UNION OF INDIA Vs. BHOORA RAM

JUDGEMENT

(1.) THIS special appeal is directed against the order of the learned Single Judge dated 5.5.2005 in SBCWP NO. 9/1996 allowing the writ petition of the respondent with a direction to the appellants herein to release the disability pension. The learned Single Judge observed that the case was squarely covered by the decision in the case of Chhatar Singh, SBCWP No. 1400/1997 decided on 3.1.2005 and accordingly set aside the order by which the respondent's claim of disability pension had been rejected. It may be stated here that Chhatar Singh's case was decided following the decision in the case of Tejpal Singh reported in 2005(2) CVR 1513.

(2.) THE background facts are as follows. On 29.5.1968, the respondent was enrolled in the Indian Army as an MT in the Supply Corps. According to him at the time of enrolment, he was found medically fit and placed him the medical category AYE. On 31.7.1971 he was re-mustered in the Armoured Corps where he was adjusted in the Operator/Driver Trade. According to the respondent he was again found medically fit and kept in category AYE. THE respondent stated that he participated in the 1971 Indo- Pak conflict in the Western Sector and was promoted to the rank(s) of Lance Naik, Naik, Havildar and then Naib Risaldar which is a post of the rank of Junior Commissioned Officer in 1986. In April 1991 he experienced loss of vision which was diagnosed as Lenticular Bilateral Opacity and placed in lower medical category BEE (Temp). Later he was lowered to category CEE (Perm) with effect from 22.9.1992. In April, 1992 he developed pain in the left arm and was admitted in Medical Hospital, Pathankot. THE ailment was diagnosed as Partial Seizure and he was recommended for being placed in the lower medical category on account of said disability too. On 30.3.1993 he was discharged under rule 13(3)(iii)(b) of the Army Rules, 1954. Contending that the discharge was on account of diseases which were attributable to or aggravated by military service the respondent applied for disability pension which was rejected on 29.9.1993. Appeal against the decision was rejected on 28.2.1995 and he then filed the writ petition in this Court which was allowed by the learned Single Judge giving rise to this appeal.

(3.) REGULATION 423 of the REGULATIONs for the Medical services of the Armed Forces, 1983 may also be quoted as under: "423. Attributability to service - (a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. It is, however, essential to establish whether the disability or death bore a causal connection with the service conditions. All evidence, both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt, for the purpose of these instructions should be of a degree of cogency, which though not reaching certainty, nevertheless carry the high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible but not in the least probable" the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of doubt could be given more liberally to the individual, in cases occurring in field service/active service areas. (b) The cause of a disability or death resulting from wound or injury, will be regarded as attributable to service if the wound/injury was sustained during the actual performance of 'duty' in armed forces. In case of injuries which were self- inflicted or due to an individual's own serious negligence or misconduct, the Board will also comment how far the disability resulted from self-infliction, negligence or misconduct. (c) The cause of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual's acceptance for service in the armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. (d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officer who signs the death certificate. The Medical Board/Medical Officer will specify reasons for their/his opinion. The opinion of the Medical Board/Medical Officer, insofar as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the pension sanctioning authority."