IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 OP.No. 14074 of 1999(A) ----------------------------- PETITIONER(S): --------------- V. SUNIL KUMAR (EX.EAA-4 NO.197365-H) S/O. T. BHASKARAN NAIR, AGED 28 YEARS, KUNIYATHUMMAL HOUSE, POST IRUVALUR, VIA CHELANNUR, KOZHIKODE – 673616. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): ------------------ 1. UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF DEFENCE, NEW DELHI – 110 011. 2. THE CHIEF CONTROLEER OF DEFENCE ACCOUNTS (P) NAVY CELL, DRAUPADI GHAT, ALLAHABAD U.P. 3. BUREAU OF SAILORS, CHEETAH CAMP, MANKHURD, MUMBAI – 400088. ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC SRI.P.S.SREEDHARAN PILLAI, SCGSC SRI.TPM.IBRAHIM KHAN,SENIOR PANEL COUNS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 14074 of 1999 ORDER ON C.M.P.NO.22714 OF 1999 IN O.P.NO.14074 OF 1999 CLOSED. 17.11.2008 SD/ S. SIRI JAGAN, JUDGE. EXT.P1: COPY OF DISCHARGE SLIP NO.A& D BOOK N /601/4/94 ISSUED FROM NAVAL HOSPITAL. EXT.P2: COPY OF SERVICE DISCHARGE CERTIFICATE DATED 28.10.1994 ISSUED BY R3 TO THE PETITIONER. EXT.P3: COPY OF LETTER DATED 8.11.95 OF R3 RECEIVED BY PETITIONER. EXT.P4: COPY OF ORDER DATED 7.12.1995 OF R3. EXT.P5: COPY OF APPEAL MEMORANDUM DATED 22.1.96 FILED BY THE PETITIONER AGAISNT P4 ORDER. EXT.P6: COPY OF LETTER DATED 9.2.96 OF R3 RECEIVED BY THE PETITIONER. EXT.P7; COPY OF ORDER DTD 12.3.98 OF R1 COMMUNICATED BY R3 TO THE PETITIONER. EXT.P8; COPY OF THE LETTER DTD 28.12.98 OF R3 RECEIVED BY THE PETITIONER. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 14074 OF 1999 ---------------------------------------- Dated this t7th day of November, 2008 JUDGMENT The petitioner entered the service of the Indian Navy on 10.1.1987. He was invalided out of service by Ext.P1, on having contracted the mental disorder of 'Affective Disorder (Bipolar)”. By Ext.P3, the petitioner was granted “invalid gratuity” of Rs.1,770/-. However, his claim for disability pension was rejected by Ext.P4 order on the ground that the disability is not attributable to or aggravated by Naval service. The petitioner's appeal against Ext.P4 order was rejected by Ext.P7 order. The petitioner is challenging Exts.P4 and P7 order and seeking the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibits P4 and P7 order. ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to grant disability pension in favour of the petitioner with effect from the date of discharge from service with interest till payment. O.P.No.14074/99 2 2. According to the petitioner, at the time of joining Navy, the petitioner was in sound mental condition and no note regarding any kind of disability had been made at the time of medical examination for enrollment in the Navy. The petitioner therefore, submits that the disorder, which affected his mental condition occurred only on account of the stress and strain of the naval service. The petitioner, therefore submits that he is entitled to disability pension. 3. A counter affidavit has been filed, in which the respondents would assert that the petitioner's mental condition is not attributable to Naval Service and therefore going by Ext.R1 Rules relating to payment of disability pension, the petitioner is not entitled to disability pension. 4. I have considered the rival contentions in detail. 5. The question I have to decide is as to whether the petitioner was invalided out of service on account of disability attributable to military service. Therefore, the first question is to be decided is as to the onus of proving as to whether the disability is attributable to military service or not id on whom. A Full Bench decision of this Court in Baby V. Union of India [2003(3) KLT 362(F.B.)] has held that when an individual is O.P.No.14074/99 3 enrolled after having found to be in perfect health and no note regarding any kind of disability has been made at the threshold, he would be entitled to the grant of disability pension. It is further stated that the onus of proving that the disability is not attributable to the service or that an individual is not entitled to the claim of disability pension shall normally lie on the authority. Here, it is not disputed before me that at the time of enrollment in Naval Service the petitioner was in perfect mental health. It is after more than seven and a half years of Naval Service that he was diagnosed with the mental disorder, which led to his discharge from service. That being so, applying the ratio of the Full Bench decision in Baby's case (Supra), the onus of proving, that the disability is not attributable to Naval Service, is squarely on the respondents. Although in the counter affidavit, they would assert that the disability is not attributable to Naval Service, the respondents have not chosen to produce any of the medical records in their possession to discharge the burden of proof cast on them. That being so, when the petitioner has asserted and proved that at the time of entering Naval Service, he was in perfect mental condition, he is eligible for disability pension as held in O.P.No.14074/99 4 the Full Bench decision in Baby's case (Supra), if the percentage of the disability is 20% and above. Neither in the original petition nor in the counter affidavit or in any of the documents produced by either side is there any mention about the percentage of disability of the petitioner assessed on account of the disability. But certainly, the medical records would prove that. Therefore, if the petitioner's disability as per the medical records of the respondents is 20% or more, the petitioner would be eligible for military pension. In the above circumstances, Exts.P4 and P7 orders are quashed. It is declared that if the percentage of disability assessed on the petitioner is 20% or more as per the medical records, the petitioner would be granted disability pension. Orders in this regard shall be passed and arrears paid within a period of three months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.14074/99 5