Sarabjit Singh v. Union of India and Ors

SURESHWAR THAKUR , J .

¶1Through the instant writ petition, the petitioner herein prays for setting aside order dated 24.02.2011 (Annexure P-1) as passed by the learned Armed Forces Tribunal, Chandigarh, wherebys the claim of the petitioner for grant of disability pension became declined. Factual Background

¶2The petitioner was enrolled in the Army on 06.01.1984. He suffered from 'Severe Depressive Disorder with Psychotic Symptoms' and was discharged from service on 31.01.2008 in medical category S3 with 30 % disability. His claim for disability pension was declined on 2024.10.08 13:54the ground(s) qua the same being neither attributable to nor becoming aggravated by rendition of military service. The petitioner filed appeal against the said rejection order. The said appeal was dismissed by the Appellate Committee vide order dated 30.04.2008.

¶3Feeling aggrieved, the petitioner filed writ petition against the afore rejection order. The said writ petition became transferred to learned Armed Forces Tribunal concerned and the same was disposed of vide order dated 24.02.2011. The operative part of the said verdict is extracted hereinafter. " Coming to the opinion of the specialist at Annexure R-1, we find it to be detailed, deliberate and going to the root of the cause of the petitioners ailment. It clearly emerges that he was one of four siblings, that upon the death of his mother he lost interest in all activities, became sad, became religious and started doing 'puja' in the unit. There is no indication whatsoever of any circumstance related to military service contributing to the onset of the disease. xxxx xxxx xxxx xxxx We may also gainfully take a very deliberate note of the recent judgement of the Apex Court in the case of Damodaran A.V.

(Dead) through LRs & Others Vs. Union of India in Civil Appeal of 2009 (Arising out of SLP (Civil) No. 23727 of 2008) decided on

20.08.2009 where it was held that 'the Medical Board is an expert body and its opinion is entitled to be given due weight, value and credence. In the instant case, the Medical Board has clearly opined that the disability of Late Sh. A.V.Damodaran was neither attributable to nor aggravated by the military service."

¶4Feeling dis-satisfied from the afore dis-affirmative order, the petitioner has filed the instant writ petition before this Court.

¶5Initially, prima facie, the instant writ petition is completely time barred. Resultantly the instant time barred petition is hit by the vices of delay and laches and prima facie thus requires dismissal.

¶6Moreover, though the counsel for the petitioner submits, that since in terms of the verdict rendered on 09.01.2020, by the Hon'ble Apex Court, in case titled as Balkrishna Ram Vs. Union of India and another, to which Civil Appeal No. 131 of 2020 became assigned, the jurisdiction to challenge the orders rendered by the learned Armed Forces Tribunal became vested in the High Court. He further, submits that since in quick sequel to the making of the said verdict, thus the present petitioner did institute the instant writ petition. Therefore, he contends that since as of now, the writ petition is maintainable before this Court. Resultantly, the bar of the delay and laches does not work as a stumbling block against the present petitioner thus in his assailing the impugned decision recorded on 24.02.2011, by the learned Armed Forces Tribunal concerned.

¶7Even the said argument prima facie, cannot be accepted by this Court, as unless in contemporaneity to the passing of the impugned verdict in the year 2011, the Apex Court through passing any interim orders rather had permitted the High Courts to exercise jurisdiction upon verdicts pronounced by the learned Armed Forces Tribunal, thereupons, the remedy then available to the present petitioner, thus was to access the Hon'ble Apex Court rather for his therebys challenging the impugned order. However, he did not do so. Contrarily, subsequent to the passing of the decision by the Apex Court in case titled as Balkrishna Ram Vs. Union of India and another (supra), and, that too in the year 2020, thus after almost ten years elapsing since the passing of the impugned decision by the learned Armed Forces Tribunal, he has chosen to challenge the said decision made on 24.02.2011, by the learned Armed Forces Tribunal before this Court.

¶8Importantly also when the decision rendered in case titled as Balkrishna Ram Vs. Union of India and another (supra) was made on 09.01.2020, over the SLP (supra) which became registered/filed before the Apex Court in the year 2017, whereas, the impugned order became passed in the year 2011. Resultantly theretos, thus a prompt challenge was required to be made, whereas, the challenge thereto became delayed uptil 2021, whereupon an inference ensues, especially when no tangible explication, rather emanates from the petitioner qua his omission to promptly recourse his apt remedies against the impugned order, qua the writ petition being prima facie, stained with pervasive vices of delay and laches.

¶9Be that as it may, even if assumingly the said bar is not applicable to the instant writ petition, yet since a detailed reason has been given by the medical board in the making of a conclusion that the onsetting of the disease was not as a result of service conditions but was on account of his family conditions inasmuch as, upon the death of his mother, he lost interest in all activities, became sad and depressed and also started doing 'puja' in the unit.

¶10Resultantly, when the respondents concerned, in terms of the judgment rendered by the Hon'ble Apex Court, in case titled as Dharamvir Singh Vs. Union of India, reported in (2013) 7 SCC 316 whereins in the relevant paragraphs, the hereinafter extracted expostulations of law are borne, thus have discharged the evidence adducing onus, that the onsetting of the disease on to the defence personnel, but was not on account of rendition of military service by him.

¶29A conjoint reading of various provisions, reproduced above, makes it clear that:

(i) Disability pension to be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable or aggravated by military service to be determined under "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).

(ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)].

(iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally. (Rule 9).

(iv) If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. [Rule 14(c)].

(v) If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service. [14(b)].

(vi) If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance forKAVNEET SINGH service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons. [14(b)]; and

(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 – "Entitlement : General Principles", including paragraph 7,8 and 9 as referred to above.

¶30We, accordingly, answer both the questions in affirmative in favour of the appellant and against the respondents.

¶11Therefore, the onsetting of the said disease is to be concluded to be neither attributable to nor the same becoming aggravated by rendition of military service. Contrarily besides reiteratedly the onsetting of the disease (supra) was only on account of his family conditions (supra). Final Order of this Court.

¶12In aftermath, this Court finds no merit in the writ petition, and with the observations aforesaid, the same is dismissed.

¶13Disposed of alongwith all pending applications, if any.

(SURESHWAR THAKUR) JUDGE (SUDEEPTI SHARMA)

30.09.2024 JUDGE

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. CWP-26895-2021 Reserved on: 17.09.2024 Pronounced on: 30.09.2024 Sarabjit Singh .....Petitioner Versus Union of India and Others .....Respondents CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR HON'BLE MRS. JUSTICE SUDEEPTI SHARMA Argued by: Mr. G.S.Ghuman, Advocate for the petitioner. Mr. Parvesh Saini, Advocate for the respondents. ****