Dharampal Singh Vs. Union of India and Others - Court Judgment

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.12813 of 2013 Date of decision: June 30, 2014 Dharampal Singh ….Petitioner Versus Union of India and others ….Respondents Coram: Hon’ble Mr.Justice Hemant Gupta Hon’ble Mr.Justice Fateh Deep Singh 1.

Whether the Reporters of local papers may be allowed to see the judgment ?.

2.

To be referred to the Reporters or not ?.

3.

Whether the judgment should be reported in the Digest ?.

Present: Mr.R.A.Sheoran, Advocate, for the petitioner Mr.D.S.Bishnoi, Advocate for the respsondents Fateh Deep Singh, J.

Petitioner Dharampal Singh was enrolled in E.M.E.Corps of the Indian Army on 26.5.1979 and while under training as a Recruit was discharged on 18.11.1980 having been found to be suffering from ASTRO CYTOMA GRADE-III TO IV LT.

PARIETO OCCIPITAL REGION which was assessed to the extent of 60%.

He was thus denied any disability pension.

The petitioner initially filed a Civil Suit No.105 of 1995 before learned Additional Civil Judge (Senior Division).Narnaul and vide Tiwana Dalbir Singh 2014.06.30 15:19 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.12813 of 2013 2 judgment and decree dated 2.9.1998 his suit stood dismissed whereby it was held that he was not entitled to any disability pension.

Dis-satisfied, the petitioner filed appeal against these findings before the learned District Judge by way of Civil Appeal No.141 of 1998 and vide judgment and decree dated 13.9.1999, his appeal was allowed and his suit was decreed holding that he was entitled to disability pension.

The Union of India preferred regular second appeal before this Court and which was transferred to the Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir by virtue of the enactment of the Armed Forces Tribunal Act.

The Tribunal vide its finding dated 16.5.2012 allowed the appeal of the appellant-Union of India and set aside the judgment and decree of the fiRs.appellate court.

Through this civil writ petition preferred under Article 226/227 of the Constitution of India, the petitioner had sought indulgence by way of issuance of writ of certiorari for quashing the judgment and decree of the learned trial court dated 2.9.1998 as well as orders dated 16.5.2012 of the Armed Forces Tribunal and further seeking writ of mandamus directing the respondents to grant disability pension to the petitioner.

We have heard at length Mr.R.A.Sheoran, counsel for the petitioner and Mr.D.S.Bishnoi, representing the respondents.

Admittedly the petitioner at the relevant time though was a Recruit under going training but certainly fall within the definition of section 2(i) (b) of the Army Act, 1950 (in short, the Act) and being a person Tiwana Dalbir Singh 2014.06.30 15:19 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.12813 of 2013 3 enrolled under this Act is certainly subject to the provisions of this Act.

It is not disputed as to the infliction of the disease from which the petitioner has suffered and all that needs to be adjudicated is if the disability so suffered by the petitioner is attributable or aggravated by Military Service in terms of Regulation 173 of the Pension Regulations for the Army, 1961 (in short, the Regulations).Regulations 48(a) (b) and 173 of the Regulations are reproduced below:- Pension Regulations for the Army, 1961 “48.

(a) Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an officer who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty cases and is assessed at 20 per cent or more.

(b) The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II.

xxx xxx xxx 173.

Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed 20 per cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.”

.

Considering this aspect of innumerable disputes that had arisen, this Court in a Division Bench view passed in CWP No.7277 of 2013, titled Ex.

Tiwana Dalbir Singh 2014.06.30 15:19 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.12813 of 2013 4 Naik Umed Singh versus Union of India and otheRs.in its judgment dated 14.5.2014, considering various judgments on this contentious issue had drawn the conclusion:- “Therefore, if the Invalidating or Release Medical Board has not given any categorical opinion that the disease could not have been detected on medical examination; the disease which led to discharge of an individual will be deemed to have arisen in service, then this court in exercise of the power of judicial review will strike down such decision for the reason that the Medical Board has failed to carry out the mandate given to them by the Regulations and the instructions by the Central Government.

But, if the Invalidating or Release Medical Board has categorized that the disability is either not attributable to military service or aggravated by military service for the reason that it could not be detected at the time of entry into service, then the said opinion is in terms of the Regulations and instructions issued and cannot be substituted while exercising the powers of judicial review.”

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Under Regulation 173 of the Regulations, disability pension is to be granted to an individual who is invalided from service on account of disability which is attributable to or aggravated by military service in non- battle casualty.

Though person enrolled in the Army is presumed to be in sound physical and mental condition at the time of his entering into service if no such mention is made in the record and his subsequent discharge from service on such a medical ground or deterioration is presumptuous that it is on account of service.

However, material question arises that if a disease is accepted as having arisen in service but it also needs to be established that the conditions of military service determined or contributed to the onset of Tiwana Dalbir Singh 2014.06.30 15:19 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.12813 of 2013 5 the disease which conditions were due to circumstances of the duty in the service.

In this case, Invaliding Medical Board has given a definite finding that the disease ASTRO CYTOMA GRADE-III TO IV LT.

PARIETO OCCIPITAL REGION is not connected with the service is in itself a barrier in the judicial review to such a finding of expert Medical Board.

Even otherwise going into the very genesis of such a disease being a non- malignant tumour and in the absence of any case or evidence that the petitioner sustained any head injury during the couRs.of his training, it cannot be accepted as has been argued on behalf of the respondent-Union of India to be an outcome of the military service and certainly to the mind of this Court is a disease which has its own onset on account of biological reasons being a case of neoplasm of the brain which gives birth to special type of brain cells in the cerebrum popularly called astrocytes and being benign tumour which is popularly termed as glaucoma which is more commonly associated with the natural body functioning and has no outer influences for its creation.

Thus is a constitutional malady.

Though Mr.R.A.Sheoran has sought to impress upon us that at the time of the conscription of the petitioner in the Army, there is no mention of the disease, malady a natural presumption needs to be drawn that having been detected during the training, it is attributable to the military service.

We are not in agreement to this canvass made by the counsel for the petitioner.

In Ex.

Naik Umed Singh’s case (supra).observations have been made that if a disease is accepted as having arisen in service, it must also be established Tiwana Dalbir Singh 2014.06.30 15:19 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.12813 of 2013 6 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.

More so it is within a very short period of one year and five and a half months approximately of the joining of the petitioner the same has been detected does not appeals to us that within such a short spell of time this disease has developed and rather it is over a certain period of years it must have taken to develop into such a complicated disability extending to 60%.

Certainly at the time of recruitment complicated test of MRI/CT scan etc.are rarely undergone and it is subsequent as is apparent from this case when the disease has fully developed and showed apparent signs and complications leading to its detection and which most in all probability and possibility is on account of pre-service history of the petitioner.

Thus, in terms of clause 14(b) of Appendix-II of the Regulations, we hold that the disease is not deemed to have arisen during the service and thus is neither attributable to or aggravated by military service.

The learned Tribunal has rightly considered it so and there appears to be no illegality and perversity in these findings which needs to be upheld.

The writ petition, thus, is accordingly dismissed.

(Hemant Gupta) Judge (Fateh Deep Singh) June 30, 2014 Judge 'tiwana' Tiwana Dalbir Singh 2014.06.30 15:19 I attest to the accuracy and integrity of this document.

High Court, Chandigarh