KULWINDER SINGH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner appeared before the Recruiting Officer on 16.10.2000. He successfully completed the physical test on 17.10.2000. He was medically examined and was declared fit for enrollment in the Army. On 22.10.2000, the petitioner was given the eligibility card for a candidate to appear in Common Entrance Examination/Aptitude Test. On 10.11.2000, he was declared successful in the Entrance Examination. Fresh medical examination of the petitioner was held on 11.1.2001 and he was again found medically fit. He was sent to Armoured Corps Centre at Ahmednagar for training as G.D. Sepoy on 11.1.2001. He was again medically examined by respondent No. 4 on 13.1.2001 and found to be medically fit. The petitioner then attended basic training w.e.f. 13,1.2001 to 12.2.2001. The grievance of the petitioner is that he was mercilessly slapped, seven times on the left side of the face over the left ear on 7.2.2001 around 9 a.m. in the Parade Ground by the Platoons Incharge of the Training Cenlre. He was slapped because he had not made shave by NK (LD) Rajesh Kumar Yadav of 7th Cavalry. The incident took place in the presence of other Instructors, namely, Dafedar Ajit Singh, LD Lalan Kumar and LD Ramesh Kumar of 13 Wing. After the incident, the petitioner started to experience pain in the left ear. The petitioner was, however, again declared "fit" in the medical examination conducted in the Training Centre on 13.2.2001. On 22.3.2001, the petitioner was referred to Command Hospital, Pune for treatment. He remained in the Hospital for ten days w.e.f. 23.3.2001 till 3.4.2001. He narrated the incident to Dr. Col. Devinder Chakara, ENT Specialist. On 3.4.2001, the petitioner was discharged from the Hospital and sent back to Training Centre declaring him ''unfit". The petitioner was thereafter referred to Military Hospital, Ahmednagar where he remained from 11.4.2001 to 11.5.2001. Release Medical Board of the petitioner was held in the Hospital. The Medical Board declared 20% disability of the petitioner. On 22.6.2001, the petitioner was invalided from military service on medical ground having 20 per cent disability. Respondent No.3-OIC Records, the Records, Armoured Corps, Ahmednagar forwarded the disability pension case of the petitioner to respondent No.2-Chief Controller of Defence Accounts (P), Allahabad (UP), By letter dated 18.4.2002, respondent No.2 rejected the claim of the petitioner for disability pension on account of the following reasons:-

(2.) On the basis of the letter, respondent No. 3 has informed the petitioner by letter dated 13.5.2002 that the petitioner had been sanctioned a sum of Rs. 1,7457- and Rs.NIL on account of his invalid death-cum-retirement gratuity respectively. The petitioner was informed that he has the remedy of appeal against the aforesaid decision within a period of six months from 18.4.2002. In paragraph 13 of the petition, the petitioner has stated that he has submitted an appeal on 4.10.2002 vide Annexure P-3. The petition is, however, silent as to whether any decision has been taken on the same. No prayer is made in the writ petition also for a direction to the respondents to decide the appeal. The respondents in the written statement have categorically stated that the petitioner has not submitted any appeal as claimed in the petition. The petitioner has not cared to file any replication controverting the statement made by the respondents. Therefore, we proceed on the basis that the petitioner has not cared to avail the alternative remedy of appeal as provided under the rules.

(3.) Learned counsel for the petitioner has submitted that the disability is clearly attributable to military service. His left ear was damaged when he was slapped seven times by the Platoons Incharge during the training session. The petitioner had been medically examined on a number of occasions and was found to be medically fit at every stage, till the Release Medical Board certified that he was suffering from 20% disability on 22.6.2001.