Surjit Singh, Ex. Hav. vs Union of India (UOI)

Harjit Singh Bedi, J.—The petitioner was enrolled in the Indian Army in the Corps of Engineers on 24th February, 1977. On the completion of his training he was attested as a Sapper on 8th July, 1978. At the time of his enrolment in service the petitioner had been examined by a competent medical officer and he had been found fit in all respects. It is the petitioner''s case that in January/February, 1992 he had attended the Bridging Training Camp at Nachna wherein he had been involved in training in range classification, mine laying grenade firing and fixing of charges for explosions to blow bridges, culverts etc. and it was during one such exercise that he had suffered a damage to his left ear. He was referred to the medical officer who provided him treatment but to no effect. He was thereafter referred to the Military Hospital, Jodhpur some time in the year 1992 and was treated by the E.N.T. specialist. As this treatment too did not have any beneficial effect on the petitioner he was referred to the Command Hospital at Pune, but as there was still no improvement he was placed in low Medical Category ''C'' temporarily for six months and finally (in 1993) Category ''C permanent. The petitioner was thereafter released from Army Service on 27th August, 1994 with 20% disability. The petitioner made a representation for the payment of the disability pension but the same was rejected by the C.C.DA(P) Allahabad vide its letter dated 20th July, 1995. The petitioner thereafter preferred an appeal vide Annexure P-1 dated 31.8.1995 which too was rejected vide Annexure P-2 dated 2.7.1997 on the ground that the petitioner''s disability was not attributable to military service. Frustrated thereby, the petitioner has come to this Court by way of the present writ petition.

In the written statement filed by the respondents, it has been pointed out that the petitioner''s claim to disability pension had been rejected by the Chief Controller of Defence Accounts (Pension) Allahabad as his disability ''sensory neural deafness (left) ear'' was recorded as not attributable to nor aggravated by military service. It has also been pleaded that the Central Government in its decision in appeal (Annexure P-2) had held like-wise and had further opined that the said disease was a constitutional disorder and, as such, could not be connected with Army service. It has also been pleaded that the decision of the Chief Controller of Defence Accounts (Pension), Allahabad, as also the Central Government was based on the opinion of the doctors of the Release Medical Board rendered on 16th July, 1994. It has further been pointed out that the petitioner had in fact sustained a head injury on November 11, 1994 while on annual leave and it has been hinted that this could perhaps have been the cause of his disability.

Mr. Rajinder Kumar, the learned counsel for the petitioner, has argued that the petitioner had been found fully fit at the time of his enrolment in service and had also been subjected to two annual medical examinations throughout the span of his career and at no stage, prior to 1992 had any disease or disability been detected by the authorities concerned. He has relied on Rule 14(b) of the Entitlement Rules for Casualty Pensionary Awards, 1982 (hereinafter called the Rules) which provides that a disease which had led to an individual discharge from service would ordinarily 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 and has urged that as no note had been recorded at the time of the petitioner''s enrolment in service, the presumption was that the disease had occurred while in service and was, therefore, attributable to or aggravated thereby, fulfilling the conditions for the applicability of Regulation 173 of the Regulations of the Army 1961 which determined conditions for the grant of disability pension.

Mr. Anil Malhotra, the learned counsel for the respondent-Union of India, has however, urged that ''sensori Neural Deafness (Lt) ear'' was not a disease mentioned in the appendix to the Rules and, as such, it could not be said that the same was attributable to Military Service.

The learned counsel for the parties have been heard. It is the admitted position that the petitioner had been found fit at the time of his enrolment in service and at the time he was attested as a Sapper in the Corp. of Engineers. It is the petitioner''s case that he had suffered an injury while he was undergoing training at Nachna in 1992 and it was soon thereafter that he had been referred to the Command Hospital at Pune. The fact that the petitioner had been referred to the various Military Hospitals for treatment has not been denied. In view of the presumption drawn in favour of the petitioner under Rule 14(b) of the Rules it must be held that the petitioner had suffered an injury while he was in service and attributable thereto. The suggestion by the respondents that the petitioner had suffered the disease on account of an accident in the year 1994, is contrary to the facts as it has come on record that the petitioner had been under treatment in various hospitals since the year 1992. In Union of India and Ors. v. Shyam Lal Malhotra 1995(2) R.S.J. 493 this Court was called upon to consider the scope of Rule 7(b) of the Rules (now renumbered as Rule 14(b) and it was observed as under:-

"A combined reading of the provisions produced above shows that the cause of disability which has led to the person concerned being discharged from service will be deemed to have arisen in service if no note of it was made at the time of entry in the Armed Forces or that he was suffering from such disability or unless a note is recorded at a subsequent date that the disease in question was such as could not have been detected by medical examination before he had joined the service."

It is the conceded position that no note was recorded at the time of the petitioner''s enrolment into military service that he was suffering from any disease at that time. It must, therefore, be held that the petitioner''s disease was attributable to military service.

Faced with this situation, Mr. Malhotra, has argued that the disease "Sensori Neural Deafness (left) ear" was not one of the items mentioned in Annexure III to the Rules and, as such, it could attract the payment of disability pension. Mr. Malhotra''s assertion is correct to the extent that the disease does not stand enumerated in the appendix. Mr. Rajinder Kumar has, however, referred to a decision of this Court in LPA No.368 of 1998 disposed of in terms of LPA No.381 of 1998 Union of India v. Ex. Sepoy Satwinder Singh through his wife Smt. Kul-want Kaur and Anr., decided on October 12, 1998 in which it has been held that the two lists i.e. Annexures II and III are not exhaustive and though a disease was not enumerated therein, It could yet be held attributable to military service. This view finds support from Rule 15 of the Rules which visualises the onset of diseases on account of exposure to noise leading to the grant of disability pension. It is significant that there is no corresponding provision in Annexures II or III pertaining to diseases caused by exposure to noise. Moreover, a Single Bench of this Court in Jagannath Singh Negi, Ex-JC No. 123067 ''A''-Subedar v. Union of India 1997(2) S.C.T. 91 (P&H) has found that as the petitioner therein had been exposed to a great deal of noise, deafness which followed was a disease which was to be held as being attributable to military service.

For the reasons recorded above, this petition is allowed the order Annexure P-2 is quashed and it is directed that the petitioner would be entitled to the payment of disability pension to the extent of his disability which has been assessed at 20%. The petitioner would be paid the arrears within a period of four months from the date that a certified copy of this order is supplied to the respondents. No costs. Dasti Order. R.M.S. Petition allowed.