RSA No.4896 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.4896 of 2002 (O&M) Date of Decision: 14.10.2009 Union of India and others .....Appellants Vs. Chattar Singh ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Ms. Geeta Singhwal, Advocate for the appellants. Mr. Bhim Sen Sehgal,Advocate for the respondent. .... RAJIVE BHALLA, J (Oral) CM No.10602-C of 2009 Prayer in this application, filed by the respondent, is to decide the appeal in terms of a judgement in LPA No.174 of 2008 Bakshish Singh Vs. Union of India and others, decided on 3.7.2009. Counsel for the appellants states that she has no objection, if the appeal is taken up for hearing. The application is allowed and the appeal is taken up for hearing. RSA No.4896 of 2002 The Union of India challenges the judgement and decree dated 8.8.2002, passed by the Additional District Judge, Gurdaspur, accepting the RSA No.4896 of 2002 2 appeal filed by the respondent, setting aside the judgement and decree passed by the Civil Judge (Junior Division), Gurdaspur and as a consequence, decreeing the suit filed by the respondent. The plaintiff-respondent filed a suit for declaration that he is entitled to disability pension from the date of his discharge from military service i.e. 22.10.1966. In response, the Union of India, asserted that as per the opinion of the discharge medical board, the disability i.e. “HYSTERICAL REACTION to the extent of 30%” is a constitutional disorder and is not attributable to military service. After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that as the medical board has recorded an opinion that the disease is a constitutional disorder, not attributable to military service, the respondent cannot be granted any relief. Aggrieved by the aforementioned judgement and decree, the respondent filed an appeal. Vide judgement and decree dated 8.8.2002, the learned Additional District Judge, Gurdaspur, accepted the appeal, set aside the judgement and decree passed by the trial court and decreed the suit. The first appellate court held that as the appellants have failed to prove that the respondent was suffering from this disease on the date of his enrolement in the army, he is entitled to disability pension. Counsel for the appellants submits that the opinion of a discharge medical board is final and, therefore, the first appellate court could not have accepted the appeal. Counsel for the respondent, however, submits that”HYSTERICAL REACTION” is not a constitutional disease and may develop during military service. It is further argued that a Division RSA No.4896 of 2002 3 Bench of this Court has held in LPA No. 174 of 2008 Bakshish Singh Vs. Union of India and others, that if the opinion of a discharge medical board is not supported by reasons or documentary proof, it cannot be treated as conclusive. Counsel for the appellants does not deny the above judgement but states that as “HYSTERICAL REACTION” is a constitutional disease, the respondent is not entitled to any relief. I have heard counsel for the parties, perused the impugned judgement and decree. The substantial question of law that arises for adjudication is “- “Whether the respondent/plaintiff is entitled to the disability pension under Regulation 173 of Army Regulation 1961 where the expert opinion in the form of medical board proceedings held that the disability is into attributable to service and has not been aggravated and is not connected with service and thus is constitutional in nature ? The above question has been answered by a Division Bench of this Court in LPA No.174 of 2008 Bakshish Singh V. Union of India and others by holding as follows :- “Though medical opinion relied upon on behalf of the respondent is to the effect that the disease was not attributable to Army service and the medical opinion has to be given due weight, as held by the Hon'ble Supreme Court in Union of India and others V. Keshar Singh (supra) there has to be some discernible basis of medical opinion. Mere mention of words `not attributable RSA No.4896 of 2002 4 to Army service' without giving any reasons,cannot be accepted as conclusive. This aspect has been considered in the judgement of this court dated 1.7.2009 in Union of India & another V. No.727213 Ex.-Airman B.S. Rana. Therein, after referring to various judgements of the Hon'ble Supreme Court, it was held as under :- 8. In a recent judgement in Union of India and others V. Ex.Sepoy Ranjit Singh, PA No.547 of 2001, decided on 11.2.2009, the matter was considered by this Court and it was held that if the circumstances give rise to an inference that disease was attributable to the Air Force Service, negative opinion of the Medical Board given without any basis could not be teated as conclusive. After referring to judgements in Union of India and another V. Baljit Singh, 1996(2) SCC 316, Controller of Defence Accounts (Pension) and others V. S.Balachandran Nair, AIR 2005 SC 4391, Navin Chandra V. Union of India and others, 2006(4) SCT 626 (Delhi), Union of India and others V. Hemant Kumar, 2009(1) RSJ 196 (MP) and Joginder Singh V. Union of India and others, CWP No.7323 of 2007, decided by this court on 4.12.2007, it was observed :- “14. We are of the view that the judgements of the Hon'ble Supreme Court in Baljit Singh's case and S.Balacnandra Nair's case (supra) are distinguishable on facts. In the present case it has RSA No.4896 of 2002 5 been admitted in the written statement (that) there was an episode of Generalised Tonic Clonic Seizure on 11.10.1998 when the petitioner was in service and he was given treatment which continued thereafter. In the opinion of the Medical Board Annexure RA, there is no reason given as to how the said illness did not relate to the disability in question. The disability is clearly relatable to the episode which is duly admitted in the written statement. It may have been a different matter if such an episode had not happened. The opinion of the medical board in the present case was thus arbitrary in ignoring the admitted incident. 15. In Naveen Chander (supra), it was held that the opinion of Medical Board must be self contained and well reasoned and supported by documentary proof and therefore, the opinion that the disease was not attributable to the military service was without any basis. Moreover, para 14 of 1982 Rules provides that if a person is fit at the time of entry into service, there will be no presumption that the disease is due to military service though on facts it could be established that the disability existed prior to entry into service and the mere fact that such disease was not detected at the time of entry into service will not be RSA No.4896 of 2002 6 conclusive. Similar view has been taken by this court in Joginder Singh and Ex.Sepoy Bhola Ram (supra) and the Madhya Pradesh High Court in Hemant Kumar (supra) 16. In view of the above, no fault can be found with the finding recorded by the learned Single Judge that the disability of the petitioner was attributable to the military service and he was entitled to disability pension from the date of his discharge from the military service.” We, thus,hold that in absence of any reason whatsoever for the opinion that the disability was not attributable to Army service, medical opinion cannot be treated as conclusive. The judgement in Union of India & Ors. V. Keshar Singh (supra) is distinguishable on facts. We affirm the finding recorded by the learned Single Judge that the disease in this case was attributable to Army service.” It is, therefore, apparent that in the absence of any reasons or material to support its conclusion, the opinion recorded by a Medical Board cannot be held to be conclusive. The question of law framed in the present appeal is squarely covered by the aforementioned judgement and is answered accordingly. It would be necessary to mention that the appellant in the case before the Division Bench and the respondent in the present case both RSA No.4896 of 2002 7 suffer from “HYSTERICAL REACTION to the extent of 30%”. The respondent was admittedly hale and hearty when he entered military service. During his service, he developed HYSTERICAL REACTION and was eventually discharged with 30% disability. The respondent was refused a disability pension on the opinion of the medical board that this disease is constitutional and not attributable to military service. The medical opinion is not supported by any reasons or material and is, therefore, not conclusive of the opinion that the disability is not attributable to military service. The Division Bench discarded a similar opinion allowed the appeal and granted disability pension to the appellant therein by holding that the opinion of the medical board is not binding. Counsel for the appellants does not deny that the factual and legal situation in the present case is identical. As the controversy in the present case is squarely covered in fact and in law by the judgement in LPA No.174 of 2008, the appeal is dismissed with no order as to costs. 14.10.2009 (RAJIVE BHALLA) GS JUDGE