Case: Controller Of Defence Accts.(Pen.)&amp;Ors Vs. S. Balachandran Nair

2. Factual background is essentially as follows:Respondent joined the Indian Army on 7.2.1972 in the Signal Corps. He was selected to the regular Army through the selection process prescribed by the Army authorities and had undergone a thorough medical examination. Thereafter, he had undergone military training at 3 M.T.R. Goa for a period of two years. After completion of training he was posted in the Signal Company at Jabalpur for a period of three years. Thereafter, he was posted to the border area in Punjab. However, he was not involved in actual combat operations or in combat area. He was working in the office of Radio machine. He developed certain medical problems and was admitted in the Command Hospital at Chandigarh on 10.8.1977. He was not completely cured and had some kidney complications and the medical authorities found his illness as anxiety neurosis. He was again admitted in the Chandigarh Military Hospital in December 1979 and after prolonged treatment was boarded out and the medical authorities were of the opinion that he became unfit for continuing in service and was put under the category of EEE meaning unfit and useless with effect from 18.3.1980 and was finally discharged from service.3. Respondent made an application for disability pension. Same was rejected by the authorities on the ground that the disability of the respondent was not attributable to military service. It was also stated that there was no proof that the disability had existed before or developed during military service and/or had aggravated thereby and military disability pension was accordingly denied. As his various representations did not bring any positive result he filed writ petition before the Kerala High Court. A learned Single Judge held that the respondent had been working in sensitive and turbulent areas and this must have aggravated his disease and the stress and stains of military service were the sole cause of his illness and it was clearly attributable to the stress and strain of military service. The present appellants were therefore, directed to disburse disability pension.4. Challenging the order passed by learned Single Judge, a Writ Appeal was filed before the Kerala High Court. The Division Bench by the impugned judgment dismissed the Writ Appeal.5. The stand of the appellants before the High Court was that the writ petition was filed belatedly and on account of laches alone the writ petition should have been dismissed. The request for disability pension was rejected in 1980 and he was told that he could file an appeal within a period of six months. The appeal was disposed of much before filing of the writ petition. In addition, it was submitted that the Medical Board itself has found that the illness suffered by the respondent cannot be attributed to military service and when an expert body like the Medical Board gave the opinion the authorities were in fact bound by such decision and the learned Single Judge was not justified in his view. The Division Bench dismissed the appeal on the ground that no psychic disability was noticed when the respondent joined the military service. The fact that the illness occurred while he was in the border area clearly established that the ailment was attributable to military service. The fact that the respondent was working in the border area must have caused some stress and strain and, therefore, learned Single Judge was right in his conclusions.

Reasoning: 10. In Union of India and Anr. v. Baljit Singh (1996 (11) SCC 315 ) this Court had taken note of Rule 173 of the Pension Regulations. It was observed that where the Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Courts direction to the Government to pay disability pension was not correct.The position was again re-iterated in Union of India and Ors. v. Dhir Singh China, Colonel (Retd.) (2003(2) SCCwas inter alia observed asis seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made ample clear from clause (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated thereunder required to be observed. Clause (c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service".That leaves for consideration Regulation 53. The said Regulation provides that on an officer being compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability element as if he had been retired on account of disability. It is not in dispute that the respondent was compulsorily retired on attaining the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering, on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, must be accepted."