UNION OF INDIA AND ORS. Vs. RAM PYARI

JUDGEMENT

(1.) THIS appeal is filed by the Ministry of Defence and its officials against the order of the learned Single Judge made in SWP No. 571/2003 dated 19.09.2003.

(2.) THE case put forward by the writ petitioner (since deceased) before the learned Single Judge was that he was a permanent resident of Jammu and Kashmir State. He joined the Indian Army as a Sepoy in the year 1941 and was assigned F.F. Rifles and his Army No. was 23354. He was promoted as Naik within two years from the cadre of Sepoy in the Indian Army. He was sent to Burma in connection with War having been found of extraordinary courage. He was awarded four medals for his meritorious services. In the year 1947, due to his illness which arose due to stress and strain, he was admitted in Military Hospital at Bangkok where from he was sent to Training Centre Abbotabad. He was discharged on medical grounds on 22.03.1947. At the time of his selection as Sepoy in Indian Army he was subjected to various medical tests, and having not noticed any deformity/illness he was selected by the authorities and the medical disablement had arose only due to stress and strain while discharging military services. From 20.11.1944 to 12.08.1946 he was in the war field which aggravated his stress and strain.

(3.) THE writ petition was opposed by the appellants before the learned Single Judge by contending that as per the roll maintained by the Grenadiers, the deceased writ petitioner was enrolled in the Army on 28.05.1941 and invalidated out of service on 22.03.1947. A sum of Rs. 78 on account of service gratuity and a sum of Rs. 187.82 on account of defence pay was paid to him. The writ petitioner was not granted any pension and he did not approach the appellants for about 56 years. The service and medical documents of the petitioner has already been destroyed after expiry of retention period of 25 years under the rules. In para No. 9 of the reply it is stated that in the discharge order the percentage of disability of the deceased writ petitioner was not recorded, however the fact that writ petitioner was medically invalidated out of service, is accepted. The further contention of the appellants before the learned Single Judge was that due to passage of time the records are not traceable, therefore, the percentage of disability cannot be assessed for sanction of pension to the writ petitioner.