Union of India vs Shri Shamsher Singh

Mr. Deepak Gupta, J.—The short question involved in this appeal is whether the respondent is entitled to disability pension as held by the learned Single Judge or not.

The respondent was enrolled in the Indian Army as a Sepoy on 23rd November, 1973. On 21st January, 1995, he was directed to appear before the Medical Board and the Medical Board categorized his disease in the category "EEE" (PSY). On this ground he was discharged from the Indian Army. His claim for disability pension was rejected on the ground that the disease is not attributable to nor aggravated by the army service. According to the appellants, this was a constitutional disorder.

A Division Bench of this Court in Santosh Kumar vs. Union of India & Ors., Latest HLJ 2007(HP) 329 has dealt in detail with the case law relating to grant of disability pension under Rule 173 of the Army Pension Regulations. After analysis of the entire law, the Division Bench held as follows:-

After giving our careful consideration to the rules and regulations and the authorities of the apex Court, we hold that to be entitled to disability pension, it must be established that the disability has occurred due to a wound injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated thereby.

The apex Court has clearly held that clause (c) is not disjunctive and has to be read along with clauses (a) and (b) and, therefore, even if a disease is accepted as having arisen during service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that conditions were due to the circumstances of duty in military service.

The apex Court in Dhir Singh China''s case (supra) also held that primacy has to be given to the report of the medical board. We are, therefore, of the opinion that the Court sitting in writ jurisdiction cannot lightly interfere with the opinion of the medical board. This is not to say that the Court is bound by the opinion of the Medical Board. However, the said opinion being an opinion/finding of an expert body should not be unsettled in writ jurisdiction unless there are clear cut grounds for doing so. We also must observe that these rules provide that if two interpretations are possible, the interpretation favourable to the claimant should be taken. If the army personnel were in field service then the benefit should be given even more liberally. It is in this light of the observations that we shall not deal with the individual cases.

In the present case, the proceedings of the Medical Board have been attached to Annexure R-2. It has been clearly stated that the petitioner was not suffering from disease/disability prior to enrolment in the Indian Army. It has also clearly been recorded by the Medical Board itself that the disability/disease was not attributable nor aggravated by the negligence or misconduct of the serviceman. The disease has been diagnosed 4 as "Affective Psychosis" and has been assessed as 30% disability. The Medical Board has come to the conclusion that the petitioner is entitled to further treatment and it is most important to note that the Medical Board itself recommended that the disability pension should be granted, if allowed by the Medical Authority. This opinion of the Medical Board as already held by the Apex Court in number of cases cannot be brushed aside either by this Court or by the Medical Authority attached to the CDPO. No doubt, the Medical Authority attached to the CDPO can take a different view but obviously such view can be taken only after examining the records and if necessary the patient himself. Furthermore, in case the Medical Authority attached to the office of the CDPO wants to differ from the opinion of the Medical Board, it must give some reasons for this. In this case no reasons were given.

In view of the above discussion, we are of the considered opinion that the learned Single Judge was justified in holding that the petitioner was entitled for grant of disability pension. Therefore, we find no merit in this appeal, which is accordingly dismissed. We further direct that the appellants shall ensure that the arrears of 5 pension are paid to the claimant latest by 30th April, 2012, failing which the appellants shall be liable to pay interest at the rate of 9% per annum from the date when the payment fell due. No costs.