IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 OP.No. 14697 of 2000(Y) ----------------------- PETITIONER(S): --------------- T.G.HARIDAS, EX.NO.7119565 Cfn VM (MV), THOTTUNGARA HOUSE, KARIYATHANKAVU P.O., BALUSSERY VIA., KOZHIKODE DISTRICT, KERALA. BY ADV. SMT.P.M.INDU SRI.GEORGE SEBASTIAN RESPONDENT(S): ---------------- 1. THE OFFICER-IN-CHARGE E.M.E RECORDS, SECUNDERABAD, A.P. 2. THE CONTROLLER OF DEFENCE, ACCOUNTS (PENSION) ALLAHABAD U.P. 3. THE CHIEF OF ARMY STAFF, ARMY HEAD QUARTERS, NEW DELHI. 4. GOVT. OF INDIA, REP. BY THE SECRETARY TO MINISTRY OF DEFENCE, NEW DELHI. ADV.SRI.THOMAS MATHEW NELLIMOOTTIL, FOR R1 TO R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.14697/00. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE DISCHARGE CERTIFICATE. P2. COPY OF THE LETTER DTD.13.4.91 TO R1. P3. COPY OF THE LETTER DTD.17.8.91 TO R1. P4. COPY OF THE APPEAL DTD.1.12.99 TO R4. P5. COPY OF THE LETTER DTD.20.1.00 BY R1. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.14697 of 2000 ================== Dated this the 22nd day of September, 2008 J U D G M E N T The petitioner is an ex-serviceman. He enrolled in the military service on 30.3.1973. He was discharged on medical grounds on 7.4.1981, on detection of the disease “Neurosis”. However, military pension was denied to him on the ground that the said disease is not attributable to military service. Exts.P3 and P5 orders passed in this regard are under challenge in this original petition. 2. The contention of the petitioner is that the petitioner was first posted at Alwar, Rajastan, where temperature was extremely high and he was not used to such extreme temperature. From Albar the petitioner was suddenly transferred to Udhampur, in Jammu and Kashmir, where the climate was extreme cold, which also he was not used to. At the time of enrollment the petitioner was in excellent physical and mental condition. Further, the petitioner in fact served in the boarder areas where the petitioner was under tremendous physical and o.p.14697/00 2 mental tension. The petitioner therefore, submits that the development of the disease of Neurosis could have only been due to military service, especially when there was no other plausible reason for the same. The petitioner would further submit that in so far as there is no dispute that at the time of enrolment the petitioner was in excellent physical and mental condition, the onus of proving that the petitioner's disease developed because of reasons not attributable to military service, is clearly on the respondents. Therefore, the petitioner seeks quashing of Ext.P3 and P5 orders. The petitioner also refers to two decisions of this Court in O.P.Nos.3490/1992 and 3518/1992, wherein this Court held that the disease of Neurosis unless proved otherwise must be taken to be attributable to military service. 3. The learned Central Government Counsel would argue in support of the impugned orders with the help of the counter affidavit filed in this original petition. He would also refer to a decision of the Supreme Court in Controller of Defence Accounts (Pension) v. Balachandran Nair [2005 (4) KLT 703] wherein the Supreme Court has held that where medical board o.p.14697/00 3 found that in the absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, grant of disability pension is not warranted. 4. I have considered the rival contentions in detail. 5. In the counter affidavit filed there is no denial of the specific averment of the petitioner that at the time of enrolment and afterwards the petitioner was in excellent physical and mental condition. There is also no case for the respondents to the effect that from 1973 to 1981 there was any symptom in the petitioner relating to the illness “Neurosis”. Therefore, during the time when he was in service, no injury or illness occurred otherwise than through military service, which could cause the disease of neurosis in the petitioner. They have also no case of any hereditary or constitutional trait in the petitioner which is likely to lead to the disease of neurosis in the petitioner. A full Bench of this Court in Baby v. Union of India [2003 (3) KLT 362] has held that when an individual is enrolled after having been found to be in perfect health and no note regarding any kind of disability has been registered at the threshold, he would o.p.14697/00 4 be entitled to grant of disability pension. It is also stated in that decision that in such circumstances the onus of proving that the disability is not attributable to military service or that the individual is not entitled to the claim of disability pension shall normally lie on the authority. That decision is clearly applicable to this case. Therefore, the onus of proving that the disease of “Neurosis” which was detected in the petitioner is not attributable to military service is squarely on the respondents. Apart from relying on the medical board's opinion which does not explain as to why the disease cannot be attributed to military service, no material whatsoever has been produced before me for discharging that onus of proving the said fact. On the other hand, in identical circumstances, two Single Judges of this Court had held in the above said decisions that unless proved otherwise, the disease of Neurosis should be held to be attributable to military service. In the above circumstances, in the absence of any proof to the contrary, I must hold that the disease of “Neurosis” contracted by the petitioner is attributable to military service. Accordingly, Exts.P3 and P5 are quashed, and the respondents o.p.14697/00 5 are directed to sanction and pay disability pension to the petitioner. Arrears shall be paid within three months from the date of receipt of a certified copy of this judgment and the petitioner shall be continued to be paid disability pension every month. If the respondents do not pay arrears within the three months as directed above, the amounts shall carry interest at the rate of nine per cent per annum from the date of discharge till the date of payment. The original petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.14697/00 6 S.SIRI JAGAN, J. =============== O.P.No.14697 of 2000-Y =============== J U D G M E N T 22nd September, 2008