Ram Janam Singh Vs. Union of India and ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169960
CourtDelhi High Court
Decided OnOct-28-2014
JudgeKAILASH GAMBHIR
AppellantRam Janam Singh
RespondentUnion of India and ors
Excerpt:
* in the high court of delhi at new delhi + w.p.(c) 1478/2014 ram janam singh through ..... petitioner dr. l. s. chaudhary & ms. pratibha gupta, advocates versus union of india & ors through ..... respondents mr. nishant gautam, advocate for mr. ankur chhibber, advocate alongwith w/c shital vachhani & s/l baljeet singh coram: hon'ble mr. justice kailash gambhir hon'ble mr. justice najmi waziri order % 28.10.2014 kailash gambhir, j.(oral) 1. in this petition, the petitioner seeks to challenge the orders dated 12.04.2010 and 12.03.2013 passed by the learned armed forces tribunal, principal bench, new delhi (hereinafter referred to as the ‘learned aft’).2. the grievance raised by the petitioner is that the release medical board (in short ‘rmb’) had assessed the permanent disability of the petitioner as 60% based on which he was invalidated out of the service but his disability was wrongly assessed as 40%.3. the petitioner was enrolled in the air force as airman (wpn/tech.) on 12.04.1971 and at the time of induction into service he was found medically fit and free of any kind of ailments whether constitutional in nature or otherwise. the petitioner was again subjected to thorough medical examination on 16.01.1981 to assess his medical fitness to perform flight gunner duties and he was found medically fit and accordingly was put under medical category a1g1. the petitioner was promoted from time to time and was finally promoted to the rank of master warrant officer (in short ‘mwo’) as a flight gunner.4. in the year 1997, the petitioner had developed some medical complications, as a result of which, he was declared medically unfit for flight gunner duties. the petitioner was examined by the rmb before he was invalidated out of the service and as per the opinion of the rmb his permanent disability was assessed as 60%. the petitioner was discharged from service by order dated 06.04.1999 passed by the respondents. the petitioner made a request for the grant of disability pension but the same was rejected by the respondents vide order dated 17.03.2003 and thereafter the trail of litigation came into being.5. while disposing t.a. no.277/2010, the learned aft took a view that the petitioner is entitled to disability pension from the date of his release @ 30% and based on this disability, a direction was given to the respondents to calculate his disability pension and pay the same to the petitioner. the learned aft also directed the respondents to pay interest @ 12% on the arrears of the pension.6. being aggrieved by the said order, the petitioner had filed a review petition being r.a. no.50/2012 and vide order dated 12.03.2013, the learned aft dismissed the said review petition finding no error apparent on record in the order dated 12.04.2010. while disposing off the said review petition, the learned aft observed that 30% disability was assessed, because it was attributable to the military service for ihd (asmi (ptca done). however 20% for the id (i) cva (lt mca infarct) (old) was not said to be attributable to military service and accordingly the petitioner was granted disability pension only to the extent of 30% as the same was only attributable to the military service. the said two orders passed by the learned aft are under challenge in the present writ petition.7. dr. l.s. chaudhary, the learned counsel for the petitioner submits that the legal position now has been settled by the apex court in a judgment in the case of dharamvir singh v. union of india and ors. (2013) 7 scc316and as per the report of this judgment even the first disability which was said to be neither attributable to nor aggravated by the service conditions should also be taken into consideration to assess the composite disability of the petitioner and if that disability is taken into consideration, then the disability percentage would come to 60% and if the same is combined then the petitioner would be entitled to disability pension based on his permanent disablement assessed as 60% and to 75% on being rounded off.8. the learned counsel for the petitioner also submits that it is not in dispute between the parties that the petitioner was found medically fit at the time of entering into service of respondent no.2 and the said two disabilities had occurred to the petitioner during the course of service and that too after a period of 28 years of service. the learned counsel for the petitioner thus submits that both the disabilities which were identified by the rmb can be said to be attributable to his service conditions and the same got aggravated during the course of his service, therefore, the disability of the petitioner is required to be assessed @ 60% and not @ 30% as illegally assessed by the rmb which has been upheld by the learned aft.9. this petition is strongly opposed by the respondents. mr. nishant gautam, advocate for mr. ankur chhibber, the learned counsel for the respondents, on instructions from w/c shital vachhani & s/l baljeet singh, submits that as per the opinion of the rmb, the petitioner was found to be suffering from two different medical conditions, i.e. i) cva (lt. mca infract) (old) and ii) ihd (asmi) (ptca done), and so far as the first medical condition is concerned, the same was opined to be not attributable to service conditions and it is only the second medical condition which developed due to stress and strain in service that was held to be attributable to the service conditions. the learned counsel for the respondents thus submits that the disability pension of the petitioner has to be assessed as per the second medical condition and his first medical condition cannot be combined with the second medical condition. the learned counsel for the respondents has also placed reliance on annexure-i of chapter iv of the guide to medical officers (military pension), 2002 whereunder medical condition no.1 has not been classified as one of the diseases attributable to the service conditions. in so far as some changes shown in the rmb mentioning the second disability @ 30% is concerned, the learned counsel for the respondents submits that the same should be taken @ 40% as originally indicated in the relevant column of the opinion of the rmb. the learned counsel for the respondents also submits that so far as the first medical condition i.e. cva (lt. mca infract) (old) is concerned, it is on account of the pre-disposition of the petitioner to have the said disease, which is primarily constitutional in nature, hence it is not necessary for such kind of diseases to be diagnosed at the time of entering into the service by a person, but the same can occur at any stage of service without there being any stress or strain due to the service conditions. the learned counsel for the respondents thus submits that disability of the petitioner has been rightly assessed @ 40% as per the opinion of the rmb and guide to medical officers (military pension), 2002.10. we have heard the learned counsel for the parties at considerable length and have given our thoughtful consideration to the arguments advanced by them.11. indisputably, the petitioner was not suffering from either of the two medical conditions at the time of entering into the service. in dharamvir singh v. union of india & ors., (supra) the apex court clearly took a view that if no note of disability or any disease was made at the time of initial joining in military service, a disease which has led to an individual’s discharge or death will ordinarily be deemed to have arisen in service. we may usefully refer to the following para of the judgment for better appreciation of the controversy held:“referring to rule 423(c) it was submitted that the cause of disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. a disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for service in the armed forces. however, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service.” 12. in the light of the said view taken by the apex court, there arises no difficulty in taking a view that so far as the two medical conditions as opined by the rmb is concerned, the same can be clearly held to be attributable to the service conditions as the petitioner was neither suffering from such kind of diseases at the time of entering into the service nor was he when his second medical examination was carried out in the year 1991. therefore, 20% disability in the first medical condition has to be counted alongwith his disability as assessed in the second medical condition and if we combine the same, the disability of the petitioner comes to 60% and if the same is rounded off as per the laid down norms, the petitioner is entitled to a disability pension at 75%. in so far as the contention raised by the learned counsel for the respondents that as per the guide to medical officers (military pension), 2002, the first medical condition cannot be held to be attributable to the service conditions, it would suffice to mention that the petitioner was examined by the rmb in the year 1999 while the said guide to medical officers (military pension), 2002 as referred to by the respondents came into being later.13. in the light of the above discussion, we set aside the order of the learned aft limited to the extent wherein it wrongly assessed the disability of the petitioner, which in our view should be 60% and after rounding of the same, the same would come to 75%. we accordingly direct the respondents to grant disability pension to the petitioner taking these disabilities as 60% and accordingly release pensionary benefits and all the arrears alongwith interest @ 12% per annum within a period of two months from the date of this order. kailash gambhir, j.najmi waziri, j.october28 2014 v
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 1478/2014 RAM JANAM SINGH Through ..... Petitioner Dr. L. S. Chaudhary & Ms. Pratibha Gupta, Advocates versus UNION OF INDIA & ORS Through ..... Respondents Mr. Nishant Gautam, Advocate for Mr. Ankur Chhibber, Advocate alongwith W/C Shital Vachhani & S/L Baljeet Singh CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR HON'BLE MR. JUSTICE NAJMI WAZIRI ORDER

% 28.10.2014 KAILASH GAMBHIR, J.

(ORAL) 1. In this petition, the petitioner seeks to challenge the orders dated 12.04.2010 and 12.03.2013 passed by the learned Armed Forces Tribunal, Principal Bench, New Delhi (hereinafter referred to as the ‘learned AFT’).

2. The grievance raised by the petitioner is that the Release Medical Board (in short ‘RMB’) had assessed the permanent disability of the petitioner as 60% based on which he was invalidated out of the service but his disability was wrongly assessed as 40%.

3. The petitioner was enrolled in the Air Force as Airman (Wpn/Tech.) on 12.04.1971 and at the time of induction into service he was found medically fit and free of any kind of ailments whether constitutional in nature or otherwise. The petitioner was again subjected to thorough medical examination on 16.01.1981 to assess his medical fitness to perform Flight Gunner duties and he was found medically fit and accordingly was put under medical category A1G1. The petitioner was promoted from time to time and was finally promoted to the rank of Master Warrant Officer (in short ‘MWO’) as a Flight Gunner.

4. In the year 1997, the petitioner had developed some medical complications, as a result of which, he was declared medically unfit for Flight Gunner duties. The petitioner was examined by the RMB before he was invalidated out of the service and as per the opinion of the RMB his permanent disability was assessed as 60%. The petitioner was discharged from service by order dated 06.04.1999 passed by the respondents. The petitioner made a request for the grant of disability pension but the same was rejected by the respondents vide order dated 17.03.2003 and thereafter the trail of litigation came into being.

5. While disposing T.A. No.277/2010, the learned AFT took a view that the petitioner is entitled to disability pension from the date of his release @ 30% and based on this disability, a direction was given to the respondents to calculate his disability pension and pay the same to the petitioner. The learned AFT also directed the respondents to pay interest @ 12% on the arrears of the pension.

6. Being aggrieved by the said order, the petitioner had filed a review petition being R.A. No.50/2012 and vide order dated 12.03.2013, the learned AFT dismissed the said review petition finding no error apparent on record in the order dated 12.04.2010. While disposing off the said review petition, the learned AFT observed that 30% disability was assessed, because it was attributable to the military service for IHD (ASMI (PTCA done). However 20% for the ID (i) CVA (Lt MCA Infarct) (old) was not said to be attributable to military service and accordingly the petitioner was granted disability pension only to the extent of 30% as the same was only attributable to the military service. The said two orders passed by the learned AFT are under challenge in the present Writ Petition.

7. Dr. L.S. Chaudhary, the learned counsel for the petitioner submits that the legal position now has been settled by the Apex Court in a judgment in the case of Dharamvir Singh v. Union of India and Ors. (2013) 7 SCC316and as per the report of this judgment even the first disability which was said to be neither attributable to nor aggravated by the service conditions should also be taken into consideration to assess the composite disability of the petitioner and if that disability is taken into consideration, then the disability percentage would come to 60% and if the same is combined then the petitioner would be entitled to disability pension based on his permanent disablement assessed as 60% and to 75% on being rounded off.

8. The learned counsel for the petitioner also submits that it is not in dispute between the parties that the petitioner was found medically fit at the time of entering into service of respondent No.2 and the said two disabilities had occurred to the petitioner during the course of service and that too after a period of 28 years of service. The learned counsel for the petitioner thus submits that both the disabilities which were identified by the RMB can be said to be attributable to his service conditions and the same got aggravated during the course of his service, therefore, the disability of the petitioner is required to be assessed @ 60% and not @ 30% as illegally assessed by the RMB which has been upheld by the learned AFT.

9. This petition is strongly opposed by the respondents. Mr. Nishant Gautam, Advocate for Mr. Ankur Chhibber, the learned counsel for the respondents, on instructions from W/C Shital Vachhani & S/L Baljeet Singh, submits that as per the opinion of the RMB, the petitioner was found to be suffering from two different medical conditions, i.e. i) CVA (Lt. MCA infract) (old) and ii) IHD (ASMI) (PTCA done), and so far as the first medical condition is concerned, the same was opined to be not attributable to service conditions and it is only the second medical condition which developed due to stress and strain in service that was held to be attributable to the service conditions. The learned counsel for the respondents thus submits that the disability pension of the petitioner has to be assessed as per the second medical condition and his first medical condition cannot be combined with the second medical condition. The learned counsel for the respondents has also placed reliance on Annexure-I of Chapter IV of the Guide to Medical Officers (Military Pension), 2002 whereunder medical condition No.1 has not been classified as one of the diseases attributable to the service conditions. In so far as some changes shown in the RMB mentioning the second disability @ 30% is concerned, the learned counsel for the respondents submits that the same should be taken @ 40% as originally indicated in the relevant column of the opinion of the RMB. The learned counsel for the respondents also submits that so far as the first medical condition i.e. CVA (Lt. MCA infract) (old) is concerned, it is on account of the pre-disposition of the petitioner to have the said disease, which is primarily constitutional in nature, hence it is not necessary for such kind of diseases to be diagnosed at the time of entering into the service by a person, but the same can occur at any stage of service without there being any stress or strain due to the service conditions. The learned counsel for the respondents thus submits that disability of the petitioner has been rightly assessed @ 40% as per the opinion of the RMB and Guide to Medical Officers (Military Pension), 2002.

10. We have heard the learned counsel for the parties at considerable length and have given our thoughtful consideration to the arguments advanced by them.

11. Indisputably, the petitioner was not suffering from either of the two medical conditions at the time of entering into the service. In Dharamvir Singh v. Union of India & Ors., (supra) the Apex Court clearly took a view that if no note of disability or any disease was made at the time of initial joining in military service, a disease which has led to an individual’s discharge or death will ordinarily be deemed to have arisen in service. We may usefully refer to the following para of the judgment for better appreciation of the controversy held:

“Referring to Rule 423(c) it was submitted that the cause of disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the Armed Forces determined and contributed to the onset of the disease. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for service in the Armed Forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service.”

12. In the light of the said view taken by the Apex Court, there arises no difficulty in taking a view that so far as the two medical conditions as opined by the RMB is concerned, the same can be clearly held to be attributable to the service conditions as the petitioner was neither suffering from such kind of diseases at the time of entering into the service nor was he when his second medical examination was carried out in the year 1991. Therefore, 20% disability in the first medical condition has to be counted alongwith his disability as assessed in the second medical condition and if we combine the same, the disability of the petitioner comes to 60% and if the same is rounded off as per the laid down norms, the petitioner is entitled to a disability pension at 75%. In so far as the contention raised by the learned counsel for the respondents that as per the Guide to Medical Officers (Military Pension), 2002, the first medical condition cannot be held to be attributable to the service conditions, it would suffice to mention that the petitioner was examined by the RMB in the year 1999 while the said Guide to Medical Officers (Military Pension), 2002 as referred to by the respondents came into being later.

13. In the light of the above discussion, we set aside the order of the learned AFT limited to the extent wherein it wrongly assessed the disability of the petitioner, which in our view should be 60% and after rounding of the same, the same would come to 75%. We accordingly direct the respondents to grant disability pension to the petitioner taking these disabilities as 60% and accordingly release pensionary benefits and all the arrears alongwith interest @ 12% per annum within a period of two months from the date of this order. KAILASH GAMBHIR, J.

NAJMI WAZIRI, J.

OCTOBER28 2014 v