Ex. Hav. Bhim Singh No. 2978421 vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 61 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was enrolled in the regular Army as a combatant soldier on 11.6.1980 after having been found physically and medically fit. No adverse remarks or deficiency was noticed by the Recruitment Medical Officer in Form AFMSF-2. According to the petitioner because of his hard work and sincerity he was promoted up to the rank of Havaldar in his own turn. In his entire service career he did not get any adverse remark or entry. His service profile was excellent. He served the Indian Army till 30.6.2004 when he was invalided out from military service being discharged on the medical grounds. During this period, the petitioner was posted to various peace and field stations with the Infantry Battalion. Because of the hard service conditions and postings at places of high altitude, the petitioner developed heart problems and was treated in the military hospital for Coronary Artery Disease (D.V.D.) and two stunts were placed by doing angioplasty and he was placed in Low Medical Category B-III (temporary) for 24 weeks. The petitioner thereafter was brought before a properly constituted Medical Board which recommended that the petitioner be released in Low Medical Category PIII (Permanent) with 50% disability pension. The disability pension according to the petitioner is granted under the provisions of Regulation 173 of the Pension Regulations for the Army, 1961, Part I. After the discharge of the petitioner he was not granted disability pension which according to the petitioner is contrary to Regulation 423 of the Government of India, Ministry of defense Guide to Medical Officers as the disease of the petitioner was attributable to and/or aggravated by the military service. Aggrieved with the said order the petitioner served upon the respondents a notice under Section 80 of the Civil Procedure Code on 16.2.2006 which was replied to by a letter dated 22.3.2006 taking the same stand that was earlier taken by the respondents, resulting in filing of the present writ petition.

3. The respondents have filed their counter affidavit. The petitioner was discharged from service under Army Rule 13(3)(i) on completion of the terms and conditions of his engagement. He was placed in Permanent Low Medical Category due to disability i.e. Coronary Artery Disease (D.V.D) (POST PTCA) (RCA & LAD). The claim of the petitioner for grant of disability petition was declined against which petitioner preferred an appeal in terms of a circular 318 dated 15.9.2003 which was rejected as being neither attributable to nor aggravated by the military service. The petitioner was granted service pension vide PPO dated 20.2.2004. The petitioner was advised to file an appeal against the decision of the Appellate Committee within a period of 6 months but the petitioner is stated to have not availed of the said opportunity. According to the respondents, there is no ground for interference in the order passed by the concerned authorities.

4. The petitioner relied upon a recent judgment of this Court in the case of Ex. Cfn. Sugan Ram Ranoliya v. Union of India and Ors. W.P. (C) No. 3699/2004 decided on 27.7.2006 and Sh. Navin Chandra v. Union of India and Ors. W.P. (C) No. 5720/2006 decided on 27.7.2006 to contend that the disease can no way be termed as 'constitutional' and not relatable to the conditions of the service of the petitioner. It is also contended that the findings of the Medical Authorities that the disease is neither attributable to or aggravated by the military service is also perverse on the face of it and is contrary to the specific instructions contained in the Medical Guide and Appendix II to Regulation 173. On the contrary, the respondents have taken up a stand that as per the findings recorded in the Medical Board proceedings, the disease is neither attributable to nor aggravated by the service and it is not connected with the military service.

5. During the course of hearing we had directed the respondents to produce the original record of the Medical Board proceedings. The records were produced. The proceedings of the Release Medical Board held on 17.2.2004 have been perused by us. Apparently, there appears to be some overwriting and tampering in front of columns No. 12 and 13 of the report which reads as under:

12. Do you consider the disability is attributable to service? (Give reasons) Yes No.

13. Do you consider the disability aggravated by service? (Give reasons) Yes No.

6. The 'Yes' and 'No' has been written in different ink and in different handwritings. The ink and handwriting used while writing 'NO' is different and nowhere to be found in the medical report. In light of the judgments afore-narrated, as well as Para 423 of the Manual and Appendix II to Regulation 173 such a disease would be attributable to and/or aggravated by the military service. Furthermore, in Annexure III to Appendix II, Myocardial Infraction and other forms of IHD are the diseases which are affected by the stress and strain of service. Thus, we have no hesitation in taking a view that the originally written 'Yes' on the original as well as the copy of the Release Medical Board proceedings has correctly answered the questions and the disease is attributable to and/or aggravated by the military service. Furthermore, the petitioner has served the Army for a long period of 23 years before he was discharged from the Army. During this long service the petitioner had been posted to different stations. It is quite normal and probable that the petitioner developed the disease during the course of service and in any case the same would be aggravated by conditions of service. Para 47 of the same guide to Medical Officer reads as under:

47. Ischaemic Heart Disease (IHD)

IHD is a constitutional disease. It is almost due to occlusive thrombus at the site of rupture of an at heromatous plaque in the coronary artery. Prolonged stress and strain hastens at herosclerosis by triggering of neurohormonal mechanism and autonomic storms. It is now well established that autonomic nervous system disturbances precipitated by emotions, stress and strain, through the agency of catecholamines affect the lipid response, blood pressure, increased platelet aggregation, heartrate and produce ECG abnormality and arrhythmias. Therefore, where exceptional and prolonged stress and strain of service can reasonably be established, aggravation can be conceded. On the other hand acute and severe mental and physical stress of very short duration may precipitate acute cardiovascular catastrophe by suddenly creating marked reduction of blood supply relative to its demand and favors coronary spasm, resulting in ischaemia. Therefore intimate causal relationship must be accepted and attributability can be conceded.

The service in field and high altitude areas apart from physical hardship imposes considerable mental stress of solitude and separation from family leaving the individual tense and anxious as quite often separation entails running of separate establishment, financial crisis, disturbance of child education and lack of security for family. Apart from this, compulsory group living restricts his freedom of activity. These factors jointly and severally can become a chronic source of mental stress and strain precipitating an attack of IHD....

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48. Keratitis
 

KeratIT is is an inflammation of cornea with or without ulceration and on healing an opacity or opacities may be left which may interfere with vision.
 

It is essentially an infection by various micro organism excited by a number of causes e.g. Injury, foreign body exposure (facial nerve palsy), conjuctivitis.
 

7. In light of the above Regulations and Instructions, there can be no doubt to the fact that the petitioner suffered the disease during his service and in any case the disease of Coronary Artery would be aggravated by the conditions of the service.
 

8. The learned Counsel appearing for the respondents had also argued that the case of the petitioner was not covered under Regulation 173 in as much as the petitioner was discharged upon completion of his engagement and the service pension has already been granted to the petitioner. This argument again is without any substance and merit. Regulation 173 comes into play when an individual is in anyway invalided out of service on account of disability which is attributable to and aggravated by the military service and the disability is assessed at 20% or over. But Regulation 179 takes care of the claim of an individual for grant of disability pension who has been discharged on completion of terms of his engagement and his disability is assessed at 20% or more and is attributable to or aggravated by the military service. It further postulates that where a person has been paid service element, the same would be adjusted against the disability pension or vice versa, as the case may be. The Coronary Artery Disease is a disease which grows with the passage of time, particularly when due precautions and timely treatment is not taken by the patient. Admittedly, prior to the period in question the petitioner was not found to be ailing or suffering from any heart-related disease for a long period of 20 years. It will be unfair to state that such a disease, after such a prolonged period of service, coupled with the conditions of service, cannot be attributed to or aggravated by service. The petitioner, at no point of time, had refused any treatment which he was advised to take by the Army doctors. Once no fault is attributable to the petitioner, then he can hardly be denied claim for disability pension as the above-noticed Regulation and Instructions would stare the respondents in their face. This clearly shows that the protection of this benefit which is available to a person who has been discharged even upon completion of his tenure. From whichever point of view the circumstances of the case are examined, the petitioner would be entitled to grant of disability pension with the aid of either Regulation 173 or 179.

9. For the reasons aforestated, we partially allow the writ petition, set aside the order dated 15.3.2003 passed by the respondents and direct them to grant disability pension to the petitioner in accordance with law as expeditiously as possible and in any case not later than six months from the date of passing of this order. In the facts and circumstances of the case, parties are left to bear their own costs.