Kartaro Devi vs Union of India

Tejinder Singh Doabia, J.—The husband of the petitioner was enrolled as a Non Combatant on 30th Oct. 44 and was later on combatised

on 22nd March 45. He was discharged from service w.e.f. 7th Nov. 59, on medical grounds He was placed in medical category CEE. He was

brought before the Release Medical Board. His disability was assessed at 30 percent. The disease from which he came to suffer has been

described as Photo Retintitis (Both eyes). The case of the petitioner was forwarded to the Pension Sanctioning Authority at Allahabad. The

concerned authority i.e. Chief Controller of Defence Accounts (P), Allahabad, rejected the claims on the ground that the disease is not attributable

to army service.

The husband of the petitioner died in Jan. 91. His widow is convinced that her husband was wrongly denied the disability pension. It is this

conviction of her, which prompted her to approach this Court. She claims disability pension, which was payable to her husband.

The respondents have taken a stand that the disability from which the petitioner came to suffer was not attributable to army service. At this

stage, it would apt to mention that so far as army authorities are concerned, they were convinced that the petitioner's husband is entitled to

disability pension. The stand taken in this regard in the brief history of the case submitted by them is as under :

The case was again submitted to CCDA (P), Allahabad vide letter No. 7994070/51/PEN (DP) dated 18th July, 79 for grant of disability pension,

but the same was rejected by CCDA (P), Allahabad vide letter No. 63/79 10687/V dated 581980 and the appeal of the individual for grant of

disability pension was also disallowed by the Govt. of India, Min of Defence, New Delhi vide their letter No. (sic) A(115)/84/D (Pen. App. elice)

(sic) dated 27 May 85.

A perusal of the above makes it apparent that the claims of the petitioner for grant of disability pension were forwarded to the office of Chief

Controller of Defence Accounts at Allahabad and it is this office which has rejected the claims of the petitioner.

The position of law in this regard is well settled that in case an opinion is expressed by the Medical Board, then the Controller of Defence

Accounts is not supposed to sit over the judgment and if any decision is to be taken, then that has to be taken after constituting a Medical Board

and compliance of natural justice. In Janak Raj v. Union of India, (2000) 2 SCT 456 (Punj & Hry) , the disability of the aggrieved army personnel

was determined by the Medical Board at 40% but the Controller of Defence Accounts rejected the claim. It was observed that the Controller of

Defence Accounts cannot sit over the findings of the Medical Board as he is not an expert in this regard.

In N.k. Darshan Singh v. Union of India, (2000) 2 SCT 504 (Punj & Hry) , the claimant came to suffer from a paralytic stroke. It was a case of

100 percent disability. The Medical Board recommended the case, which was negatived by the Controller of Defence Accounts. It was observed

that the Medical Board's opinion should prevail and the claimant was held entitled to family pension. Similar view has been expressed in the case of

Ex. Capt Harbhajan Singh v. Union of India, (2001) 2 SCT 1123 (Punj & Hry). As a matter of fact, once a person is invalidated on medical

grounds, the onus is upon the army authorities to prove that the disability suffered by the concerned army personnel was not attributable or

aggravated by army service. Such a view has been expressed by the Punjab and Haryana High Court in the case of Vir Yagya Dutt v. Union of

India, (2001) 2 SCT 801.

Again in Hari Chand v. Union of India, (2001) 2 SCT 524 (Punj & Hry) , the view expressed is that once the disability is fixed at 20 percent,

then, the Controller of Defence Accounts has no locus standi to reduce it and if it is to be done, then the principles of natural justice are supposed

to be complied with. Similar view has been expressed in the case of Darshan Singh v. Union of India, (2001) 2 SCT 813 (Punj & Hry).

The position of law is also well settled that in case no mention is made of a disease at the time of enrolment of a person and in case, such a

disease results in the discharge of that person, then that disease would be deemed to have been caused on account of hazards of army service.

Such a view was taken by a Division Bench of this Court in the case reported as Union of India v. Rattan Lal, (1999) 2 SCT 39 : (1999 Lab IC

2721). In Ram Niwas Goswami v. Union of India, (2000) 2 SCT 490 (Punj & Hry) , the petitioner who was serving in the Air Force was

discharged from service on medical grounds. He was not paid the disability pension. There was no evidence on the record to show that the

petitioner was suffering from any ailment at the time of his recruitment or prior thereto. The disease from which he suffered was diagnosed after five

years of enrolment. The petitioner in the above case was held entitled to disability pension.

Again in Pritam Singh v. Union of India, (2000) 2 SCT 862 (J & K) , the writ petitioner was discharged after seven years of service. The

disability from which the petitioner suffered was determined at 30 per cent but actual grant of disability pension was denied. Taking note of a

decision given by a Division Bench of this Court in the case of Balwant Singh v. Union of India, 2000(4) SCT 994 (P&H) : LPA No. 521/98,

decided on 17th Nov. 99 , and some other decisions. the petitioner was held entitled to disability pension.

In Shashi Kumari v. Union of India, (2001) 2 SCT 764 the petitioner's husband was discharged from service on medical grounds. The

petitioner in the above case took a plea that at the time of enrolment of her husband, he was physically and mentally fit and no note was made of

any disease at the time her husband joined the service. The Punjab and Haryana High Court observed that as no mention was made of the disease

at the time of entry of the petitioner's husband into service, therefore, the disease, would be on account of hazards of army service. The petitioner

was held entitled to disability pension which was payable to her husband. The disease which was diagnosed in the above case was Seizure.

The position in this case would be no different. The husband of the petitioner joined the service in the year 1944. He came to be discharged in

Nov. 59. The disease from which the petitioner came to suffer was diagnosed as Photo Retintitis (Both eyes). The disability was assessed at 30%.

As no mention was made regarding the aforementioned disease at the time the petitioner's husband joined the service, therefore, the disease is held

to be caused on account of hazards of army service, This petition as such is allowed. The petitioner is held entitled to disability pension, which was

payable to her husband. Let this be calculated at the percentage which was assessed by the Medical Board and would be released in favour of the

petitioner. The petitioner would be paid the disability pension three years prior to the filing of the writ petition. This petition was filed in March

2000 and she be, therefore, paid the same w.e.f. March 97. The petitioner would also be entitled to interest at the rate of 6 percent. In case, the

pension is not released within a period of two months from the date a copy of this order is made available to the respondents, then the petitioner

would be entitled to interest at the rate of 9 percent, and this enhanced component would be payable by the person on whose account the delay

occurs.

Disposed of as such.