Jai Bhagwan Rohilla vs The Chief Of The Air Staff & Anr.
1999 Latest Caselaw 808 Del

ORDER

N.G. Nandi, J.

1. In this petition under Article 226 of the Constitution of India, the petitioner has been praying for the relief requiring the respondent to be directed to give disability pension to the petitioner on his discharge from the military service.

2. It has been the say of the petitioner that the petitioner was selected as an Airman in the Indian Air Force on 30.12.1993 ; that at the time of entering the military service, no note was made that the petitioner was suffering from any disease; that the petitioner served in the Indian Air Force as an Instrument Fitter for about 5 1/2 years ; that the petitioner could not acclimatizKalaikunda e to the climate at Kalai kunda (Kharagpur, West Bengal) where the petitioner was posted during the year 1988; that the petitioner started to have constipation ; that the petitioner was admitted in the hospital and remained in the hospital for about one year; that various tests were carried out and the petitioner was found uffering from INSULIN DEPENDENT DIABETES MELLITUS; that the petitioner was discharged from he service on the ground of ill-health i.e. suffering from Insulin Dependent Diabetes Mellitus on 20.5.1989; that the petitioner was not granted any disability pension at the time of discharge from the service ; that the petitioner made representation to the Air Force authority for grant of disability pension but of no avail.

3. The respondent, vide affidavit in reply, contends that the petitioner was enrolled in the Indian Air Force on 30.12.1983 and was medically board-ed out of the service on 20.5.1989 by a duly constituted Invalidating Medical Board under the provision of Rule 15 (2) (c) . Air Force Rules , 1969 on account of his decease " Insulin Dependent Diabetes Mellitus (25OD) V67": that the Invalidating Medical Board had assessed the percentage of disability as 60% for one year and opined that the disability of the petitioner is neither attributable nor aggravated by his Air Force service as well as constitutional in nature: that on adjudication, the Pension Sanctioning Authority [i.e. Chief of Controller of defense Accounts (Pensions)] had rejected petitioner's claim for disability pension explaining the reasons as disability from which the petitioner had suffered during his Air Force service is neither attributable to nor aggravated by his service being constitutional in nature"; that the petitioner had preferred an appeal before the appellate authority against the above said decision of the Pension Sanctioning Authority which was also rejected vide letter dated 12.3.1991; that the disability pension is not admissible to the petitioner in terms of egulations 153 of the Pension Regulations for the Air Force, 1961 (Part-I) which includes primary condition for grant of disability pension as "Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalidated from service on ccount of disability which is attributable to or aggravated by Air Force Service and is assessed at 20% or over."

4. It has been submitted by Mr. Dhanda, learned counsel for petitioner, that at the time of petitioner's entry in Air Force service, there is no note made of the petitioner having been suffering from any such disease; that the petitioner developed diabetes while in military service and that the petitioner becoming diabetic while in military service is attributable to the military service.

5. In the case of Ex. Hav. Sinder Pal Singh Vs. Union of India & Another, reported in 1991 (5) S.L.R. page 459 wherein the Single Judge of the Punjab & Haryana High Court has held that the petitioner's claim for disability pension is covered under the Pension Regulations (for Army) 1961, Regulation 173 inasmuch as the disease on the basis of which the petitioner was discharged from the Army Service had arisen during the course of the employment and, therefore, would be entitled to disability pension in absence of note made at the time of petitioner's acceptance for military service that he was suffering from a disease on account of which he was discharged from service.

In the case of Deepak Kumar Singh Vs. Union of India & Others, the Division Bench of this High Court held that the disease which led to the petitioner's discharge will be deemed to have arisen during Air Force service and the petitioner neither hospitalised or treated for the said disease, the Chief Controller of defense Accounts (Pensions), Allahabad, in the absence of any other medical opinion, could not have ruled ou or ignored the opinion of the Medical Board upon whose opinion the petitioner was invalidated out assessing disability at 40% for two years and the decision of the respondents not to grant disability pension to the petitioner being arbitrary, unsustainable and liable to be set aside.

6. In the instant case, the petitioner joined Indian Air Force on 30.12.1983. It is not disputed that when the petitioner accepted the Air Force service and joined the Indian Air Force on 30.12.1983, no note was made that he was suffering from a disease like the one on hand i.e. Insulin Dependent Diabetes Mellitus on account of which he has been admittedly discharged from Air Force Service on 20.5.1989. That means the petitioner served with the Indian Air Force for a period of about 5 1/2 years and that on complaint of constipation, the petitioner was admitted in the hospital and was found to have been suffering from Insulin Dependent Diabetes Mellitus.

Regulation 173 of the Pension Regulations of the Army, 1961 reads as under :-

"173 Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over.

     The question whether a disability is attributable to or aggravated  by  military service shall be determined under the  rules  in      Appendix II." 
 

     Para 7(b) of the Appendix-II provides as under :- 
 

"7(b) 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 individual's acceptance for military service. 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."

7. In the instant case, there is no material on record to suggest that the medical opinion held, for reasons to be stated, that the disease could not be detected on medical examination prior to acceptance for service. It is pertinent to note that the say of the respondents is that Invalidating Medical Board had assessed the percentage of disablement as 60% for one year. The Pension Sanctioning Authority i.e. Chief Controller of defense Accounts (Pensions), on adjudication, rejected the petitioner's claim for disability pension explaining the reasons.

8. In the case of Ex. Sapper Mohinder Singh Vs. Union of India (copy whereof has been placed on the record), the Supreme Court observed "In view of all the relevant circumstances of the case, we are of the opinion that the Disability Pension assessed at the rate of 40% by the Medical Board, which had examined the appellant, should be respected until a fresh Medical Board examined the appellant again and come to a different conclusion." In the instant case, it is not the say of the respondents that a fresh Medical Board was constituted and the petitioner was examined much less the fresh Medical Board coming to a different conclusion.

9. In view of the above reproduced observations in the case of Ex. Sapper Mohinder Singh Vs. Union of India (supra) by the Supreme Court, it was not open to the Chief Controller of defense Accounts (Pensions) as the Pension Sanctioning Authority to adjudicate the disablement assessed by Invalidating Medical Board and reject the claim for disability pension in absence of constituting a fresh Medical Board and examining the petitioner again and coming to a different conclusion than the one reached by the Invalidating Medical Board which assessed the disability as 60% for one year.

10. It has been submitted by the learned counsel for the respondents that the disability should not only arise during the course of employment but the same should be attributable to the military service. In the case of Deepak Kumar Singh Vs. Union of India & Others (supra), while dealing with a case the Medical Board declaring a personnel of Indian Air Force not medically fit for further service being a case of Insulin Dependent Dia-

betes Mellitus and the Medical Board assessed disability to the extent of 40%, the Division Bench held that the disease which led to the petitioner's discharge will be deemed to have arisen during the Air Force service and in view of Rule 7(b) held that the disability is attributable to or aggravated by Air Force service.

11. As pointed out above, admittedly, no note of the disease was made at the time of petitioner's enrollment. The Medical Board had also, in its case, not recorded that the disease suffered by the petitioner could not have been detected by medical examination prior to the petitioner's accept-ance for service. The disease which led to the petitioner's discharge from military service will be necessarily deemed to have arisen during the Air Force service, especially when it is not the say of the respondents that during the entire service of the petitioner of more than 5 1/2 years, the petitioner was ever required to be hospitalised or treated for the said disease except when he was admitted in the hospital on complaint of constipation.

12. Under the circumstances, the decision of the respondents not to grant disability pension to the petitioner, as assessed by Invalidating Medical Board, recommending/assessing the percentage of disablement as 60% for one year and the Pension Sanctioning Authority i.e. Chief Controller of defense Accounts (Pensions), in absence of fresh Medical Board examining the peti-

tioner and reaching a different conclusion, could not have by-passed/ignored the opinion of the Invalidating Medical Board, upon whose opinion the petitioner was invalided out of the military service cannot be sustained in law.

In the above view of the matter, the decision of the respondents not to grant disability pension to the petitioner would be nothing but arbitrary and unsustainable and liable to be quashed.

13. In the result, the writ petition is allowed. The respondents are directed to sanction/grant disability pension to the petitioner as 60% for one year, assessed by the Invalidating Medical Board. The same will be continued to be paid till the disability is varied on re-assessment by a properly constituted Medical Board. The respondents shall work out the arrears and the same be paid within three months to the petitioner. The costs of the petitioner is quantified at Rs. 5,000/- which shall be borne by the respondents.