Delhi High Court
Union Of India vs Col (Ts) Shyama Nand Jha (Retd.) on 15 October, 2024
Author: Navin Chawla
Bench: Navin Chawla
$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 15th October, 2024
+ W.P.(C) 16127/2023 & CM APPL. 64823/2023-Stay
UNION OF INDIA .....Petitioner
Through: Mr. Ravi Prakash, CGSC with
Mr. Yasharth, Ms. Tana Yasin,
Mr. Ashu Khandelwal & Ms.
Isha Kanth, Advs.
Major Anish Muralidhar.
versus
COL (TS) SHYAMA NAND JHA (RETD.) .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (Oral)
1. This petition has been filed by the petitioner under Article 226
of the Constitution of India, challenging the Order dated 12.05.2023
passed by the learned Armed Forces Tribunal, Principal Bench, New
Delhi (in short, 'AFT') in Original Application (OA) No.280/2019
titled Col. (TS) Shyama Nand Jha (Retd.) vs. Union of India & Ors.,
whereby, the learned AFT has applied the ratio of the decision of the
Supreme Court in Dharamvir Singh v. Union of India & Ors., (2013)
7 SCC 316 and held as under:
"8........... Admittedly, the applicant was enrolled in
December, 1981 and both the disabilities have first started
after more than 24 years of Army service i.e. in July, 2006.
There has not been any note regarding his leading a poor
lifestyle etc. We are, therefore, of the considered opinion
that the benefit of doubt in these circumstances should be
given to the applicant in view of above judgment and
settled law on the point of attributability/aggravation, the
disabilities of the applicant should be held attributable
to/aggravated by the military service.
******
11. In the light of the law already laid down with regard to
the attributability/ aggravation, we find that the RMB has
denied the attributability/ aggravation of the disabilities
on the ground that the diseases occurred in peace station.
However, taking note of the facts and circumstances of the
case, we are of the view that this reasoning given by the
RMB for denying disability element of disability pension to
the applicant is not convincing. The Tribunal has
consistently taken a view that the armed forces personnel
go through the pressure of rigorous military training and
associated stress and strain of the service and holding the
disability in question as only metabolic disorder without
giving any specific grounds for the opinion may not be
acceptable. It may also be taken into consideration that
the most of the personnel of the armed forces, during their
service, work in the stressful and hostile environment,
difficult weather conditions and under strict disciplinary
norms. We are, therefore, of the considered opinion that
the benefit of doubt in these circumstances should be given
to the applicant in view of above judgment and settled law
on the point of attributability/aggravation, the disability of
the applicant should be held attributable to/aggravated by
the military service."
Submissions of the learned counsel for the petitioner
2. The learned counsel for the petitioner has drawn our reference
to the Order dated 24.10.2018 passed by the Additional Directorate
General of Manpower (Policy & Planning), to submit that the learned
AFT has failed to appreciate that in the said order detailed analysis
was done by the Competent Authority on the disability suffered by the
respondent and as to why it cannot be said to be attributed to or
aggravated by the conditions of service. He submits that, therefore, the
presumption which the learned AFT has drawn was incorrect and in
fact, bad in law and, therefore, the Impugned Order is liable to be set
aside.
Submissions of the learned counsel for the respondent
3. On the other hand, the learned counsel for the respondent has
drawn our attention to the opinion of the Medical Board, wherein, not
only there is an overwriting/change of the opinion on whether the
disability can be said to have been aggravated by the service or as one
not connected with the service, but also had an observation that the
petitioner was detected with the disease only in July, 2006 during his
peace tenure, and that the respondent had been serving in the peace
area since 1993.
4. The learned counsel for the respondent, drawing our reference
to the service profile/placement of the respondent, submits that the
respondent had been posted at the Siachen Glacier from 05.07.1997 to
01.09.1998, therefore, the reasoning of the Medical Board is wrong.
He further submits that in the paragraph 5 (iii) of the Medical Board
Proceedings dated 21.07.2008, it had further been admitted and
observed that the duties with which the respondent was charged,
involved severe/exceptional stress and strain. He submits that even the
Appellate Order on which reliance has been placed by the petitioner
has ignored this vital findings.
Analysis and findings
5. We have considered the submissions made by the learned
counsels for the parties.
6. As is evident from the Medical Board Proceedings itself, the
premise that the respondent was posted in a peace area from 1993 is
factually incorrect. The Medical Board Proceedings further
acknowledged that the posting of the respondent involved
severe/exceptional stress and strain. The Order dated 24.10.2018, on
which reliance has been placed by the learned counsel for the
petitioner, has premised its findings on the fact that when the
disability was first noticed, the respondent was not working in the
field. In our view, this itself cannot be a sufficient ground for holding
that the disability suffered by the respondent cannot be attributed to or
said to have been aggravated by conditions of service. The learned
AFT has given cogent reasons for disagreeing with the opinion of the
Medical Board and for granting the relief to the respondent.
7. In view of the above, we do not see any ground to interfere with
the findings of the learned AFT in exercise of our powers under
Article 226 of the Constitution of India.
8. The writ petition along with pending application is, accordingly,
dismissed.
NAVIN CHAWLA, J
SHALINDER KAUR, J
OCTOBER 15, 2024/ab/KM/VS
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