Full Judgment Text
Unreportable
IN THE HIGH COURT OF DELHI AT NEW DELHI
+WP(C) No.5369/1998
Date of Decision: 23.05.2008
#Smt. Munni Devi .....Petitioner
Through: Mr. G.K. Sharma
Versus
$Union of India and Others ....Respondents
^ Through Mr.V.P. Singh with
Ms. Shubhra Parashar
CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE J.M. MALIK
1.Whether Reporters of Local papers may be allowed to
see the Judgment?
2.To be referred to the Reporter or not?
3.Whether the judgment should be reported in the Digest?
A.K. SIKRI, J.
:
1. The petitioner, widow of the deceased Madan Lal, has
approached this Court by means of the present petition for
grant of special family pension. Her husband Madan Lal
(hereinafter referred to as the 'deceased') was enrolled in the
Army on 9.7.1985 as a Gunner/OFC. As per the petitioner, the
deceased was hail and hearty when he joined the Army. He
WP(C) No.5369/1998 Pg. 1 of 14
participated in various operations and gave good account of
himself. He even actively participated in games and sports
which are organised by the Army regularly to develop
competitive spirit and/or to ensure their physical fitness.
2. In May 1991, when the deceased was serving in 130 AD
Regiment, a game of Kabaddi was organised in which he was
also one of the players. However, during that game, the
deceased sustained severe injury in his groin. As a result, the
deceased developed severely painful swelling in his right
scrotum. The deceased was given the treatment in the unit
by a General Duty Medical Officer which did not have any
effect and his condition continued to deteriorate. On
5.7.1991, he was admitted to 167 Military Hospital where he
underwent retrograde Orchidectony (Right), leaving a
corrugated drain through the scrotum. Still his condition did
not improve. In August 1991, he was transferred to Malignant
Diseases Treatment Centre, Command Hospital, Southern
Command, Pune. After various tests he was diagnosed as
suffering from Embryonal Carcinoma Testis (Right). To put it
simply his right testis was diagnosed as Cancerous.
Chemotherapy treatment was started which also could not
cure the illness of the deceased as his condition kept on
deteriorating. On 4.5.1992, the deceased was placed on
WP(C) No.5369/1998 Pg. 2 of 14
'Dangerously ill list' and transferred to Army Hospital, Delhi
Cantt. However, as normally happens with such a disease, it
proved mortal and ultimately the husband of the petitioner
breathed his last on 25.5.1992.
3. The deceased left behind his widow (the petitioner herein) and
two small children and an old father. Family pension was
sanctioned to the petitioner which she started getting from
the date of her husband's death and continues to get the
same. The petitioner, however, wanted special family pension
also which is granted to a widow in case her husband dies
while on duty due to injury or ailment, which is either
attributable to the military service or is aggravated by military
service. According to the petitioner, the Commanding Officer,
130 AD Regiment, where the deceased was serving at the
relevant time, submitted necessary documents through
Records Air Defence Regiment recommending grant of special
family pension which was forwarded to the Chief Controller of
Defence Accounts (Pensions), Allahabad (respondent No.4) on
4.2.1993. However, the CCDAP, Allahabad turned down the
claim of the petitioner for special family pension vide
communication dated 29.7.1993 on the ground that the death
of the deceased was neither attributable to military service
nor aggravated by it. Only family pension was sanctioned. For
WP(C) No.5369/1998 Pg. 3 of 14
two years the petitioner kept on corresponding with the
authorities for grant of special family pension. Various
reminders including Advocate's notice was sent in this behalf.
The petitioner also demanded supply of relevant documents
relating to the case. Ultimately, reply dated 2.12.1995 was
sent rejecting the request of grant of special pension
reiterating the basis thereof. Request for supply of
documents was also turned down. Feeling aggrieved, the
petitioner submitted a petition for grant of special family
pension to the Ministry of Defence/respondent No.1. This
petition has also been rejected by the respondent No.1 vide
its decision conveyed through communication dated 4.5.1998.
Still not satisfied, the petitioner has preferred the instant
petition.
4. Case of the petitioner is that she is entitled to special family
pension because her late husband sustained the injury in
question while on duty and it was aggravated due to service
reasons and carelessness on the part of the respondents in
not giving the deceased proper treatment in time. Her claim
is, therefore, admissible under Rule 2(b), 3, 4, 6(c) of
entitlement rules contained in Appx. II of Pension Regulations
Part-1 and note 1(c) on page 106 of Pension Regulations Part
I. Provisions of paras 212 and 213 and relevant extracts of
WP(C) No.5369/1998 Pg. 4 of 14
para 223 of Pension Regulations Part I, 1961 are reproduced
below:-
" Ordinary Family Pension
212. An ordinary family pension may be
granted to the family of a Junior
Commissioned Officer granted honorary
commission as a commissioned officer
while on the effective list, who dies during
service or after retirement for causes
neither attributable to nor aggravated by
military service.
Special family pension
213. A special family pension may be
granted to the family of an individual if his
death was due to or hastened by-
(a) a wound, injury or disease which was
attributable to military service, or
(b) the aggravation by military service of
a wound, injury or disease which existed
before or arose during military service."
Relevant extract from Regulation 223
"223. Except in the case of Junior
Commissioned Officers while on the
effective list, special family pension and
gratuity shall be assessed on the
substantive rank and the group held by an
individual on the date of his death if death
occurs in service or on the date of
discharge/retirement if death takes place
after discharge/retirement."
It is also stated that the CCDP(A) had no authority to
reject the genuine claim for pension of the petitioner.
5. It is not in dispute that as per the aforesaid provisions in the
pension rules to which reference is made by the petitioner,
WP(C) No.5369/1998 Pg. 5 of 14
she would be entitled to special family pension in case the
injury/disease is related to military service, i.e. it is either
contracted during military service or is aggravated as a result
thereof. The entire question boils down to the determination
of the issue as to whether the disease with which the husband
of the petitioner suffered, namely, Disseminated Carcinoma
Testis (Embryonal) is related to military service. To put it
differently, what is to be determined is as to whether this
disease has any causal connection with the performance of
the Army duties.
6. Before addressing this issue, it would be appropriate to
complete the narration of facts by stating the developments
which took place during the pendency of the writ petition. On
5.11.2001, the petitioner, widow of the deceased, also passed
away. She is survived by her two minor children, a daughter
named Neetu Yadav and a son named Vikas Yadav. They
were allowed to be substituted in place of the petitioner on
6.9.2005 and, therefore, the present petition is pursued by the
two children of the deceased and the petitioner. It is not in
dispute that the minor children of the deceased would also be
entitled to special family pension, if it is held to be admissible.
7. The submission of the learned counsel for the petitioner was
that the deceased had sustained injury to his scrotum during
WP(C) No.5369/1998 Pg. 6 of 14
May 1991, while on duty during organised game of Kabaddi,
which culminated into Embryonal Carcinoma Testis (Right)
because of negligence and delay in treatment in the unit. No
record of treatment was given by the Unit Resident Medical
Officer. It was not provided even when asked for by the
petitioner. It was also pointed out that the following note is
recorded by Lt. Col. M.P. Jai Prakash, Classified Specialist
(Medicine), MD TC CH, Pune on 2.12.1991 at 1930 hrs.:
"Completed IV courses of chemotherapy given with
inadequate doses/drugs and delay due to non-availability of
drugs". On this basis it was sought to argue that it is evident
that treatment with inadequate doses of medicine at the MD
TC CH, Pune also contributed to the death of the deceased.
The deceased was diagnosed as a case of Embrayonal
Carcenoma Testis Right at the MD TC SC, Pune after detailed
medical examination and Laboratory analysis. He was treated
there from 4.8.1991 to 4.5.1992. The deceased was given 7
courses of chemotherapy with inadequate doses of medicines.
8. Learned counsel for the petitioner also submitted that since
injury was sustained while on duty, i.e. while playing Kabaddi
as an organised game, pension would be admissible on the
strength of Para 271 of the Regulations for the Army 1987 Vol.
1, which provides that injuries sustained by officers, JCOs, WO
WP(C) No.5369/1998 Pg. 7 of 14
and/or take part in such Parades, games and sports or deaths
arising from these injuries will be considered to have occurred
while on duty.
9. In this connection text of Para 271 of the Regulations for the
Army 1987 Vol. 1 is reproduced below:-
"271. PT and Games:- All PT and
exercises, including PT Games,
carried out as part of a soldiers
training during Parade hours under a
PT instructor or a platoon or company
commander are compulsory. Games
and sports out of Parade hours are
not compulsory, but if organized by or
with the approval of military
authorities will be regarded as PT
injuries sustained by Officers, JCOs,
WOs and/or, NCs(E), taking part in
such Parades, games and sports or
death arising from these injuries will
be considered to have occurred while
on duty."
10. As per Appendix II (Entitlement Rules for Casualty
Pensionary Awards, 1982, "Injuries sustained by the personnel
of the Armed Forces in impromptu games and sports outside
Parada hours, which are organised by, or with the approval of
the local service authority, and death or disability arising from
such injuries, will continue to be regarded as having occurred
while 'on duty' for purposes of these rules."
11. As per Para 9 of the said Appendix II, "the claimant shall
WP(C) No.5369/1998 Pg. 8 of 14
not be called upon to prove the conditions of entitlements.
He/she will receive the benefit of any reasonable doubt. This
benefit will be given more liberally to the claimants in
field/afloat services cases." It is also argued that no medical
board proceedings in relation to the death of the deceased
have been produced by the respondents except for a
certificate of attributability. Learned counsel also submitted
that CCDAP, Allahabad, who rejected the claim of special
family pension on the ground that the deceased died of
Disseminated Carcinoma Testis (Embryonal) is not attributable
to military service because of "disability was of constitutional
nature" is without any jurisdiction inasmuch as, the said
CCDAP was not competent to give any medical opinion.
Further, Medical Advisor (Pension) had not examined the
deceased and as such, he also could not have arrived at the
conclusion that wound/injury of the deceased was not
attributable to the military service or aggravated because of
military service. It was emphasised that the Commanding
Officer had recommended the award of special family pension
vide his letter dated 4.2.1993 and, therefore, Accounts Officer
had no authority to reject the same. Learned counsel also
challenged the conceptual basis of "constitutional" disease by
submitting that there was no such term like "injury'disability
WP(C) No.5369/1998 Pg. 9 of 14
of constitutional nature" and as it had not been defined
anywhere in the pension regulations. He referred to a
judgment of this Court in the case of Sep. Gopal Singh Dadwal
Vs. Union of India , 2007 (1) SLR 616 (Delhi) (DB) and
particularly the following observations therefrom:-
"In furtherance to direction of the
Court, medical specialists have
appeared during the course of
hearing of these petitions. In
response to query by the Court, the
medical specialists have expressed
their opinion that 'Constitutional
disorder' or 'Constitutional disease'
would relate to a situation where the
Medical Board is unable to find a
cause for the disease which a person
is suffering from. In those
circumstances, it is recorded that the
disease is neither attributable nor
aggravated by army service. In other
words, if the medical authorities failed
to determine cause, onset or arrive at
a definite diagnostic opinion in
relation to disease of a member of the
force, it is bound to adversely affect
the interest of the member in relation
to grant of disability pension.
According to these experts, the
constitutional disorder would normally
result in recording of such opinion as
'not attributable to nor aggravated by
military service' without any further
or proper diagnosis. Butterworth's
Medical Dictionary, defines
'Constitutional' as: "Relating to the
state of constitution, inherent in the
Constitution of mind or body, relating
to the bodily system as a whole." The
expression Constitutional Disorder or
disease would thus have to be
WP(C) No.5369/1998 Pg. 10 of 14
understood even in its common
parlance as something, which is
relatable to human mind and/or body.
Its existence in either of them could
be specifically diagnosed both in
relation to cause, time of its existence
as well as onset of the disease. This
can hardly be termed as just and fair
approach in consonance with rules
and regulations. The disease like
Schizophrenia, Neurosis and other
Psychiatric related disease can be
aggravated if not attributable to Army
service. If they are constitutional
disease or disorders, then they must
be relatable to human body and/or
mind and can be detected by proper
diagnose including the time, i.e. pre
or post joining the Army. It would be
required of the authorities concerned
to reasonably show on record that
such diseases, on their basis
symptoms existed prior, though the
disease manifested late or even co-
relate the onset of the diseases to
period prior to the joining of service
by the petitioner."
12. Relying upon another judgment of this Court in Smt.
Reshma Devi Vs. Union of India , MLJ 1998 Delhi 92, it was
submitted that this Court has held that when husband of the
petitioner was enrolled in the Army, he was medically
examined and the medical board did not say that he suffered
from any disease and the disability occurred later. Under
Pension Regulation No.223 read with Regulation No.213 of the
Pension Regulations Part I Army "if death occurs in service,
WP(C) No.5369/1998 Pg. 11 of 14
the official will be entitled to special family pension." Similar
view has been taken by Punjab and Haryana High Court in the
case of Kanta Devi Vs. Union of India and Ors. , reported as
1999 (1) SLR 668. In another case entitled Keshar Singh Vs.
Union of India and Ors , reported as Mil LJ 1999 All. 40, the
Allahabad High Court has held that if no note was made at the
time of the petitioner's entry into service that he was suffering
from a certain disease, inevitably it must follow that the
disability from which the petitioner was suffering and has led
to his discharge or death is attributable to military service.
13. After examining the entire case in detail keeping in view all
the facts and the legal position highlighted by the learned
counsel for the petitioner in the judgments, note whereof is
taken above, we are of the opinion that the petitioner is
entitled to the relief claimed in this petition and she be given
the special family pension on the premise that the disease in
question because of which her husband died is to be treated
as either attributable to the military service or at least
aggravated by it. In this behalf, we may note that it is not in
dispute that it was the injury suffered by the deceased in May
1990, when he was playing Kabaddi , which became the cause
of his death ultimately. Game of Kabaddi was organized by
the respondent/employer, i.e., concededly, playing such a
WP(C) No.5369/1998 Pg. 12 of 14
game is treated as part of duty as the soldiers are
compulsorily made to participate in such games. While
playing the game of Kabaddi the deceased sustained injuries
in the groin. He was even given treatment for this injury
which had resulted in swelling in his right scrotum. As his
condition deteriorated and the injury could not be cured, on
5.7.1991 he was admitted to 167, Military Hospital. There he
underwent retrograde Orchidectony (Right) leaving a
corrugated drain through the scrotum. Even this did not cure
him and in August, 1991 he was transferred to Malignant
Diseases Treatment Centre, Southern Command, Pune where
he was diagnosed as suffering from Embryonal Carcinoma
Testis (Right), i.e., cancer of the testis. When the disease of
cancer with which the husband of the petitioner was found
suffering and because of which he ultimately died, is traced
with the aforesaid event, and not in isolation, the conclusion
would be obvious. The respondents cannot take a myopic
view of the entire matter in taking the cause of death as
cancer and coming to the conclusion that cancer is allegedly
'constitutional disease' and thus, cannot be attributed to the
service. Even if there were some traces of cancer, it was
clearly aggravated because of the severe injury sustained by
the deceased in his groin while playing the game of Kabaddi
WP(C) No.5369/1998 Pg. 13 of 14
and the said injury getting worsened with the period of time
as the treatment given by the respondents themselves did not
bear any positive effect. In these circumstances, though we
feel that the disease is to be treated as attributed to service
and even if it is presumed that it was not so, it is beyond pale
of doubt that under the aforesaid circumstances it would be
treated as aggravated by the military service, namely, the
injury in the groin was suffered by the deceased while in
military service. We, therefore, allow this writ petition and
direct the respondents to grant special family pension to the
petitioner on the ground that death of the deceased was
attributable to and/or aggravated by the military service with
effect from the date of death of the petitioner's husband.
Arrears of pension shall be paid within three months. The
petitioner shall also be entitled to costs quantified at
Rs.5,000/-.
(A.K. SIKRI)
JUDGE
May 23, 2008 (J.M. MALIK)
HP. JUDGE
WP(C) No.5369/1998 Pg. 14 of 14
IN THE HIGH COURT OF DELHI AT NEW DELHI
+WP(C) No.5369/1998
Date of Decision: 23.05.2008
#Smt. Munni Devi .....Petitioner
Through: Mr. G.K. Sharma
Versus
$Union of India and Others ....Respondents
^ Through Mr.V.P. Singh with
Ms. Shubhra Parashar
CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE J.M. MALIK
1.Whether Reporters of Local papers may be allowed to
see the Judgment?
2.To be referred to the Reporter or not?
3.Whether the judgment should be reported in the Digest?
A.K. SIKRI, J.
:
1. The petitioner, widow of the deceased Madan Lal, has
approached this Court by means of the present petition for
grant of special family pension. Her husband Madan Lal
(hereinafter referred to as the 'deceased') was enrolled in the
Army on 9.7.1985 as a Gunner/OFC. As per the petitioner, the
deceased was hail and hearty when he joined the Army. He
WP(C) No.5369/1998 Pg. 1 of 14
participated in various operations and gave good account of
himself. He even actively participated in games and sports
which are organised by the Army regularly to develop
competitive spirit and/or to ensure their physical fitness.
2. In May 1991, when the deceased was serving in 130 AD
Regiment, a game of Kabaddi was organised in which he was
also one of the players. However, during that game, the
deceased sustained severe injury in his groin. As a result, the
deceased developed severely painful swelling in his right
scrotum. The deceased was given the treatment in the unit
by a General Duty Medical Officer which did not have any
effect and his condition continued to deteriorate. On
5.7.1991, he was admitted to 167 Military Hospital where he
underwent retrograde Orchidectony (Right), leaving a
corrugated drain through the scrotum. Still his condition did
not improve. In August 1991, he was transferred to Malignant
Diseases Treatment Centre, Command Hospital, Southern
Command, Pune. After various tests he was diagnosed as
suffering from Embryonal Carcinoma Testis (Right). To put it
simply his right testis was diagnosed as Cancerous.
Chemotherapy treatment was started which also could not
cure the illness of the deceased as his condition kept on
deteriorating. On 4.5.1992, the deceased was placed on
WP(C) No.5369/1998 Pg. 2 of 14
'Dangerously ill list' and transferred to Army Hospital, Delhi
Cantt. However, as normally happens with such a disease, it
proved mortal and ultimately the husband of the petitioner
breathed his last on 25.5.1992.
3. The deceased left behind his widow (the petitioner herein) and
two small children and an old father. Family pension was
sanctioned to the petitioner which she started getting from
the date of her husband's death and continues to get the
same. The petitioner, however, wanted special family pension
also which is granted to a widow in case her husband dies
while on duty due to injury or ailment, which is either
attributable to the military service or is aggravated by military
service. According to the petitioner, the Commanding Officer,
130 AD Regiment, where the deceased was serving at the
relevant time, submitted necessary documents through
Records Air Defence Regiment recommending grant of special
family pension which was forwarded to the Chief Controller of
Defence Accounts (Pensions), Allahabad (respondent No.4) on
4.2.1993. However, the CCDAP, Allahabad turned down the
claim of the petitioner for special family pension vide
communication dated 29.7.1993 on the ground that the death
of the deceased was neither attributable to military service
nor aggravated by it. Only family pension was sanctioned. For
WP(C) No.5369/1998 Pg. 3 of 14
two years the petitioner kept on corresponding with the
authorities for grant of special family pension. Various
reminders including Advocate's notice was sent in this behalf.
The petitioner also demanded supply of relevant documents
relating to the case. Ultimately, reply dated 2.12.1995 was
sent rejecting the request of grant of special pension
reiterating the basis thereof. Request for supply of
documents was also turned down. Feeling aggrieved, the
petitioner submitted a petition for grant of special family
pension to the Ministry of Defence/respondent No.1. This
petition has also been rejected by the respondent No.1 vide
its decision conveyed through communication dated 4.5.1998.
Still not satisfied, the petitioner has preferred the instant
petition.
4. Case of the petitioner is that she is entitled to special family
pension because her late husband sustained the injury in
question while on duty and it was aggravated due to service
reasons and carelessness on the part of the respondents in
not giving the deceased proper treatment in time. Her claim
is, therefore, admissible under Rule 2(b), 3, 4, 6(c) of
entitlement rules contained in Appx. II of Pension Regulations
Part-1 and note 1(c) on page 106 of Pension Regulations Part
I. Provisions of paras 212 and 213 and relevant extracts of
WP(C) No.5369/1998 Pg. 4 of 14
para 223 of Pension Regulations Part I, 1961 are reproduced
below:-
" Ordinary Family Pension
212. An ordinary family pension may be
granted to the family of a Junior
Commissioned Officer granted honorary
commission as a commissioned officer
while on the effective list, who dies during
service or after retirement for causes
neither attributable to nor aggravated by
military service.
Special family pension
213. A special family pension may be
granted to the family of an individual if his
death was due to or hastened by-
(a) a wound, injury or disease which was
attributable to military service, or
(b) the aggravation by military service of
a wound, injury or disease which existed
before or arose during military service."
Relevant extract from Regulation 223
"223. Except in the case of Junior
Commissioned Officers while on the
effective list, special family pension and
gratuity shall be assessed on the
substantive rank and the group held by an
individual on the date of his death if death
occurs in service or on the date of
discharge/retirement if death takes place
after discharge/retirement."
It is also stated that the CCDP(A) had no authority to
reject the genuine claim for pension of the petitioner.
5. It is not in dispute that as per the aforesaid provisions in the
pension rules to which reference is made by the petitioner,
WP(C) No.5369/1998 Pg. 5 of 14
she would be entitled to special family pension in case the
injury/disease is related to military service, i.e. it is either
contracted during military service or is aggravated as a result
thereof. The entire question boils down to the determination
of the issue as to whether the disease with which the husband
of the petitioner suffered, namely, Disseminated Carcinoma
Testis (Embryonal) is related to military service. To put it
differently, what is to be determined is as to whether this
disease has any causal connection with the performance of
the Army duties.
6. Before addressing this issue, it would be appropriate to
complete the narration of facts by stating the developments
which took place during the pendency of the writ petition. On
5.11.2001, the petitioner, widow of the deceased, also passed
away. She is survived by her two minor children, a daughter
named Neetu Yadav and a son named Vikas Yadav. They
were allowed to be substituted in place of the petitioner on
6.9.2005 and, therefore, the present petition is pursued by the
two children of the deceased and the petitioner. It is not in
dispute that the minor children of the deceased would also be
entitled to special family pension, if it is held to be admissible.
7. The submission of the learned counsel for the petitioner was
that the deceased had sustained injury to his scrotum during
WP(C) No.5369/1998 Pg. 6 of 14
May 1991, while on duty during organised game of Kabaddi,
which culminated into Embryonal Carcinoma Testis (Right)
because of negligence and delay in treatment in the unit. No
record of treatment was given by the Unit Resident Medical
Officer. It was not provided even when asked for by the
petitioner. It was also pointed out that the following note is
recorded by Lt. Col. M.P. Jai Prakash, Classified Specialist
(Medicine), MD TC CH, Pune on 2.12.1991 at 1930 hrs.:
"Completed IV courses of chemotherapy given with
inadequate doses/drugs and delay due to non-availability of
drugs". On this basis it was sought to argue that it is evident
that treatment with inadequate doses of medicine at the MD
TC CH, Pune also contributed to the death of the deceased.
The deceased was diagnosed as a case of Embrayonal
Carcenoma Testis Right at the MD TC SC, Pune after detailed
medical examination and Laboratory analysis. He was treated
there from 4.8.1991 to 4.5.1992. The deceased was given 7
courses of chemotherapy with inadequate doses of medicines.
8. Learned counsel for the petitioner also submitted that since
injury was sustained while on duty, i.e. while playing Kabaddi
as an organised game, pension would be admissible on the
strength of Para 271 of the Regulations for the Army 1987 Vol.
1, which provides that injuries sustained by officers, JCOs, WO
WP(C) No.5369/1998 Pg. 7 of 14
and/or take part in such Parades, games and sports or deaths
arising from these injuries will be considered to have occurred
while on duty.
9. In this connection text of Para 271 of the Regulations for the
Army 1987 Vol. 1 is reproduced below:-
"271. PT and Games:- All PT and
exercises, including PT Games,
carried out as part of a soldiers
training during Parade hours under a
PT instructor or a platoon or company
commander are compulsory. Games
and sports out of Parade hours are
not compulsory, but if organized by or
with the approval of military
authorities will be regarded as PT
injuries sustained by Officers, JCOs,
WOs and/or, NCs(E), taking part in
such Parades, games and sports or
death arising from these injuries will
be considered to have occurred while
on duty."
10. As per Appendix II (Entitlement Rules for Casualty
Pensionary Awards, 1982, "Injuries sustained by the personnel
of the Armed Forces in impromptu games and sports outside
Parada hours, which are organised by, or with the approval of
the local service authority, and death or disability arising from
such injuries, will continue to be regarded as having occurred
while 'on duty' for purposes of these rules."
11. As per Para 9 of the said Appendix II, "the claimant shall
WP(C) No.5369/1998 Pg. 8 of 14
not be called upon to prove the conditions of entitlements.
He/she will receive the benefit of any reasonable doubt. This
benefit will be given more liberally to the claimants in
field/afloat services cases." It is also argued that no medical
board proceedings in relation to the death of the deceased
have been produced by the respondents except for a
certificate of attributability. Learned counsel also submitted
that CCDAP, Allahabad, who rejected the claim of special
family pension on the ground that the deceased died of
Disseminated Carcinoma Testis (Embryonal) is not attributable
to military service because of "disability was of constitutional
nature" is without any jurisdiction inasmuch as, the said
CCDAP was not competent to give any medical opinion.
Further, Medical Advisor (Pension) had not examined the
deceased and as such, he also could not have arrived at the
conclusion that wound/injury of the deceased was not
attributable to the military service or aggravated because of
military service. It was emphasised that the Commanding
Officer had recommended the award of special family pension
vide his letter dated 4.2.1993 and, therefore, Accounts Officer
had no authority to reject the same. Learned counsel also
challenged the conceptual basis of "constitutional" disease by
submitting that there was no such term like "injury'disability
WP(C) No.5369/1998 Pg. 9 of 14
of constitutional nature" and as it had not been defined
anywhere in the pension regulations. He referred to a
judgment of this Court in the case of Sep. Gopal Singh Dadwal
Vs. Union of India , 2007 (1) SLR 616 (Delhi) (DB) and
particularly the following observations therefrom:-
"In furtherance to direction of the
Court, medical specialists have
appeared during the course of
hearing of these petitions. In
response to query by the Court, the
medical specialists have expressed
their opinion that 'Constitutional
disorder' or 'Constitutional disease'
would relate to a situation where the
Medical Board is unable to find a
cause for the disease which a person
is suffering from. In those
circumstances, it is recorded that the
disease is neither attributable nor
aggravated by army service. In other
words, if the medical authorities failed
to determine cause, onset or arrive at
a definite diagnostic opinion in
relation to disease of a member of the
force, it is bound to adversely affect
the interest of the member in relation
to grant of disability pension.
According to these experts, the
constitutional disorder would normally
result in recording of such opinion as
'not attributable to nor aggravated by
military service' without any further
or proper diagnosis. Butterworth's
Medical Dictionary, defines
'Constitutional' as: "Relating to the
state of constitution, inherent in the
Constitution of mind or body, relating
to the bodily system as a whole." The
expression Constitutional Disorder or
disease would thus have to be
WP(C) No.5369/1998 Pg. 10 of 14
understood even in its common
parlance as something, which is
relatable to human mind and/or body.
Its existence in either of them could
be specifically diagnosed both in
relation to cause, time of its existence
as well as onset of the disease. This
can hardly be termed as just and fair
approach in consonance with rules
and regulations. The disease like
Schizophrenia, Neurosis and other
Psychiatric related disease can be
aggravated if not attributable to Army
service. If they are constitutional
disease or disorders, then they must
be relatable to human body and/or
mind and can be detected by proper
diagnose including the time, i.e. pre
or post joining the Army. It would be
required of the authorities concerned
to reasonably show on record that
such diseases, on their basis
symptoms existed prior, though the
disease manifested late or even co-
relate the onset of the diseases to
period prior to the joining of service
by the petitioner."
12. Relying upon another judgment of this Court in Smt.
Reshma Devi Vs. Union of India , MLJ 1998 Delhi 92, it was
submitted that this Court has held that when husband of the
petitioner was enrolled in the Army, he was medically
examined and the medical board did not say that he suffered
from any disease and the disability occurred later. Under
Pension Regulation No.223 read with Regulation No.213 of the
Pension Regulations Part I Army "if death occurs in service,
WP(C) No.5369/1998 Pg. 11 of 14
the official will be entitled to special family pension." Similar
view has been taken by Punjab and Haryana High Court in the
case of Kanta Devi Vs. Union of India and Ors. , reported as
1999 (1) SLR 668. In another case entitled Keshar Singh Vs.
Union of India and Ors , reported as Mil LJ 1999 All. 40, the
Allahabad High Court has held that if no note was made at the
time of the petitioner's entry into service that he was suffering
from a certain disease, inevitably it must follow that the
disability from which the petitioner was suffering and has led
to his discharge or death is attributable to military service.
13. After examining the entire case in detail keeping in view all
the facts and the legal position highlighted by the learned
counsel for the petitioner in the judgments, note whereof is
taken above, we are of the opinion that the petitioner is
entitled to the relief claimed in this petition and she be given
the special family pension on the premise that the disease in
question because of which her husband died is to be treated
as either attributable to the military service or at least
aggravated by it. In this behalf, we may note that it is not in
dispute that it was the injury suffered by the deceased in May
1990, when he was playing Kabaddi , which became the cause
of his death ultimately. Game of Kabaddi was organized by
the respondent/employer, i.e., concededly, playing such a
WP(C) No.5369/1998 Pg. 12 of 14
game is treated as part of duty as the soldiers are
compulsorily made to participate in such games. While
playing the game of Kabaddi the deceased sustained injuries
in the groin. He was even given treatment for this injury
which had resulted in swelling in his right scrotum. As his
condition deteriorated and the injury could not be cured, on
5.7.1991 he was admitted to 167, Military Hospital. There he
underwent retrograde Orchidectony (Right) leaving a
corrugated drain through the scrotum. Even this did not cure
him and in August, 1991 he was transferred to Malignant
Diseases Treatment Centre, Southern Command, Pune where
he was diagnosed as suffering from Embryonal Carcinoma
Testis (Right), i.e., cancer of the testis. When the disease of
cancer with which the husband of the petitioner was found
suffering and because of which he ultimately died, is traced
with the aforesaid event, and not in isolation, the conclusion
would be obvious. The respondents cannot take a myopic
view of the entire matter in taking the cause of death as
cancer and coming to the conclusion that cancer is allegedly
'constitutional disease' and thus, cannot be attributed to the
service. Even if there were some traces of cancer, it was
clearly aggravated because of the severe injury sustained by
the deceased in his groin while playing the game of Kabaddi
WP(C) No.5369/1998 Pg. 13 of 14
and the said injury getting worsened with the period of time
as the treatment given by the respondents themselves did not
bear any positive effect. In these circumstances, though we
feel that the disease is to be treated as attributed to service
and even if it is presumed that it was not so, it is beyond pale
of doubt that under the aforesaid circumstances it would be
treated as aggravated by the military service, namely, the
injury in the groin was suffered by the deceased while in
military service. We, therefore, allow this writ petition and
direct the respondents to grant special family pension to the
petitioner on the ground that death of the deceased was
attributable to and/or aggravated by the military service with
effect from the date of death of the petitioner's husband.
Arrears of pension shall be paid within three months. The
petitioner shall also be entitled to costs quantified at
Rs.5,000/-.
(A.K. SIKRI)
JUDGE
May 23, 2008 (J.M. MALIK)
HP. JUDGE
WP(C) No.5369/1998 Pg. 14 of 14