Jagdamba Prasad Dubey vs Union of India & Ors.

Heard learned Counsel for the petitioner and learned Additional Standing Counsel for the Union of India.

After the success of operation Vijay, the entire country has showered tribute and homage to the departed soldiers who lost their lives and also saluted the bravery of the soldiers who in difficult mountain terrain where the temperature was below the freezing point successfully repelled the onslaught of the intruders.

Now the time has come when the attitude and behaviour of the Army Officers and the Defence Ministry towards soldiers should change. No doubt discipline and sternness is the hall mark of Military service but it does not mean that the soldiers who are separated from their families to guard the border states, thousand of miles away from their homes and are often subjected to mental stress and strain be allowed to be abandoned, if they are discharged from military service on account of any disability which is attributable to the Military service. Their cases for grant of disability pension deserve sympathetic and compassionate consideration. Undoubtedly, the rules and orders, in that regard Pharsh, which require review, in view of the respect they command, so young men instilled with sense of patriotism, may join the military service without a feeling in insecurity in future.

The petitioner was initially recruited in the Army on 3rd of June, 1975 after being posted at various places at the relevant time was performing his duties in Jammu.

At the time when he was recruited he was not suffering from an ailment. The Medical Board, which examined him, declared him fit to perform the arduous duty as a soldier. But while he was posted at Patni Top in the district of Udhampur (J&K), the petitioner suffered from neurosis, may be due to stress and strain to which a soldier is bound to be effected due to separation from his family.

As soon as his illness was detected he was transferred to Chandigarh but his condition aggravated. Thereafter he was shifted to Command Hospital at Lucknow. He was discharged from Military Service due to disability in category EEE which according to the petitioner was permanent one.

In the counteraffidavit it was not denied that while performing the difficult and hard duties at Jammu he was posted at Patni Top in the district of Udhampur but it was contended that it was not on high altitude. It seems that the authorities that have passed the orders have no knowledge about the topography that it was not on high altitude. It seems that the authorities that have passed the orders have no knowledge about the topography of Udhampur district or Patni Top in Jammu & Kashmir which is at a high altitude. If it is assumed that he was not posted on a high altitude, even then owing to aloofness from thehome and the family, a solider may be subjected to such illness which is evident from the averments made in paragraph 15 of the counteraffidavit where it has been stated that the petitioner was enrolled in the Army Corps of Signals on 3rd of June, 1975 by Recruiting Officer, Bareilly. After having rendered seven years and twenty six days'' service in the Army, the petitioner was discharged from service on 29th June, 1962 (A.N.) under Army Rule 13 (3) III (iii) having been invalidated and boarded out from service by the Invaliding Medical Board due to disability "NEUROSIS DEPRESSIVE REACTION (300), in low medical category ''EEE''. Degree of disablement was assessed at 30% for two years by the properly constituted invaliding medical board.

The petitioner staked a claim in respect of grant of disability pension. His application was forwarded by the Officer Incharge, Signal Records, Jabalpur to Controller of Defence Accounts (Pension), Allahabad. The Controller of Defence Accounts (Pension) rejected the claim regarding pension in respect of the petitioner by means of his order dated 21st September, 1982. The petitioner thereafter approached the OfficerinCharge, Signal Records, Jabalpur by making a representation/Appeal with the request that the case be forwarded to Government of India, Ministry of Defence. The Controller of Defence Accounts (Pension) referred the appeal of the petitioner to the Secretary, Ministry of Defence (Pension & Appeals) Government of India who rejected the appeal on 31st July, 1986.

Thereafter, the petitioner having no other alternative option available invoked the jurisdiction of this Court under Article 226 of the Constitution of India by filing a writ petition bearing No. 22139 of 1990. An Hon''ble Single Judge of this Court on 26th of September, 1995 allowed the writ petition by issuing a direction to the Secretary, Ministry of Defence, New Delhi respondent No. 1 to take into consideration all the relevant provisions of Regulation 173 of the Army Pension Regulations, 1961 and in particular, AppendixII, contained in Paragraph 7 (b) of the aforesaid Regulation. He was further directed to arrive at a necessary conclusion as to whether the disease of neurosis (Depressive reaction) has occurred to the petitioner during the period of initial service and whether the petitioner has incurred 30 percent disability and thereafter will take steps for granting disabling pension in accordance with AppendixII contained in Paragraph 7 (b) of the aforesaid Regulations. The Court further directed that such consideration has to be made as quickly as possible, preferably within a period of three months from the date of production of a certified copy of this order before the Secretary, Ministry of Defence. It was further directed that in case, the Secretary was not a position to accede to the prayer for grant of disabling pension benefit to the petitioner, he will indicate sufficient reasons. The Secretary was further directed to set up a Medical Board for further examination of the petitioner''s disease in arriving at a necessary conclusion.

While considering the case of the petitioner this Court took notice of the fact that the OfficerinCharge, Signal Records, Jabalpur recommended the case of the petitioner for grant of his pension but he rejected the claim regarding pension by his order dated 2191982. By placing credence on the decision in Gurnam Singh v. Union of India and others, (1992) Labour and Industrial Cases 1594, the court relied upon the following observations which reads as under :

"That grant of disability pension is covered by the provision of Regulation 173 of the Pension Regulations for the Army, 1961, which provides that unless otherwise specifically provided a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable at or aggravated by military service and is assessed at 20 per cent or over. The question whether a disability is attributed to or aggravated by military service shall be determined under the Rules in AppendixII. The question as to whether or not the disability is attributable to the military service has to be determined in accordance with the provisions of AppendixII. The relevant entry in AppendixII is contained in paragraph 7 (b) which reads as under :

A disease which has led to an individuals discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individual''s acceptance for military service. However, if medical opinion holds, for reasons to be stated 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.

A perusal of paragraph 7 (b) as stated above would show that a disease which leads to an individual''s discharge is deemed to have arisen in service if no note of it was made at the time of the individuals'' acceptance for military service."

Neither in the counteraffidavit filed in the earlier writ petition nor in the present writ petition any material has been placed before this Court that the petitioner has not acquired disability because of his posting at Jammu & Kashmir at the relevant point of time nor any expert opinion of the Medical Board has been annexed with the counteraffidavit which illustrates that the disability has not occurred because of the postings of the petitioner at a high altitude area of Jammu & Kashmir. Besides the above there is nothing on the record to indicate that the disease could not have been detected on medical examination prior to acceptance of service. No mention was made anywhere that the disease could not have been detected at the time of petitioner''s joining the Military Service.

A perusal of the counteraffidavit filed in the writ petition will indicate that the direction of this Court to the Secretary, Ministry of Defence to set up a Medical Board for examination of the petitioner''s disease in arriving at a necessary conclusion was complied with. In paragraph 26 of the counteraffidavit, a vain effort has been made to deny the petitioner the grant of disability pension by indicating that the Ministry of Defence only consulted the Medical authorities in compliance of the Court''s order. The Medical Board did not examine the petitioner and submitted his report to the Government that the disease was not attributable to the Military service. It was not indicated by the Medical Board as to what was the percentage of the disability. In the circumstances, we are of the view that the case of the petitioner was not dealt with by the Ministry of Defence in accordance with the directions of this Court. It appears that the judgment of this Court was read in a most general and sweeping manner and the direction of this Court was not followed and adhered to. Regulation regarding the grant of disability pension were interpreted and applied in a most mechanical and casual manner by the Ministry of Defence. The authorities ought to have interpreted and applied the Regulations in a broad frame work to dispense with justice, instead it were quoted and applied in a narrow compass, bereft from a feeling of sympathy, compassion and humanitarianism, in a most arbitrary and irrational manner.

In view of the reasons indicated hereinabove, this writ petition succeeds and is allowed. A writ in the nature of certiorari quashing the letter dated 31st July, 1986 contained in Annexure IV and letter dated 20th December, 1995 contained in Annexure VIII passed by Ministry of Defence, Government of India is issued. The case of the petitioner is remitted for reconsideration by the Ministry of Defence for the grant of disability pension, for passing afresh appropriate order in the light of the observations made hereinabove. While reconsidering the case of the petitioner, Regulations in accordance with the respondents will also be guided with a human approach so that message may not go from the corridor of the Defence Ministry that the Government is not alive and sensitive to the problems of soldiers who are discharged from service, on account of disability during the course of Military Service. The Ministry of Defence, Government of India is further directed to dispose of the appeal within a period of three months from the date of production of a certified copy of this order.