Dharmanand vs Union Of India (Uoi)
2006 Latest Caselaw 1482 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was recruited in the Indian Army and sent to Kumaon Regiment after his enrollment on 23.1.1986. The petitioner was selected after he went through the rigours of physical and medical tests and the interview in which he qualified. It is the case of the petitioner that he was serving with utmost sincerity and to the satisfaction of his superiors. He performed his duties with total dedication and was never found to be a defaulter or guilty of any indiscipline in his entire service tenure. During his service, the petitioner had earned many awards for his performance. He had served under the threat of war operations from 30th September 1988 to 21st December, 1990 and got appreciation from all concerned. He had been posted to different places during his service tenure. In January, 1991, after having rendered nearly five years of service, he felt some illness in the form of Nephrotic illness. He had never suffered from any respiratory or skin infection. Thereafter, he was examined at Nepherology Centre CH (EC) Calcutta and after adrenal biopsy was done, it revealed hirtotogically membrane poliferative glomerulo nephritis. The petitioner was kept under observation in low medical category BEE (Permanent) since October, 1993. On 25th June, 1995, the medical board recommended that the petitioner be released in medical category BEE (Permanent) Physol. The respondents, thus, discharged the petitioner under Army Rule 13(3) Item III (V) read in conjunction with Army Rules 13 (2A). The petitioner was shocked as he was having a good physical health and was capable of performing his duties. The petitioner applied for disability pensionary benefits and other benefits as per rules. This relief was denied to the petitioner vide letter dated 2nd April, 1998. It was said that the pension is not payable to the petitioner as the disability was not attributable to military service and he does not fulfilll even the other conditions. The petitioner was granted invalid gratuity. The petitioner moved a representation to the Secretary, Ministry of defense, New Delhi for grant of benefits which was replied to vide reply dated 13.10.1999 stating that the petitioner was discharged on 24.6.95 on account of invaliding diseases (ID) ? Idopathic Nephrotic Syndrome (Membrano Proliferative Glomerlo NephrIT is ) 383. According to the petitioner, the disability on account of which the petitioner was discharged from Army, was not result of any constitutional disorder but he had got the same because of conditions of service which affected his upper respiratory problem and skin infection. Having failed to get any relief from the respondents, the petitioner has filed the present writ petition stating that the action of the respondents is in violation of Articles 14, 20 and 311(2) of the Constitution of India and also violative of principles of natural justice. On this premise, the petitioner prays that the respondents be directed to give pensionary benefits to him.

2. Counter affidavit on behalf of the respondents has been filed. It has been averred that the petitioner was placed in permanent low medical category BEE and was given sheltered appointment w.e.f. 27th October, 1993 till the time he was discharged in furtherance to the clauses of letter dated 10th May, 1977 of Government of India, Ministry of defense. Once he was found unfit for sheltered appointment, the show cause notice was served upon the petitioner on 28th October, 1994. He was brought before a Release Medical Board at military Hospital Ranikhet on 11th April, 1995. The Board recommended him to continue in medical category BEE Permanent and it was said that the invaliding disease of the petitioner is neither attributable to nor aggravated by military service and also not connected with military service. As a result of this, he was discharged from service under Army Rule 13(3) Item III (v) read in conjunction with Army Rule 13(2A) on 27 Jan. 1995. The respondents claim to have forwarded the disability claim of the petitioner to CCDA(P), Allahabad which rejected the claim for grant of disability pension and a sum of Rs. 10,545/- on account of invalided gratuity and Rs. 1,58,454/- on account of death-cum-retirement gratuity as per his entitlement under Rule 147 of the Pension Regulations for the Army 1961 (Part-I) was paid to the petitioner and the claim for disability pension was not accepted. The respondents rely upon the judgment of the Supreme Court in the case of Sapper Mohinder Singh v. Union of India CA No. 164/91, decided on 14th January, 1993, to contend that the opinion of the medical board is correct and cannot be disturbed by the court as the injury was neither attributable to nor aggravated by military service. As such, they pray that the writ petition be dismissed.

3. The facts of the case are hardly in dispute as is clear from the above. In order to resolve the controversy, we had directed the respondents to produce the original record in court. The proceedings of the release medical board had been produced. There is no doubt to the fact that the petitioner had rendered total service of nine years and five months. His disability has been described as 'Idiopathic Nephrotic Syndrome (Membrano-Proliferative Glomerlo Nephritis) 383. The origin of the disease is stated to be December 21, 1990 when the petitioner had already put in nearly five years of service. According to the opinion of the medical board, the disease was likely to progress as he had not responded to the therapy. The disability was shown to be 40% though it was said to be not attributable to or aggravated by military service. We may notice here that in the entire medical report, it has nowhere been stated that the disease is, in any way, relatable to the constitution of the body of the petitioner and/or its onset was prior to the petitioner joined the Army. It is also not in dispute that the petitioner had performed all his duties and stood to the rigours of conditions of service at all stations and for the first time signs of sickness were noticed in the year 1990. In the medical report, it has also been recorded specifically that there is no history of gross hematuria/loin pain/pyuva/nephrotoxic drug insult. Once the petitioner was subjected to strict medical examination at the time of entry into service and even thereafter was subjected to regular medical check-ups and had shown no signs of any sickness or deterioration in health and had served at all relevant places as per the command given to him, there could be no presumption against the health of the petitioner on the ground of constitutionality or existing prior to joining the army. If after considerable time, the petitioner developed sickness which is, in no way, attributable to his negligence or fault or is genetic in its nature, it can hardly be said that the same, even if not attributable, has not been aggravated by military service. In this regard, reference can be made to a recent judgment of this Court in the case of Ex.Cfn. Sugna Ram Ranoliya v. UOI and Ors. WP(C) No. 3699/04, decided on 27th July, 2006. Furthermore, even if the petitioner was discharged otherwise in terms of Rule 13(3) Item III (V) or 13 (2A), it was obligatory upon them to issue notice to show cause to the petitioner. Though, in the counter affidavit, bald statement has been made that show cause notice was given to the petitioner but no document whatsoever has been placed on record in support of this averment. The records produced before us also do not show that a show cause notice was given to the petitioner before he was discharged from the army service as stated by the respondents. Even on this account, the action of the respondents is vitiated.

4. For the reasons afore-stated, we allow this writ petition and direct the respondents to consider the case of the petitioner for grant of disability/invaliding pension in accordance with law within a period of three months from today.

5. The writ petition is disposed of while leaving the parties to bear their own costs.