 BY THE CAPT. RECORD OFFICER (FOR COMMANDING OFFICER). EX T.P3: COPY OF REPRESENTATION DATED 23.6.89 SUBMITTED BY PETITIOENR BEFORE THE CHIEF OF ARMY STAFF. EXT.P3(a): COPY OF REPRESENTATION DATED 05.02.90 SUBMITED BY PETITIOENR BEFORE SHRI. VISWANATH PRATAP SINGH, HON'BLE PRIME MINISTER OF INDIA. EXT.P4: COPY OF ORDER NO.1165736/B/LT III/DP/NE DTD 31.5.89 ISSUED BY LT., ASST. RECORD OFFICER. EXT.P5: COPY OF ORDER NO.1165736/Q/DP/NE DATED 25.7.89 ISSUED BY -DO- EXT.P6: COPY OF ORDER NO.1165736/Q/DP/L-III/NE DATED 31.8.89 ISSUED BY CAPT. RECORD OFFICER. EXT.P7: COPY OF ORDER NO.1165736/Q/L-III/DP/NE DATED 16.5.90 ISSUED BY LT. ASST. RECORD OFFICER. EXT.P8: COPY OF MEMO D.O.NO.694/OSD/MOS/LJC/2000 DATED 28.2.2000 TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.23437 OF 2002 ---------------------------------------- Dated this the 31st day of March, 2009 JUDGMENT The petitioner entered military service on 2.12.1960. On 7.4.1970, he was invalided out of service, after putting in 9 years and 127 days of service. For getting regular military pension, he should have put in minimum 10 years of service. He was short for that by about seven months. He was also not paid disability pension, although he was invalided out of service with 20% disability. The petitioner's claim for both disability pension and regular pension were rejected by Exts.P4, P5 and P7 orders. It is under the above circumstances, the petitioner has filed this original petition seeking the following reliefs: “i) call for the entire records leading to Exhibits-P4, P5, P6 and P7 and quash the same; ii) issue a writ of mandamus or order or direction directing the respondents to sanction and disburse disability pension to the petitioner from the date of discharge” Ext.P4 is the order rejecting the claim of the petitioner for disability pension. Ext.P5 is the order rejecting the petitioner's O.P.NO23437/02 2 application for both disability pension and regular pension. Exts.P6 and P7 are also similar orders. According to the petitioner, the petitioner is entitled to disability pension, in so far as the petitioner entered military service, after a comprehensive medical examination, in which no defect whatsoever has been noticed in his constitution. It is after very strenuous military service including that in war front as well s in very adverse climatic conditions, the petitioner had contracted the disease, which resulted in his invaliding out of service. The petitioner points out that as per the Full Bench Decision of this Court in Baby V. Union of India [2003(3) KLT 362], in such circumstances, onus of proving that the disability incurred by the petitioner is not attributable to military service is squarely on the respondents. Since the respondents have not discharged their burden of proving, the impugned orders are liable to be quashed and the respondents be directed to pay disability pension to the petitioner. 2. A Statement has been filed by the respondents controverting the contentions of the petitioner. In the same, in paragraph 7 its stated thus: “it is further submitted that despite providing him all available medical treatments, no desired O.P.NO23437/02 3 improvement could be noticed in his disease 'HIGH HYOPIA WITH HOPIC CHORIO PETINAL DEGENERATION (LT) EYE (378)”. Therefore, the petitioner was brought before a duly constituted invaliding medical board of officers consisting of opthalmologist, Capt AMC and President Medical Board on 26 December 1969 at Military Hospital Pathankot. The invaliding medical board of officers placed him in low medical category 'EEE' and viewed the cause and nature of his disablement “HIGH HYOPIA WITH HYOPIC CHORIO PETINAL DEGENERATION (LT) EYE (378)”. Neither attributable to nor aggravated by military service and not connected with military factors. His degree of disablement was assessed at 20% or two years”. In Baby's case (supra) it has been held that in cases where it is proved that at the time of entering service the employee was not detected with any disease, then the onus shifts to the department to prove that the disability was not attributable to military service. The respondents have not chosen to produce before me any medical records in respect of the petitioner in support of their contention that the disability incurred by the petitioner is not attributable to the military service. The respondents have no case that at the time of entering military service, the petitioner was detected with any defect in the petitioner's constitution especially in his eyes. It is common knowledge that while recruiting for military service the eye- sight of the candidate is put to server medical examination O.P.NO23437/02 4 since good eyes are very essential for military service. In paragraph 3 of the statement they admit as follows:” “3. The petitioner had served in the following areas:- Sl.No Area (whether peace field Insurgency/operat ion which attitude area etc) Duration From To Total Yrs Period Months (a) Peace area Arty Centre, Nasik Road Camp (Basic Military Training 2.12.60 15.2.62 o1 o2 (b) Field Area (NEFA) 6.12.62 2.02.66 o3 o2 (c) High Altitude and uncongenial climate are (NEFA) 27.02.66 10.08.66 - o6 (d) Field Area (NEFA) 11.08.66 02.11.66 - o8 (e) Peace area – Arty Centre, Nasik Road Camp (Maharashtra) 08.11.66 06.06.69 o2 o3 (f) PeaceArea (Punjab) 06.06.69 07.04.70 - 10 Therefore, for at least a period of four years, the petitioner was employed in high altitude area and in field area. The respondents have not been able to state as to what was the basic or probable reason for the petitioner for contracting this disease. As such I am satisfied that the respondents have not discharged their burden of proving that the disability incurred by the petitioner is not attributable to military service. On the O.P.NO23437/02 5 other hand the circumstances warrant a conclusion that the disease is attributable to the petitioner's military service. That being so, I am satisfied that the petitioner has become entitled to disability pension. Accordingly, the original petition is allowed to that extent. The respondents are directed to grant disability pension to the petitioner. Orders in this regard shall be passed and arrears disbursed as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE Acd O.P.NO23437/02 6