Hakam Singh vs Union of India

Hemant Gupta, J.—Challenge in the present writ petition is to an order passed by the Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir (for short ''the Tribunal'') on 25.05.2010 declining the claim of the petitioner for grant of disability pension.

The petitioner joined Indian Army on 27.07.1963. However, he was invalidated out of service on 24.06.1965 i.e. after completion of 1 year and 328 days. The history of the disease given by the petitioner and the opinion of the ENT Specialist at the time of discharge read as under:

History of present illness:

Patient states that since past 9 months he is getting purulent discharge and pain in the right ear. It started in childhood first in the left ear which was treated and the discharge stopped. It is now in the right ear. The discharge steps intermittently and now since 9 months he is having it again. He is repeatedly getting attacks of cold with running nose.

Opinion of ENT Specialist:

A case of chronic suppurative otitis media (Rt. ear) with large central perforation of tympanic membrane. The discharge existed since child-hood. Left ear & nose NAD. He has frankly septic tonsils, he has refused tonsillectomy. Hearing Rt. CV at 6 feet. Lt. ear CV at 20 feet.

He is a recruit & is not likely to be an efficient soldier. Recommended Cat EEE.

The petitioner earlier filed a writ petition bearing CWP No. 3643 of 1994 before this Court claiming disability pension. However, the same was transferred to the Tribunal on the commencement of the Armed Forces Tribunal Act, 2007. The Tribunal declined the claim of the petitioner for the reason that the geographical location of the place of posting and the nature of duties do not indicate any circumstances, which may either had the effect of development of the ailment attributable to or aggravated by military service. The Tribunal referred to the proceedings of the invalidating Medical Board that in nose and throat fibers and skeptics were found, while right ear was having mucous discharge plus drum shows subtotal perforation. It was concluded to be a case of "Chronic Suppurative Otitis" with large central perforation of tympanic membrane. Consequently, the Tribunal found that the ailment was neither attributable to nor aggravated by military service.

Before this Court, learned counsel for the petitioner refers to a Division Bench judgment in CWP No. 7277 of 2013 titled ''Ex. Naik Umed Singh Vs. Union of India & others'' decided on 14.05.2014, to contend that there was no remark about any physical disablement of the petitioner at the time of his enrolment. Therefore, the disease ''Chronic Suppurative Otitis with large central perforation of tympanic membrane'' would be deemed to have been arisen during military service and is either attributable to or aggravated by military service.

On the other hand, learned counsel for the respondents has vehemently argued that the petitioner was having problem even in his childhood, therefore, the disease is not attributable to or aggravated by military service.

Having heard learned counsel for the parties, we find that the contention raised by the learned counsel for the respondents is not tenable. A perusal of the proceedings of the Medical Board shows that the petitioner has firstly given his history, which is to the effect that for the past 9 months, he is getting purulent discharge and pain in the right ear. It started in childhood first in the left ear, which was treated and the discharge stopped, but now it is right ear. The discharge stops intermittently and now since 9 months, he is having it again. The opinion of the ENT Specialist on such history is extracted above. As per the history of the patient, as reproduced in the proceedings of the Medical Board, the problem in childhood was in the left ear. Now the problem is in the right ear. The general examination shows that the left ear drum is scared intact no discharge, whereas there is mucous discharge-drum head shows subtotal perforation in the right ear. Therefore, the problem which has arisen is in the last 9 months prior to the invalidating the petitioner out of service on 12.05.1965 in the right ear, which was not noticed at the time of entry into Army. Thus, the disease is attributable to or aggravated by military service in terms of Ex. Naik Umed Singh''s case (supra), wherein it has been held to the following effect:

In terms of Regulations contained in Appendix II, the Armed Forces personnel are not to prove the conditions of entitlement of pension. They are entitled to receive the benefit of doubt [Clause 9]. In terms of Clause 14, once it is established that conditions of military service did not determine or contribute to the onset of the disease, but influenced the subsequent course of the disease will fall for acceptance on the basis of aggravation. But if the medical opinion finds that the disease could not have been detected on medical examination prior to acceptance of service, disease will not be deemed to have arising during service [(Rule 14(b)]. Thus, if the Medical Board has not opined that disease could not have been detected on medical examination prior to acceptance of service, opinion of the Medical Board that the disease is not attributable or aggravated by military service would be contrary to the statutory regulations and, thus, the report of the Medical Board would be susceptible and liable to be set aside. In that eventuality, it will not be a case of setting aside the report of the Medical Board only for the reason that in exercising of power of judicial review, another view is being taken but such report will be set aside for the reason that it does not satisfy the parameters specified in the Regulations and the instructions. Thus, in cases where the Medical Board does not disclose the reasons that disease could not have been detected on medical examination prior to acceptance of service, the cause of discharge from armed forces, will be deemed to be aggravated or attributable to military service.

Consequently, the present petition is allowed and the impugned order passed by the Tribunal is set aside. The respondents are directed to compute the disability pension payable to the petitioner from the date of the filing of the writ petition before this Court which was transferred to the Tribunal and grant the necessary benefits within a period of three months from the date of receipt of the copy of the order.