IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 9903 of 1994 DATE OF DECISION : FEBRUARY 13, 2009 No.14348768F EX. GNR. MAGHER SINGH ....... PETITIONER(S) VERSUS UNION OF INDIA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Rajeev Anand, Advocate, for the petitioner(s). Ms. Renu Bala, Advocate, for respondents. AJAI LAMBA, J. (Oral) This petition under Article 226 of the Constitution of India prays for issuance of a writ in the nature of mandamus directing the respondents to grant disability pension to the petitioner to the extent of 40%, as approved by the Medical Board on Invalidment from Army service. It has been brought out that the petitioner was recruited in the Army on 6.6.1980. He was found medically fit at the time of his Civil Writ Petition No. 9903 of 1994 2 recruitment. In the year 1984, while serving in 92 Forward Regiment, due to disturbed situation in Punjab and stress and strain of Army service, the petitioner had been hospitalised at Military Hospital at Chandigarh and, thereafter, was diagnosed as a case of Affective Psychosis. Accordingly, the petitioner was recommended for invalidment from Army service. The fact that the petitioner suffered from Affective Psychosis is evident from Annexure P-2. The petitioner was discharged from service on account of being invalidated by the Medical Board. Annexure P-4 is a document dated 6/14.3.1985 that indicates that the petitioner was given Rs.12,000/- towards payment of disability benefit covered under the Army Group Insurance Scheme. It is further evident from Annexure P-4 that the petitioner had suffered 40% disability, as per the opinion of the Medical Board. The petitioner, despite the above facts, was not given disability pension. The case of the petitioner for disability pension was rejected stating that disability was not attributable to Army service. The petitioner filed an appeal giving out the grounds. No response thereto was received whereafter legal notice (Annexure P-6) was served on the Secretary, Ministry of Defence, Government of India, as well as Controller of Defence Accounts, on 16.1.1994. Vide order dated 17.3.1994 (Annexure P-7), it was conveyed to the petitioner that the disability which resulted in his invalidment from the Army was found to be neither attributable to nor aggravated by military service by the Pension Sanctioning Authority and, therefore, the petitioner has been held to be not entitled to disability pension. Civil Writ Petition No. 9903 of 1994 3 Learned counsel for the petitioner has relied on Division Bench judgments of this Court in CWP No.18188 of 2002 decided on 5.12.2003 (Balbir Kaur v. Union of India and others) and Ex-Naik Mohan Singh v. Union of India through Secretary, Ministry of Defence, New Delhi and others, 2008(2) Service Cases Today 165. Learned counsel for the petitioner has also relied on another Division Bench judgment of this Court in Ex Sepoy Bhola Ram v. Union of India and others, 2008(2) Service Cases Today 380, to say that Appendix II, referred to in Regulation 173 of Army Pension Regulations, that contains Entitlement Rules for Casualty Pensionary Awards, 1982, and Annexure III to Appendix II, mentions classification of diseases. In Clause B, list of diseases affected by stress and strain are mentioned. Psychosis and Psychoneurosis is mentioned at Serial No. 1 and, therefore, the contention of the learned counsel for the petitioner is that even the rules entitle the petitioner to grant of disability pension which, however, has not been granted without assigning any valid or legal reasons. Learned counsel for the respondents has not been able to dispute the fact that Affective Psychosis, in the facts and circumstances of the case of petitioner, has to be attributed to military service. Learned counsel for the respondents has also not been able to distinguish the judgments referred to above. I have considered the issue. From the documents, it is evident that at the time of recruitment of the petitioner, he was in normal health and did not suffer from any ailment. The petitioner was later taken ill, was hospitalized and Civil Writ Petition No. 9903 of 1994 4 has been found suffering from Affective Psychosis. From Balbir Kaur's case (supra), the following needs to be extracted for consideration:- “In view of the above, it would not be possible for us to accept the submission of Mr. Gurpreet Singh that the husband of the petitioner was suffering from the disease before he was enrolled in the Army. We, therefore, hold that the judgment of the Madhya Pradesh High Court would not be relevant in the facts and circumstances of the present case. In fact a Division Bench of this Court has considered the relevant provisions in the case of A.S.J. Chaudhary (supra) (1999(1) RSJ 778 – A.S.J. Chaudhary v. Union of India and others). In the aforesaid case, the Division Bench was also considering the non-grant of the disability pension as the petitioner therein had been invalidated out of service as he was suffering from Schezophrenia. The Division bench considered the Army Regulations, 1961 which have been framed under Section 161 of the Army Act, 1950. Regulation 173 being relevant was considered by the Division Bench as well as the provisions made in Appendix II which provided that there must be a causal connection between disablement or death and military service for attributability or aggravation to be conceded. The Division Bench considered the impact of Rules 4 and 7 of the aforesaid Rules which are as under:- “4. In deciding on the issue of entitlement all the evidence, both direct and circumstantial, will be taken into account and the benefit of reasonable doubt will be taken into account and the benefit of more liberally to the claimant in field service cases. Civil Writ Petition No. 9903 of 1994 5 xxx xxx xxx 7. In respect of diseases the following rules will be observed:- (a) Cases, in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease will fall for acceptance on the basis of aggravation. (b) A disease which has led to the 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 stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not deemed to have arisen during service. (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.” (It appears that Rule 7 was subsequently renumbered as Rule 14). After considering a number of judgments rendered by this Court, the Division Bench observed as follows:- “19. The ratio of the decisions, referred to hereinabove, fully support the argument of Shri Randhawa that the rejection of petitioner's claim for disability pension is legally unsustainable because at the time of his acceptance for military service, no note was recorded that he was suffering from Schizophrenia and the opinion recorded by the Medical Board, at the time of his Civil Writ Petition No. 9903 of 1994 6 discharge from service does not contain a note that the disease was such which could not be detected at the time of petitioner's entry in the service.” Again in the case of Union of India versus Gurnam Singh, (1998(2) Judicial Reports (Labour and Services) 191, the Division Bench of this Court observed follows:- “4. A bare reading of paragraph 7 (b) shows that in the absence of any note recorded at the time of individual's acceptance for military service, the disease which led to the individual's discharge will ordinarily be deemed to have arisen in the course of service. The only exception to this rule is that the competent authority holds an opinion for the reasons to be recorded in writing that the disease could not have been detected on medical examination prior to acceptance for service. In the case in hand, no note was made at the time of the respondent's entry into service that he was suffering from epilepsy and no record was placed before the learned Single Judge to show that the competent authority had formed an opinion, on the basis of the reasons recorded on the file that the disease with which the respondent suffered was such that it could not be detected on medical examination prior to his acceptance for service. Along with the appeal also no such material has been produced.” Similar view has been expressed by another Division Bench of this Court in the case of Union of India and others vs. Shyam Lal Malhotra, 1995(2) RSJ 493. In the case of Harjit Singh (supra), a Single Judge of this Court, H.S. Bedi, J. again considered the same rules and regulations and observed as follows:- Civil Writ Petition No. 9903 of 1994 7 “10. Mr. Dahiya's reliance on Baljit Singh's case (supra) is, to my mind, misplaced on facts as that was a case dealing with an injury and not a disease. It is the conceded proposition that sub- rules (a) to (c) of Rule 14 (earlier Rule 7) must be read together and it must be established amongst other things that the conditions of military service had determined or contributed to the onset of the disease or its aggravation but it must, nevertheless be borne in mind that onus to deny a claim rests on the authorities and not on the claimant as postulated by Rule 9 which provides that the claimant shall not be called upon to prove the condition of entitlement and that he will receive the benefit of any reasonable doubt and that this benefit would be given more liberally to the claimant in the field/afloat service cases. It will be seen from the record that the Medical Board had, while rejecting the claim, merely observed “constitutional disease, hence not connected with the service.” To my mind, the onus put on the authority charged in this situation, more particularly as the board did not consider that he had put in service almost continuously in the field and as such the case fort the grant of disability pension was to be considered more liberally.” In view of the above, we are of the considered opinion that the respondents have arbitrarily denied the disability pension to the petitioner. Consequently, the writ petition is allowed. The order dated 20.6.1996 rejecting the claim of the husband of petitioner for grant of Disability Pension and the order dated 21.4.1998 rejecting the appeal filed on behalf of the husband of the petitioner are hereby quashed. The respondents Civil Writ Petition No. 9903 of 1994 8 are directed to grant the Disability Pension to the petitioner, from the date the husband of the petitioner was ordered to be invalidated out of Army. The arrears of pension be paid to the petitioner within a period of three months from today. The arrears shall also be paid with interest at the rate of 8% per annum. No costs.” The above extracted portion of the judgment favours the case of the petitioner. In Ex-Naik Mohan Singh's case (supra), a Division Bench of this Court has concluded in paras 14 and 17 (relevant portion) as follows :- “14. The matter can also be examined from another angle by referring to the relevant provisions of the Pension Regulations, Rules 7(b) and 7(c) of Appendix- II, read 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 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. 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. As has been enunciated by the Hon'ble Supreme Court in Civil Writ Petition No. 9903 of 1994 9 Keshar Singh's case (supra), 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. However, in this case, as has been noticed above, 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.” “17. ............... 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 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 Civil Writ Petition No. 9903 of 1994 10 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.” From a perusal of the above extracted portion of the judgment, in the context of the case of the petitioner, it stands established that the petitioner did not have ailment at the time of joining service. There is no denial to the fact that the petitioner served in forward regiment, whereafter he was taken ill and had to be hospitalized. No material has been placed on record by the respondents to show that the disease could not have been detected on medical examination prior to acceptance for service. In such circumstances, it has to be held that the disease arose during service and, therefore, was attributable to it. From Ex Sepoy Bhola Ram's case (supra), paras 8 and 9 need to be noticed and are reproduced hereunder:- “8. Appendix II, referred to in Army Regulation 173, contains Entitlement Rules for Casualty Pensionary Awards, 1982. Annexure III to Appendix II mentions Classification of Disease. At Clause B, list of Diseases Affected by Stress and Strain are mentioned. The disease “Psychosis and Psychoneurosis” is mentioned in Clause B at serial No.1. The disease mentioned as “Psychosis and Psychoneurosis” in Annexure III to Appendix II ibid or “Unspecified Psychosis”, from which the petitioner is suffering, is one and the same. Civil Writ Petition No. 9903 of 1994 11 Psychosis means mental illness and neurosis means a mental state resulting in high level of anxiety, unreasonable fears and behaviour. It is, thus, clear that the disease “Unspecified Psychosis”, suffered by the petitioner, is included in the list of Diseases Affected by Stress and Strain mentioned in Annexure III to Appendix II ibid. Therefore, the action of the respondents in declining disability pension to the petitioner for the disease “Unspecified Psychosis”, which is attributable to and aggravated by Army service, cannot be upheld. Accordingly, the orders passed by the respondents in this regard are set aside. 9. For the aforesaid reasons, this writ petition is allowed and the petitioner is held entitled to 20% disability pension on account of the disease “Unspecified Psychosis” suffered by him during Army service. He has already been granted 20% disability pension for the disease “Cervical Spondylosis”. However, the petitioner having been discharged from D.S.C. On February 28, 2002 because of the diseases “Cervical Spondylosis” and “Unspecified Psychosis”, in view of the letter dated February 03, 2000 issued by the Government of India, Ministry of personnel, Public Grievances & Pensions, Department of Pension & Pensioners' Welfare, New Delhi, whereby in case of percentage of disability assessed at less than 50%, the percentage for computation of disability pension is to be reckoned as 50%, the petitioner is held entitled to disability pension at the rate of 50%. This pension, with all consequential benefits, will be paid to him from the date of his retirement. The respondents shall pay all the arrears to the petitioner within two months from the date of receipt of a copy of this order, failing which the petitioner will be entitled to interest at the rate of nine Civil Writ Petition No. 9903 of 1994 12 per cent annum.” The judgment fully applies to the case of the petitioner. If the facts of this case are considered in the context of the law as laid down in the judgments to which reference has been made above, it follows that onus to deny the claim to disability pension lies on the authorities. There is no note recorded at the time of the petitioner's acceptance in military service indicating the disease. Under the circumstances, the disease that led to discharge of the petitioner from military service will ordinarily be deemed to have arisen in the course of service. The only exception to this rule is that the competent authority holds an opinion, for the reasons to be recorded in writing, that the disease could not have been detected on medical examination prior to acceptance for service. In the case in hand, no such note was made. Considering the above, I am of the opinion that the disability pension has been denied to the petitioner for arbitrary, unreasonable and injudicious reasons. The petition is, accordingly, allowed. The petitioner would be given the disability pension to the extent of 40%, as approved by the Medical Board on Invalidment from the Army. Because no valid reasons have been assigned for denying disability pension and also because appeal dated 8.8.1997 was kept pending for considerable length of time without any valid reason and was entertained and addressed only after the issue of legal notice, I hold the respondents responsible for the delay. The petitioner would be entitled to interest at Civil Writ Petition No. 9903 of 1994 13 the rate of 9% per annum on the arrears of pension with effect from 1.1.1988. February 13, 2009 ( AJAI LAMBA ) Kang JUDGE