Judgment:
H.R. Panwar, J.
1. By the instant writ petition, the communications/letters dated 21st January, 1985 and Uth January, 1996 respectively issued by the respondents have been challenged by the petitioner.
2. The facts and circumstances giving rise to the instant writ petition are that petitioner's husband late Madan Singh Devra was recruited in the Indian Army on the post of Rifleman, who was enrolled on 11.12.1979 by the respondents after thorough medical examination and finding him medically fit having category 'AYE'. After his recruitment/enrollment with the Indian Army, he underwent the training course for the period prescribed by the respondent authorities. After having completed the training, he was posted to 7th Raj. Rifle. At the relevant time at Pathankot in Punjab, he was deployed In a convoy of A.S.C. unit i.e. Army Supply Corps in July, 1984 and while he was in the aid convoy, he met with an accident on 7th July, 1984 when he was traveling in a return army truck to Jammu and suffered serious injuries including injury on his head. He was admitted in Military Hospital Pathankot. However, subsequently, he was discharged from the Army service on 30th September, 1984 on the medical ground and the Medical Board vide Annexure R/l recommended disability pension, however, his disability was assessed to be 40%. He was denied disability pension by communication Annexure R/3 dated 31st January, 1985 signed by Account Officer (Pension), office of the CDA (P), Allahabad. After having been discharged from the Army on medical ground, the petitioner's husband died on 3rd March, 1988. During his life time, the petitioner's husband by various communications approached the Army Authorities for granting him disability pension, however, before he succeeds in getting disability pension, he committed suicide on 3rd March, 1988 due to the strain and the financial crisis which he faced. After-the death of her husband, the petitioner represented the respondents Army Authority for grant of disability pension in favour of her husband. However, the respondents have not considered the case of the petitioner for grant of disability pension. Hence, this writ petition.
3. A reply to the writ petition has been filed by the respondents Union of India specifically denying the fact of the accident alleged to have taken place on 7th July, 1984 while the petitioner's husband was in convoy of A.S.C. unit and going to Jammu. The respondent came with the case that the disability suffered by the petitioner's husband was neither attributable to the army service nor aggravated and therefore, the petitioner nor his wife are entitled for the disability pension.
4. It is contended by learned Counsel for the petitioner that it is not in dispute that the Medical Board found that deceased Madan Singh suffered disability to the extent of 40%. According to learned Counsel for the petitioner, the regulation 173-A of the Pension Regulations for the Army, 1961 (for short 'the Pension Regulations' hereinafter) provides that individuals, who are placed in a lower medical category (other than 'E') permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative appointment are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Rules. The note appended below to Regulation 173-A provides that the above provision shall also apply to individuals who are placed in a low medical category while on extended service and are discharged on that account before the completion of the period of their extension. The Appendix appended to regulation 173-A provides the classification of disease, the relevant portion of which is reproduced as such:
A....
B. diseases Affected by Stress and Strain.
1.Psychosis and Psychoneurosis
2....
3....
4....
5....
6....
7....
8....
9....
10....
11. Valvular disease.
13....
14....
C....
D....
E....
F....
G....
H....
I....
5. So far as the petitioner's husband is concerned, the disability which the petitioner's husband suffered has been prescribed under the Category B at serial No. 1 Psychosis and Psychoneurosis and at serial No. 11 Valvular disease. According to learned Counsel for the petitioner, these diseases are appended to the Annexure III to Appendix II and are attributable to the Army service as also aggravated while in Army service and therefore, the army personnel, who suffered these diseases are classified in the category of attributable to the Army service or aggravated while in army service. Learned Counsel for the petitioner further submits that the Medical Board Proceedings Invaliding or Releasing the army personnel on medical ground have been annexed with the reply filed by the respondent vide Annexure-R/1 and the part thereof deals with the opinion of the Medical Board. The column No. 1 of part HI of the Annexure-R/1 deals with the disability or disabilities exist before entering service in respect of the person who have been medically examined by the Medical Board and the answer against this column is xNo'. According to learned Counsel for the petitioner, the disability which the petitioner's husband suffered while in service did not exist while at the time of entering into service which is evident from the opinion of the Medical Board. The column (2) deals with each disability the Medical Board on the evidence before it will express its view as to whether (i) it is attributable to service during peace or under field service conditions; or (ii) it has been aggravated thereby and remains so; or (iii) it is not connected with service. In column No. 2 as against (i)(ii)(iii), nothing has been stated by the Medical Board and therefore, it cannot be said that the disability, which the petitioner's husband is suffered is not attributable to the Army service or it has not been aggravated while the petitioner's husband remained in service. It has further been contended that the opinion of the Medical Board Proceedings, Annexure-R/1 at page 7 clearly provides that the petitioner's husband was recommended for disability pension. Against the caption 'invalid/disability pension for which recommended', the answer has been given by the Medical Board 'disability pension' and thus the expert body of the doctors constituting a Medical Board have recommended disability pension of the petitioner's husband while releasing/discharging him from Army service on medical ground. Despite the recommendation of the Medical Board, the Pension Sanctioning Authority by a communication Annexure R/3 dated 21st January, 1985 signed and sent by Accounts Officer (Pension) declined to grant the disability pension in favour of petitioner's late husband. Hence, the order declining to grant the medical disability pension is arbitrary and contrary to the opinion of the Medical Board, the expert body, who examined the injured before discharging him from the Army service on the medical ground.
6. Learned Counsel for the petitioner has relied on a decision of Division Bench of this Court in Mohammad Hasan Khan v. Union of India and Ors. wherein while considering the question of disability pension, Division Bench of this Court held that since the appellant was not suffering from any disease prior to his entering into the military service and he remained in field service upto' March, 1973 and disease Hyper Metaropia Partial Amblyopia Right Eye was diagnosed somewhere in June 1974 after the appellant was posted in a operation with cactus war with neighboring country, therefore, the appellant is entitled for the disability pension from the date of his discharge.
7. Learned Counsel appearing for the respondents submits that answer to the column No. 2 in Part III of the Medical Board Proceedings, Annexure-R/1, has been provided in succeeding paragraph 'the Board should state fully in reasons in regard to each disability on which opinion is based'. So far as the column No. 2 'dealing with each disability the Medical Board on the evidence before it is required to express its views as to whether attributable to service during peace or under field service condition; or aggravated thereby and remains so; or is not connected with service.' On careful perusal of the Proceedings of the Medical Board, Annexure-R/1, in. my view, it cannot be said to be an answer given in succeeding paragraph. Since against these columns, nothing has been said by the Medical Board and therefore, it cannot be said that disability suffered by the petitioner's husband did not attribute to the Army service either in peace or under field service conditions and has been aggravated thereby. The disability has been certified by the Medical Board before the petitioner's husband was discharged from Army service on medical ground. He was placed in low medical category CEE (P) due to disease Bicuspid Aortic Valve with Aortic Stenosis and Neurosis as is evident from Annexure-R/1. Learned Counsel for the respondents further submits that the Pension Sanctioning Authority i.e. the PCDA (P), Allahabad denied the disability pension to the petitioner's husband on 21st January, 1985 and intimated to him by letter dated 9th February, 1985 but till 11th December, 1995, the husband of the petitioner remained silent and only on 12th December, 1995, he had' filed an application through Sainik Kalyan Board seeking disability pension vide Annexure-1. According to learned Counsel for the respondents, delay in claiming the disability pension is fatal to the case of the petitioner and lastly, it is contended that petitioner's husband was not eligible for any kind of pension as per rules and therefore, after his death, the wife of the petitioner is not entitled for pension.
8. It has not been disputed in the reply that individual, who is invalided out from service on account of disability, which is attributable to or aggravated by military service and assessed at 20% or above, is entitled for the disability pension. However, in the case of the petitioner's husband, the disability was assessed by the Release Medical Board 40% composite for 2 years but according to learned Counsel for the respondents since it was neither attributable to the Army service nor aggravated by Army service, therefore, the petitioner's husband is not entitled for the disability pension. Learned Counsel for the respondents has relied on a decision of Division Bench of Punjab and Haryana High Court in Jarnail Singh v. Union of India 1998 (1) SLR 419 where while considering the Article 31-A and 300-A of the Constitution of India and the Army Act, 1950 and Pension Regulations for the Army,1961 and more particularly Regulations 173 and 175 for grant of disability pension, the Division Bench of Punjab and Haryana High Court held that a person subject to the provisions of the Army Act even proceeds on casual leave would be treated on duty. He would be entitled to the benefits accruing there from in accordance with law. The removal nexus to the attributability and aggravation of disability by military service even if accompanied by the element of negligence or misconduct on the part of the member of the force would not be itself frustrate the right of the member to raise such a claim. However, the authority in its discretion may apply, cut or reduce the amount of disability pension. The member of the Armed Force being on duty would have to satisfy only concept of attributability but no strict proof has to be established. Merely some remote nexus to the military service would be sufficient to sustain such a claim. A person who may be doing some act at home which even remotely does not fall within the scope of his duties or function as a member of the force nor is remotely connected with the function of the military service and expected standard and way of living of such member of the force cannot be termed as an injury or disability attributable to the military service. While considering the disability pension or disability attributable to or aggravated by Military service, it was held that an accident on injury suffered by a member of the Armed Forces must have some casual connection to the aggravation or attributability to Military Service and atleast should arise from such activity of the members of the force as he is expected to maintain or do in his day-today life as a member of the force. Hazards of Army service cannot be stretched to the extent of unlawful and entirely unconnected acts or omissions on the part of the member of the force even when he is on leave.
9. In Union of India and Anr. v. Baljit Singh : (1996)11SCC315 while dealing with the contention that as per the medical report, the injury was sustained by the Army personnel while he was in service and that therefore, it has been presumed that it was during service and accordingly must be attributable to military service, on a consideration of rules; the Hon'ble Supreme Court though it fit that contention of Counsel for the appellant merits acceptance. It is seen that various criteria have been prescribed in the guidelines under the rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to a wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made amply clear from Clauses (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated thereunder require to be observed. Clause (c) provides that if a disease is accepted 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 are satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for and made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed in invalidation for the military service.
10. Thus, from the decisions referred hereinabove, it is clear that if the incumbent seeking disability pension, who has been released from military service on the recommendation of the Medical Board on medical ground having invalided is required to establish that the injury suffered by him has a nexus to the attributability of the military service and has been aggravated while in the military service. In the instant case, as per the documents placed on record by the respondent Union of India along with the reply to the writ petition, more particularly Annexure-R/1, the Medical Board Proceedings, it is clear that at the time of recruitment of the petitioner's husband, the incumbent, was medically examined and he did not suffer any disability or the disease. That has been noticed by the Medical Board. The disability which the petitioner's husband suffered was of the around period while he was serving in the Unit located at Pathankot. It is not in dispute that the petitioner's husband had successfully completed the requisite training period and thereafter, he was posted to 7th Raj. Rifle Unit at Pathankot. From the averments in the writ petition, it also appears that he was deployed in a convoy Unit of Army Supply Corps in the July, 1984 and while the convoy was proceedings towards Jammu, the petitioner's husband who was in a army return truck met with a road accident and that is why it is alleged that the petitioner's husband suffered Injury on his skull and the disability noticed, by the Medical Board is Neurosis and according to the petitioner, it is because of accidental injury suffered by the petitioner's husband while in army service. Even the Medical Board was of the opinion that the petitioner's husband is entitled for, the disability pension and therefore, recommended for the disability pension. When the expert body examined the petitioner's husband and found that he suffered the injury resulting In disability to the extent of 40% which has been admitted by the respondents and that is also the opinion of the Medical Board and disability has been appended in Annexure III to Appendix II which provides the nature of disability and If these nature of disability appended to appendix II Is suffered in Army then such disease has to be taken to the attributable to the army service as also aggravated to the army service and therefore, in my the respondents were not justified in declining the disability pension to the petitioner's husband.
11. Consequently, the writ petition is allowed. The communications/letters dated 21st January, 1985 and 11th January, 1996 respectively are quashed and the respondents are directed to sanction and pay the disability pension in respect of the deceased Madan Singh Devra, Ex. Refile Man No. 2875530 from the date of his discharge/release from the Army service on the medical ground till the date of his death. This exercise be completed within three months by the respondents. However, there shall be no order as to costs.