IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 WA.No. 2434 of 2008 ----------------------------- AGAINST THE JUDGEMENT IN O.P.NO.1869/2000 DATED 16/09/2008. .................... APPELLANTS/RESPONDENTS IN O.P: ------------------------------------------------------ 1. UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF DEFENCE, CENTRAL SECRETARIAT, NEW DELHI. 2. THE OFFICER-IN-CHARGE, RECORDS OFFICE, ARTILLERY RECORDS, NASIK ROAD CAMP, NASIK. BY MR.TOJAN J.VATHIKULAM, ADDL.CGSC. RESPONDENT/PETITIONER IN O.P: -------------------------------------------------- P.V.GEORGE, S/O.P.N.VARKEY, PLAMOOTTIL HOUSE, PULIYOOR P.O., CHENGANNUR, ALLEPPEY DISTRICT. BY ADV. MR.JOHNSON MANAYANI. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A. No. 2434 OF 2008 ------------------------------ Dated this, the 19th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in the Original Petition are the appellants. The petitioner, who is the respondent herein, joined the Indian Army in 1954. He was discharged from service on 7.5.1963. The respondent claimed disability pension on the ground that the cause of the ailment for which he was discharged from service is attributable to military service. He was found to be suffering from 'Schizophrenia', which is a mental disorder and that was the reason for his discharge. But, when his claim for disability pension was denied, he approached this Court by filing O.P.No.17488/1995. The said Original Petition was allowed by Ext.P9 judgment dated 16.8.1999. The communications of the appellant rejecting his claim were quashed and his claim was directed to be reconsidered in the light of the observations in the judgment. The observations were the following: W.A. No.2434/2008 - 2 - “At the time when petitioner joined service even according to the respondents he was fit and he was found fit by the Medical Board also. There is no case of this disease before them. The petitioner was enrolled in the military service while he was having no physical or mental infirmity. But the Medical Board found him to have 70% disability on account of Schizophrenia. He was affected by this disability while undergoing service in the Military. So prima facie that disability should be attributed to the military service. Rule 4 of the Entitlement Rules states that in deciding on the issue of entitlement, all the evidence, both direct and circumstantial, will be taken into account and benefit of reasonable doubt will be given to the claimant. This benefit, as per the Rules, will be given more liberally to the claimant in the field service cases. It is not disputed that petitioner was in the field service. So in the case of his claim for entitlement to disability pension, the authorities should have taken a more sympathetic stand and not a hostile attitude as can be seen from the exhibits produced. Further Rule 7 of the Entitlement Rules provides that cases in which it is established that conditions of military service did not determine or contribute to the on set of the disease but influenced the subsequent course of the disease will fall for acceptance on the basis of aggravation. I also note clause (b) also. In the instant case since petitioner was perfectly healthy at the time of his enrollment and he contracted the disease W.A. No.2434/2008 - 3 - while he is in field service, it can be presumed that disability occurred due to Military Service. In fact, when petitioner has got this disease without any previous history, the burden of establishing it lies on the military authorities as held by a Division Bench of this Court in Ravi v. Union of India [1998 (1) KLT 56]. In this connection I also refer to the judgment of this Court in O.P.No.3892 of 1991.” 2. Pursuant to the above observations, which have become final, the Union of India reconsidered his claim and again rejected it by Ext.P10 order dated 24.11.1999. The operative portion of the said order reads as follows: “Since in your case, the disability have been certified by Medical Authority to be constitutional in nature not connected with service, casual connection between disablement and military service is therefore, not established. Since your disability is considered not connected with military service. You are therefore not entitled to disability pension under the provision of Regulation 173 of Pension Regulations for the Army. Your appeal for grant of disability pension accordingly does not qualify for acceptance.” 3. The above quoted portion of the order would show that the medical authority has certified that the disability of W.A. No.2434/2008 - 4 - the petitioner is constitutional in nature and not connected with the service. Relying on that view of the medical authority, his claim for disability pension was rejected. Challenging Ext.P10, the present Original Petition was filed. 4. The respondents filed a counter affidavit resisting the prayers in the Original and also produced Ext.R1(a) medical records relating to the respondent/petitioner. But the learned Single Judge took the view that the on set of ailment is attributable to military service and therefore, allowed the Writ Petition. So, the appellants herein have preferred this Writ Appeal, challenging the said finding of the learned Single Judge. 5. We heard the learned standing counsel, Sri.Tojan Vathikulam, for the appellants and Sri.Johnson Manayani, the learned counsel for the respondent. The learned counsel for the appellants attacked the findings of the learned Single Judge and contended that because of the constitutional defect, the respondent happened to be a mental patient and the military service has nothing to do with it. Therefore, the decision of the learned Single Judge is liable to be reversed, it W.A. No.2434/2008 - 5 - is submitted. The learned counsel for the appellants admitted that the only medical record available with them is Ext.R1(a). 6. Going by Ext.R1(a), it is clear that at the time of enrollment, the disease was not subsisting and he was fit for service at that time. We find nowhere a finding in Ext.R1(a) that because of any family history or constitutional defect he contracted the disease. In view of the above facts, the learned Single Judge rightly found that the burden shifted to the appellants would show that the on set of the disease is not attributable to military service. They have failed to show that. Though in Ext.P10, the opinion of a Medical Board is mentioned, but, the documents relating to the same have not been produced before us. So, we find no reason to take a different view. In the result, the Writ Appeal fails and the same is dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps