SHAMSHER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) BRIEF facts of the case are that the petitioner was appointed in the Army on 19.3.1981 as Sepoy. After undergoing basic training at Banglore, he remained posted at various places. In October 1998, he was transferred to Goa. Petitioner stands discharged from service on 1.1.2002 under Army Rule 13(3) item III (V). He served the army for 20 years and 228 days. According to the petitioner, while entering into the army, he was found fit. No disease was noticed till August 1999. In August 1999, while his posting at Goa, the petitioner fell down. The Medical Officers of the Army referred him to Navy Hospital Vasco. After medical examination of the petitioner, the Medical Officers of the said hospital detected stone in the Kidney of the petitioner and referred him to Bombay Navy Hospital. He was operated upon in the said hospital on 23.9.1999 and stone was removed. Treatment report of the petitioner was sent to Unit Goa where he was posted. In December 1999, he was transferred to Akhnoor. Further facts of the case are that in the month of October 2000, petitioner again suffered from pain and he visited the Military Hospital for getting himself checked -up. Medical Officers of the said hospital referred him to Military Hospital Udhampur. The doctors after medical check up again detected stone in the kidney of the petitioner. He was again operated upon on 28.11.2000, he remained admitted in the said hospital for about one month. He was granted one and half month's sick leave. Thereafter, he reported to Military Hospital Udhampur on 10.2.2001 and remained admitted there for 10/15 days. In the said hospital, Ultra sound of the petitioner was done and it was found that left Kidney of the petitioner has been removed. Vide report dated 31.10.2000, it has been categorically mentioned by the concerned Medical officer that both the kidneys are intact whereas vide report dated 28.11.2000 it has been mentioned by the Medical officer that left Kidney of the petitioner has been removed. In September 2001, medical board examined the petitioner but no report was furnished to him. He was discharged on medical grounds on 1.1.2002. Thereafter, the case of the petitioner for grant of disability pension was referred to Respondent No: 3. Principal Controller of Defence Accounts (Pension), Allahabad, who rejected the same on the ground that the disability of the petitioner is neither attributable to nor aggravated by the military service. It is this action of respondents which is the subject matter of challenge in the present petition. Direction is thus sought to respondents to release disability pension in favour of the petitioner along with interest @ 18% on arrears and also to pay him compensation for removing the kidney of the petitioner without his consent.

(2.) GRIEVANCE of the petitioner is that the disability suffered by him is attributable to army service, and therefore, he is entitled for disability pension. It is stated that at the time of enrolment in the Army, he was found hale and hearty and was not suffering from any such disability. It is stated that in case an army personnel suffers from a disability which results to his invalidation out of service of which no note is made at the time of his entry into service, the same would be deemed to have occurred due to stress and strain of army service. Reliance in this regard is being placed on a judgment of this Court reported as 1998(2) SCT 228, Col ML Sethi v. Union of India. It is thus submitted that the petitioner has been wrongly denied the disability pension.

(3.) HEARD learned Counsel for the parties and perused the record. Petitioner in paragraphs 3 and 4 of the petition has pleaded as under:.In August 1999 when the petitioner was posted at Goa, the petitioner fell down. The Medical Officers of the Army referred the petitioner to Navy Hospital Vasco. The Medical Officers of the Navy Hospital detected Stone in the petitioner and referred the petitioner to Bombay Navy Hospital. The petitioner was operated for Stone in Bombay Navy Hospital and the stone was removed on 23.9.1999. The petitioner was granted leave fro one and half month and during the leave period the petitioner was admitted at Military Hospital Jammu in the month of November, 1999. After few days of the treatment the petitioner was sent to the Unit at Goa for six months. The petitioner was transferred and posted in Akhnoor in December, 1999.