# No.2788858 (P) Ex. Babu Ram v. Union of India and others

- **Citation:** (2005) 3 ILRA 869
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-25
- **Case number:** Civil Misc. Writ Petition No.47465 of 2002
- **Bench:** Tarun Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-2788858-p-ex-babu-ram-v-union-of-india-and-others-40599
- **Pages:** 6

## Headnote

Sri S.K. Tripathi,
ADDL.S.C.
Sri B.N. Singh
S.S.C.

Army Pension Regulations-Regulation173-Disability
Pension-Petitioner
enrolled in army service on 26.8.91
hospitalised on 14.11.91-remained under
treatment upto 10.6.92-suffering from
adjustment
reaction with depressive
mood-309-petitioner remained out of
service due to personality disorder-claim
for disability pension rejected medical
report indicates no past history of
mental illness disease attributed to and
was aggrivated due to harassment and
maltreatment in training center-helddenial of pension not only erroneous but
also arbitrary and against the pension
rules.

Held-Para 14 and 16

An analysis of the psychiatry report
clearly indicates that the onset of the
petitioner's problem and the disease was
attributable to and was aggravated by
the
military
service.
Even
if,
the
petitioner was suffering from the disease
prior to his enrolment in the service, the
disease was aggravated due to the
harassment and maltreatment of the
petitioner by others in the training
centre.

In view of the aforesaid, the action of
the respondents in not granting the
disability pension is not only erroneous,
but is also arbitrary and is against the
Pension Rules. Pension is no longer a
bounty and is a right of the individual
under
Article
21
and
41
of
the
Constitution of India.
Case law discussed:
1997(1) ESC-477
2002(2) UPLBEC-1734
2001(1) UPLBEC-2010
1998(1) UPLBEC-708
1996(2) UPLBEC-761

## Text

3 All] No.2788858 (P) Ex. Babu Ram V. Union of India and others
869
11. Thus, this application filed with
the prayer for recall of the exparte interim
order dated 8.9.2005 is being rejected on
the aforesaid grounds, without expressing
any opinion on the merits of the case. The
applicant-respondent no. 5 shall be at
liberty to file an application for vacation
of the aforesaid exparte interim order
alongwith a counter affidavit giving
detailed reply to the averments made in
the writ petition. Application Rejected.
---------
ORIGINAL GURISDICATION
CIVIL SIDE
DATED: ALLAHABAD 25.10.2005

BEFORE
THE HON'BLE TARUN AGARWAL, J.

Civil Misc. Writ Petition No.47465 of 2002

No.2788858 (P) Ex. Babu Ram ...Petitioners
Versus
Union of India and others ...Respondents

Counsel for the Petitioners:
Sri Rajesh Yadav

Counsel for the Respondents:
Sri S.K. Tripathi,
ADDL.S.C.
Sri B.N. Singh
S.S.C.

Army Pension Regulations-Regulation173-Disability
Pension-Petitioner
enrolled in army service on 26.8.91
hospitalised on 14.11.91-remained under
treatment upto 10.6.92-suffering from
adjustment
reaction with depressive
mood-309-petitioner remained out of
service due to personality disorder-claim
for disability pension rejected medical
report indicates no past history of
mental illness disease attributed to and
was aggrivated due to harassment and
maltreatment in training center-helddenial of pension not only erroneous but
also arbitrary and against the pension
rules.

Held-Para 14 and 16

An analysis of the psychiatry report
clearly indicates that the onset of the
petitioner's problem and the disease was
attributable to and was aggravated by
the
military
service.
Even
if,
the
petitioner was suffering from the disease
prior to his enrolment in the service, the
disease was aggravated due to the
harassment and maltreatment of the
petitioner by others in the training
centre.

In view of the aforesaid, the action of
the respondents in not granting the
disability pension is not only erroneous,
but is also arbitrary and is against the
Pension Rules. Pension is no longer a
bounty and is a right of the individual
under
Article
21
and
41
of
the
Constitution of India.
Case law discussed:
1997(1) ESC-477
2002(2) UPLBEC-1734
2001(1) UPLBEC-2010
1998(1) UPLBEC-708
1996(2) UPLBEC-761

(Delivered by Hon'ble Tarum Agrawal, J.)

1. The petitioner was enrolled in the
Army on 26.8.1991 and was sent for
training in the Maratha Light Infantry
Cerntr, Belgaum. At the time of his
enrolment, the petitioner was medically
checked and was found fit and was
govern an "A" medical category.

2. Within two months of his joining,
the petitioner was admitted in the hospital
on 14.11.1991 and remained under
treatment unto 10.6.1992, where his
disease
was
diagnosed
as
an
"ADJUSTMENT
REACTION
WITH
DEPRESSIVE MOOK-309". As a result
870 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
of this diagnosis, a medical report dated
10.6.1992 was issued invaliding the
petitioner out of service on the ground of
"personality disorder". The petitioner
thereafter moved an application claiming
Disability Pension which was rejected by
an order dated 1.9.1993 on the ground
that the disability which the petitioner has
suffered during his service in the Army
was not attributable to the Military
Service and, therefore, disability pension
was neither admissible nor payable under
the Rules. It transpires that the petitioner
preferred an appeal, which remained
pending, and eventually, the petitioner
filed writ petition No.2961 of 2001 which
was disposed of by an order dated
22.1.2002 directing the appellate authority
to decide the appeal within three months.
Based on the aforesaid direction, the
appellate authority by its order dated
1.8.2001 rejected the appeal of the
petitioner. Consequently, the present writ
petition has been filed praying for the
quashing of the orders dated 19.11.1993
and 1.8.2003 and further praying for a
writ of mandamus commanding the
respondents to pay the disability person
with interest.

3. Heard Sri Rajesh Yadav, the
learned counsel for the petitioner and Sri
S.K.Tripathi, the learned counsel for the
respondents.

Disability Pension is payable to a
person, who had been invalidated on
account of a disability which occasioned
on account of an injury or an illness. The
grant of a disability pension is, therefore,
not dependant upon any length of service.
Disability Pension is payable under
paragraph No. 173 of the Pension
Regulation which reads as follows:

"Unless
otherwise
specifically
provided a disability pension may be
granted to an individual who is invalided
from service on account of a disability
which is attributable to or aggravated by
military service and is assessed at 20
percent or over.

The question whether a disability is
attributable to or aggravated by military
service shall be determined under the
rules in Appendix-II".

4.

The
aforesaid
provision
contemplated that an invalidation form
the military service should be on account
of a disability which is attributable to or
aggravated by military service and is
assessed at 20 percent or more. The
question,
whether
a
disability
was
attributable to or aggravated by military
service, would be determined under the
rules in Appendix-II. The entitlement
Rules, under Appends-II provides the
basis for awarding a disability pension.
Rule 1 contemplated that any invalidation
from the service is a necessary condition
for the grant of a disability pension. Rule
2 (a) provides that a disablement would
be accepted as due to a military service
provided
id
is
certified
that
the
disablement was attributable to the
military service or existed before of arose
during the military service and had been
aggravated by the military service. Rule 3
indicated that the disability must have a
causal connection with the military
service. Rule 4 lays down that in deciding
the issue of entitlement, all direct or
indirect evidence would be taken into
account and the benefit of reasonable
doubt would given to the claimant.

5. From the aforesaid, it is clear that
an employee who suffers from a particular
disease may be invalidated from the
3 All] No.2788858 (P) Ex. Babu Ram V. Union of India and others
871
service and it the said disease was
aggravated after entering the service
which has resulted in his discharge from
the service due to that disability; it would
entitle him to claim a disability pension.
These rules clearly indicates that even a
disease which was contracted prior to the
entry into the service can be made a basis
to claim disability pension provided it is
proved that the disease was aggravated
after the entry into the service. In other
words, military service should be the
contributing factor to aggravate the
disability.

6. The petitioner claims disability
under Rules 7 which reads as under:-
"(a) Cases, in which it is established
that conditions of military service did not
determine or contribute to the onset of the
disease but influenced the subsequent
course of the disease, will fall for
acceptance on the basis of aggravation.
(b) A disease which has let to an
individual's discharge or death will
ordinarily be deemed to have arisen in
service if no note of it was made at the
time of the individual's acceptance for
military service. However, if medical
opinion holds, for reasons to be stated,
that the disease could not have been
detected on medical examination prior to
acceptance for service the disease will not
be deemed to have arisen during service.
(c) If a disease is accepted 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 circumstance
of duty in military service.
(d) In considering whether a particular
disease is due to military service, it is
necessary to relate the established facts, in
the etiology of the disease and of its
normal development; to the effect and
conditions of service e.g. exposure, stress,
climate, etc may have had on its
manifestation. Regard must also be had to
the time factor.( Also see Annexure I).
(e) Common diseases known to be
affected by stress ad strain. This should be
decided with due reference to the nature
of the duties and individual has had to
perform in military service. It may be that
in some cases the individual has been
engaged on sedentary duties when they
will normally not qualify"

7. Clause (b) of the Rule 7 indicates
that is no note of a disease was made at
the time of the employees' enrolment in
the military service, a disease shall be
deemed to have arisen which in service.
However, this assessment is displace only
if the medical opinion, for the reasons to
be recorded in writing, holds otherwise
that the illness could not be detected at the
time of the enrolment in the service.

8. From the aforesaid, it is clear, that
an employee who has been invalidated
from the services is entitled to a disability
pension, even if he was suffering from the
disease prior to his enrolment in the
service and that he said disease was
aggravated due to stress and strain while
in employment. If a note to the disease
was not made at the time of a person's
enrolment in the military service, the said
diseases would be deemed to have arisen
in course of the employment. However,
this presumption can be dispensed with, if
the medical doctors opine, that the disease
could not be deleted on the medical
examination at the time o the enrolment
of the employee. The Rules further
indicates that whether a particular disease
is due to the military service or not it
would
be
necessary
to
relate
the
872 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
established facts in the axiology of the
disease and of its normal development to
the effect that the condition of service
such as exposure, stress climate etc. may
have had on its manifestation ad in this
regard the time facto is also an essential
element.

9. In the light lot the aforesaid
provisions, the learned counsel for the
petitioner submitted that since no note of
the said disease was made by the
respondents at the time of the enrolment
of the petitioner in the service, therefore,
the invalidation lot the petitioner on the
ground that the disease which had
occurred was not attributable to the
military
service
and
therefore,
the
petitioners was entitled to a disability
pension under Regulation 173 read with
the Rule 7 of Appendix II of the said
Regulation. FON the other hand, the
leaned
counsel
for
the
respondents
submitted
that
the
petitioner
was
invalidated on account of a constitutional
disorder and that the said disease was not
attributable
to
the
military
service.
Further, personality disorder was detected
at the initial state of his enrolment itself
and therefore, the condition of service did
not attribute too the manifestation of this
disease. The learned counsel for the
respondents submitted tat even if the
diseased was accepted to have arisen in
service, or cannot be established that the
condition of military service determine or
attributed to the onset of the disease and
that the stress and strain had led to the
manifestation of the disease since the
disease was detected at he initial stage of
training.

10. In support of the submission, the
petitioner has relied upon the decision in
Ram Niwas vs. Union of India, 1997(1)
E.S.C.477, Ex. Gnr. Dharam Vir Singh
vs. Union of India and others, 2002 (2)
UPLBEC 1734 Mahaveer Singh Rawat
vs. Union of India and others, 2001(1)
UPLBEC 262 Inder Jang vs. Union of
India and others, 1999(3) UPLBEC 2010,
Yashpal Singh Mehra vs. Union of India
and others, 1998(1) UPLBEC 708, Anil
Kumar Mishra vs. Union of India, 1996
(2) UPLBEC 761, in which it was held
that the disease was attributable to the
military service coupled with the fact that
no note of the said disease was made at
the time of enrolment and, therefore, the
imployee was entitled to a disability
pension under Rule 7(2) of Appendix II of
the said Regulations.

11. In the light of the aforesaid
judgments, it is necessary to consider the
facts of the present case which eventually
led to the discharge of the petitioner from
the service. The petitioner was enrolled in
the Army at young age. At the time of his
enrolment, he was found to be medically
fit and was not found to suffering from
any illness or disease. The enrolment of
the petitioner was done after a through
and
intensive
medical
examination.
According to the petitioner, during his
training he was badly treated by his senior
an was physically and mentally tortured in
the training central. The petitioner has
alleged that he was strapped and hung
upside down and that he was harassed,
man -handled and beaten by his seniors,
The persistent ragging of the petitioner
while undergoing training led him to a
mental
breakdown
resulting
in
his
hospitalisation and eventually discharge
from the service, From a perusal of the
psychiatric report, it is class the an
attempt has been made to diagnose the
reason for his maladjustment in the army
environment, but no effort had been made
3 All] No.2788858 (P) Ex. Babu Ram V. Union of India and others
873
by the Army Authorities to locate and
address the reasons for subjecting the
petitioner to such a harassment.

12. The psychiatric report indicates
that the petitioner had no past history of
any mental or physical illness. The
examination of his mental state of mind
indicated that he was passively co-
operative and observed normal military
manners and was clean and coherent and
that there were no psychotic features and
that sensorism was clear and that his
insight and judgment was intact and that
initial
examination
did
not
show
depression.
However,
subsequent
interviews revealed that he had a deep
resentment towards his seniors, who
allegedly harassed the petitioner. The
report further indicated that the onset of
the petitioner's problem was during the
training period when he felt himself to be
a misfit and was ill treated by his
superiors, which let to a depressive mood
and strong demodulations for the service.
The report clearly indicates that the
petitioner did not have a past history of a
mental illness and that the stress of basic
military training ad maladjustment to the
service environment appears to have
contributed to the onset of the psychiatric
illness.

13. The entire report concentrates on
the petitioner's adjustment in the military
environment
and,
brought
into
the
forefront,
his
maladjustment
in
the
military service. But the cause which let
to this depressive mood behavior and his
adjustment in the military environment
has not been considered. The petitioner
alleged that he was harassed, tortured and
hung upside down by his superiors in the
training centre. This fact has not been
considered by the authorities and has been
ignored completely. The allegations made
by the petitioner appears to be correct.
The
physical
examination
of
the
petitioner. As per the medical report,
indicates that he had contusions over the
neck (around), over the forearms (near
wrist) and around the ankles. The
contusions on the forearms and the ankles
indicates that the petitioner was tied and
hung. The petitioner cannot tie his arms
and ankles and then hang himself.
Consequently, some else had tied his
hands and ankles and thereafter hanged
the petitioner.

14. An analysis of the psychiatry
report clearly indicates that the onset of
the petitioner's problem and the disease
was attributable to and was aggravated by
the military service. Even if, the petitioner
was suffering from the disease prior to his
enrolment in the service, the disease was
aggravated due to the harassment and
maltreatment of the petitioner by others in
the training centre.

15. Apart from the aforesaid, it is
clear that at the time of the enrolment of
the petitioner in the Army Service he was
not found to be suffering from any
ailment and no note of this disease was
made by the Medical Board. Therefore,
under Rule 7, if no note was made
regarding a particular illness at the time of
the enrolment of an employee a particular
illness at the time of the enrolment of an
employee in the military service, the
judgments cited by the learned counsel for
the petitioners are squarely applicable.

16. In view of the aforesaid, the
action of the respondents in not granting
the
disability
pension
is
not
only
erroneous, but is also arbitrary and is
against the Pension Rules. Pension is no
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
longer a bounty and is a right of the
individual under Article 21 and 41 of the
Constitution of India.

17. In view of the aforesaid, the writ
petition is allowed. The impugn3ed orders
dated 19.11.1993 and 1.8.2002 are set
aside and the respondents are directed to
pay disability pension to the petitioner
within three months form the date of
production of a certified copy of this
order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 22457 of 2004

Bhanwar Pal Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rashtrapati Khare

Counsel for the Respondents:
Sri V.K.Rai.
S.C.

Constitution of India, Art. 226-Servise
law-deduction
from
gratuity
and
pension-petitioner worked on the basis
of interim order-by impugned order
made
to
compulsory
retired-after
dismissal of writ petition-Appellate Court
direct to calculate the retirement benefit
from
the
date
of
retirementConsequently-the authorities deducted
the excess amount of the salary from the
some payable to the petitioner towards
gratuity and pension-held the period
under which petitioner worked on the
basis of interim order-be treated the
extension of service-petitioner entitled
to retain salary-the deducted amount be
refunded to petitioner within 3 monthsfailing which 12% interest would be
paid.

Held: Para-5 and 6

The direction of the Court, did not allow
the respondents to deduct the salary,
which the petitioner had received on the
basis of an interim order. In my view, the
petitioner was justified to receive the
salary because he had worked and
performed is duty during that period. In
my view, this period, should be treated
as an extension of service and, therefore,
the petitioner would be entitled to retain
his salary. The authority while rejecting
the representation of the petitioner had
also referred the matter to the State
Government for its opinion. The State
Government,
By
an
order
dated
04.04.2005
informed
the
Police
Department, that the salary which the
petitioner had received, pursuant to the
interim order, could not be deducted
from his retirement benefits. In view of
the categorical stand taken by the State
Government, it is no longer open to the
Police Department to deduct any amount
from the retirement benefits for which
the petitioner was entitled.

Consequently,
the
writ
petition
is
allowed in respect of the relief as
modified above and a mandamus is
issued to the respondents not to deduct
any amount from the gratuity or from
the pension, in relation to the salary,
which
the
petitioner
had
received,
pursuant to the interim order passed in
Writ Petition No.13578 of 1990. The
amount so deducted shall be refunded to
the
petitioner
within
three
months
without any payment of interest from
the date of production of a certified copy
of this order, failing which, interest
would be paid at the rate of 12%per
annum. It is made clear, that the other
relief's, which the petitioner has claimed,
in the writ petition, has not been pressed
by the petitioner.