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2006 Supreme(UK) 471
2006 (2) U.D., 359
High Court of Uttaranchal
Hon'ble Rajesh Tandon, J.
An Singh - Petitioner
Vs.
Union of India and others - Respondents
Writ Petition No. 296 of 2004 (SS),
decided on 24-08-2006.
Sri S.K. Posti, Advocate for the petitioner.
AS.G for the respondents.
An employee who has been invalidated is entitled to disability pension even if the disease existed prior to enlistment but aggravated during service, as per the relevant rules and regulations.
Headnote:
Disability Pension - Military Service - Army Rule, 1954, Rule 10, Rule 48, Para 173 of the Pension Regulations, Rule 7 - The judgment discusses the petitioner's claim for disability pension based on an injury suffered during military service. It references various rules and regulations governing the grant of disability pension and emphasizes the entitlement of an employee who has been invalidated to claim disability pension even if the disease existed prior to enlistment but aggravated during service.
Fact of the Case:
The petitioner, an Army employee, suffered an ear injury during military service, leading to reduced hearing capacity. His claim for disability pension was rejected by the respondents, citing that the disability was not attributable to military service. The petitioner filed a writ petition seeking to quash the rejection orders and obtain disability pension.
Finding of the Court:
The court found that the petitioner's disease was borne out during his employment in the Army, and thus, the employer was obligated to provide treatment and disability pension if he was found unfit for military service.
Issues: The main issue was whether the petitioner was entitled to disability pension for an injury suffered during military service.
Ratio Decidendi: The court relied on various rules and regulations, including Army Rule, 1954, Rule 10, Rule 48, Para 173 of the Pension Regulations, and Rule 7, to establish the entitlement of an invalidated employee to claim disability pension, even if the disease existed prior to enlistment but aggravated during service.
Final Decision: The court issued a writ of certiorari, quashing the rejection orders and directing the respondents to consider the payment of disability pension to the petitioner according to rules. The writ petition was allowed with no order as to costs.
2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 30-11-1977 and order dated 30-3-1981 passed by the respondents no. 1 and 3 respectively.
3. Briefly stated the petitioner was employed in Indian Army on 4-3-1969 and was deputed in the Artillery Regiment. During Indo-Pak war in 1971, according to the petitioner, due to explosion his ear were badly damaged and his hearing capacity was reduced. The petitioner was got admitted in Military Hospital at Udhampur but his hearing capacity could not be restored. The petitioner served the nation with best of his ability and he was awarded two service medals. The petitioner was invalidated out of service on 7-9-1977. The petitioner applied for disability pension, but the respondents rejected his claim on the ground that the disability is not attributable to the military service. Thereafter the petitioner preferred an appeal to the Ministry of Defence, Government of India. The appellate authority vide order dated 30-31981 rejected the appeal of the petitioner reiterating the same grounds. Feeling aggrieved the petitioner has preferred the present petition.
4. Counter affidavit has been filed by the respondents. The respondents have submitted that the petitioner was enrolled in the Army on 4th March 1969. While serving with the Unit he was placed in Medical Category CEE (Temporary) for six months w.e.f 28th Sept. 1976 due to 'Bilateral Conduct Deafness Otosczierosis. On expiry of above period he was brought before a medical board to assess cause, nature and degree of disability of the petitioner. The medical board has opined that above disability was neither attributable to nor aggravated by military service and recommended him to be invalided out of service in Medical Category 'EEE' (Permanently unfit for military service). The petitioner was invalidated out of service under Rule 13 item III (iii) of Army Rule, 1954. The total service of the petitioner was 8 years and 187 days only.
5. From the record it appears that the petitioner has 8 years in the Army. At the time of his recruitment he was hale and hearty and he was not found suffering from any constitutional disease and there is nothing in his service record that at the time of his enrolment in military service he was suffering form any kind of disease. He has undergone scrupulous training after recruitment and he also took part in games and extra curricular activities. The ailment suffered to him during his service in the Army and as such according to the petitioner the disease is attributed to military service and he is entitled for disability pension.
6. It has been held by the Apex Court in the case Madan Singh Shekhawat vs. Union of India and others (2000) 1 UPLBEC 3471, as under:
"The grant of disability pension is governed by the various Rules found in Defence Services Regulations:
Rule 10 of the said Rules reads thus:
"Casual leave counts as duty except as provided for the Rule 11 (a). n As per this Rule when an army personnel is on casual leave, same is counted a duty unless he comes under any one of the exceptions under Rule 11(a) of the Rules. It is not the case of the respondents that the appellant comes under any such exceptions. Therefore, as per rule 10(a), the appellant was on duty at the time of the accident. Rule 48 of the said Regulation contemplates admissibility of disability pension. It has enumerated various cases under which an army personnel is entitled to the grant of disability pension.
Rule 48 reads thus:
"Disability pension when admissible an officer who is retired from military service on account of a disability which is attributable to or aggravated by such service and is assessed at 20 per cent or over may, on retirement, be awarded a disability pension consisting of a service element and a disability element in accordance with the regulations in this section. Th
