Punjab-Haryana High Court
Union Of India And Others vs Palwinder Singh And Another on 1 March, 2024
Author: Sanjeev Prakash Sharma
Bench: Sanjeev Prakash Sharma
Neutral Citation No:=2024:PHHC:029458-DB
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CWP-4908-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
113 2024:PHHC:029458-DB
CWP-4908-2024
Date of Decision:- 01.03.2024
Union of India Ministry of Defence, through its Secretary to Government of
India, New Delhi and others
...Petitioners
Vs.
Ex Subedar Palwinder Singh and another
...Respondents
CORAM:- HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
HON'BLE MRS.JUSTICE SUDEEPTI SHARMA
Present: Mr.Rohit Verma, Advocate
for the petitioners.
SANJEEV PRAKASH SHARMA, J. (Oral)
1. Heard learned counsel for the petitioner.
2. This writ petition has been preferred by the petitioner assailing
the order dated 30.09.2022 (Annexure P-1) passed by the learned Armed
Forces Tribunal whereby original application filed by the concerned Ex-
Subedar has been allowed and the petitioners have been directed to allow
entitlement of disability pension to the respondent from the date of
discharge.
3. Learned counsel for the petitioners submits that the disability
is granted on the ground of Left MCA Stroke (163.51), Diabetes Mellitus
type II (E11.9) and Dyslipidemia (E78.5) which comes to 55% disability as
per medical board. Learned counsel for the petitioners submits that the said
disease is life style disease and could not be considered for the purpose of
grant of disability pension and same cannot be said to be attributed to or
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aggravated by military service. He further submits that the judgment passed
by Hon'ble Apex Court in case Dharamvir Singh Vs. Union of India and
others, 2013(7), SCC, 316 would have no application to the facts of the
present case. Learned counsel also submits that an appeal was preferred,
relating to a case where disability pension was granted by the Armed
Forces Tribunal to the Hon'ble Apex Court where the concerned persons
were discharged with disability of MCA Stroke as well as for Diabetes.
4. We have considered the submissions.
5. The scope of appeal available under the Armed Forces
Tribunal Act is different from the scope available of reference under
Articles 226 and 227 of the Constitution of India. Firstly, this Court finds
that the disability has been found to have occurred in service. It is difficult
to lay down the law that the said disease would not have attributable to or
aggravated by military service and in Dharamvir's case (supra), the three
Judges' Bench of the Supreme Court of India has dealt this issue at length.
The aspect relating to the disease which may occur during the course of
service in Armed forces which are naturally attributed to and aggravated by
the military service. It cannot be said that suffering from heart stoke is not
attributable or aggravated by the military service. Learned counsel for the
petitioner has not been able to show that in the present case, the said
respondent suffered the said stroke on account of any congenital reasons.
6. The scope of Articles 226/227 of the Constitution of India has
been well discussed by the Apex Court in Dharamvir Singh's case (supra)
wherein the Apex Court has held as under:
31. Paragraph 1 of 'Chapter II' - "Entitlement : General Principles"
specifically stipulates that certificate of a constituted medical authority
vis-à-vis invalidating disability, or death, forms the basis of
compensation payable by the Government, the decision to admit or refuse
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entitlement is not solely a matter which can be determined finally by the
medical authorities alone. It may require also the consideration of other
circumstances e.g. service conditions, pre-and post-service history,
verification of wound or injury, corroboration of statements, collecting
and weighing the value of evidence, and in some instances, matters of
military law and dispute. For the said reasons the Medical Board was
required to examine the cases in the light of etiology of the particular
disease and after considering all the relevant particulars of a case, it was
required to record its conclusion with reasons in support, in clear terms
and language which the Pension Sanctioning Authority would be able to
appreciate.
32. In spite of the aforesaid provisions, the Pension Sanctioning
Authority failed to notice that the Medical Board had not given any
reason in support of its opinion, particularly when there is no note of such
disease or disability available in the service record of the appellant at the
time of acceptance for military service. Without going through the
aforesaid facts the Pension Sanctioning Authority mechanically passed
the impugned order of rejection based on the report of the Medical
Board. As per Rules 5 and 9 of 'Entitlement Rules for Casualty
Pensionary Awards, 1982', the appellant is entitled for presumption and
benefit of presumption in his favour. In absence of any evidence on
record to show that the appellant was suffering from "Genrealised seizure
(Epilepsy)" at the time of acceptance of his service, it will be presumed
that the appellant was in sound physical and mental condition at the time
of entering the service and deterioration in his health has taken place due
to service.
33. As per Rule 423(a) of General Rules for the purpose of determining a
question whether the cause of a disability or death resulting from disease
is or is not attributable to service, it is immaterial whether the cause
giving rise to the disability or death occurred in an area declared to be a
field service/active service area or under normal peace conditions.
"Classification of diseases" have been prescribed at Chapter IV of
Annexure I; under paragraph 4 post traumatic epilepsy and other mental
changes resulting from head injuries have been shown as one of the
diseases affected by training, marching, prolonged standing etc.
Therefore, the presumption would be that the disability of the appellant
bore a casual connection with the service conditions.
34. In view of the finding as recorded above, we have no option but to set
aside the impugned order passed by the Division Bench dated 31st July,
2009 in LPA No.26 of 2004 and uphold the decision of the learned
Single Judge dated 20th May, 2004. The impugned order is set aside and
accordingly the appeal is allowed. The respondents are directed to pay
the appellant the benefit in terms of the order passed by the learned
Single Judge in accordance with law within three months if not yet paid,
else they shall be liable to pay interest as per order passed by the learned
Single Judge. No costs.
7. Keeping in view the above and considering that the judgment
passed by the concerned Armed Forces Tribunal cannot be said to be in any
manner perverse or it cannot be said to have been passed on account of
jurisdictional error. We do not deem it appropriate to interfere with the
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same, the writ petition is found to be default of merits and is accordingly,
dismissed.
(SANJEEV PRAKASH SHARMA)
JUDGE
01.03.2024 (SUDEEPTI SHARMA)
sd JUDGE
Whether speaking/reasoned: Yes/No.
Whether reportable: Yes/No.
Neutral Citation No:=2024:PHHC:029458-DB
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