IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 OP.No. 12679 of 2003(H) ---------------------------------- PETITIONER: ------------------- R.SATHEESAN (EX.NO.7119248, CFN.EME) PUTHENPURAYIL HOUSE, ULIYAKOVIL, P.O. KADAPPAKKADA, KOLLAM. BY ADV. SRI.M.RAJAGOPALAN, ADV. SRI.RAJIT. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. CHIEF CONTROLLER OF DEFENCE ACCOUNTS (PENSION), ALLAHABAD. 3. OFFICER I/C RECORDS, E.M.E. RECORDS, SECUNDERABAD. BY SRI. P. PARAMESWARAN NAIR, ASST. S.G. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 21679/2003 IN O.P. NO. 12679/2003-H DISMISSED 04/01/2008. SD/- P.N.RAVINDRAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE LETTER NO. 7119248/DP-2/PEN DTD. 07/08/1999. EXT.P.2: COPY OF THE PETITION DTD. 07/09/1999. EXT.P.3: COPY OF THE LETTER NO. 3 (32)/2000.D (PEN A & AC) DTD. 01/08/2000 OF THE R.1. EXT.P.4: COPY OF THE LETTER NO. 7119248/DP-2/PEN DTD. 10/05/2001. EXT.P.5: COPY OF THE THE ORDER NO. B/40502/651/02/AG-PS-4 (D) DTD. 01/04/2002. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. P.N.Ravindran, J. ============= O.P.No.12679 of 2003 ======================== Dated this the 4th day of January, 2008. JUDGMENT The petitioner is an Ex-service man. He has, in this Original Petition, challenged Ext.P5 whereby his request for disability pension was declined and also prayed for a writ in the nature of mandamus directing the respondents to grant him disability pension. The petitioner has also prayed for declaration that he is entitled to get disability pension. 2. The petitioner was enrolled in the Indian Army on 28.3.1972 at the age of 17 years. After undergoing training for three years, he was posted at Secunderabad. The petitioner has averred in the Original Petition that he had served in various stations including Jammu and Kashmir. It appears that in the year 1981 during a regular firing range training, the petitioner fell down unconscious and was hospitalised. He was referred to the Military Hospital at Calcutta where he was under medical care as an inpatient for four months. The petitioner was diagnosed as OP 12679/03 -: 2 :- suffering from Neurosis-300, a serous mental disorder. Pursuant thereto, it is averred, the petitioner was examined by the Release Medical Board and invalided out of service on medical ground. 3. The petitioner has averred in the writ petition that the Release Medical Board had assessed his disability at 40% and that based on the proceedings of the Release Medical Board he was discharged from service with effect from 23.8.1981. The petitioner has also averred in the writ petition that though his claim for disability pension was rejected by the second respondent on 19.4.1982 stating that the disability incurred by him was neither attributable to nor aggravated by Military service, on account of his illness, he could not prefer an appeal in time. He has further averred that long afterwards, he submitted an appeal dated 27.2.1999 to the first respondent. However, by Ext.P1 dated 7.8.1999, the third respondent informed the petitioner that the appeal filed by him after a long delay of 17 years is time barred cannot be entertained without Government sanction. 4. It appears that thereafter petitioner filed Ext.P2 petition dated 7.9.1999 before the Hon'ble Minister for Defence, OP 12679/03 -: 3 :- Government of India praying that the delay in preferring the appeal may be condoned and the order passed by the CCDA(P), Allahabad on 19.4.1982 rejecting his claim for disability pension overruling the decision of the Medical Board may be set aside and disability pension may be sanctioned to him. By Ext.P3 letter dated 1.8.2000, the petitioner was informed that the competent authority, namely, the Government of India has waived the time limit for consideration of his appeal and that his appeal (Ext.P2) would be reviewed in the light of the relevant provisions contained in Para 1(b) of the Ministry's letter No.210417/Pt.I/D (Pen.A) dated 3.1.1973. By Ext.P4, the third respondent informed the petitioner that his appeal against the rejection of his claim for disability pension has been forwarded to the Government of India for consideration and the decision thereon would be communicated to him as and when received. By Ext.P5 dated 1st April, 2002, the Adjutant General's Branch, Army Headquarters, New Delhi informed the petitioner that he is not entitled to disability pension as per Regulation 173 of the Pension Regulations for Army Part-1, 1961 and hence, the Appellate Committee on First Appeals has not accepted his appeal. The OP 12679/03 -: 4 :- relevant portion of Ext.P5 is as follows: "On perusal of your service/medical documents, the committee has found that your invalidating disability 'Neurosis' is a constitutional disorder, which is neither attributable to nor aggravated by military service. Therefore, you are not entitled to disability pension as per Regulation 173 of Pension Regulations for Army Part-I, 1961. Accordingly, the ACFA has not accepted your appeal." 5. Though the Original Petition was admitted on 10.4.2003, the respondents have not till date filed a counter affidavit. When the case was taken up for hearing today, there was also no representation on the side of the respondents. 6. I have heard Shri. M.Rajagopalan, learned counsel appearing for the petitioner. He has relying on the decisions of this Court in Thankachan v. Union of India - 2004(1) K.L.T. 967 and in O.P.No.5532 of 2002 contended that it was not open to the Appellate Committee on First Appeals or to the original authority to reassess the disability made by the Release Medical Board or to overrule the opinion of the Release Medical Board. The petitioner has, in the Original Petition, averred that he was OP 12679/03 -: 5 :- invalided out of service on medical grounds, that his disability was assessed at 40% by the Release Medical Board and that his claim for disability pension cannot be declined by overlooking the assessment made by the Release Medical Board. Though the proceedings of the Release Medical Board is not on record, the respondents have not chosen to file counter affidavit traversing the averments made by the petitioner that his discharge was on medical grounds. Ext.P5 discloses that the petitioner was found to be not entitled to disability pension for the reason that the Appellate Committee on First Appeals came to the conclusion that "Neurosis is a constitutional disorder, which is neither attributable to nor aggravated by Military service." Ext.P5 does not disclose as to how and on what material the Appellate Committee came to the conclusion that Neurosis which the petitioner suffers from is a constitutional disorder, which is neither attributable to nor aggravated by Military service. As held by this Court in the decision reported in Thankachan v. Union of India - 2004 (1) K.L.T. 967 and the judgment in O.P.No.5532 of 2002, the Appellate Committee on First Appeals and the original authority were not justified in or competent to overrule the opinion of the OP 12679/03 -: 6 :- Release Medical Board and to come to the conclusion that the disability suffered by the petitioner is neither attributable to nor aggravated by Military service. Following the said decisions, I hold that the rejection of the petitioner's claim for disability pension by the original authority and by the Appellate Committee is bad in law and is liable to be interfered with. 7. For the reasons stated above, I quash Ext.P5 and declare that the petitioner is entitled to payment of disability pension. The respondents shall take steps to compute and disburse the disability pension payable to the petitioner. Arrears of disability pension payable to the petitioner shall be paid within three months from the date of receipt of a copy of this judgment. I further direct that the respondents shall continue to pay the petitioner the disability pension in accordance with the rules every month. The Original Petition is disposed of as above. P.N.Ravindran, Judge. ess 5/1