IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 WA.No. 181 of 2006() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.5813/2001 Dated 19/05/2005 .................... APPELLANT(S):RESPONDENTS -------------------------------------------- 1. GOVERNMENT OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF DEFENCE (PEN. A & AC), NEW DELHI. 2. THE COMMANDANT, MADRAS REGIMENT, WILLINGDON ISLAND. 3. THE CHIEF CONTROLLER OF DEFEBNCE ACCOUNT (PENSION), G3, VII SECTION, ALLAHABAD. BY ADV. SRI.C.S.ABDUL SAMMAD, ADDL.CGSC SRI.ABRAHAM THOMAS, CGC RESPONDENT(S)/PETITIONER: --------------------------------------------- GOPALAKKRISHNAN NAIR, (EX-RECT, 2596756- K) VALLIATHU HOUSE, MUTHUKULAM NORTH, CHOOLATHERUVU, ALAPPUZHA. ADV. SRI.T.NIKLAVU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 181 OF 2006 =================== Dated this the 31st day of March, 2011 J U D G M E N T Antony Dominic, J. The respondent was enrolled in the army on 1/3/93. He was invalidated out of service in medical category EEE due to CSOM (LT) HEALED WITH MODERATE HEARING LOSS (LT) w.e.f. 11/9/93 under Army Rule 13(3) IV. He claimed disability pension and that was rejected by Ext.P1 order dated 27th December, 1993. He filed an appeal to the Government of India, which was rejected by Ext.P4 order dated 6th of December, 2000. Aggrieved by the above, the respondent filed OP No.5813/2001 before this Court with the following prayers: (i)to issue a writ of mandamus or other appropriate writ, order or direction, directing the 1st respondent to consider Ext.P3 afresh after a proper perusal of the medical records. (ii)to issue a writ of mandamus or other appropriate writ, order or direction declaring that the petitioner is entitled to disability pension since the invaliding disease is attributable or aggravated by military service. WA No.181/06 : 2 : 2. Appellants contested the claim mainly contending that the disability on account of which respondent was invalidated was a “constitutional disorder”, which was not attributable to or aggravated due to military service. It is stated that this was confirmed by the Medical Board and the appellate authority. Mainly relying on the judgment of this Court in Baby v. Union of India (2003(3) KLT 362), the original petition was allowed by judgment dated 19th of May, 2005, and it was directed that disability pension should be paid to the petitioner/respondent. It is aggrieved by the said judgment, the appellants have filed this appeal. 3. We heard the learned counsel for the appellants and also the counsel appearing for the respondent/petitioner. 4. At the outset, we must state that, in the pleadings in the original petition or the documents produced, there is absolutely nothing disclosing the nature of the training undergone or the nature of the employment or the conditions to which the respondent was exposed to while he was in the army. There is also nothing in the pleadings or the documents enabling this Court to doubt the authenticity of the Medical Board's certificate. WA No.181/06 : 3 : Therefore, it is on the basis of such pleadings and materials that we are now called upon to decide the claim of the respondent. 5. As we have already indicated, the Original Petition was disposed of mainly relying on the principles laid down in the judgment in Baby v. Union of India (2003(3) KLT 362). In that judgment, it was held that in the matter of deciding whether a person invalidated from military service is entitled to disability pension, the onus of proof that the injury or the disease on account of which a person was invalidated out from service, was not attributable to or aggravated by military service, is on the military authorities. However, the Apex Court in its judgment in Controller of Defence Accounts (Pension) and Others v. S. Balachandran Nair [(2005) 13 SCC 128] and subsequently in Union of India v. Keshar Singh (2007(3) KLT 171) have taken a contrary view and it has been held that ordinarily the Courts should be guided by the conclusions of the Medical Board. In this case, as we have already indicated that there is nothing to indicate details of the nature of training or the employment to which the 1st respondent was exposed to, there is also nothing which persuades us to conclude that there is anything erroneous WA No.181/06 : 4 : or illegal in the conclusion of the Medical Board or the appellate authority. 6. In the light of such materials, we can only go by the Medical Board's report, which is to the effect that the disability on account of which the respondent was invalidated from service was not attributable to or aggravated by the military service. In such circumstances, we have to conclude that the claim of the respondent for disability pension has been rightly rejected. 7. In the result, we set aside the judgment of the learned Single Judge. We allow the writ appeal and dismiss O.P.No.5813/01. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp