Keshav Raj Sharma, S/o Late Bhagat Ram Sharma vs Union Of India, Rep. By The Secretary To The Govt Of India Min Of Home Affairs North Block New Delhi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Gau) 31

IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Arun Dev Choudhury, J.
Keshav Raj Sharma, S/o Late Bhagat Ram Sharma – Petitioner
Versus
The Union Of India, Rep. By The Secretary To The Govt Of India Min Of Home Affairs North Block New Delhi and ors.- Respondents
WP(C)/3001/2020
Decided On : 12-02-2024

Advocates:
Advocate Appeared:
For the Petitioner: Ms. S Bora

Headnote:
PENSION - Entitlement to Pension under CCS (Pension Rules), 1972 - Rule 38 and Rule 49 - Rule 3(A) of the Rules 1939 - [Rule 38, Rule 49, Rule 3(A)] - The court discussed the entitlement to pension under CCS (Pension Rules), 1972 and Rule 3(A) of the Rules 1939, highlighting the criteria for granting invalid pension and disability pension, the presumption of sound physical and mental condition at the time of entry into service, and the burden of proof on the employer to establish the discontent between the disease and the service in armed forces. The court emphasized the relevance of qualifying service for invalid pension and the absence of such requirement for disability pension, ultimately ruling in favor of the petitioner's entitlement to disability pension.
Fact of the Case:
The petitioner, a Rifleman in Assam Rifles, was discharged from service on medical grounds due to Non Organic Psycosis. The petitioner claimed entitlement to disability pension, which was declined by the employer on the grounds of disability not being attributable/aggravated by service condition and lack of qualifying service.
Finding of the Court:
The court found that the petitioner was entitled to disability pension as the disease was not detected at the time of entry into service and was aggravated during the course of service, thereby attributing it to the government service. The court also ruled that the absence of qualifying service requirement for disability pension and the delay in approaching the court did not bar the petitioner's claim.
Issues: Entitlement to disability pension, relevance of qualifying service, delay in approaching the court
Ratio Decidendi: The court held that the petitioner was entitled to disability pension as the disease was aggravated during the course of service, and the absence of qualifying service requirement for disability pension favored the petitioner's claim. The court also ruled that the delay in approaching the court did not bar the petitioner's claim.
Final Decision: The court directed the respondents to grant disability pension to the petitioner from the date of his discharge on medical ground, with a stipulated time frame for payment and the accrual of interest if not paid within the specified period.

JUDGMENT :

1. Heard Ms. S Bora, learned counsel for the petitioner. Also heard Mr. A.K. Dutta, learned counsel for the respondent Nos.1 to 3.

2. The present writ petition is filed assailing that though the petitioner is entitled for pension in terms of Rule 38 and Rule 49 of CCS (Pension Rules), 1972, however, the same has not been granted to him inasmuch as he was discharged from service on 30.09.1991 for the reason of suffering from Non Organic Psycosis.

3. The brief facts leading to filing of the present writ petition are as under:

I. The petitioner herein was appointed as a Rifleman and was enrolled in Assam Rifles on 04.02.1983. After completion of his basic military training, he was posted at 12th Assam Rifles. While he was posted at 31st Assam Rifle located at Kokrajhar, Assam in the year 1991, the petitioner suffered from mental illness and accordingly, he was admitted at the Unit Hospital and he was thereafter referred to 5 Air Force Hospital for his further treatment. After treatment at the Air Force Hospital the petitioner returned back to his unit and resumed his duty. However, after 20 days the problem recurred. He was referred again to the Air Force Hospital and after some treatment, recommendation for discharge of the petitioner from service on medical ground was made. Though, the discharge order dated 30.09.1991 records the exemplary service of the petitioner, however, according to the employer the petitioner was to be discharged from service on medical ground. It is also reflected that there is also a mention in the discharge report as regard Medical Invalid Pension, though it is not clear whether it is a recommendation or not. However, according to the petitioner no disability pension has been granted till date.

4. ARGUMENTS ON BEHALF OF LEARNED COUNSEL FOR THE PETITIONER

I. Ms. S Bora, learned counsel for the petitioner argues that the petitioner was held to be entitled for invalid pension. However, when no disability pension was paid the petitioner represented before the authorities. Such representation was considered by his employer and by a communication dated 24.07.2019 the claim of pension was declined on the ground that the 40% disability of the petitioner is not attributable/not aggravated by service condition.

II. The further reason was that for grant of disability pension under CCS (Extraordinary Pension) Rules, 1939 the minimum 60% disability is prerequisite for grant of such disability pension and therefore, the 40% disability not being attributable/not being aggravated by service condition the petitioner is not eligible for grant of disability pension and due to constraint of rules.

III. The learned counsel for the petitioner submits that a member of Armed forces is presumed to be in sound physical and mental condition upon entering service, if there is no note or entry to the contrary in his record and in the event, he is subsequently discharged from service on medical ground, onus to prove that deterioration in his health was not due to service condition, lies on the employer and in case of failure on the part of the employer to discharge such burden the benefit of doubt thereof must go to the employee. According to the learned Counsel, there is no material to show that the petitioner is having any such disease at the time of entry into service.

5. The impugned order was considered by a communication dated 24.07.2019, however,

I. Claim of pension was declined on the ground that 40% disability of the petitioner is not attributable/not aggravated by service condition;

II. For the grant of disability pension under CCS (Extraordinary Pension) Rules, 1939, the minimum 60% disability is prerequisite for grant of such disability pension.

6. ARGUMENTS ADVANCED BY THE UNION OF INDIA

I. The Union of India has filed an affidavit and took a stand that the petitioner has been suffering from “Non Organic Psycosis” with effect from 27.06.1986 and therefore was placed under low medical category CEE (temporary) with effe