Ramesh Lal Mullah vs Union of India

T.S. Doabia, J.

Persons maimed in the wars should be maintained at the public charge.

Solon quoted by Plutarch.

If above was the consideration shown in the days gone by to an ordinary citizen then disabled soldiers are entitled to be placed at a higher

pedestal.

Circumstances under which this petition has come to be filed be noticed.

Petitioner was enrolled with Indian Army. He joined Indian Army in the month of June, 1980.

He was invalidated out of service in November 1986. This was on account of the fact that he became patient of Schizophrenia. His disability was

assessed at 60%. Opinion was, however, expressed that this disability was not on account of hazards of Army service. After forming above

opinion petitioner was declined disability pension.

Petitioner preferred a writ petition in this court. This bears number 580 of 1992. He submitted that another employee namely Ram Dayal who was

also suffering from the same ailment and in whose case disability of 20% was assessed was allowed disability pension. It is submitted that there

was absolutely no justification not to grant disability pension to the petitioner. This writ petition bearing No. 580 of 1992 was decided on 9th of

November 1993. Effective relief was not given. Petitioner was left free to prefer a representation. The relevant observations are as under:

However if so advised the petitioner may file a representation and in case he does so, that representation may be disposed of by the respondents

in the light of Ram Dayal's case. A copy of the finding of pension payment order in Ram Dayal's case may also be enclosed alongwith the

representation.

Petitioner preferred an appeal against the order passed by the learned Single Judge. This appeal came to be dismissed. However, in para 7

following observations were made:

The dictionary meaning of the disease Schizophrenia indicates that it is on account of mental disease marked by disconnection between thoughts,

feelings and action or frequently with delusion and retreat from social life. We look at the word constitution and the meaning assigned to it in the

dictionary, it is seen therefrom that any inherent deficiency in or affecting body or mental constitution etc. Regard being had to these meanings

assigned to the above terminologies, the experts constituting the board under the Statute have arrived at the opinion stating that the gentleman

developed the disease out of his own constitutional disability and not on account of service rendered by him in the Army. We do not think it is

possible for us to take a different opinion than the opinion expressed by the medical experts"".

Lastly learned counsel for the appellant brought to our notice that if the respondents have taken a view for granting pension in respect of one

employee namely Ram Dayal, who was similarly situated why then the respondents deny this pension to the petitioner. At the outset it is not a

ground taken in the petition. Secondly, we do not know what was the nature of duty assigned to Ram Dayal when he developed the disease and

under what circumstances. All these matters are required to be examined by collecting evidence which we cannot do in a petition under Article 226

of the Constitution.

It appears that petitioner had submitted a representation also. Representation was decided by respondentauthorities. This was decided on 1st of

April 1997. It is this decision which led the petitioner to approach this court again. Counsel appearing for the Union of India submits that on

account of decision given by this court and more so by Letters Patent Bench, bar of res judicata would be attracted to the fact of the case. It is

also urged that disability is not attributable to or has been aggravated on account of hazards of army service. The decision given on the

representation is annexure I. The paragraphs which are relevant are as under:

(2) You were invalided out of service on 28th of November 1986 on account of Invaliding Disease (ID)`Schizophrenia'. On the basis of the

release Medical Board proceedings held on 27.10.1986 which recommended that your ID is neither attributable to nor aggravated by service

condition. The Medical Board has categorically held that the disability is constitutional disorder not connected with service.

(3) On review the Appellate Medical Authority in exercise of powers conferred upon him vide Rules 17 and 27(c) of the Entitlement Rules for

Casualty Pensionary Awards 1982, has also upheld that the disability on account of which you were invalided out of service is neither attributable

nor aggravated due to service. On perusal of your service/medical documents it was found that the onset of ID was in July 1986 while serving in

peace. There was no field service in close time relationship to onset of ID. There was no evidence of any unusual stress and strain related to

service. There was no history of head injury or severe debilitating illness prior to onset of ID. As there was no relationship to any service factor ID

was rightly considered constitutional in nature by I.M.B.

(6) In the case of Nk/Clk. Ram Dayal the CCDA (Pensions) in consultation with MA(P) accepted the invaliding disease as aggravated due to

stress and strain of recruitment training under rule 17 of the Entitlement Rules for Casualty Pensionary Awards 1982. In view of the Appellate

Medical Authority conditions of the onset of ID in case of Nk/Clk. Ram Dayal are entirely different from those in your case. Therefore, his case

cannot be taken as a precedent.

It is the above decision which is being challenged in this petition.

The objection based on the plea of res judicata be noticed at the first stage. It is not in dispute that a writ petition was filed by the petitioner. This

was disposed of with the direction that the petitioner if so advised, submit a representation. A representation was filed. The representation came to

be decided after the Letters Patent Appeal was dismissed. It is this decision given on representation which is being challenged in this petition.

Reference in this regard be made to the decision reported as Hoshnak Singh v. Union of India & Ors., AIR 1979 SC 1328. In this case a petition

was preferred under Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. This was dismissed. A writ petition was

filed to challenge the decision. Writ petition was dismissed. Thereafter a revision was preferred unde Section 33 of the aforementioned Act. The

revision was dismissed. The order passed in revision was challenged again in the Punjab and Haryana High Court. This petition was rejected on

the ground that second litigation would be barred by the principles of res judicata. This view expressed by the Punjab and Haryana High Court

was challenged in the Supreme Court of India. The Supreme Court of India held that bar of res judicata would not apply to such a case. The

relevant observations are made in para 8. These are relevant and are noticed:

If after preferring an appeal or revision under the statute under which the right is claimed by the petitioner a petition under Article 226 is filed

irrespective of the fact that the revision or appeal was dismissed and the original order which was challenged in the first petition had merged into

the appellate or revisional order, nonetheless the second petition in the circumstances would not be barred by the principles analogous to res

judicata because the cause of action is entirely different and the merger of the order cannot stand in the way of the petitioner invoking the

jurisdiction of the High Court under Article 226.

Reference was made to three other decisions. These are reported as Joginder Singh v. Deputy Custodian General of Evacuee Property, AIR 1967

SC 145, Virundhunagar Steel Rolling Mills Ltd. v. The Government of Madras, AIR 1968 SC 1196, P.D. Sharma v. State Bank of India, AIR

1968 SC 985. The position in this case is similar to that which existed in Hoshnak Singh case (supra). The petitioner has filed the writ petition after

his representation was rejected. Therefore, the plea of res judicata as projected by Union of India would not be available to the respondent.

With regard to the question as to whether the petitioner is entitled to disability pension or not reference be made to the decision given in Col. M.L.

Sethi v. Union of India, 1998(2) SCT 228. In the above case after considering number of decisions given by the various High Courts of this

country following conclusions were indicated:

From the judicial precedents referred to above it can safely be concluded:

(i) that in case no mention is made regarding the disease or disablement at the time of entry in service, then it is to be presumed that the disability

occurred during the course of service.

(ii) The disability was on account of stress and strains of Army service.

(iii) If competent authority is to disagree with the finding recorded by the medical board visavis the disability or the percentage thereof, the matter

should be referred to the Medical Board.

(iv) Delay in approaching the Court is relevant.

The case of the petitioner is not distinguishable. The respondentauthorities have simply stated that the petitioner did not suffer the disability on

account of hazard of Army service. As to how his case is different from the case of Ram Dayal has not been elaborated. If an employee was not

suffering from any disability at the time of enrolment then it is to be presumed that he acquired the disability on account of hazard of Army service.

Reference be made to another decision.

A sepoy was invalidated out of service on the ground that he was suffering from neurosis and epilepsy. No finding was recorded by the Medical

Board that this disease existed at the time of entry into service. The Army personnel was held entitled to disability pension which was assessed at

20% in the case of ExSepoy Hoshiar Singh v. Union of India, 1996(2) SCT (sic).

The above decision and the conclusions indicated in Col M.L. Sethi's case (supra) do apply to the facts of this case. Accordingly this petition is

allowed. The disability is fixed at 20%. The petitioner is also held entitled to interest. The rate of interest would be 12%. Let the requisite claim be

settled within a period of three months. The period of three months would commence from the date, copy of the order passed by this court is

made available to the respondents. If for any practical reasons it is not possible to settle the claim of the petitioners within stipulated period then the

respondents would be at liberty to seek extension of time but in that eventuality the respondents would have to explain each and every day's delay

and the rate of interest would be 15%.

Disposed of accordingly.