Ex. A.C. Gupta U K (771675-F) vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 62 Del

JUDGMENT

Swatanter Kumar, J.

1. On 2nd November, 1995, the petitioner was enrolled in the Indian Air Force as an Airman. The petitioner had cleared the competitive examination, medical and fitness examination before his induction into the Force. On 3rd September, 1996, the petitioner claims to have passed the rigorous training and was allotted service No. 771675-F in ACH/GD trade. The petitioner was posted to perform guard duty. On 13th October, 1996, the petitioner reported sick due to headache. He was hospitalised at Pune He remained under the treatment of doctors. However, on 6th February, 1997, the petitioner was invalided out and discharged from Indian Air Force on account of medical disability 30% attributed to/aggravated by service. The petitioner was escorted by two persons and was handed over to his father on 19th February, 1997. At the time of his release, the petitioner was informed that his case for grant of disability pension would be taken up with the CCDA (P) Allahabad. Respondent No. 4 is stated to have forwarded the documents of petitioner for grant of disability pension to CDA (AF) New Delhi for onward submission to CCDA (P) Allahabad vide letter dated 1st December, 1997. Vide letter dated 26th March, 1998, the petitioner was informed that his disability pension claim was rejected by the said authorities. Against the order of rejection, the petitioner had filed an appeal, which was also rejected vide order dated 14th February, 2000. The petitioner persisted upon filing of second appeal to the Ministry of defense to which he subsequently sent a reminder. The Appellate Committee of the Ministry of defense also dismissed the appeal of the petitioner and the same was informed to the petitioner vide letter dated 5th May, 2003. The petitioner has challenged the legality and correctness of the said order in the present writ petition.

2. The respondents in their counter affidavit have stated that the petitioner was invalided out of service on 6th February, 1997 with the comments "ON HAVING BEEN FOUND MEDICALLY UNFIT FOR FURTEHR SERVICE IN THE IAF (FIT FOR CIVIL EMPLOYMENT)" for a disability 'Schizophrenia'. The petitioner was admitted to the hospital at the behest of unit authorities on 11th October, 1996. As per medical records, he successfully completed his training on 16th September, 1996 and was granted 13 days leave with effect from 23rd September, 1996 to 6th October, 1996. On completion of leave when the petitioner reported to his unit, he showed symptoms of depression and abnormal behavior and was subjected to psychiatric evaluation, which revealed that the petitioner was suffering from 'Schizophrenia'. The Medical Board stated that the disability of the petitioner was not attributable to or aggravated by service. The primacy of findings of Medical Board, which has physically examined the petitioner, should be upheld and even the appellate authorities have taken the same view and declined payment of disability pension to the petitioner. However, the disability of the petitioner is stated to be 30%. The respondents have also relied upon Rule 17(b) and (c) of the Entitlement Rules, which stipulates the powers of competent medical authorities. The same reads as under:

17(b). At the time of invalidment/release of a service personnel medical views on attributability/aggravation and degree of disability shall be given by the Invaliding Medical Board (IMB)/Release Medical board (RMB). The findings of the IMB/RMB/RSMB, which are recommendatory in nature, shall be reviewed by the Competent Medical Authority at the time of consideration of Initial Claim/Appeal for grant of disability pension. The Competent Medical Authority may for reasons to be recorded in writing, alter or modify the recommendations of IMB/RMB/Lower Medical Authorities.

17(c). The competent medical authorities after review of the IMB/RMB/RSMB proceedings/findings of the lower Medical Authorities, study of related medical/service documents, the clinical profile recorded and keeping in mind the etiology and nature of disease, shall evaluate the role played by service factors in the onset/progress of the disability. The recommendations of the competent medical authority as accepted by the Pension Sanctioning Authorities i.e., Principal CDA (Pension)/Ministry of defense shall be final with regard to the entitlement and assessment of disability for the purpose of grant of disability pension.

3. On this premise, the respondents contends that the petitioner is not entitled to disability pension and prays for dismissal of the writ petition.

4. There is hardly any dispute to the facts of the case. We had also asked the respondents to produce the original medical proceedings and service record of the petitioner in Court. The same was produced. It has been noticed in the proceedings of the Medical board that the petitioner had one year of service when he was admitted to the hospital in October, 1996 at the behest of his unit. His treatment could be managed adequately with medication and supportive measures. The relevant part of the Medical Board Proceedings reads as under:

He has been managed adequately with 11 NCT's and antipsychotics place supportive measures with resolution of catatonia. However, he shows residual conative, emotional & cogaitive deficits. At present he is receiving continuation antipsychotic medication in the form of Tab Largectil (100 Mg) 1-1-2.

In view of the relapsing nature of his disability i.e. catatonic schizophrenia, persisting residual deficits & considering the length of service, he is not likely to so useful soldier for the organisation. Hence he is recommended to be invalided out of service in medical category "EEE" (psychological).

5. We may also notice that the Medical Board had specifically said that it was a personality disorder not connected with service. Though the disability of the petitioner was shown to be 30% for 2 years but for reasons best known him, he was never subjected to Re-Medical Survey Board or Appellate Medical Board and what is his state of affairs after two years, there is no medical evidence before this Court. In any case, the total service of the petitioner was less than 1 year when he fell sick and was diagnosed as suffering from Schizophrenia. The contention of the petitioner that he was medically examined at the time of his entry into service, was found fit and further that onset of the disease was during service, which would entitle him to receive disability pension in accordance with Pension Rules 1960, has no merit. The onus is upon the petitioner to show that his disability was attributable to or aggravated by service when the appropriate Medical Board as well as appellate authorities have come to the conclusion based upon the expert opinion that disability of the petitioner was neither attributable to nor aggravated by service. The petitioner has placed nothing on record to show that petitioner was not suffering from any disease prior to his induction into the force.

6. Learned Counsel for the petitioner has relied upon on various judgments of this Court as well as other High Courts in the cases of Balbir Kaur v. Union of India and Ors. 2004 (1) SLR 769, Union of India and Ors. v. Bodan Lal Yadav 1994 (1) SLR 390, Jai Bhagwan Rohilla v. Chief of the Air Staff and Anr. , Navin Chandra and Ors. (Sh.) v. Union of India and Ors. 2006 VII AD (Delhi) 709, Ex. Cfn. Sugna Ram Ranoliya v. Union of India and Ors. 132 (2006) DLT 544 (DB) and Ex. Cfn. Pitamber Sharma No. 14526399 v. Union of India and Ors. 2006 VII AD (Delhi) 309 to substantiate his plea that the disease of Schizophrenia is attributable to and/or aggravated by the military service and the petitioner satisfies the ingredients of Regulation 173 of the said Regulations and would be entitled to receive disability pension.

7. No doubt, a Bench of this Court has allowed number of writ petitions even relating to the disease of Schizophrenia and/or allied diseases in the case of Ex. Cfn. Sugna Ram Ranoliya (supra) but in the facts and circumstances of the the case of the petitioner, the same can be more appropriately decided in light of the judgment of this Court in the case of Ex. Spr. Bhim Singh v. UOI and Ors. WP (C) No. 21671/2005, decided on 31.08.2006, where the court particularly keeping in view the short period of service rendered by the petitioner and the report of the medical board, had dismissed the writ petition for grant of a similar relief and held as under:

38. The learned Counsel appearing for different petitioners in these writ petitions have relied upon judgments of this Court in the cases of Ex. Ct. Jasbir Singh and Ors. v. Union of India and Ors. , Deepak Kumar Singh v. Union of India and Satpal Singh v. Union of India 1999 IV AD (Del.) 321. In addition to the above mentioned judgments, they have also relied upon the judgment of this Court in the case of Ex. Cfn. Sugna Ram Ranoliya v. Union of India and Ors. being CWP No. 3699/2004 decided on 27.7.06, in support of their contention that all such diseases like Schizophrenia, mental disorder or Generalized Seizure would be attributable and/or aggravated by military service. They would, according to them, be entitled to receive disability pension in law. There is no doubt that in these judgments, various such diseases have been held to be attributable to and/or aggravated by military service but they have not been held as a proposition of law. It relates to the cases which have been referred to in those judgments. In those cases, there was no definite opinion of the Invaliding Medical Board or that of the Classified and/or Specialists to substantiate the plea of the respondents that the disease is neither attributable to nor aggravated by military service. The principles enunciated by the Benches in those judgments are to be applied to the facts of each case. Unless the material (opinion of the Medical Board) produced before the Court is ex facie unbelievable, absurd and is not in accordance with rules, regulations and instructions issued by the department, would have precedence. In the present cases, the medical experts have clearly indicated the diseases of the petitioners relatable to a period much prior to their joining the Army though it surfaced with gravity after their joining the Army. A person who was suffering from Generalized Seizure at the age of 10 or 12 years and had joined the Army and the disease manifested with greater gravity within few months or initial years of service, the Court cannot be expected to hold that such disease was attributable to or aggravated by military service particularly when the Medical Board in specific terms have recorded their findings against such attributability or aggravation. In the case of Controller of defense Accounts (Pension) and Ors. v. S. Balachandran Nair reported as the Supreme Court has held that precedence has to be given to the findings recorded by the Medical Board. In the present cases, the findings of the Medical Board are in conformity with the rules, regulations and guidelines meant for medical officers as the patients have been subjected to examination by a Specialist or a Classified Specialist prior to their being examined by the Medical Board. Due investigations have been conducted and the history given by the petitioners themselves relate such diseases much prior to a period of their joining the Indian Army.

8. Reverting to the facts and circumstances of the present case, the petitioner had served for few months when he showed signs of Schizophrenia. It is difficult for the Court to accept the contention of the petitioner that merely because he fell sick during the course of his service, the disease of the petitioner, in all events, would be attributable to and/or aggravated by military service. The disease of Schizophrenia or such allied mental disorders would normally not result from the conditions of service within such a short span. In terms of the opinion of the experts the disease was neither attributable to nor aggravated by military service. The petitioner was subjected to initial as well as Review Medical Boards. However, the opinion of the experts was unfavorable to the claim of the petitioner for grant of disability pension.

9. For the reasons afore stated, we find no merit in this petition and the same is dismissed while leaving the parties to bear their own costs.