LPA NO. 138 of 2003 in CWP No.254 of 2001. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA NO. 138 of 2003 in CWP No.254 of 2001. Date of Decision: 8.9.2008. Union of India and others ..........Appellants. Versus Jai Sahib Punchouty ..........Respondent. CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.Kamal Sehgal,Advocate for Appellants-UOI. None for the respondent. JASWANT SINGH,J. The present Letters Patent Appeal has been filed against the order dated 23.7.2001, passed by the learned single Judge vide which the writ petition filed by the respondent has been allowed and his claim for disability pension granted. Facts in brief are that the respondent, being fully medically fit, was enrolled in the Indian Army as CFN (Apprentice) in the EME Wing, on 28.2.1977. Later on, he being placed in low medical category “BEE (Permanent)” was discharged from service on 13.11.1987 on medical grounds as having been diagnosed to be suffering from Neurosis Anxiety with degree of disability assessed at 20% for two years. His claim for disability pension was rejected vide order dated 15.1.1988 by the CDA (P) LPA NO. 138 of 2003 in CWP No.254 of 2001. 2 Allahabad, on the ground that his disease was not attributable to or aggravated by military service. The said rejection order was communicated to the respondent vide letter dated 29.2.1988 (Annexure P-2). Thereafter, vide letter dated 10.4.2000 (Annexure P-6) respondent was informed about the rejection of his appeal against the order dated 15.1.1988, declining disability pension to him. Hence, the respondent filed CWP bearing No.254 of 2001, challenging the letters dated 29.2.1988 (Annexure P-2) and 10.4.2000 (Annexure P-6). Learned single Judge after hearing rival submissions and considering the pleadings as averred in the writ petition as well as written statement held that the impugned orders dated 29.2.1988 (Annexure P-2) and 10.4.2000 (Annexure P-6) were not sustainable in law. In support of his findings, learned single Judge relied upon the ratio of the judgements namely Santokh Singh Gill v. Union of India and others, 1992(3) RSJ 216 and Amrit Singh v. Union of India, 2001(1) RSJ 378. Aggrieved against the judgement passed by the learned single Judge, Union of India has filed the present Letters Patent Appeal, claiming that the respondent did not fulfil the primary conditions for the grant of disability pension as provided under Regulation 173 of Pension Regulations for the Army 1961 (for short 1961 Regulations), as the Medical Board had opined that the disease Neurosis Anxiety is not connected with military service and therefore, constitutional in nature. It is further averred that the Rule 14(d) of the of the Appendix II, (Entitlement Rules for Casualty Pensionary Awards,1982 (for short Entitlement Rules 1982) referred to in Regulation 173 of the 1961 Regulations provides that in case LPA NO. 138 of 2003 in CWP No.254 of 2001. 3 of constitutional diseases which are detected after the individual has joined services, entitlement to disability pension can only be conceded if it is clearly established that the course of such disease was adversely affected due to factors relating to conditions of military service. We have heard learned counsel for the appellants. It is not disputed that Rule 14(d) of Entitlement Rules,1982 was not relied upon by the appellants in their written statement. In para 14 of the writ petition, the relevant rules of Entitlement Rules,1982 have been reproduced, which have been admitted to be correct in the corresponding para of the written statement. It is admitted that the respondent, at the time of his enrolment in the Army service was fully fit and no note whatsoever, was recorded to the effect that he was suffering from any disease. It is also not in dispute that at the time of his discharge the Medical Board, while opining that the disease-Neurosis Anxiety- was not attributable to or aggravated by military service, did not record that the disease of the petitioner could not have been detected on medical examination at the time of his entry into service. It is also not in dispute that Clause (d) of Rule 14 was inserted by way of amendment vide Corrigendum No.1(1)/81/D(Pen- C) dated 20.6.1996. Therefore, the argument of the learned counsel for the appellant that it had to be clearly established that the disease of the respondent was adversely affected relating to his condition of military service is not sustainable. As per Regulation 7(b) of Entitlement Rules,1982, governing the case in given conditions, there are certain presumptions which are raised that the disease is attributable or aggravated by military service. LPA NO. 138 of 2003 in CWP No.254 of 2001. 4 A Division Bench of this Court in A.J.S.Chaudhary v. Union of India and others, 1998(8) SLR 615, while considering identical provision of the 1961 Regulations read with Entitlement Rules,1982, which were in force at that relevant time, in para 9 of its judgement opined as under:- “A conjoint reading of the Regulations and the Rules contained in Appendix II shows that an officer who is retired on account of disability which is attributable to or aggravated by military service and which is assessed at 20 per cent or more is entitled to disability pension in accordance with the regulations. The question whether a disability is attributable to or aggravated by military service is required to be determined as per rules contained in Appendix II. A person who is invalided from service on account of disability which is attributable to or aggravated by military service and is assessed at 20 per cent or above is also entitled to disability pension. Those who are placed in lower medical category (other than 'E') permanently and who are discharged because no alternative employment suitable to their low medical category could be provided are also entitled to disability pension. Rule 3 of Appendix-II postulates the existence of a casual connection between disablement and military service before attributability or aggravation can be conceded. In terms of Rule 4, direct as well as circumstantial LPA NO. 138 of 2003 in CWP No.254 of 2001. 5 evidence is required to be taken into account while deciding the issue of entitlement to disability pension and the benefit of reasonable doubt is to be given to the claimant. The competent authority is required to adopt a more liberal approach in granting benefit to the claimant in field service cases. First part of Rule 7(b) (re-numbered as 14(b) contains a deeming provision. It lays down that the disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in the course of service if no note of it was made at the time of individual's acceptance for military service. However, the benefit of this deeming fiction is not available to the claimant if the medical opinion, for the reasons to be stated, hold that the disease could not have been detected on medical examination prior to the claimant's acceptance for service. Rule 7(c) (re-numbered as 14(c) lays down that if the 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.” The Division Bench after considering the case law on the subject, allowed the writ petition and held that the petitioner therein was entitled to disability pension. LPA NO. 138 of 2003 in CWP No.254 of 2001. 6 Another Division Bench of the Delhi High Court in Ex.Gnr B.V.Rao v. Union of India and others, 2007(3)RSJ 383, wherein the Invalidating Medical Board had recorded the petitioner therein as suffering from Neurosis disease with disability as 30% for two years on 28.4.2005 and further described the disability as “constitutional” and not attributable to and/or aggravated by military service. In paras 5 and 6 of the judgment it was held by the Delhi High Court as under:- “5. As far as the basic ingredients of Regulation 173 of the Pension Regulations for the Army,1961 are concerned, it is clear from the record that the disability was suffered by the petitioner during service and after he had put in more than 4 years of service. He had no problems in terms of his health in the first three years of his service and had performed his duties to the satisfaction of all concerned in terms of the various judgments of this Court, “Neurosis” is an disease which could be attributable to or at least be aggravated by the military service. In the medical opinion of the Expert it had been specifically noticed that the petitioner did not suffer from any such ailment prior to his joining the service nor was the disease hereditary. Merely describing the disease as “Constitutional” because they are unable to pinpoint the cause of the disease, cannot be permitted to work against or to the prejudice of the petitioner. The presumption is in favour of the petitioner and no reasons have been stated in the Medical Report, so as to dis-entitle the petitioner from the claimed relief. The concept of “Constitutional disease/disorder” was discussed by LPA NO. 138 of 2003 in CWP No.254 of 2001. 7 this Court in the case of Sh. Navin Chandra vs. Union of India and others, 2006(7) AD 709 after taking into consideration the opinion of different experts from the Armed Forces. The Regulations being a Welfare Law, has to be liberally construed so as to achieve its object of granting pension liberally to the members of the Force. 6. In view of the above position of law, we allow this petition and direct the authorities to consider and grant to the petitioner, disability pension for 30% disability. However, payment of arrears would be restricted to three years immediately preceding the filing of this writ petition. We further clarify that the respondents, if they so chose, would be at liberty to subject the petitioner to a Re-Survey Medical Board.” In view of the above, we find no illegality in the order passed by the learned single Judge. Hence the present Letters Patent Appeal is dismissed. (Jaswant Singh) Judge 8.9.2008. (Satish Kumr Mittal) joshi Judget