E.L/Nk. Sunil Kumar vs Union Of India (Uoi) And Anr.
2007 Latest Caselaw 446 Del

JUDGMENT

T.S. Thakur, J.

1. Issue rule. Pleadings are complete. The petition has been heard for final disposal with consent.

2. The petitioner was enrolled in the Indian Army as a Signalman. In due course he rose to hold the rank of a Lansnaik. In May, 1995 he was discharged from service before fulfillling the terms of his enrollment on compassionate grounds at his own request. A Release Medical Board held at the time of discharge of the petitioner opined that he was suffering from what was described as 'Generalized Seizure'. The Board assessed the disability of the petitioner at 20% but held that the disease was neither attributable to nor aggravated by military service. Two years after his discharge from Army service, the petitioner claimed payment of service and disability pension which was rejected on the ground that since the petitioner had been discharged at his own request the policy governing such discharge did not envisage the payment of any pension. Aggrieved, the petitioner filed a Civil Writ Petition bearing No. 1902/1998 in this Court which was together with a bunch of other similar cases disposed of by a Division Bench of this Court by an order dated 6.3.2003 with certain directions. The respondents appear to have examined the petitioner's claim afresh in the light of the said directions and rejected the same once again in terms of communication dated 20.3.2004 The respondents held that since the petitioner had been discharged from service on compassionate grounds at his own request, he was not entitled to the payment of any pension. According to the respondents, the petitioner had not been invalidated out of service on account of his medical condition which alone could entitle him to pension. Aggrieved of the said rejection the petitioner has filed the present writ petition in which he has prayed for a declaration to the effect that the disease and consequent disability suffered by him had arisen out of military service was attributable to military service and aggravated by such service. A further declaration that the petitioner was invalidated out of service on medical grounds in terms of Army Order 46/ 80 r/w Government of India letter dated 10.5.1977 and is, therefore, entitled to the benefit of service pension and disability pension has also been prayed for. A certiorari setting aside the impugned communication rejecting the petitioner's claim is the only other relief which the petitioner has prayed for apart from claiming benefits of pension retrospectively from the date he was discharged with interest @ 12% p.a. The respondents have filed a counter affidavit in which they have once again contended that the discharge of the petitioner in the instant case was on account of a request made by him and could not, therefore, be deemed to be an invalidation so as to entitle the petitioner to the grant of any service or disability pension. It is also contended that the medical board held at the time of his release from service had clearly opined that the disease from which the petitioner suffered was neither attributable to nor aggravated by military service. Even if the discharge was deemed to be a case of invalidation, since the disease was not attributable to nor aggravated by military service there was no question of paying any pension to the petitioner.

3. Mr. Bareja learned Counsel for the petitioner made a two fold submission before us. Firstly, he contended that since the request for discharge, a copy thereof has been produced by the respondents as Annexure R-3, clearly mentioned his medical condition as the ground for his discharge, any discharge pursuant to such a request must be deemed to be a discharge on medical grounds entitling the petitioner to payment of service and disability pension. He placed reliance upon in support of that submission upon a Division Bench decision of this Court in the case of Subedar Baljor Singh v. Union of India and Ors. .

4. Secondly, he argued that the respondents had not examined the petitioner's claim for payment of service pension or disability pension nor even the question whether the disease from which he was suffering was attributable to military service or aggravated by such service. The respondents had simply referred to the findings of the medical board at the time of release of the petitioner from Army without critically examining the said findings in the light of what the petitioner had to say in the matter. He submitted that the respondents could be directed to re-examine the matter and determine afresh whether the disease from the petitioner suffered was attributable to or aggravated by military service.

5. On behalf of the respondents, it was, on the other hand, argued that since the respondents never treated the discharge to be a case of invalidation on the ground of medical disability there was no occasion for them to go into the further question whether the disease suffered by the petitioner was attributable to military service or aggravated by such service. However, the respondents are willing to examine that aspect if the Court directed them to do so.

6. We have given our anxious consideration to the submissions made at the Bar. A reading of the impugned communication dated 20.3.2004 would show that while the respondents had made a reference to the opinion of the medical board held at the time of his release from the Army service they have not based their decision for denial of service or disability pension on that opinion. The primary reason for rejection of the petitioner's claim in terms of the impugned communication continues to be that the petitioner had been discharged from service at his own request and on compassionate grounds which, according to the respondents, dis-entitles him to claim any pension. It was in our opinion necessary for the respondents to go into the second aspect of the matter also, namely, whether the disease from which the petitioner suffered was indeed attributable to or aggravated by military service. That is because if this Court was to hold that the discharge was a case of invalidation on medical grounds, it shall have to examine whether the disease on account of which such discharge was made was attributable to or aggravated by military service. It is only if both the requirements are satisfied that the petitioner would be entitled to pension.

7. Even in regard to the question whether the discharge was on medical grounds or independent of the said ground and whether it could be treated as a case of invalidation on account of medical disability of the petitioner, the respondents may have to consider the matter afresh in the light of the Division Bench decision of this Court in Subedar Baljor Singh's case (supra) relied upon by Mr.Bareja. The impugned communication has not taken note of that decision, learned Counsel for the respondents no doubt argued that the issue is more appropriately covered by the decision of the Supreme Court in Union of India v. Mahavir Singh Narwal being SLP (C) No. 24171/2004 We do not propose to deal with that aspect of the matter authoritatively. All that we need say is that the respondent ought to examine both the aspects of the matter afresh having regard to the pronouncements of this Court and the Supreme Court on the subject and pass a fresh order in accordance with law. The petitioner shall be free to make a representation on the subject within three weeks from today.

8. In the result we allow this petition but only in part and to the extent that communication dated 20.3.2004 shall stand quashed. The petitioner's case for grant of service element of disability and disability pension shall be examined afresh by the respondents in the light of the representation which the petitioner may make. Needless to say that if respondents shall be free to have the petitioner medically examined afresh from a medical board to determine whether the disease which he suffered from at the time of his discharge was in any way attributable to or aggravated by military service. Final orders shall be passed by the respondents expeditiously but not later than six months under intimation to the petitioner. No costs.