Apolo Manral vs Union of India (UOI)

Prafulla C. Pant, J.—By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of mandamus, directing the respondents to pay the petitioner disability pension from month to month. A writ in the nature of certiorari has also been sought quashing the order dated 05.06.1991 (copy Annexure -2 to the writ petition), passed by respondent No. 4, and order dated 22.09.1992 (copy Annexure -3 to the writ petition), passed by the appellate authority.

Heard learned Counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit on record.

Brief facts of the case are that, the petitioner was appointed and enrolled as Metric Entry Rate (MER) in Indian Navy, in the year 1988. At the time of entry in the Indian Navy, the petitioner was physically examined, and the fitness certificate was issued to him. He had successfully undergone training. The work and conduct of the petitioner in the Indian Navy had been satisfactory and without any complaint. The petitioner was promoted to the rank of NASE II. In the month of January 1990, while petitioner was posted at Visakhapatnam, he fell ill and was taken to Calcutta (Barrackpur) Base Hospital, where he remained hospitalized till 4th October 1992. On 05.10.1992, the petitioner was discharged from Barrackpur Base Hospital and sent home with a discharge certificate (copy of which is Annexure -1 to the writ petition). Petitioner''s case is that he suffered illness due to the service rendered by him to the Indian Navy, and yet he has been denied disability pension. The petitioner has challenged letter dated 7th June 1991 (copy of which is Annexure -2 to the writ petition) received from the Bureau of Sailors, Cheetah Camp, Mankhurd, Bombay, whereby the petitioner was informed that he is not entitled to disability pension, as the disease by which the petitioner was suffering, did not relate of naval service. Against said order the petitioner preferred departmental appeal. However, vide order dated 22.09.1992 (copy of which is Annexure -3 to the writ petition) his appeal was dismissed on the same ground, as above. Hence, this writ petition, filed before Allahabad High Court in 1995, from where it is received by transfer to this Court u/s 35 of the U.P. Re-organization Act, 2000, for its disposal.

A counter affidavit has been filed on behalf of the respondents in which it is stated that the petitioner was enrolled in the Indian Navy on 9th May 1988. It is also stated in the counter affidavit that the petitioner was invalidated out w.e.f. 5th of October 1990, in the medical category S5 A5 (Psychological) on completion of two years and 149 days service, as he was suffering from ID AFFECTIVE PSYCHOSIS (HYPOMANIC). It is further stated in the counter affidavit filed on behalf of the respondents that respondent No. 4 Chief Controller of Defence Accounts (Pension), Allahabad, vide his letter No. DP/D/170304 dated 12th February 1991, adjudicated the petitioner''s claim and rejected the same on the ground that the disease was constitutional and unrelated to service. It is further stated that the departmental appeal filed by the petitioner was rejected vide order dated 22nd September 1992. It is also stated in the counter affidavit that petitioner has been paid Rs. 2,120/- as gratuity for service rendered by him to the Indian Navy. In Clause (iii) of Para 3 of the counter affidavit it has been stated that the petitioner developed the disease during his tenure at Naval Air Station, Visakhapatnam, where he was primarily performing maintenance of Air Safely Equipment. In Para 12 of the counter affidavit it has been admitted that the petitioner was admitted in INHS Kalyani on 11th December 1989, on summary report of specialist (Psychiatry) and later transferred to Psychiatric Centre MH Barrackpur on 7th January 1990. He was recommended to be invalidated out of service in lower medical category of S5 A5. A copy of invaliding medical board''s proceeding (AFMSF-16) along with summary of the case is annexed as Annexure C.A. 4 to the counter affidavit. Lastly, it is stated that the claim of disability pension of the petitioner was rejected by respondent No. 4 only after consultation with the Medical Advisor (Pension). However, it is admitted that the petitioner''s disease was detected only when he was admitted in INHS Kalyani on 11th December 1989, on complaint of abnormal behaviour.

In the rejoinder affidavit the petitioner has reiterated the averments made in the writ petition.

Before further discussion it is pertinent to mention here, that Rule 5 and Rule 14(b) of Entitlement Rules for Casualty Pensionary Awards, 1982, issued by the Ministry of Defence, Government of India on 22nd of November, 1983, to the Chiefs of all the three military services i.e. Army, Navy and Air Force, contains following provision:

The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumption:

Prior to and during service

(a) A member is presumed to have been in sound physical and mental condition upon entering service except as physical disabilities noted or recorded at the time of entrance.

(b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service....

Rule 14 of Entitlement Rules for Casually Pensionary Awards, 1982, reads as under:

In respect of disease the following rules will be observed:

(a)....

(b) A disease which has led to an individual''s discharge or death will ordinary be deemed to have arisen in service, if no note of it was made at the time of the individual''s acceptance for military service. However, if medical opinion hold, for reasons, that the disease could not have been detected on medical examination prior to acceptance for service the disease will not be deemed to have arisen during service.

(c)....

From the perusal of the impugned orders passed by the authorities concerned, it appears that they have not paid any heed to the aforesaid rules. Apart from this, Annexure -2 to the Entitlement Rules for Casualty Pensionary Awards, 1982, which provides classification of diseases, in its classification ''B'', which relates to ''Diseases affected by stress and strain'' shows ''Psychosis and Psychoneurosis'' as one of the diseases which can be said to have been affected by stress and strain. As such, it cannot be said that Psychosis by which the petitioner was suffering at the time of his discharge has not been affected by the stress and strain, he has undergone during service.

Annexure C.A. 4 filed with the counter affidavit, which is copy of the medical boards proceeding invalidating all ranks, issued by Base Hospital Barrackpur, itself shows that the disease i.e. ID Affective Psychosis (Hypomanic) had its origin in December 1989, and place of unit where the patient was serving at the time, has been shown to be Visakhapatnam. In Part III of said document (Annexure C.A. 4 filed with the counter affidavit) which pertains to information of the medical board, shows that the petitioner was not having the disability at the time of entering the service. Entry at SI. No. 1 contained in ''Opinion of the Medical Board'', reads as under:

Did the disability exist before entering service? - No.

However, in the confidential part of said report it is mentioned that the disease suffered by the petitioner is a constitutional and unrelated with service. This report appears to have been led the respondent authorities to reject his case of disability pension claimed by the petitioner. Annexure C.A. 4 filed with the counter affidavit further shows that the medical board has certified 30% of disability on account of ID Affective Psychosis (Hypomanic) 296 for two years. But, the respondent authorities appear to have not looked into the recommendations made by the Commanding Officer/Commodore of Brigade Sub Area, Bombay, which is mentioned at SI. No. 20 of Part IV of annexure C.A. 4 filed with the counter affidavit. Said authority has recommended disability pension at the rate of Rs. 135/- per month. The entry at column No. 20 in Part IV of the annexure C.A. 4 filed with the counter affidavit, reads as under:

20 Invalid/Disability Pension Disability pension for which recommended. recommended Rs. 135/-PM

Having gone through the record of the case and after considering the provision of law quoted above, and the documents filed with the counter affidavit, this Court finds that the impugned order dated 05.06.1991, passed by the respondent No. 4, and order dated 22.09.1992, passed by the appellate authority, are liable to be quashed, as the same are not only against the provisions of law quoted above, but also against the entries made by the medical board in the medical report (Annexure C.A. 4 to the counter affidavit).

For the reasons as discussed above, this writ petition is allowed. Both the impugned orders i.e. order dated 05.06.1991 as well as order dated 22.09.1992, are hereby quashed. The authorities concerned are directed to reconsider the case of the petitioner and pass fresh orders as to entitlement of his disability pension. No order as to costs.