Judgment:
SadhanKumar Gupta, MEMBER (Judicial)
Initially, the writ petition was filed before the Honble High Court at Calcutta. Thereafter, due to the advent of the Armed Forces Tribunal Act, 2007, the said writ petition was transferred to this Bench by the order of the Ld. Single Judge of the High court and it was re-numbered as TA 77 of 2010.
2. The facts, as stated in the application, are that the applicant was enrolled in the military service on 18.2.2003. While he was under training, he was admitted to Military Hospital, Kamptee, Allahabad on 1.5.2003 for Acute and Transient Psychotic Disorder and from the said hospital he was transferred to Command Hospital at Pune for further treatment. From 6.5.2003 to 27.10.2003, the applicant was receiving treatment in the said hospital for his disease and ultimately, he was placed before the Medical Board, which was held at the said Command Hospital, Pune. As per recommendation of the Medical Board, he was released from military service on the ground of disablement. The applicant thereafter put forward a claim for disability pensionary benefits but the said claim was rejected on the ground that the disease of the applicant was constitutional in nature and not related to the service and that the same was neither attributable to nor aggravated due to military service. According to the applicant, finding of the concerned authority that his disease was constitutional in nature and not aggravated due to military service, had no basis at all. He has claimed that at the time of recruitment, several medical tests were conducted and at that time, as he was found fit, so he was allowed to join the military service. Under such circumstances, it is claimed by the applicant that the disease, which developed while he was undergoing training, must be considered to have been aggravated due to stress and strain of military service. The concerned authority failed and neglected to take into consideration this aspect and thereby rejected his claim for disablement pension arbitrarily. The applicant has prayed for setting aside the said finding of the concerned authority and to allow him disability pension in accordance with the rules.
3. The respondents have contested the application by filing counter affidavit wherein they have denied the allegations of the application on all material points. It is the case of the respondents that in all, the applicant was in the military service for 232 days only and while he was undergoing training, at that time, he fell sick and had to be hospitalized where his disease could be identified. Subsequently, the authorities sent the applicant to the command Hospital, Pune for his better treatment and ultimately , he was placed before the Medical Board in September 2003 and since the said Board was of clear opinion that the disease of the applicant was constitutional in nature and was not aggravated due to military service, so, the applicant was invalidated out of military service on that ground with effect from 28.10.03. The question of granting disablement pension, as claimed by the applicant, was taken into consideration by the concerned authority and on the basis of the medical opinion, such prayer was rejected. The respondents have claimed that the applicant has failed to make out any case for grant of disablement pension and as such, the application is liable to be dismissed.
4. As against this counter affidavit, the applicant has filed a rejoinder wherein he has reiterated the submission that the disease took place due to the nature of the service and it was aggravated due to the service condition and as such, he is entitled to get disablement pension. It has further been claimed by the applicant that there was no basis of the Medical Board to come to the conclusion that the disease was constitutional in nature.
5. We have taken into consideration the submissions made by the ld. Advocates for both the sides as well as the relevant papers which have been filed in connection with this application. It is the settled position of law that the army personnel is entitled to get disablement pension provided such disablement is 20% or more and it was not constitutional in nature and was aggravated by military service. If all these things are established, then and then only the question of granting of disablement pension would arise. So far as this matter is concerned, we have already pointed out that the applicant was in the military service for 232 days only and while he was undergoing training, at that time, the disease could be detected. It is the settled position of law that in order to allow or reject a claim for disablement pension, opinion of the Medical Board should normally be final and must be accepted provided, of course, there is clear evidence to the effect that the medical board did not act properly. So far as the applicant is concerned, it appears that he was placed before the Medical Board and such Board gave its opinion, which is in the record. It appears from the report of the medical board that it has been clearly mentioned that the percentage of disability was 20% for life. However, the medial board also opined that the disease, with which the applicant was suffering, was not connected with the service and was not aggravated due to such service. In addition to that, the medical board was of the opinion that the said disease was constitutional in nature. Ld. Advocate for the applicant has pointed out that there was no basis for the medical board to come to such conclusion that the decease of the applicant was constitutional in nature. However, we find that the medical board has summarized its opinion in its report wherein, while mentioning the past history of mental and significant medical illness, they have observed that the second brother of the applicant was suffering from chronic mental illness for about six years duration, and needed hospitalization in mental hospital and was still symptomatic. On the basis of such past history and on perusal of the physical condition of the applicant, the medical board was of the opinion that the disease of the applicant was constitutional in nature and they recommended that the applicant was not suitable to serve as a soldier and as such, they recommended that the applicant should be invalidated out of service on medical ground. To our mind, the medical board gave a detailed report after taking the pain of examining the patient physically as well as after considering the past history. It may be pointed out here that the medical board is an expert body consisting of competent medical officers and naturally, the opinion of the said medical board must be regarded as correct unless there is cogent and valid reason for not believing the said opinion. We find no material whatsoever to interfere with the said finding of the medical board and as such, we are of the opinion that such opinion should be respected.
6. In view of our above discussion, we are of the opinion that the concerned authority rightly rejected the claim for disablement pension, as made by the applicant on the ground that the disease with which he was suffering was constitutional in nature and was not aggravated due to military service. As such, we find no reason whatsoever to interfere with the said decision of the concerned authority and in our opinion, the applicant has failed to make out a case that he is entitled to get disablement pension, as claimed in this application. We have got no hesitation to hold that the application being devoid of merit should be rejected.
7. In the result, the TA is dismissed on contest but without cost.
8. Let plain copy of this order be handed over to the ld. Advocates for both the sides.