BHARAT GIRI Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ application under Ar1icles 226 and 227 of the Constitution of India the petitioner has prayed for issuance of a writ of mandamus commanding the respondents to pay disability pension to the petitioner, who was discharged from the military service on the ground of suffering from neurosis and also for quashing the ORDER :, dated the 19th August, 1991 passed by the appellate authority rejecting the prayer for disability pension, a copy of which is made Annexure -6 to this writ application. Shortly stated, the case of the petitioner is that he was appointed as a Signalman in the Indian Army on 9.9.71 and was sent for training to 2, S.T.C. Marigaon, Goa, and after the training, he was posted in Signal Regiment at Chandigarh. Subsequently, the petitioner fell ill and was hospitalised in the Military Hospital where it was found that the petitioner was suffering from Neurosis (300) and. accordingly, he was discharged from the Military Service on 18.7 .1973. It is further alleged that the Medical Board found the petitioner disabled to the extent of 20 percent. and recommended for grant of disability pension. but the claim of pension was rejected by the authority. The petitioner filed an appeal before the concerned authority, which was turned down being barred by limitation. Several representations were sent to the respondent authority and ultimately, the matter was considered by the appeal committee and rejected by ORDER :. dated 19th August 1991, as stated above.

(2.) IN this case, a counter -affidavit has been filed on behalf of the respondents 1 to 4 wherein, inter alia, it is stated that the petitioner is not entitled to any relief at this belated stage when the cause of action arose in the year, 1973 itself. The petitioner has served for a very short period i.e. one year 10 months 7 days in the Army Service out of which he remained on annual leave from 5th - June, 1972 to 7th August, 1973 and remained in Hospital at Chandigarh from 23rd Dec. 1972. to 23rd April, 1973, for treatment of ailment of pain and gas in abdomen, frightening dream, interrupted sleep on account of domestic worries. The petitioner was treated by a Psychiastrist Major Rajinder Singh, who found the petitioner suffering from Neurosis (ICD200). According to Physiastrist, these ailments were manifestations of various complaints as painful distension of abdomen. frightful dreams and pre -occupation with domestic trouble. The petitioner did not respond to the treatment with drugs and psychotherapy. In view of the findings recorded by psychiastrist, Major Rajindar Singh, the petitioner was examined by invalidating Medical Board. Ultimately, he was discharged from service with effect from 16.7.73. It is alleged that the invalidating Medical Board at Command Hospital (Western Command), Chandigarh, on 21st April, 1973 considered the disability as neither attributable to nor aggravated by military service. The Medical Board also considered and found the petitioner suffering from constitutional disORDER :and not, in any way, connected with service although the Medical Board found him disabled to the extent of 20 per cent for two years. It is further alleged that the entire matter was considered by the competent authority and rejected the claim of disability pension by ORDER :, dated 27th August. 1973 on the ground that the alleged disease is neither attributable to military service nor aggravated during the course of employment. However, the petitioner was advised to prefer an appeal before the appellate authority within the time mentioned therein. A copy of the said ORDER :is made Annexure -'A' to the counter -affidavit. The sum and substance of the stand taken in their counter -affidavit is that the petitioner is not entitled to such pension since the alleged disease is neither attributable to nor aggravated by military service.

(3.) LEARNED counsel for the petitioner has submitted that the ORDER :of the appeal committee whereby the prayer for disability pension has been rejected, firstly, on the ground that at the time of appointment in the military service, such alleged disease was not detected when the recruitment of the personnel is made on scrutiny by Medical Expert. The disease, which, later on found during the course of service will be deemed to have been attributed to the military service and or aggravated during the period while the petitioner was in such service and, as such, the petitioner is legally entitled to the disability pension. The second submission of the learned counsel is that the Medical Board has assessed the disability of the petitioner to the extent of 20 per cent, the respondent authority is bound to sanction disability pension under the Rules and Regulations. In opposition, learned counsel for the Union of India submits that the respondent authority, after going through the materials on record has categorically recorded a finding which cannot be interfered with by this Court in its writ jurisdiction. In ORDER :to appreciate the rival contention of the parties, the Regulation 173 of the Pension Regulation is to be noticed, which reads as under : "173. Unless specifically provided, a disability pension may be granted to an individual who is invalidated from service on account of disability which is attributable to or aggravated by military service and is assessed at 20 per cent or above. Further, the manner in which the question of attributability is ascertained and determined is laid down in Clause (c) of paragraph 423 of the Regulation, as under clause (c), the causes of disability or death resulting from a disease, which is attributable during the course of employment in the period. The cases in which it is established that service conditions did not determine or attribute to the set of the disease, but commenced subsequently in course of service such disease, which led to an individual's discharge will ordinarily be deemed to have arisen during service in the Armed Forces provided Medical Board holds, for the reasons to be recorded otherwise. In the light of the provisions aforesaid, the submission of the learned counsel has to be considered with reference to tile material available on the record. From the facts stated above, it is apparent that the petitioner has remained in the Army Service for less than two years out of which the substantial period of his service either he remained in hospital or on leave details whereat have been mentioned above. As regards the first submission of the learned counsel to the effect that once the petitioner has been recruited for joining the military service, he is entitled, as a matter of course, for grant of disability pension on account of the disease subsequently detected in his service by the Medical Expert, has to be rejected taking judicial notice of the fact that the medical check up at the time of enrolment is carried out by the recruiting and the medical officer posted in different recruiting offices in routine manner. Such medical check up is not carried out by the medical specialist of a particular ailment. The paucity of time as well as non -availability of the required instruments, it will not be possible to find out such diseases from which such recruits are supposed to be suffering. The disease like neurosis from which the petitioner was suffering at the time of recruitment was not possible for the medical officer posted in different recruiting offices to find and ascertain such diseases. Such disease can only be detected after thorough check up and that too, by a medical specialist of a particular disease.