Ex. Swr. Ram Phal Singh vs Union Of India And Others
2001 Latest Caselaw 370 Del

ORDER

Dr. Mukundakam Sharma, J.

1. The petition has bene preferred by the petitioner praying issuance of a writ quashing the impugned order dated 24.2.1986 and also the letter dated 27.2.1987. The petitioner has also sought for a further relief directing the respondents to pay 90% disability element of pension to the petitioner.

2. The petitioner was enrolled in India Army on 7.1.1979 as a Combatant Soldier. The petitioner while deployed with 9 Horse consumed some corrosive (acid) on 8.3.1983 consequent upon which he was admitted to Military Hospital, Patiala on 9.3.1983 due to corrosive poisoning. The petitioner was transferred to different military hospitals where he underwent treatment. The petitioner was examined by a Medical Board on 4.11.1985 who gave its opinion that the petitioner was suffering from "STRUCTURE HYPOPHA RYNK AND ESOPHAGUS" and because of the same he was invalidated out of service after 6 years 9 months and 20 days of Army Service. The said order of invalidating out of service against the petitioner was passed under the provision of Army Rule 13(3)(III)(iii) of 1954. A copy of the medical report is also placed on record as Annexure R-1. The opinion of the Medical Board was that the disability suffered by the petitioner is neither attributable to nor aggravated by Military service. According to the Medical Board it was caused by individual's own fault and the claim for grant of disability pension to the petitioner was rejected on the ground that disability from which the petitioner suffered during his service in the army is neither attributable to nor aggravated by military service.

3. Being aggrieved by the aforesaid order the petitioner also filed an appeal to the Government of India, Ministry of Defense. The said appeal was also disposed of by the Ministry of defense rejecting the claim of the petitioner and upholding the decision of the respondent No. 3 that the disability from which the individual suffered during his service in the Army is neither attributable to nor aggravated by Military service. It transpires from the record that thereafter the petitioner filed a Civil Suit which was registered and numbered as Civil Suit NO. 50/1988 in the Court of Additional Senior Sub-Judge, Jind, seeking for grant of disability pension. The said suit however, was dismissed after contest by a judgment/ order pronounced on 76.8.1991. Now the present petition has been preferred by the petitioner seeking for grant of disability pension to the petitioner by quashing the aforesaid order dated 24.2.1986 and letter dated 27.2.1987.

4. Mr. Hooda appearing for the petitioner submitted that when the petitioner joined military service he had no such disease and it is during the course of his military service that he has suffered the aforesaid disease and therefore he is entitled to grant of disability pension as the petitioner has suffered the disease during his military service. He submitted that the disease should be deemed to be attributable to military service as the same was not detected at the time of enrolment. In support of his contention he relied upon the provisions of regulations 173 of the Pension Regulations read with rule 6 of the Entitlement Rules.

5. Counsel appearing for the respondent however, on the other hand submitted that this writ petition is not maintainable and is based by the principles of res judicata as the issues raised in the present petition stood finally decided in between the parties by the Civil Court. She also submitted that a duly constituted Medical Board having opined that the said disease is neither attributable to nor aggravated by military service this court may not sit over the said opinion of the Medical Board and decide otherwise. Counsel also submitted that rule 6 which is relied upon by the counsel appearing for the petitioner has undergone amendment w.e.f. 1.1.1982 when revised entitlement rules, 1982 were issued. She has placed before me regulations 173 of Pension Regulations and rule 6 of the revised entitlement rules of 1982 in support of her contention that the appropriate medical authority has certified that disablement is not attributable to military service and therefore, there is no violation of the said rules and regulations.

6. I have considered thee submissions of the learned counsel appearing for the parties in the light of the record of the case. It is established from the record that the petitioner also filed a suit in the court of Shri K.R.Goel, Additional Senior Sub-Judge, Jind, the said suit was registered as Civil Suit No. 50/11.2.1988. The said suit was disposed of on contest on 6.8.1991 by a detailed order. In the said suit also the petitioner as plaintiff sought for a declaration against the defendant to the effect that the petitioner is entitled to grant of disability pension from the defendant. The order dated 27.2.1987 passed by the Secretary, Government of India was also challenged in the said suit. Upon the pleadings of the parties the learned Senior Sub-Judges framed as many as 7 issued and thereafter received evidence adduced by the parties. By judgment and order dated 6.8.1991 the Civil Judge decided all the aforesaid issued and held that the petitioner/plaintiff is not entitled to the relief sought for on merit. The said suit was dismissed on 6.8.1991 whereas the present writ petition is preferred by the petitioner only on 18.5.1999 seeking for the same reliefs. This writ petition is, therefore, barred by the principles of res judicata, for the identical issued raised between the parties were finally decided by a court of law. According it is submitted by the counsel appearing for the petitioner that the Civil Court has no jurisdiction to decide entitlement of disability pension of the petitioner, in the said suit filed by the petitioner no objection was taken by the respondents in respect of want of jurisdiction of the Civil Court in deciding the said suit and therefore, the decision was rendered by the Civil Court on merits which is binding on parties. Therefore, the said decision would operate as res judicata so far as the present writ petition is concerned. Even otherwise there is a long delay in approaching this court, for the appeal of the petitioner before the Ministry of defense was rejected by an order dated 27.2.1987 and this writ petition is preferred by the petitioner after almost 12 years. Even on the merits of the claim of the petitioner the petitioner consumed the poison at his residence and a definite opinion has been given by the Medical Board to the effect that he was suffering from "STRUCTURE HYPOPHA RYNK AND ESOPHAGUS". the invalidating Medical Board gave its opinion that the said disability was caused by the petitioner's own fault. The competent Authority also rejected the claim of the petitioner for grant of disability pension on the ground that disability from which the petitioner suffered during his service in the Army is neither attributable to nor aggravated by military service. No interference is possible to the aforesaid opinion of the Medical Board as this Court does not have the experience to sit over the decision of an expert body and to come to a contrary finding.

7. In the result, I find no merit in this writ petition and the petition stand dismissed but without any order as to costs.