IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WA.No. 1975 of 2007() --------------------- APPELLANTS/RESPONDENTS: -------------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE PENSION GRIEVANCE CELL, MINISTRY OF DEFANCE, R.NO.206, 'A' WING, SENA BHAVAN, NEW DELHI-110 001. BY ADV. SRI.K.SANDESH RAJA, CGSC RESPONDENT/ PETITIONER: -------------------------- UNNIKRISHNAN, AGED 44 YEARS, S/O. A.P.BALAN, PADINJARE PISHARAM, ANCHERY P.O., THRISSUR-6. (EX-SERVICEMAN, HMT (RO) EME NO.14538550L). ADV. SMT.P.A.ANITHA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No.1975 OF 2007 ------------------------------ Dated this, the 5th day of August, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. He filed the Writ Petition claiming that he is entitled to get disability pension and for a direction to the appellants 2 and 3 to sanction disability pension to him. 2. The brief facts of the case are the following: The 1st respondent was enrolled in the Army on 18.8.1980. In due course, he was promoted as Havildar in 1997. While so, on 1.4.1997 he sustained an injury on the left leg while undergoing physical training. The same is evident from Ext.P1 certificate issued by the PT Instructor, which would show that the 1st respondent, Mr.Unnikrishnan, while doing BPET practice, fell down and sustained 'POTTS Fracture (L)'. Ext.P2 report on accidental injuries would also W.A. No.1975/ 2007 2 show the nature of the injury suffered by him. As evident from Ext.P4, he was permanently downgraded to Low Medical Category, CEE. While so, the petitioner submitted Ext.P5 representation dated 17.11.1999, praying that he may be discharged from service on medical ground. Later, by Ext.P6 order dated 22.7.2000, the respondent along with others, was discharged from service on compassionate ground. The petitioner is Serial No.5 in that order. As evident from Ext.P7, he was sanctioned pension. The discharge ordered as per Ext.P6 was to take effect from 31.12.2000. About two years after his discharge, the 1st respondent submitted Ext.P8 representation claiming that he may be granted disability pension under Rule 173 of the Pension Regulations of the Army Rules, 1961. The said request was rejected by Ext.P9 for the reason that he was discharged on compassionate ground on his own request. Therefore, the Writ Petition was filed challenging Ext.P9 and seeking consequential reliefs. The respondents in the Writ Petition, who are the appellants herein, resisted the Writ Petition contending that he was discharged from service on compassionate ground on his request and therefore he is W.A. No.1975/ 2007 3 ineligible for disability pension. This point was raised relying on paragraph 8.3 of Ext.R1(e), which reads as follows: “8.3. Retiring/Service Pension or Retiring/Service Gratuity as admissible as per Ministry of Defence letter NO.1(6)98/D (Pen/Services) dated 03 February, 1998 shall be payable in addition to disability element from the date of retirement/discharge. Note: An Armed Forces Personnel who retires voluntarily/or seek discharge on request shall not be eligible for any award on account of disability. Provided that Armed Forces Personnel who is due for retirement/discharge on completion of tenure, or on completion of service limits or on completion of the terms of engagement or on attaining the prescribed age of retirement, and who seeks pre-mature retirement/discharge on request for the purpose of getting higher commutation value of pension, shall remain eligible for disability element.” The learned Single Judge overruled the contention of the respondents and allowed the Writ Petition. The appellants were directed to grant him disability pension from 1.1.2001. Feeling aggrieved by the said direction, this Writ Appeal is filed. W.A. No.1975/ 2007 4 3. According to the appellants, the petitioner was discharged from service based on his request only and therefore, he is not entitled to get disability pension. As per the direction of this Court, the records relating to the discharge of the respondent/writ petitioner were called for. We perused the same. We could not find any request of the petitioner for discharging him on compassionate ground. The appellants could not point out in the files any request from the part of the petitioner. The files also disclosed that as he has suffered injury, his Commanding Officer recommended against his retention in service. But, he was retained for some more time only on the request of the respondent/writ petitioner. It is not in dispute that he sustained injury during the course of his service and if he is discharged otherwise than on his request, he is entitled to get disability pension. In the absence of any materials in the files to show that he was discharged on his request, we find no reason to interfere with the judgment of the learned Single Judge. A plausible view has been taken on the facts. Though the learned counsel for the appellants tried to canvas some other peripheral points, W.A. No.1975/ 2007 5 we are not dealing with them as they were not raised before the learned Single Judge. In the result, the Writ Appeal fails and it is dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR,JUDGE) ps