Union of India & Ors. Vs. Sharma Harish Chandra
EmailAppeal: Civil Appeal No. 231 of 1995
Petitioner: Union of India & Ors.
Respondent: Sharma Harish Chandra
Apeal: Civil Appeal No. 231 of 1995
Judges: S.P. BHARUCHA, N. SANTOSH HEGDE & Y.K. SABHARWAL, JJ.
Date of Judgment: Mar 29, 2001
Head Note:
SERVICE LAWS
Indian Air Force Pension Regulations
Regulations 37 and 42 and Rule 7(d)(viii) of Appendix II – Defence services – Employee of Air Force – Entitlement to disability pension – What disability attributable to military service – Employee discharged from service due to ‘ganja dependence’ – Writ seeking reinstatement with back wages – High Court declining reinstatement and back wages but ordering grant of disability pension – Validity. Held, Regulation 37 would apply and petitioner employee not having suffered any disablement much less due to military services and inasmuch as indulgence in drugs or drinks was within one’s own control, was not entitled to disability pension – Regulation 42 not applicable since the petitioner was not compulsorily retired. High Court erred in granting family pension. (Paras 4 and 5)
JUDGEMENT:
ORDER
1. By the judgment and order that is under challenge, the writ petition that was filed by the respondent before us has been allowed. The Union of India is in appeal by special leave.
2. The respondent was employed by the Indian Air Force and was, at the relevant time, holding the rank of Corporal. In January, 1983 he had been treated by a State dispensary, while on leave, for an injury. On re-joining service, he was treated at the Military Hospital, Madras and then as a psychiatric patient at the Command Hospital, Bangalore. On 21st March, 1983, the Medical Board recommended that he be invalidated out of service in the medical category “EEE”. Accordingly, a certificate of discharge was issued to him on 6th May, 1983. The application made by the respondent for disability pension was rejected for the reason that the disability from which he suffered was not attributable to military service and it did not fulfil the condition that it existed before or arose during service and had been or remained aggravated. The appeal filed by the respondent was rejected. On 31st July, 1984, the respondent was informed that he had been medically invalidated out of service due to “ganja dependence”.
3. The respondent filed the writ petition, on which the order under appeal was passed, challenging the certificate of his discharge. The High Court directed the Medical Board of the State of Assam to examine the respondent. This was done and no abnor-mality was found on his person. The High Court recorded this; as also the fact that the respondent had passed the M.A. examination subsequent to his discharge and was then employed by the Assam State Electricity Board. Three questions arose in the writ peti-tion. Whether the order of discharge was liable to be quashed and the respondent ordered back into service; whether the respondent was entitled to back wages; and whether the respondent was enti-tled to get disability pension under the relevant rules. The High Court declined the relief of reinstatement and back wages but granted the relief of disability pension for this reason:
“According to the paragraph 42 of the Hand Book of the Pensionary Benefits and other concession on retirement – Airman/NCs (E) – Sept’ 78 a disability pension is granted only if the injury sustained or disease suffered is attributable to or aggravated by Air Force Service and the degree of disability is assessed at 20% and above. According to the Regulation 42 there must be a connection between disablement and Air Force Service and no disability pension is admissible to an individual seeking discharge from service on voluntary basis or resigning his engagement.
Coming to the case in hand, as according to the medical report of Air Force Board the disability was only for two years apparently, even assuming that the writ petitioner was ganja dependent it took place while he was in service. Relying on corpus juris secundum Mr. Singh has urged that such addiction is possible if person is under stress. As according to the Medical Board of Air Force the alleged addiction took place while he was in service, I am satisfied that paragraph 42 of the above Hand Book of Pen-sionary Benefits is applicable to the case in hand.
The question regarding percentage of disability as per medical report of the Board constituted by the Air Force it was stated that the percentage was 15 to 19. The percentage given by the Board is quite broad and element of an error cannot be ruled out. Therefore, the said assessment of percentage will go in favour of the writ petitioner.”
4. Our attention has been drawn by the learned Additional So-licitor General, appearing for the appellants, to Regulation 42 of the Indian Air Force Pension Regulations, upon which reliance was placed by the High Court. It states that an officer compulso-rily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by Air Force Service and recorded by the service, medical authority, may, at the discretion of the President, be granted disability pension. The respondent was not compulsorily retired on account of age or on completion of tenure. Regulation 42 has, therefore, no application to his case.
5. What would apply to his case is Regulation 37, which reads thus :
“37(a) An officer who is retired from Air Force service on ac-count of a disability which is attributable to or aggravated by such service and is assessed at 20 percent or over may, on re-tirement, be awarded a disability pension consisting of a service element and a disability element in accordance with the regula-tions in this Section.
(b) The question whether a disability is attributable to or aggravated by Air Force service shall be determined under the regulations in Appendix II.”
Appendix II contains the Entitlement Rules that apply to all personnel governed by the Indian Air Force Pension Regulations. Rule 7(d)(viii) deals with invalidation on account of indulgence in drugs or drinks, it states, “Entitlement shall not be conceded if the disability or death on which the claim is based, resulted from indulgence in drugs or drinks which was within one’s own control.” A disability arises on account of disablement and there is nothing to indicate that the respondent suffered any disable-ment. In any event, even if he had and such disablement was caused by or resulted from his indulgence in ‘ganja’, which is a drug, he is disentitled to receive disability pension by reason of the provisions in the Appendix II quoted above.
6. In the circumstances, the High Court was in error in granting to the respondent disability pension. The civil appeal is, there-fore, allowed and the judgment and order under appeal is set aside.
7. No order as to costs.
1. By the judgment and order that is under challenge, the writ petition that was filed by the respondent before us has been allowed. The Union of India is in appeal by special leave.
2. The respondent was employed by the Indian Air Force and was, at the relevant time, holding the rank of Corporal. In January, 1983 he had been treated by a State dispensary, while on leave, for an injury. On re-joining service, he was treated at the Military Hospital, Madras and then as a psychiatric patient at the Command Hospital, Bangalore. On 21st March, 1983, the Medical Board recommended that he be invalidated out of service in the medical category “EEE”. Accordingly, a certificate of discharge was issued to him on 6th May, 1983. The application made by the respondent for disability pension was rejected for the reason that the disability from which he suffered was not attributable to military service and it did not fulfil the condition that it existed before or arose during service and had been or remained aggravated. The appeal filed by the respondent was rejected. On 31st July, 1984, the respondent was informed that he had been medically invalidated out of service due to “ganja dependence”.
3. The respondent filed the writ petition, on which the order under appeal was passed, challenging the certificate of his discharge. The High Court directed the Medical Board of the State of Assam to examine the respondent. This was done and no abnor-mality was found on his person. The High Court recorded this; as also the fact that the respondent had passed the M.A. examination subsequent to his discharge and was then employed by the Assam State Electricity Board. Three questions arose in the writ peti-tion. Whether the order of discharge was liable to be quashed and the respondent ordered back into service; whether the respondent was entitled to back wages; and whether the respondent was enti-tled to get disability pension under the relevant rules. The High Court declined the relief of reinstatement and back wages but granted the relief of disability pension for this reason:
“According to the paragraph 42 of the Hand Book of the Pensionary Benefits and other concession on retirement – Airman/NCs (E) – Sept’ 78 a disability pension is granted only if the injury sustained or disease suffered is attributable to or aggravated by Air Force Service and the degree of disability is assessed at 20% and above. According to the Regulation 42 there must be a connection between disablement and Air Force Service and no disability pension is admissible to an individual seeking discharge from service on voluntary basis or resigning his engagement.
Coming to the case in hand, as according to the medical report of Air Force Board the disability was only for two years apparently, even assuming that the writ petitioner was ganja dependent it took place while he was in service. Relying on corpus juris secundum Mr. Singh has urged that such addiction is possible if person is under stress. As according to the Medical Board of Air Force the alleged addiction took place while he was in service, I am satisfied that paragraph 42 of the above Hand Book of Pen-sionary Benefits is applicable to the case in hand.
The question regarding percentage of disability as per medical report of the Board constituted by the Air Force it was stated that the percentage was 15 to 19. The percentage given by the Board is quite broad and element of an error cannot be ruled out. Therefore, the said assessment of percentage will go in favour of the writ petitioner.”
4. Our attention has been drawn by the learned Additional So-licitor General, appearing for the appellants, to Regulation 42 of the Indian Air Force Pension Regulations, upon which reliance was placed by the High Court. It states that an officer compulso-rily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by Air Force Service and recorded by the service, medical authority, may, at the discretion of the President, be granted disability pension. The respondent was not compulsorily retired on account of age or on completion of tenure. Regulation 42 has, therefore, no application to his case.
5. What would apply to his case is Regulation 37, which reads thus :
“37(a) An officer who is retired from Air Force service on ac-count of a disability which is attributable to or aggravated by such service and is assessed at 20 percent or over may, on re-tirement, be awarded a disability pension consisting of a service element and a disability element in accordance with the regula-tions in this Section.
(b) The question whether a disability is attributable to or aggravated by Air Force service shall be determined under the regulations in Appendix II.”
Appendix II contains the Entitlement Rules that apply to all personnel governed by the Indian Air Force Pension Regulations. Rule 7(d)(viii) deals with invalidation on account of indulgence in drugs or drinks, it states, “Entitlement shall not be conceded if the disability or death on which the claim is based, resulted from indulgence in drugs or drinks which was within one’s own control.” A disability arises on account of disablement and there is nothing to indicate that the respondent suffered any disable-ment. In any event, even if he had and such disablement was caused by or resulted from his indulgence in ‘ganja’, which is a drug, he is disentitled to receive disability pension by reason of the provisions in the Appendix II quoted above.
6. In the circumstances, the High Court was in error in granting to the respondent disability pension. The civil appeal is, there-fore, allowed and the judgment and order under appeal is set aside.
7. No order as to costs.
