T.A. Nos. 17 of 2009 and 18 of 2010. Case: 1. Indeevarakshan Nair M.P., 2. Abdulla Othayangath Vs 1. Officer I/C Records, Controller of Defence Accounts (Pension) and Union of India (UOI) represented by The Secretary Ministry of Defence, [Alongwith T.A. Nos. 35 and 112 of 2009], 2. Union of India (UOI) represented by The Secretary to Ministry of Defence, The DPA, The Dy. Director, DDPA - III and Officer in Charge. Armed Forces Tribunal

Case NumberT.A. Nos. 17 of 2009 and 18 of 2010
CounselFor Appellant: M. Rajagopalan, Adv. and T.R. Jagadeesh, Adv. and For Respondents: Thomas Mathew Nellimoottil and S. Krishnamoorthy, Sr. Panel Counsel and T.P.M. Ibrahim Khan, Sr. Panel Counsel
JudgesK. Padmanabhan Nair, J. (J) and Thomas Mathew (A), Members
IssueArmy Act - Sections 5(6), 191, 192 and 193; Air Force Act; Navy Act; Right to Information Act; Armed Forces Tribunal Act, 2007 - Sections 14 to 20, 27, 28 and 30 to 32; Entitlement Rules to Casualty Pensionary Awards to Armed Forces Personnel, 1961 - Rules 2, 3, 4 and 7; Entitlement Rules to Casualty Pensionary Awards, 1982 - Rules 4, 5, 6, 7, ...
Judgement DateJuly 16, 2010
CourtArmed Forces Tribunal

Order:

K. Padmanabhan Nair, J. (Member (J)), (Regional Bench, Kochi)

PROLOGUE:

1. All these Transferred Applications were filed before the High Court of Kerala under Article 226 of the Constitution of India and transferred to this Tribunal, consequent to its formation. Since common questions of law and facts arises in these cases, they were consolidated, heard together and disposed of by this order.

FACTUAL MATRIX:

T.A. No. 17 of 2009:

Petitioner was enrolled in the Army on 31.3.1979. At the time of enrolment, medical examination was conducted and he was sent for training to Gaya in the State of Bihar. While undergoing training, he became sick and was admitted in Military Hospital, Dhanpur. He was transferred to Military Hospital, Jabalpur and underwent treatment for six months. The petitioner was included in low medical category 'E' and was examined by the Release Medical Board. It was found that petitioner was suffering from 'Catatonic Schizophrenia'. He was discharged from service on 20.9.1980. The petitioner's claim for disability pension was rejected. The appeal filed by the petitioner was also dismissed. The second appeal was also dismissed as per Ext.P3. Petitioner filed O.P. No. 12593 of 1993 before the Honourable High Court of Kerala. Learned Single Judge allowed the claim of the petitioner and directed payment of disability pension. That order was challenged by the respondents in W.A. No. 1028 of 1999. The Division Bench relying on the decision reported in Director General, B.S.F. v. Vijoy 2000 (2) KLT 509 (FB) set aside the order of the learned Single Judge and gave an opportunity to the petitioner to disprove the medical report. It was also directed that petitioner may make a representation to discharge the burden, in the event of which the same will be considered by the appropriate authority and will pass appropriate orders at the earliest. The third respondent again rejected the claim of the petitioner under Ext.P10 order. Challenging that order, this writ petition was filed contending that the principle laid down in Vijoy's case (supra) was re-considered in Baby v. Union of India 2003 (3) KLT 362 by another Full Bench and the case of the petitioner is to be re-considered in the light of the subsequent decision.

The respondents contended that the petitioner is only an ex-recruit and he is not holding any rank in the Army and so the benefit of ex-servicemen cannot be claimed by the petitioner. It is admitted by the respondents that petitioner was enrolled on 31.3.1979 and discharged on 20.9.1980. At the time of enrolment in the Army, petitioner was medically examined by a recruiting medical officer and as per the relevant entries made in the preliminary medical examination report, he was not having any abnormalities on account of any ailment or disease. It is contended that disease of the petitioner might have probably existed prior to his entry in service and the same might not have been detected by the recruiting medical officer at the time of enrolment, since the same was not always apparent in nature. Petitioner was suffering from Schizophrenia and on account of that illness he was invalided out of service. The Invaliding Disease (ID) -Schizophrenia, is not a disease either attributable or aggravated by military service and hence the petitioner is not entitled to any relief.

T.A. No. 35 of 2009:

The petitioner was enrolled in the E.M.E. on 29.10.1994 after passing written examination, interview, mental and physical test and medical examination. According to the petitioner, while undergoing training in Secunderabad, he fell down and his head hit some hard surface. He became unconscious and was taken to Military Hospital, Secunderabad. After undergoing treatment for a week, he was transferred to Command Hospital, Pune for better treatment. He was examined by an Invaliding Medical Board which placed him in the lowest medical category. He was discharged on 9.4.1996. The petitioner's claim for disability pension was rejected on the ground that his Invaliding Disease is 'Unspecified Psychosis', which is neither attributable to nor aggravated by military service. Petitioner filed an appeal and the same was dismissed. He filed another appeal which was also dismissed. Petitioner filed O.P. No. 17567 of 2000 before the Honourable High Court of Kerala claiming disability pension. The Honourable High Court after considering the contentions raised by the respondents, set aside the order rejecting disability pension and directed the respondents to consider the case in accordance with the principles laid down in Baby v. Union of India, (supra). The third respondent, without considering any points, again rejected the claim for disability pension. It is contended that there is no history of mental illness in the petitioner's family. The father of the petitioner was a Havildar in EME, who had served the Army for 21 years. His brother is also serving in the EME and his sisters are working as teachers. It is also contended that petitioner is a holder of Orange Belt in Kung-Fu, which is considered to be an advanced position in Kung-Fu. He was not having any financial hardship. Hence, the petitioner has filed this Writ Petition challenging Ext.P7 order, by which his claim for disability pension was dismissed.

The respondents have filed a counter affidavit admitting the fact that petitioner was enrolled in the Army on 29.10.1994 and invalided out of service with effect from 9.4.1996 in low medical category 'EEE' due to his disability "Unspecified Psychosis". It is also contended that Invaliding Medical Board held that the Invaliding Disease of the petitioner is neither attributable to nor aggravated by military service and the same is a constitutional disorder and not connected with service factors. Hence the claim for disability pension was rejected. In O.P. No. 17567 of 2000, the High Court set aside that order and directed the first respondent to pass fresh orders. Accordingly, the matter was again considered and Ext.P7 order was passed. In the instant case, the invaliding disease could not be detected at the time of enrolment. A duly constituted Medical Board though found the petitioner was having 50% disability, further held that the invaliding disease was neither attributable to nor aggravated by military service. Hence, petitioner is not entitled to get any disability pension.

T.A. No. 112 of 2009:

Petitioner was enrolled in the Indian Navy on 10.9.1987. According to the petitioner, he was enrolled finding that he is fit after a thorough medical examination and tough physical and mental test. It is averred that petitioner completed strenuous military training successfully and he was posted in regular Naval Units. It is contended that while the petitioner was serving in the Missile Boat Unit (INS) Vipul during the year 1993, he developed mental illness and was admitted in INHS, Asvini. He was placed in the low medical category and was discharged from the hospital. He was again admitted in INHS Asvini during October, 1994. He was examined by an Invaliding Medical Board and subsequently, by a Release Medical Board. He was included in the lowest medical category S5A5(S)PMT and invalided out of service with effect from 2.2.1995. The claim of the petitioner for disability pension was rejected. An appeal was filed through his father, who was also an ex-army personnel. That appeal was dismissed. The petitioner filed O.P. No. 24191 of 2000 before the Honourable High Court of Kerala challenging the rejection of disability pension claim. After considering the entire matter, the High Court set aside the order passed by the respondents and directed the respondents to re-consider the same in accordance with the principles laid down in Baby v. Union of India (supra). The second respondent again rejected the claim vide Ext.P6 order without considering the claim. It is averred that there is no history of mental illness in his family. Petitioner's father is an ex-serviceman and his mother is also very healthy. Hence, he has filed this writ petition claiming disability pension.

The respondents filed a counter affidavit admitting that petitioner was enrolled in the Indian Navy on 10.9.1987 and invalided out from service on 2.2.1995 as he was suffering from invaliding disease -"Neurotic Depression [ICD 310(d)]". The petitioner has rendered only 7 years, 4 months and 22 days of service. It is contended that the Invaliding Medical Board examined the petitioner and found that the invaliding disability of the petitioner is neither attributable nor aggravated by the Naval service and is a constitutional disease. It is admitted that in O.P. No. 24191 of 2000, the order passed by the third respondent denying disability pension was set aside and the second respondent was directed to consider the matter afresh. The Principal Controller of Defence Accounts (Pension), Allahabad re-considered the matter and rejected the same by a speaking order. The finding of the Medical Board was duly approved by the competent medical authority i.e. DGMS (Navy). It is contended that the disease of the petitioner was not detectable during the routine medical examination at the time of recruitment. Hence, the respondents prayed for dismissal of the petition.

T.A. No. 18 of 2010:

The petitioner was enrolled in the Indian Air Force as non-combatant on 12.10.1987 and he worked as Laskar in the Indian Air Force for five years. Thereafter, on 20th March, 1992, he was selected and enrolled as Airman (Combatant) in the Indian Air Force. He underwent nine months of training at Avadi and after the training he was posted at various places. After completion of 15 years of service, some symptoms of mental disorder was found in the petitioner and he was treated in the Military Hospital during January, 2002. His invaliding disease was diagnosed as 'Schizophrenia' and he was placed in low medical category with effect from April, 2002. The petitioner...

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