Ex. Gnr. Virendra Mohan vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 2064 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was enrolled in the Regular Army as a combatant Soldier on 3.10.1985. That after completing his basic military training, the petitioner was posted to the field unit in the field area. The petitioner served the Army for more than 5 years without any problems and to the satisfaction of all concerned. According to the petitioner, during this period he was subjected to annual and/or periodical medical examination by the concerned medical authorities and was always found fit in all respects. However on 2.7.1990, the petitioner developed health problems and he reported for a medical check-up. He was admitted to the military hospital and was operated upon on that date and thereafter was placed in a low medical category CEE (Temp) 3 x 12 and subsequently CEE (P). He was diagnosed as a case of (i) Broncho Oesophageal Fistula (Optd) and (ii) Acute AppendicIT is (Appendectomy) (Opdt.) on 3.1.1991. On 30.9.1992, the petitioner was subjected to a properly constituted Medical Board and was finally discharged from the hospital by Discharge Order dated 7.4.1992 being in Low Medical Category (P). The petitioner was on sick leave when he was re-called from his leave for his discharge from the Army vide letter dated 5.5.1992. The petitioner was recalled and without any show cause notice being issued to him he was subjected to a Medical Board which assessed the disability of the petitioner as 60% and he was discharged from Service on 30.9.1992. While recording the proceedings in AFMSF-16 the Board stated that the disease of the petitioner was not attributable to the service, which was apparently in violation of Regulation 423. The disability claim of the petitioner submitted to CDA(P) Allahabad for release of disability pension vide letter dated 2.12.1992 was arbitrarily and illegally rejected vide letter dated 13.4.1993 against which the petitioner preferred an appeal to the Government of India which was also rejected vide letter dated 27.11.1995 and the petitioner was informed of the said rejection by respondent No. 2 vide letter dated 22.9.2000. Being aggrieved from the inaction on the part of the respondents, prior to filing of the present petition, the petitioner also served a notice upon the respondents under Section 80 of the Code of Civil Procedure but of no avail.

2. Despite grant of number of opportunities, the respondents have failed to file any counter affidavit and no records were produced during the course of hearing.

3. The petitioner along with the writ petition has annexed the discharge slip of the hospital, as Annexure P1, where it has been recorded that he is ailing from Broncho Oesophageal Fistula (Opdt.) and Acute AppendicIT is (Optd.) The rejection of the claim of disability pension of the petitioner by the CCDA (P) Allahabad is on the ground that it is not attributable to the military service. It appears from the Record that the petitioner was operated for Acute AppendicIT is on 3.1.1991 and as a result thereof he developed Fistula and was stated to be suffering from Broncho Oesophageal. The percentage of disability pension in excess of 20% is not even disputed before us. In 1991 when the petitioner was operated for Acute Appendicitis, he was not ailing from any other disease and no record has been placed before this Court to show that the petitioner was suffering from any disease at the time of joining the military service or for the period of 5 years which he had served. The learned Counsel appearing for the petitioner while relying upon the judgments of this Court in the case of Ex.Cfn Sugna Ram Ranoliya v. Union of India and Ors. (WP(C) No. 3699/2004 decided on 27th July, 2006) and Sh. Navin Chandra v. Union of India and Ors. (W.P.(C) No. 5720/2006 decided on 27th July, 2006) and relying upon Regulation 173A, 173B of the Pension Regulations for the Army, 1961 contended that the petitioner suffered the disease as a result of surgery which was even if not attributable to, was aggravated by the military service. He also relied upon Regulation 423 of the Regulations for the Service of the Armed Forces that the disability or death resulting from wound or injury will be regarded as attributable to service if the same was sustained during performance of the duties of the force. He also referred to the presumptions contained in Annexure III to Appendix II to Regulation 173 to argue that such resultant injuries or disease or surgery arising there from would be attributable to the military service.

4. The facts of the case as afore-noticed as well as the law applicable to such cases shows that the petitioner was not suffering from any disease at the time of his entry into the service. He served the force without problem for a period of 5 years. Appendicitis as commonly understood is a part of the body and could develop into Acute Appendicitis requiring surgery any time, and may even be because of the stress and strain of service. The remaining problems or diseases of the petitioner surfaced after his surgery and thereafter his diseases were not to the extent that he had to be discharged from service. The petitioner was subjected to a Medical Board which had assessed his disability at 60%, though stating that the same was neither attributable to nor aggravated by the military service. However, this conclusion as stated in the orders of rejection is not supported by any records. In view of the clearly stated principles of law, the complications arising from the surgery carried out upon the petitioner in the Army Hospital are certainly contributory to the other diseases and it cannot thus be stated that the said disease is neither attributable to nor aggravated by the military service. In absence of any medical records to the contrary, we would have no hesitation in accepting the contention raised on behalf of the petitioners.

5. Consequently, this writ petition is allowed. The orders dated 13.4.1993 and 27.11.1995 are set aside and the respondents are directed to consider the case of the petitioner afresh for grant of disability pension to the petitioner in accordance with law. However, in the facts and circumstances of the case, we would restrict the recovery of arrears to a period of 3 years immediately preceding filing of the present writ petition.

6. Parties are left to bear their own costs.