Delhi High Court

Ex-Sigmn Pradeep Kumar Sahu vs Union Of India & Ors. on 24 November, 2014

$~11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Date of hearing & Order: November 24, 2014

+     W.P.(C) 6538/2013

      EX-SIGMN PRADEEP KUMAR SAHU
                                                           ..... Petitioner
                         Through:    Mr.A.K. Trivedi, Advocate

                         versus

      UNION OF INDIA & ORS.
                                                         ..... Respondent
                         Through:    Mr. A.K. Gautam, Advocate

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MR. JUSTICE NAJMI WAZIRI

                                  ORDER

% KAILASH GAMBHIR, J. (ORAL)

1. The instant petition has been filed under Article 226 of the

Constitution of India, whereby the petitioner seeks quashing of the Order

dated 21.09.2011 passed by the learned Armed Forces Tribunal (Principal

Bench), in O.A. No.129/2011.

2. Mr. A.K. Trivedi, the learned counsel for the petitioner submits that

the judgment of the Hon'ble Supreme Court of India in the case of Union of

India & Ors. v. Tarsem Singh (2008) 8 SCC 648, has laid down the

principle that underlines continuing wrongs and recurring/successive wrongs

which have been applied to service law disputes. It also held that the non

payment of the pensionary benefits of the employee is a continuing wrong.

However, at best the relief that can be granted to the employee is the pension

for the period of three years immediately preceding the date of filing of this

petition.

3. The learned counsel for the petitioner submits that the petitioner was

enrolled in the Indian Army as a Signalman/MT/Dvr in the Corps of Signals

on 1.1.2000; he was allotted service No.15669156 and at the time of

entering into service; he was not found suffering from any kind of medical

ailment; he was an outstanding sportsman and had received various awards

in boxing and weightlifting. However, while he was posted in 14 CESR at

Leh, he developed psychological problems like depression and anxiety. The

learned counsel submits that the petitioner was admitted to the Hospital on

5.9.2003 and discharged on 15.9.2003, with the remarks - 'there is no

evidence of mental illness at present'. Thereafter, the petitioner was once

again admitted to the Command Hospital, Chandimandir for psychiatric

evaluation and this time, he was found in Shape 5 low medical category, as

he was suffering from Dissocial Personality Disorder and due to this

problem, he was invalidated out from service. He also submits that the

petitioner was not considered fit for the grant of disability pension and

because of the denial of this right to him, he sent a legal notice dated

16.12.2010 and thereafter filed an O.A. No.129/2011 before the learned

Armed Forces Tribunal. He also submits that the learned Armed Forces

Tribunal has dismissed his O.A. due to inordinate delay and laches on the

part of the petitioner without taking into consideration the merit of the claim

of the petitioner.

4. We have heard the learned counsel for the parties.

5. We are of the view that the case of the petitioner is squarely covered

by the judgment of the Supreme Court in the case of Dharamvir Singh v.

Union of India, (2013) 7 SCC 316 which held:-

"28. A conjoint reading of various provisions, reproduced above, makes it clear that:

(i) Disability pension to be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable or

aggravated by military service to be determined under "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).

(ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)].

(iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally. (Rule 9).

(iv) If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. [Rule 14(c)].

(v) If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service. [14(b)].

(vi) If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed

to have arisen during service, the Medical Board is required to state the reasons. [14(b)]; and

(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-

II of the "Guide to Medical (Military Pension), 2002-"Entitlement: General Principles", including paragraph 7, 8 and 9 as referred to above.

29. We, accordingly, answer both the questions in affirmative in favour of the Appellant and against the Respondents.

30. In the present case it is undisputed that no note of any disease has been recorded at the time of Appellant's acceptance for military service. The Respondents have failed to bring on record any document to suggest that the Appellant was under treatment for such a disease or by hereditary he is suffering from such disease. In absence of any note in the service record at the time of acceptance of joining of Appellant it was incumbent on the part of the Medical Board to call for records and look into the same before coming to an opinion that the disease could not have been detected on medical examination prior to the acceptance for military service, but nothing is on the record to suggest that any such record was called for by the Medical Board or looked into it and no reasons have been recorded in writing to come to the conclusion that the disability is not due to military service. In fact, non-application of mind of Medical Board is apparent from Clause (d) of paragraph 2 of the opinion of the Medical Board, which is as follows: