-1- Civil Writ Petition No.12231 of 2006. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: February 25 ,2008. Ex. No.2857813 Sep Naurang Lal ... Petitioner VERSUS Union of India through Secretary, Government of India, 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.Surinder Sheoran, Advocate, for the petitioner. Mr. Suvneet Sharma, Advocate, for the respondents. -.- MOHINDER PAL, J. Challenge in this petition filed under Articles 226/227 of the Constitution of India is to the order rejecting the disability pension claim of the petitioner. Brief facts of the case are that the petitioner was initially enrolled in the Raj Rifles on December 07, 1965 and was discharged on April 05, 1971, at his own request on extreme -2- Civil Writ Petition No.12231 of 2006. compassionate grounds. He had rendered five years and 120 days qualifying service. He got himself re-enrolled in Defence Security Corps (for short `DSC') on May 15, 1974. After re- enrolment, the former service of the petitioner was counted towards DSC service for enhanced rate of pension/gratuity, as per the option exercise by him in terms of Government of India, Ministry of Defence, letter dated March 03, 1983. He was transferred to Pension Establishment with effect from June 01, 1984, on completion of terms of engagement and, as such, the petitioner had rendered ten years and 08 qualifying service and the aggregate qualifying service rendered by him in both spells was fifteen years and 128 days. The petitioner was downgraded to low medical category CEE (Temporary) with effect from March 12, 1975 for the disease 'Diabetes Mellitus 250/V.67'. Subsequently, he was placed in low medical category CEE (Permanent) with effect from February 10, 1978. Being placed in permanent low medical category, the petitioner was brought before Release Medical Board on March 12,1984 for assessment of his medical condition before his transfer to Pension Establishment. The Release Medical Board assessed the degree of disability at 20 per cent for two years and opined that the disability was constitutional not related to military service and it was neither attributable to nor aggravated by military service. The petitioner was granted service pension from June 01, 1984. His claim for disability pension was rejected by the P.C.D.A.(Pensions), Allahabad, vide letter dated August 06, 1984, on the ground that the disability was -3- Civil Writ Petition No.12231 of 2006. constitutional in nature and not related to Army Service. It was neither attributable to nor aggravated by military service. The rejection of disability pension claim was communicated to the petitioner vide letter dated August 28, 1984 (Annexure P-1) with an advise to prefer an appeal if he felt unsatisfied with the decision. The petitioner did not prefer any appeal. However, he served legal notice dated March 07, 2006 (Annexure P-2) under Section 80 of the Code of Civil Procedure, calling upon the respondents to consider his claim of disability pension. The respondents sent reply dated June 08, 2006 (Annexure P-3) to the legal notice sent by the petitioner stating therein that as the Medical Board had opined that the disability was neither attributable to nor aggravated by military service, he was not entitled to disability pension. The petitioner has attached as Annexure P-4 with this petition the decision rendered by a learned Single Judge of this Court in Civil Writ Petition No.2398 of 2001 decided on April 26, 2002 (Kanwar Singh v. Union of India & Others) whereby the disease of 'Diabetes Mellitus (DHA Failure)-250' was held attributable to military service and disability pension was granted to the petitioner therein. In the written statement filed by the respondents, it was pleaded that the petitioner did not fulfil the criteria for disability pension as his disability on account of the disease of 'Diabetes Mellitus 250/V.67' had not been found attributable to or aggravated by military service by the competent authority. We have heard Mr.Surinder Sheoran, Advocate, appearing for the petitioner and Mr. Suvneet Sharma, Advocate, -4- Civil Writ Petition No.12231 of 2006. appearing for the respondents and have gone through the records of the case. While arguing before us, learned counsel for the petitioner has laid stress on the point that at the time of entry into service, the petitioner was not suffering from any disease. He argued that the disease diagnosed as 'Diabetes Mellitus 250/V.67' was attributable to military service. Learned counsel for the petitioner has cited the decision of a Division Bench of this Court in Letters Patent Appeal No.1025 of 2002 decided on January 30, 2007, whereby the appeal preferred against the decision of the learned single Judge in Kanwar Singh 's case (supra) was dismissed. Learned counsel for the respondents, on the other hand, has relied upon the cases reported as Controller of Defence Accounts (Pension) and others v. S. Balachandran Nair, 2006 (1) Services Law Reporter 51 and Union of India and others v. Keshar Singh, 2007 (4) Services Law Reporter 100. In S. Balachandran Nair's case (supra), 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 -5- Civil Writ Petition No.12231 of 2006. 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 Keshar Singh's case (supra), 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 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 instant case, as stated above, the petitioner was diagnosed to be suffering from 'Diabetes Mellitus 250/V.67'. Petitioner's case was that the disease had developed while he was in active Military Service and, therefore, it was attributable to and aggravated by the Military Service. He was discharged from military service with 20 per cent disability for two years. The proceedings of Medical Board were accepted by the competent authority. The disability pension claim of the petitioner was rejected for the reason that his disability was -6- Civil Writ Petition No.12231 of 2006. of a constitutional disorder, which was neither attributable to nor aggravated by military service. The petitioner did not submit any appeal before the First Appellate Committee. 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). In this context, reference to the relevant provisions of the Pension Regulations, 1973 (for short `the Pension Regulations) is necessary. 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 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 -7- Civil Writ Petition No.12231 of 2006. 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 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 Medical Board to show that the disease was attributable to or aggravated by military service. Regulation 173 of Pension Regulations is also relevant and it reads as under:- “ Primary conditions for the grant of disability pension: -8- Civil Writ Petition No.12231 of 2006. 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, 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 -9- Civil Writ Petition No.12231 of 2006. 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.” 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 -10- Civil Writ Petition No.12231 of 2006. 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 certainty, 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 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 -11- Civil Writ Petition No.12231 of 2006. 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. 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 -12- Civil Writ Petition No.12231 of 2006. 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 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:- -13- Civil Writ Petition No.12231 of 2006. (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 or disease which is attributable to military service or existed before or arose during military service and 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 -14- Civil Writ Petition No.12231 of 2006. 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 February 25, 2008. ak