IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 8044 of 2007(G) -------------------------------------- PETITIONER(S): ------------------------- GOPAKUMAR.P.K., NO.1373781 EX.SAPPER, GEETHANJALI HOUSE, KURAMPALA NORTH VILLAGE, PANDALAM P.O., PATHANAMTHITTA DISTRICT. BY ADVS.MR.P.B.SAHASRANAMAN MR.K.JAGADEESH MR.T.S.HARIKUMAR RESPONDENT(S): --------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, NEW DELHI-11. 2. THE C.D.A. (PENSION), ALLAHABAD. BY ADV. MR.M.R.JAYAPRASAD, CGC FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.8044/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPEAL DT. 27.9.97 SUBMITTED BEFORE THE IST RESPONDENT. P2:- COPY OF THE INTIMATION DT. 2.9.99, STATING THE DISMISSAL OF APPEAL. RESPONDENT'S EXHIBIT R1(a):- LETTER NO.G-3/97/477/11/MEG- DT. 1.4.97. TRUE COPY P.S.TO JUDGE TSS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 8044 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st May, 2009. J U D G M E N T The petitioner enrolled in the Indian Army on 1st December, 1980. During his tenure in the Army, he worked in high altitude areas and in extreme climates including in Leh-Ladakh, till he was posted to Ahmedabad in the year 1988. According to the petitioner, because of the stress and strain of Army service as also extreme climatic conditions where he was posted, he contracted some disease pursuant to which he was admitted in the military hospital at Ahmedabad in 1989. Later on, the disease was diagnosed as schizophrenia. The percentage of disability on account of the disease was also assessed as 45%. (Counsel for the petitioner points out that in the counter affidavit, the respondents admitted that the percentage of disability is 50%). Subsequently, on 30-12-1995, the petitioner was invalided out of service on account of the disease. The petitioner was paid pension taking into account the service element. The petitioner thereafter filed an application for re-computation of pension taking into account the disability element also. The same was rejected. The petitioner filed an appeal Ext. P1 before the appellate authority, which was also rejected by Ext. P2 order on the ground that the disability is not attributable to military service. The petitioner is challenging Ext. P2 order. 2. According to the petitioner, the disease contracted by the petitioner is attributable to military service. He submits that at the time of enrolment in the army, there was no physical or mental infirmity detected in him even after rigorous medical examination and during the early days of his service, he was posted in high altitude areas where the climatic conditions are extreme. Coupled with the stress and strain of work in border areas, the petitioner contracted the disease of schizophrenia, which resulted in his being invalided out W.P.C. No. 8044/07 -: 2 :- of service. Therefore, according to the petitioner, the petitioner is entitled to pension taking into account the disability element also. It was after nine years of working in the Army that the disease in question was detected in the petitioner. Therefore, going by the dictum laid down by a Full Bench of this Court in Baby v. Union of India, 2003(3) KLT 362 (F.B), once it is shown that no disease was pre-existing at the time of enrolment in the Army, the onus of proving that the disease was not attributable to military service is squarely on the respondents. In so far as the respondents have not discharged that burden, the presumption would operate in favour of the petitioner and therefore the respondents are liable to be directed to pay to the petitioner pension taking into account his disability element also. 3. A statement and a counter affidavit have been filed by the respondents supporting the impugned order. According to them, the disease was detected while the petitioner was serving in the peace area and therefore it cannot be presumed that the disease was attributable to military service. 4. I have considered the rival contentions in detail. 5. In the Baby's decision, a Full Bench of this Court has held as follows in paragraphs 17 to 19. “17. In this context, it deserves notice that a candidate has to go through rigorous physical and medical tests before enrolment. Thus, the Regulations as well as Appendix II contain a provision that a member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. In the event of his subsequently being discharged from service on medical grounds the deterioration in his health, which has taken place, should be presumed to be due to service. It is on this hypothesis that a claim for the grant of disability pension has to be examined by the competent authority. Such a claim can be made even in case where the deterioration in physical health has occurred after the discharge from service on completion of full tenure. Thus, it is clear that the intention of the authorities is to W.P.C. No. 8044/07 -: 3 :- compensate the service personnel not only in respect of the disability noticed during service, but even thereafter. 18. Another fact, which deserves mention, is that a person enrolled in the Army or in any other service is not highly educated. He may not be able to notice the minor changes occurring in his physical capacity on account of climatic conditions or the stress and strain of the service. The separation from family, sound of gunfire and climatic conditions could be silent but potent contributors. It appears that it is in view of this factual position that the provisions in Appendix II have been periodically modified. It deserves particular notice that by the instructions issued in the years 1983 and 1984, it was specifically provided that “the claimant shall not be called upon to prove the conditions of entitlement”. The benefit of doubt was to be given to him. The provision clearly shifts the onus of proof. It is placed on the authority. It is symbolic of a liberal approach. This is all the more so in case the disability occurs while the claimant was in the field or on sea. 19. In view of the above provision it appears reasonable to hold that as an abstract proposition of law, R.9 shifts the onus of proof from the individual to the authority. Thus, when an individual is enrolled after having been found to be in perfect health and no note regarding any kind of disability has been made at the threshold, he would be entitled to the grant of disability pension. The onus of proving that the disability is not attributable to the service or that an individual is not entitled to the claim of disability pension shall normally lie on the authority.” It is not disputed in the counter affidavit that at the time of enrolment in the Army no disease or defect whatsoever was detected on the petitioner even after rigorous physical and mental examination by expert medical officers. That being so, going by the dictum laid down in Baby's case the onus of proving that the disability is not attributable to military service is squarely on the respondents. In this case, the respondents have not even cared to produce any medical records in respect of the petitioner. All what they have produced is a communication Ext. R1(a) dated 1-4-1977 from the Senior Accounts Officer (Pensions), which is the original order rejecting the claim of the petitioner for pension taking into account the disability element W.P.C. No. 8044/07 -: 4 :- also. They have not even cared to produce the medical opinion based on which the decision to reject the claim of the petitioner was taken. That being so, the respondents have not cared to discharge their onus of proving that the disability contracted by the petitioner is not attributable to military service. Therefore, I am of opinion that the petitioner is entitled to succeed in this writ petition. Accordingly, the writ petition is allowed. Exts. R1(a) and P2 orders are quashed. It is declared that the disease contracted by the petitioner and the consequent disability is attributable to military service. As such, the petitioner is entitled to pension taking into account the disability element also. Fresh orders in this regard shall be issued as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Consequent arrears of pension due to the petitioner shall also be disbursed within one month therefrom. S. Siri Jagan, Judge. Tds/