IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 15049 of 2007(N) -------------------------- PETITIONER: ------------- MADHUSOODHANAN,P, AGED 43 YEARS, S/O.S.PATCHAN, MARACHEENIVILA KARTHIKA VEEDU, VAZHOTTUKONAM, KODUNGANOOR PO, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.B.HARISH KUMAR RESPONDENTS: ----------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY(DEFENCE) NEW DELHI. 2. DEFENCE SECRETARY, CENTRAL SECRETARIATE, NEW DELHI. 3. THE OFFICER-IN-CHARGE, ARTILLERY RECORDS SIGNALS, NASIK ROAD CAMP-422102 MAHARASHTRA(MR) 4. DIRECTOR GENERAL, CONTROL OF DEFENCE ACCOUNTS, (PENSION) ALLAHABAD, U.P. R1 TO R4 BY ADV. SRI.P.PARAMESWARAN NAIR, ASCG THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 15049/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE DISCHARGE BOOK OF THE PETITIONER. EXT.P2 : TRUE COPY OF THE MEDICAL EXAMINATION REPORT OF THE PETITIONER BY THE THIRD RESPONDENT ON 26.6.00. EXT.P3 : TRUE COPY OF THE MEDICAL BOARD PROCEEDINGS DATED 25.6.00 OF THE PEITITONER CONDUCTED BY THE RESPONDENTS. EXT.P4 : TRUE COPY OF THE DISCHARGE CERTIFICATE DATED 1.8.00 ISSUED BY THE THIRD RESPONDENT. EXT.P5 : TRUE COPY OF THE REPRESENTATION DATED 20.3.01 SUBMITTED BY THE PETITIONER. EXT.P6 : TRUE COPY OF OTHE REPRESENTATION DATED 9.10.01 SUBMITTED BY THE PETITIONER. EXT.P7 : TRUE COPY OF THE ORDER DATED 4.2.02 ISSUED BY THE THIRD RESPONDENT. EXT.P8 : TRUE COPY OF THE PROCEEDINGS DATED 27.8.03 ISSUED BY THE THIRD RESPONDENT. EXT.P9 : TRUE COPY OF THE APPEAL SUBMITTED BEFORE THE SECOND RESPONDENT DATED 30.3.07 BY THE PETITIONER. RESPONDENT'S EXHIBITS: EXT.R3(A) : TRUE COPY OF THE LETTER NO.B/40103/AG/PS-4(D) DATED 17.3.98. EXT.R3(B) : TRUE COPY OF THE JUDGMENT IN WPC NO.202/03 DATED 15.10.04. EXT.R3(C) & R3(D) : TRUE COPY OF THE APPLICATION DATED 01.02.99 ALONG WITH NO REQUEST FOR WITHDRAWAL CERTIFICATE DATED 28.02.99. EXT.R3(E) : TRUE COPY OF THE DISCHARGE ORDER OF THE ARTILLERY RECORDS VIDE LETTER NO.1375/CUG/PREM/NOCS/OR/11/RA-6 DATED 15.4.00. EXT.R3(F) : TRUE COPY OF THE LETTER NO.B/40103/AG/PS-4(D) DATED 27.03.98. EXT.R3(G) : TRUE COPY OF THE LETTER NO.J437425IN/Q/PEN-2(G) DATED 8.7.03. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 15049 OF 2007 ------------------------------------------------- Dated this the 1st day of June, 2009 JUDGMENT A soldier who fought for this country has been forced to approach this Court to get what is rightly due to him by way of disability pension. The petitioner entered Army service on 02.09.83. After putting in a little less than 15 years of service, in July 1998, he put in an application for voluntary retirement from Army service. The said application was not considered. Instead, he was transferred to a field area, in Jammu and Kashmir on 31.03.2000. While he was working so, he contracted a disease in his right eye. He was admitted to a hospital in Jammu and Kashmir. But the ailment could not be cured. He was discharged from that hospital on 14.05.2000 and was admitted to another military hospital on 15.05.2000 and discharged from there on 24.06.2000. By Exts.P2 and P3 he was put in a lower medical category and was recommended for discharge with both service and disability pension. Petitioner would contend that without disclosing these military records to the petitioner, by Ext.P4 certificate it was certified that the petitioner has been WPC : 15049/07 -:2:- discharged from service “on compassionate/medical grounds after completion of reasonable service in the Army”. Although the petitioner was given service pension disability pension was not sanctioned to him. Petitioner put in an application for disability pension also. By Ext.P7 order the petitioner was informed that he was discharged from service on 01.08.2000 on his own request and not on medical ground and therefore he is not eligible for disability pension. Petitioner again represented and he was rewarded by Ext.P8 order repeating the same with an admonition against “infructuous correspondence” again. Although petitioner filed various other representations, he did not get any reply. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “1. To call for the records leading to Ext.P7 and P8 and set aside the same by issuing a writ of certiorari or any other appropriate writ. 2. To issue a writ of mandamus order or direction commanding the respondent to grant to the petitioner the pension due to the disabled Military personal discharged from service due to the illness. 3. To issue a writ of mandamus order or direction commanding the respondents to grant to the petitioner the disability benefit cover under army group insurance scheme. WPC : 15049/07 -:3:- 4. To consider and dispose of Ext.P9 appeal filed by petitioner before the second respondent.” 2. A counter affidavit has been filed by the 3rd respondent wherein it is reiterated that petitioner was discharged on his own request on extreme compassionate grounds before fulfilling the conditions of enrollment under the Army Rules and therefore he is not entitled to any disability pension as claimed by him. 3. I have considered the contentions of both sides in detail. 4. I find the stand of the respondents unbecoming of the defence organisation. This not the way the defence organisation is expected to treat a person who fought for this country and in the course of his military duties contracted a disease and suffered disability. It is true that the petitioner had applied for voluntary retirement in July 1998, a few months before fulfilling the conditions of enrollment. Even after two years, the respondent did not care to address themselves to that application. Instead, the petitioner was made to continue service and he was even transferred to a field area in Jammu and Kashmir. Petitioner did not shirk his responsibilities. He joined the field area in Jammu and Kashmir and served the country. While so he contracted a disease in the right eye which WPC : 15049/07 -:4:- ultimately resulted in his suffering disability of a permanent nature as certified by the medical department of the Army. Exts.P2 and P3 are the medical records, which are not controverted by the respondents. If that be so, they have not explained the same, while taking the stand that petitioner was granted voluntary retirement on his request. Petitioner would contend that Exts.P2 and P3 were not disclosed to him and with great difficulty he obtained copies of the same. When the respondents do not dispute Exts.P2 and P3, they cannot now contend that the petitioner was not discharged from service on medical grounds and in Ext.P4 certificate nothing is mentioned about his application for voluntary retirement. When the petitioner applied for voluntary retirement in July 1998, there is no point allowing that petition for voluntary retirement long after the request. The extreme compassionate ground available to the petitioner in 1998 may not continue to exist after two years. Therefore, there is no point in quoting that application to discharge him two years later, that too without a new or renewed request from the petitioner in that regard. Going by the documents produced by the respondents themselves along with the counter affidavit, the petitioner was discharged from WPC : 15049/07 -:5:- service with effect from 01.08.2000. Exts.P2 and P3 belie their contention that the petitioner was not discharged from service on account of medical grounds. The documents show that after finding that the petitioner has suffered a disability of a permanent nature, which would render him unfit to continue in military service, the respondents have taken the dubious decision of discharging him from service, based on his application for voluntary retirement filed in July 1998, that too ignoring the fact that he contracted a disease while serving in a field area in Jammu and Kashmir at the instance of the respondents. This is not the way the defence organisation should treat a soldier who faithfully served the country. 5. Even assuming that the petitioner had been discharged from service on his own request, that does not disentitle him for disability pension also, provided, at the time of discharge he was put in a lower medical category. Admittedly he had been put in a lower medical category before discharge as is evidenced from Ext.P2, which is the medical examination report which categorically states that the petitioner is to be released from service in “low medical category (CEE) (permanent) with effect from June 2000”. I have in my WPC : 15049/07 -:6:- decision in Raju v. Union of India [2009(1) KHC 627] held that even if discharge is on request, if at the time of discharge the soldier was put in a low medical category the soldier is entitled to disability pension. 6. Of course the learned Assistant Solicitor General would take a further contention that the disability suffered by the petitioner is not attributable to military service of the petitioner. But the respondents have not disputed that at the time of enrollment in Army service the petitioner was in good health. In such a case going by the decision of the Full Bench of this Court in Baby V. Union of India [2003(3) KLT 362] the onus of proving that the disability is not attributable to military service is squarely on the department. Here, insofar as the department does not dispute Exts.P2 and P3, they cannot now take a contention that the disability is not attributable to military service. deny that. The disability suffered by the petitioner is attributable to military service insofar as in Ext.P3, the medical authority of the respondents themselves has recommended for both pensions, namely, service pension and disability pension. In such circumstances that contention of the respondents is, to say the least, WPC : 15049/07 -:7:- frivolous. 7. For all the above reasons the petitioner is entitled to succeed in this writ petition. Accordingly, I hold that the petitioner is entitled to disability pension also as recommended in Ext.P3 proceedings of the medical board. Orders sanctioning disability pension to the petitioner shall be passed and arrears paid to the petitioner as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. Needless to say, this shall be in addition to the service pension already sanctioned to the petitioner. On account of the unreasonable attitude of the respondents, I was also inclined to award costs to the petitioner, but exercising restraint I refrain from doing so. S. SIRI JAGAN, JUDGE ttb