RSA No. 3825 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3825 of 2008 Date of decision: March 25,2009 Union of India ..Appellants. Versus Mahipal son of Mohan Singh ..Respondent Coram: Hon'ble Mr. Justice Rakesh Kumar Garg Present: Mr.S.S.Chaudhary, Advocate for the appellant .. Rakesh Kumar Garg,J. This is defendants second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent to the effect that he is entitled to disability pension with effect from 25.2.1987 with a further direction to the department to pay the amount along with back date arrears and interest within a period of three months has been decreed. As per the averments made in the plaint, the plaintiff-respondent was enrolled in the Army on 10.6.1986 and was discharged from service on 24.2.1987 as he was invalidated out of service by the Medical Board in low medical category, EEE,(P) with 40 % disability and according to Pension Regulation, he was entitled to get disability pension as the disease had accrued to him during the Army Service but the authorities rejected the claim of the plaintiff. Hence this suit. Upon notice, the appellant-Union of India filed written statement raising various preliminary objections. On merits, it was stated that plaintiff- respondent was invalidated out of service with effect from 25.2.1987 on account of disability “Schizophrenia”. The disability was assessed at 40 % for two years but was viewed as neither attributable to nor aggravated by Military service by the Medical Board and as per existing rules and regulations, no disability pension RSA No. 3825 of 2008 2 was admissible to him. The case of the plaintiff-respondent was rightly rejected by the authorities. Dismissal of the suit was prayed for. After hearing learned counsel for both the parties, the trial Court decreed the suit of the plaintiff-respondent. Aggrieved by the aforesaid judgment and decree of the trial Court, the defendants filed an appeal which was also dismissed by the lower Appellate Court vide impugned judgment and decree dated 1.8.2008. Still not satisfied, the defendant-Union of India has filed the instant appeal challenging the aforesaid judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that the claim of the plaintiff-respondent for grant of disability pension was rightly rejected by the Army Authorities as question of grant of disability pension arises only when invalidating disability/disease is considered as attributable to or aggravated by Military service and is assessed as 20 % or over and in this case, disability of the respondent was considered as neither attributable nor aggravated by Military service and not connected with the service being a constitutional disease by the Invalidating Medical Board . According to the counsel for the appellant, the disease, from which the respondent was found to be suffering viz. Schizophrenia, is a constitutional disease which as the term implies is a personality disorder and cannot in any manner whatsoever, be attributed to military service. Learned counsel has also relied upon dictionary meaning of the disease. According to the Oxford dictionary Schizophrenia is a “long term mental disorder whose symptoms include inappropriate action and feelings and withdrawal from reality into fantasy.” Thus on the basis of the aforesaid arguments, learned counsel for the appellant has stated that the following substantial questions of law arise in this appeal:- 1. Whether the judgments and decrees passed by both the courts below are totally illegal and result of misreading of evidence and liable to be set aside? RSA No. 3825 of 2008 3 2. Whether the courts below failed to consider that the disability is not attributable to the military service? 3. Whether the courts below have wrongly accepted the evidence which was perse not admissible in evidence and decide the case on the basis of non admissible evidence? I have heard learned counsel for the appellant and perused the record of the appeal. There is specific provision laid down in Army Rules to grant disability pension to the employee who suffers from any disease during the service of Army. It is, also , well settled law that a person enrolled or even a recruit invalidated from service is eligible for disability pension. The provision of Regulation 173 of Pension Regulation of Army 1961 provides that a person would be entitled to disability pension if discharged on disability and which is attributable to or aggravated by military service. Thus, there are two conditions namely either the disability is attributable to service or that disability was aggravated by Military service and it is 20 per cent or above. Even if it is admitted that the disability was constitutional and not attributable to Military service even then such disability may entitle an individual, subject to the Act, to disability pension if such constitutional disease is aggravated by Military service. Thus the only arguable point in this case is whether plaintiff was having disease attributable to or which was aggravated by military service or not. Undisputedly, when the plaintiff-respondent was enrolled in the Army, he was not suffering from any disease as per his medical report which is not disputed. There is nothing on record to show that the petitioner was suffering from the disease at that point of time or that it was so detected then. Admittedly, the petitioner was enrolled on 10.6.1986, and remained in service till 24.2.1987 and the disease was detected for the first time on 17.9.1986 i.e., during tenure of service. The argument of the counsel for the appellant that the disease of RSA No. 3825 of 2008 4 Schizophrenia is a long term mental disorder, whose symptom includes inappropriate action and feelings and withdrawal from reality into fantasy and thus being a constitutional disease cannot be attributed to the Army Service is without any basis. No evidence to this effect has been placed on record of the case by the appellants nor any such rule could be shown by the appellant in this regard. While dismissing the appeal of the defendants, the lower Appellate Court has taken note of the fact that the disease is usually caused among the army personnel due to very hard and tough training . The aforesaid conclusion of the lower Appellate Court is supported by the summary of the case of the plaintiff- respondent as prepared by Lt. Col. R.S. Mathur, Army Medical Corps who was Specialist in Psychiatry. The relevant part of his report as reproduced by the lower Appellate Court is quoted as under:- “History of Present illness:- The recruit under training for three months only, was hospitalize with history of abnormal behaviour in that he kept aloof, showed disinterest in training, absented himself from training ground and slept during hours of training. He was sleepless AFMSF 10 dated 17.9.86 stated his efficiency and response to training is unsatisfactory; he is depressed; uncooperative and is recommended for disposal. Past Illness: Nil relevant Family and Personal History. Family history not contributory. He is married since 1-1/2 years. Has no bad habits. No drug use. Non alcoholic. Opinion and Disposal This individual is a case of Schizophrenia is a recruit with about three month service. He has improved with treatment but is unsuitable for further retention in service.” Taking note of the history of the plaintiff-respondent and keeping in view the aforesaid summary report of the Specialist, the opinion of the Medical RSA No. 3825 of 2008 5 Board of the respondents cannot be sustained as there was no ground before the Board to mention this disease as constitutional disease . Even before me, learned counsel for the appellant was unable to refer to any evidence placed on the record by way of any expert opinion or otherwise to point out that the disease of Schizophrenia was constitutional disease where the illness begins in early adolescence. Thus plea of the appellant had remained unsubstantiated. For the reasons mentioned aforesaid, I find no merit in this appeal. No substantial question of law arises. Dismissed March 25, 2009 (RAKESH KUMAR GARG) nk JUDGE