Mrs.Santosh Bakshi v. Union of India & Ors.

The Hon(cid:146)ble Mr.Justice Deepak Gupta, Judge. The Hon(cid:146)ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting? No For the Petitioner: Mr.Sanjeev Sharma, Advocate. For Respondents: Mrs. Shilpa Sood, C.G.S.C. Deepak Gupta, J.(Oral) By means of this petition, the petitioner has prayed that the disability pension be granted in the case of her husband Ex-Corporal Devinder Kumar Sharma. Briefly stated the allegations made by the petitioner are that the husband of the petitioner was appointed as a Corporal in the Indian Air Force on 7.4.1966. He served in the Indian Air Force for a period of about 7 years and discharged on medical grounds on

10.11.1973. The allegation of the petitioner is that in the year 1971 during the Indo-pak war her husband saw a horrible scene and thereafter he 2 suffered some mental illness and was ultimately discharged from the Air Force on 10th November, 1973. At the outset we may note that there is great delay in filing the petition. This petition was filed in the year 2005 more than three decades after the discharge of Sh.Devinder Kumar Sharma from the Air Force. Obviously at this stage no records will be available. It is not disputed that Corporal Devinder Kumar Sharma was discharged from the Air Force on medical grounds. It is however pertinent to note that in the document evidencing the discharge of the petitioner it is mentioned that he is fit for civil service. What was the illness for which he was discharged cannot be gathered from the record. This Court in Santosh Kumar vs. Union of India and other connected matters, Latest HLJ 2007 (HP) 329, after considering the entire law with regard to the disability pension payable to ex- serviceman and after considering the judgments of the Apex Court in Union of India vs. Baljit Singh, (1996)11 SCC 315, Union of India and others vs. Dhir Singh China, (2003)2 SCC 382 and Controller of Defence Accounts (Pension) and others vs. S.Balachandrandran, (2005) 13 SCC 128, held as follows: (cid:147)14.After giving our careful consideration to the rules and regulations and the authorities of the apex Court, we hold that to be entitled to disability pension, it must be established that the disability has occurred due to a wound injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated thereby. 3

#15. The apex Court has clearly held that clause (c ) is not disjunctive and has to be read along with clauses (a) and (b) and, therefore, even if a disease is accepted as having arisen during service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that conditions were due to the circumstances of duty in military service.

#16. The apex Court in Dhir Singh China’s case ( supra) also held that primacy has to be given to the report of the medical board. We are, therefore, of the opinion that the Court sitting in writ jurisdiction cannot lightly interfere with the opinion of the medical board. This is not to say that the Court is bound by the opinion of the Medical Board. However, the said opinion being an opinion/finding of an expert body should not be unsettled in writ jurisdiction unless there are clear cut grounds for doing so. We also must observe that these rules provide interpretations are possible, interpretation favourable to the claimant should be taken. If the army personnel were in field service then the benefit should be given even more liberally. It is in this light of the observations that we shall not deal with the individual cases.(cid:148) In the present case there is not an iota of evidence to show what was the disease which the ex-serviceman was suffering from, where and when did this disease first manifest itself, is also not apparent from the record. Very vague allegations have been made that the husband of the petitioner saw some (cid:145)horrible scene(cid:146). What was this scene? Where did he see it and whether there was any nexus of this scene with the military service has not been alleged in the petition. 4 In view of the vague allegations, we cannot accept the case of the petitioner. Petition is therefore without any merit and is accordingly rejected. There will be no order as to costs. ( Deepak Gupta ), Judge September 17, 2008. PV ( V.K. Ahuja ), Judge