Palwinder Singh vs Union of India

R.L. Anand, J.—Through this civil writ petition filed under Articles 226/227 of the Constitution of India, the petitioner has given challenge to the orders An-nexures P2 and P7 vide which his claim for disability pension was declined.

The case set up by the petitioner is that he was enrolled in the Army service on 16.4.1986 after having been found medically fit. After successful initial military training he was inducted into 7 Sikh Regiment. He was posted at various places. Thereafter he was discharged from the military service on account of disability with effect from 30.4.1996. He further submitted that he was found suffering from CNS Seizure (disease like epilepsy); SN Hearing loss and Unspecified Psychosis and on each count his disability was assessed at 20% i.e. composite disability at 60% for a period of two years. He filed an appeal and that has been disposed of vide order Annexure P7 in which it was observed by the Appellate Authority that so far as the disability falling under head Nos. 1 and 3 is concerned, it is not attributable to the Army service and so far as the disability falling under head No. 2 is concerned, though it is attributable to the Army service but the percentage of the disability has been viewed at 11-14%, i.e. less than 20%. Therefore, the petitioner is not entitled to the benefit of disability pension on any count. The petitioner has challenged the orders Annexures P2 and P7.

Notice of the writ petition was given to the respondents. According to the respondents, the disability suffered by the petitioner is not attributable to the Army service nor it is aggravated in the Army service and so far as the disability of hearing is concerned, it is less than 20% and, therefore, the petitioner is not entitled to any benefit. It was also pleaded that out of his total service 10 years, the petitioner remained admitted in the hospital from 29.10.1990 to 19.4.1996. Since most of the time he had spent in the hospital and had very less chance to serve as an active soldier, therefore, the onus is heavy upon the petitioner to establish that the disability suffered by him is attributable to the Army service. With this broad defence the respondents have prayed for the dismissal of the writ petition.

I have heard Mr. B.S. Sehgal, Advocate on behalf of the petitioner, Mr. Anil Malhotra, Advocate on behalf of the respondents and with their assistance have gone through the record of this case.

It is proved on the record that when the petitioner joined the Army he was subject to medical examination and was fully declared fit by the medical authorities and that is why he was allowed to undertake his duty. We all know that after joining the Army a soldier undertakes a very hard training and he undergoes lot of stress and strain. A training in the practical use of arm and ammunition is given to a soldier so that he may be able to fight the enemy in case of need. When the initial condition of a soldier is okay and he is placed in category ''A'', then there is no difficulty in holding on the part of this Court that the petitioner suffered the disease when he was in the service and in these circumstances it has to be held that the disease suffered by him is attributable to the Army service.

The learned counsel for the petitioner placed reliance upon Union of India and others v. Shyam Lal Malhotra 1995(2) R.S.J. 493, where the Division Bench was pleased to hold that if a soldier is found fit at the time of recruitment and there is no proof that the disease is un-related to the service of the soldier, in such a situation, he will be entitled to the benefit of disability pension. Further, the learned counsel for the petitioner relied upon Kanta Devi v. Union of India and others 1999(1) SLR 668 : 1999(1) SCT 559 (P&H). This was also a case of "Non-Organic Psychosis". Since there was no history- sheet to prove by the respondent-authorities that the petitioner was suffering from any mental illness earlier, so it could not be said that he was suffering from the disease either at the time of joining the service or it was a constitutional disease and not attributable to military service. The learned counsel further relied upon a decision dated 10.7.2000 given by this Court in C. W.P. No. 6668 of 1998 titled Sergeant Satnam Singh Bajwav. Union of India and others wherein similar observation was made. The learned counsel for the respondents has not been able to show that the petitioner prior to his joining the service was suffering from disability noticed by the Medical Board. Therefore, I am of the opinion that the orders Annexures P2 and P7 vide which the disability pension of the petitioner was declined cannot sustain in the eyes of law.

Resultantly, the writ petition is allowed; the impugned orders Annexures P2 and P7 are hereby set aside and directions are given to the respondents that the benefit of disability pension shall be released to the petitioner with effect from 1.5.1996 with three months from today, failing which the petitioner shall be entitled to interest at the rate of Rs. 12% per annum. The petitioner shall, however, appear before the Re-Survey Medical Board as and when called upon by the respondent-authorities. There shall be no order as to costs.

Petition allowed.