J.S. Narang, J. - (1.) THE petitioner was commissioned in the Army on March 15, 1970 and at that time was found medically fit for service of the Army. During the service rendered he earned promotions upto the rank of Major in the year 1980. It was in December 1980, the petitioner was posted at Ambala and while performing his duties in his office developed acute low back ache and was admitted to Military Hospital, Ambala. It was diagnosed that the petitioner is a case of Fibre Fascitis Moderate and later specified as Proplase Disc L5 S1(OPTD).
(2.) THE Court of Inquiry was ordered to enquire into the circumstances under which the petitioner sustained injury while being on duty. The finding was given by the Court of Inquiry on February 10, 1981. It shall be apposite to note the findings of the Court of Inquiry, which read as under : - Finding of the Court (a) Capt AK Bawa came on duty on 1 Dec 80 in his office at the routine time. (Witness No. 1) (b) At about 1130 hrs the same day Fit Lt.. S. Goswamy of HQ 55 MC Area also visited Capt A.K. Bawa on official matters (Witness No. I and 2). (c) After some time, in order to find out progress of a special train passing through Ambala Cantt, Capt AK Bawa wanted to get up from his chair to sue an adjacent telephone. (Witness No. 1 and 2) (d) Capt A.K. Bawa felt a jerk in his back and got an agonising pain as a result he could not get up from his chair. (Witness No. 1 and 2). (e) Capt A.K. Bawa was admitted in Military Hospital from 10 Dec 80 to 23 Dec 80 due to moderate injury Fibro Fascitis back as classified by medical auth in the injury report initiated on the officer. (Witness No. 1) (f) IC -39849x Capt A.K. Bawa sustained moderate injury Fibro Fascitis in his back on 10 Dec. 80. The injury was sustained while on duty (Witness No. 1 and 2) Presiding Officer Sd/ - (IC -26108P Maj Karan Singh) Members 1. Sd/ - (IC -32552F Cap HS Sahi) 2.Sd/(JC -70358W Sub AS Chhatwal) It was again in 1981 the petitioner fell ill and was subsequently transferred to Army Hospital, Delhi Cantt where he was operated upon. The medical category of the petitioner was downgraded referring it to be S1H1A1P4 (T -6) E1. The Medical Board was constituted on January 30, 1982, and pursuant to the findings, the aforesaid medical grading was accorded. The Board had specifically mentioned that the injury is directly attributable to service and aggravated thereto and it has been mentioned that it is on account of stress and strain of military service. The observation made by the Board was ordered to be corrected by the petitioner and it was carried out by way of amendment. The relevant excerpt of the amendment reads as under: - "Amendments" In Column 3 part of AFMSF -15 dated 30 Jan 82 for "No" read "Yes", Column 4 Part -II of AFMSF -15 dated 30 Jan 82 for "NA" read "As a result of injury sustained on military duty in peace at Ambala on 10 Dec., 1980. Injury report (IAFY -2006) initiated on 22 Dec., 80 Column 5 Part -II of AFMSF -15 dated 30 Jan 82 for "by stress and strain of military service" read "NA".
(3.) THE petitioner was finally ordered to be retired from service on superannuation on January 31, 1998 and that the petitioner was directed to appear before a Release Medical Board and the petitioner was categorised as S1H1A3P1E1 and he was diagnosed as a case of "Disc Prolapse with Sciatica". The disability was determined as 62%. The petitioner requested for disability pension and in response thereto the respondents communicated that the petitioner was not entitled to disability pension since the ID(s) as recorded in the Release Medical Board have not been found to be attributable to or aggravated by military service. The petitioner filed an appeal before the Ministry of Defence and that the appeal was rejected vide order dated November 29, 1999. It has been categorically opined in the impugned order that the disability is on account of constitutional disorder as Appellate Medical Authority has found that onset of ID was in peace area and that there is no history of trauma. Thus, on the finding of Appellate Medical Authority the petitioner would not be entitled to disability pension.;