V.K. Bali, J. - (1.) KARNAIL Singh, who was enrolled as a Soldier in the Indian Army in the month of February, 1972 and discharged on March 1, 1987, successfully challenged order, Annexure P -1, dated November 6, 1986, vide which his prayer for grant of disability pension was rejected, as Civil Writ Petition bearing No. 5539 of 1997 filed by him was allowed by the learned Single Judge on July 11, 1991. It is this order of the learned Single Judge, which has since been challenged in this appeal filed under Clause X of the Letters Patent.
(2.) BRIEF facts giving rise to the writ petition filed under Article 226 of the Constitution of India challenging order, Annexure P -1, as projected in the petition, reveal that Karnail Singh (hereinafter referred to as 'the petitioner') was enrolled as a Soldier in the Indian Army in the month of February, 1972. It has been his case that at the time of his enrollment, his eye sight (left as well as right) was 6/6. However, in the year 1975, he and other Jawans of 17 Sikhs Regiment were undergoing military training in the peace area of Ramgarh Sector. Soldiers were divided into two groups and one group was to attack the other with grenade No. 90 meant for training purposes. According to the petitioner, grenade thrown by the other group hit on his left hand and exploded. Due to the explosion, there was an extreme lightening, due to which his vision of left eye started deteriorating. He informed Shri Dayal Singh, Subedar that because of the explosion of grenade, which was used during military training, pain had developed in his eye. He was immediately sent to the Captain, who was the Incharge of medical room. Thereafter his case was referred to Ramgarh Military Hospital. In January 1976, the unit of which the petitioner was a member, was transferred to Meerut On August 20, 1976, he was admitted in the Military Hospital. He was downgraded to medical category CEE (P) in December, 1978. In December, 1978, 17 Sikh Unit was transferred to Nagaland and he was operated upon in Military Hospital at Gauhati on November 30, 1978. Ultimately, the unit was transferred to Ferozepur in the year 1980 and his medical category was upgraded to BEE (P). It has further been the case of the petitioner that he lost vision in one eye during his service in the Indian Army and as such the said disability was attributed to or aggravated by military service, that he had rendered and further his disability was assessed at 40%. Vide letter dated November 6, 1986, Shri R.C.. Sharma, Captain, Record Officer for Officer Incharge Records, Sikh Regiment Ramgarh Cantt., informed him that his disability pension had been rejected by the CDA (P) Allahabad vide their letter No. G -III/86/7406/III/135 dated October 1. 1986, as the disability suffered by him was not attributed to military service. Being aggrieved by the impugned order, Annexure P -1, rejecting his request for grant of disability pension, he made representation dated January 31, 1987 (Annexure P -2) to the Army Headquarter, New Delhi, stating therein that while he joined the Indian Army in the year 1972, his eye vision was perfect (6/6). while serving the Army, he had to undergo one eye operation on August 29, 1976. He was downgraded to medical category BEE (P) due to the said eye operation. He kept on getting advice from the medical experts in the Army and after some time, he was again downgraded to medical category CEE (P) in December 1979. It was mentioned by him in the representation aforesaid that Military Hospital AKHNUR recommended his disability pension at 40% and all necessary documents regarding pension were also sent to the Record Sikh Regiment for further action. Ultimately, he was discharged from Army on January 9, 1987. Vide letter dated February 11, 1987, the Record Officer for Officer Incharge Record, Sikh Regiment Abhilekh Karyalaya Record, the Sikh Regiment, Ramgarh Cantt., sent his appeal dated January 31, 1987 against rejection of disability pension to the CDA (P) G -III Section, Allahabad. When, however, his aforesaid representation said to have been forwarded to the concerned authorities by treating it as an appeal brought no tangible result, he filed writ petition with the result already indicated above. The respondent -Union of India (hereinafter referred to as 'appellant') entered defence and hotly contested the cause of the petitioner and in the written statement filed on its behalf, it was pleaded that there was no record that the petitioner was injured by hand grenade. No injury report was even prepared by the unit. However, as per service details, the petitioner was admitted to Military Hospital Meerut Cantt. on July 20, 1976 and was discharged therefrom on July 31, 1976 with diagnosis Cataract (Lt.) eye. At the time of admission in Military Hospital Meerut Can't., the individual had complained that about one month back, he noticed diminished vision in left eye but since then it has gradually progressed. It was further pleaded that there was no history of pain, redness or trecome at onset. He was downgraded in medical category CEE temporary for six months. He was downgraded in medical category BEE (P) by a medical board held on July 22, 1981 with diagnose APHAKIA (LEFT) eye, which was viewed as neither attributable to nor aggravated by service. It was further pleaded that the petitioner never reported to the Subedar or the Captain, as stated by him in the petition. His claim for disability pension having been rejected was admitted but it was further pleaded that the rejection was based on the attributability aspect of the disability keeping in view all medical documents of the petitioner and that the petitioner was informed of the decision of the Controller of Defence Accounts (Pension) vide letter dated November, 6, 1986. He was also advised to prefer an appeal against the decision of the Controller of Defence Accounts (Pension), if he so desire. He preferred an appeal dated January 31, 1987, which was forwarded to the Controller of Defence Accounts (Pension) vide Records Sikh Regiment Letter dated February 11, 1987 under intimation to the petitioner. His appeal was also rejected by the government of India, Ministry of Defence on May 27, 1987 and decision thereof too was communicated to the petitioner. It was admitted that the petitioner did file representation, it was further pleaded that the petitioner was discharged from the Army on February 28, 1987 and his name was struck off with effect from March 1, 1987 under Army Rule 13(3) Item III (i) on fulfilling the conditions of his enrollment after completing 15 years and 22 days' service. The extent of disability at 40% for two years by the release medical board has since been admitted but grant of disability pension is sought to be denied as the disability was neither attributable to nor aggravated by military service.
(3.) ON the pleadings of the parties, as extracted above, learned Single Judge observed as follows: - "In the written statement filed on behalf the respondents, it has been inter alia averred that there is no record that the petitioner was injured by any grenade. It is pointed out that no injury report was even prepared by the Unit. The factum of his admission in the Military Hospital on July 20, 1976 and discharge from there on July 31, 1976 with diagnosis Cataract (Lt) eye, has been admitted. Furthermore, the factum of the petitioner's having suffered disability which was assessed at 40% has not been disputed. It has, however, been averred that the claim of the petitioner for the grant of disability pension was rejected on the ground that the disability was not attributable to Army service. It has been further pointed out that there is no direct or circumstantial evidence in favour of the petitioner.";