Rohini Prasad Lal Bihari Ram v. Union Of India And Others

1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks a writ of mandamus or any other suitable writ, direction or order against the respondents for grant of disability pension.

2. Facts giving rise to this petition are these. The petitioner having passed his High Secondary Examination joined the Indian Army on 23-6-1977 as Grenadier (GD), after successfully clearing examinations of physical and mental fitness. After recruitment, he was further subjected to strict medical test by a competent Medical Board and was placed in the category ‘AYE’, which is the minimum medical standard required for an Indian Soldier. Thereafter, the petitioner was allotted Army Service No. 14329381-K, and was posted to Artillery Centre for undergoing training as Grenadier. The petitioner completed his training successfully and was awarded a certificate of Technical proficiency on 21-9-1978 (Annexure-B). The petitioner was again tested for his Technical proficiency class-II and was granted a certificate, dated 20-9-1980 (Annexure-C) by the Technical Testing Board. Annexure-D is the certificate dated 11-10-1980 of class-I of the Technical Testing Board issued in accordance with the provisions of Qualification Regulations for Soldiers, 1958. The petitioner also passed the Map Reading Examination, Standard III, held on 28th October, 1977, vide Annexure-E. The petitioner further passed Second. Class Certificate Examination of Army Certificate of education on 13th March, 1982, certificate is Annexure-F. As the petitioner was enjoying sound health and passed all necessary tests and examinations from time to time, he was posted at 100 Field Regiment, situated at the altitude of 5000 ft. The petitioner was discharging his field duties of military service faithfully and with devotion, but, while in discharge of his duties the petitioner developed vague somatic symptoms. Therefore, he was sent on sick leave and was shifted to Military Hospital at Palambur on 15-3-1984, where he remained under treatment up to 17-4-1984. From there the petitioner was shifted on 18-4-1984 and remained up to 14-7-1984 at 167 M.H Again the petitioner was admitted from 14th July, 1984 to 16th July, 1984 at Palambur, then at M.H, Sagar from 18th July, 1984 to 20th July, 1984, and from 21st July, 84 to 13th August 84 at M.H Jabapur, and then lastly was admitted on 14th August, 1984 at M.H Jhansi and remained under treatment till 26-11-1984, the date of discharge. The petitioner was diagnosed and treated for “SCHIZOPHRENIA”. Because of the disease the petitioner was declared unfit for further service. This opinion was given by classified specialist (Psychiatry). Medical Board examined the petitioner for the purposes of disability pension, who opined that the cause of disability is constitutional unconnected with service conditions. The Board also opined that the petitioner is not fit for suitable employment in Civil. Certificate is dated 24-12-1984. Thereafter, the petitioner's case was considered for disability pension by the office of the CDA (Pensions), Allahabad, which was rejected on 15-7-1985, stating that the disease is not attributable to military service, and accordingly, the petitioner was intimated on 5-8-1985 vide Annexure-I. Aggrieved of this decision, the petitioner preferred an appeal to the Government of India, Ministry of Defence, Sena Bhavan, New Delhi-11, but with no result. Hence, this petition.

3. The respondents have not filed any return, but have placed before this Court the proceedings of the Medical Board invalidating the petitioner as unfit for further service, in which in column-B, the cause of disease is stated as constitutional disease unconnected with service conditions. The respondents have also placed a letter, dated 15th July, 1985, along with the report of the Medical Board.

4. Shri P.N Dubey, learned counsel for the petitioner, submitted that the disease is attributable to military service, as it did not exist prior to the recruitment of the petitioner. The petitioner rendered 8 years' military service successfully. During this period, the petitioner underwent rigorous physical and mental checks. The petitioner was posted in field area of high altitude of 5000 ft., there also for about 2 years, there was no complaint, but because of stress and strain, the petitioner developed the disease, which was attributable or aggravated by military service and was assessed above 20%. Therefore, according to the Regulation No. 173, Appendix II of the Pension Regulations for the Army, 1961 (for short, the ‘regulations’), as the petitioner's disease is one of the classified diseases falling under caption-B of the Annexure and as the disease is affected by stress and strain and is a type of Psychosis, the petitioner is entitled to get disability pension. To support the contention, learned counsel pressed into service a Division Bench decision of Delhi High Court in case of Major Harbans Singh… v. Union Of India…, AIR 1971 Delhi 227 and Commentary of Dr. Sir Hari Singh Gour's Penal Law of India, 10th Edition, Vol. I, page 633.

5. On the other hand, Smt. Indira Nair, learned counsel for the respondents, submitted that according to the opinion of the Medical Board and the history of the patient, the disease did not develop in the military service, nor is attributable or aggravated by military service; the disease being constitutional unconnected with service conditions; this Court cannot substitute the opinion of expert body. The disease is also not in the category of classified diseases, this Court cannot read or add it in the category of classified diseases, which is a legislative function. As such, the petitioner was rightly denied the disability pension. Counsel placed reliance on a decision of Supreme Court in case of Ku. Neelima Misra v. Dr. Harinder Kaur Paintal, (1990) 2 SCC 746 : AIR 1990 SC 1402.

6. To appreciate the contentions raised, it will be appropriate to refer the relevant Regulations Nos. 48, 173 and 185 and Entitlement Rules 2, 3 and 4 of Appendix-II of the Regulations with the Annexure of Appendix-II at one place, which read thus:—

“Regulations:

48. (a) An officer who is retired from military service on account of a disability which is attributable to or aggravated by such service and is assessed at 20 per cent or over may, on retirement, be awarded a disability pension consisting of a service element and a disability element in accordance with the regulations in this section;

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

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

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

185. (a) If the disability is accepted as attributable to military service and is regarded as incapable of improvement, disability pension may be granted for life (but see regulation 188).

Otherwise, an award will normally be made for a period of three years from the date from which a disability pension is admissible or, in cases where a disability pension was in issue for a specified period, from the date of expiry of the previous awards:

Provided that, in cases where the duration of the disability at the accepted degree of disablement is considered to be less than three years, the period of an award, calculated with reference to the date of the last medical board, shall not exceed the period of duration of the disability, at that degree.

(b) An award may, however, be made in any individual case for such longer or shorter period as may be prescribed by the President either generally or in respect of any particular disability.

(c) If the disability is accepted as aggravated by military service, the duration of an award shall be determined with due regard to the relevant provisions in the entitlement rules, vide Appendix-II.

Entitlement Rules:

2. Disablement or death shall be accepted as due to military service provided it is certified that:—

(a) the disablement is due to a wound, injury or disease which—

(i) is attributable to military services; or

(ii) existed before or arose during military service and has been and remains aggravated thereby;

(b) the death was due to or hastened by—

(i) a wound, injury or disease which was attributable to military service; or

(ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service.

3. There must be a causal connection between disablement and military service for attributability or aggravation to be conceded.

4. In deciding on the issue of entitlement all the evidence, both direct and circumstantial, will be taken into account and the benefit of reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service cases.

Annexure

Classification of Diseases.

(A) Disease affected by climatic conditions.

Pulmonary Tuberculosis.

*********

*********

(B) Disease affected by stress and strain.

Psychosis and Psychoneurosis.

*********

*********

(C) *********

(D) *********

(E) *********”

7. The claim of the disability pension of the petitioner has not been rejected on the ground that SCHIZOPHRENIA is not one of the classified diseases, nor it is a type of Psychosis or is a disease of mental disorder, but has been rejected on the ground that it is not attributable to military service, as is evident from document Annexure-I. It cannot be disputed that SCHIZOPHRENIA is a mental disease. The mental illness is defined in Black's Medical Dictionary, 28th Edition, at page 574 thus:—

“MENTAL ILLNESS arises from a disease or disordered working of that part of the nervous system which determines mind and conduct. So long as individual peculiarities occasioned by mental disorder do not result in conduct or behaviour which is markedly opposed to prevailing social custom, society does not interfere with the person. When the person's conduct becomes so far divergent from social usages that he becomes legally certifiable, he can be sent compulsorily to a mental hospital. It must be remembered that, however, that there are all grades of mental disorder from slight peculiarities or temporary delirium upwards.”

At page 788 of the same book, SCHIZOPHRENIA has been defined as a term applied to forms of Psychosis in which there is a cleavage of the mental functions associated with assumption by the affected person of man's second personality.

8. In the book Harrison's “Principles of Internal Medicine”, Vol. 2 SCHIZOPHRENIC disorders and diagnosis of SCHIZOPHRENIC disorders have been dealt with at page 2128, which read thus:—

“SCHIZOPHRENIC DISORDERS—

Schizophrenic disorders are serious mental illnesses that have a duration of 6 months or more and cause significant social, vocational and personal disability and suffering. The schizophrenic patient often appears to be bizarre, inappropriate and mentally impaired. Despite its stereotypic presentation, perhaps no other psychiatric disorder has proved as vexing and difficult to define, identity, and treat.

Schizophrenia has a lifetime prevalence rate of about 1 percent across all cultures. In the United States alone there are perhaps 2 million affected individuals who often become ill in their late teenage years and in the third decade of life. Poor outcome frequently leads to extensive and long-term disability, and schizophrenia accounts for a staggering estimated 20 billion per year of lost productivity in 1975 dollars. Most patients with schizophrenic disorders also cause major perturbations for family and social support systems, adding to the economic losses and the toll of human misery. Cumulatively, these factors make schizophrenia one of the most costly and vexing health problems.

TABLE 368-4 Diagnosis of schizophrenic disorders.

A. Presence of characteristic psychotic symptoms in active phase, either 1, 2, or 3 for at least 1 week (unless symptoms are successfully treated):

1. Two of the following:

Delusions

Prominent hallucinations

Incoherence or marked loosening of associations

Catatonic behaviour

Flat or grossly inappropriate affect

2. Bizarre delusions

3. Prominent hallucinations of a voice with content having no apparent relation to depression or elation, or a voice keeping up running commentary on the person's behaviour or thoughts, or two or more voices conversing with each other.

B. During the course of disturbance, functioning in areas such as work, social relations, and self-care markedly below highest level achieved before onset of disturbance.

C. Schizoaffective disorder and mood disorder with psychotic features have been ruled out.

D. Continuous signs of disturbance for at least 6 months. This period must include an active phase of at least 1 week, or less if symptoms have been successfully treated during which these were psychotic symptoms characteristic of schizophrenia (see A above), with or without a prodromal or residual phase.

E. It cannot be established that an organic factor initiated and maintained the disturbance.

F. If a history of autistic disorder exists, the additional diagnosis of schizophrenia can be made only if prominent delusions or hallucinations are also present.”

9. In Dr. Sir Hari Singh Gour's Penal Law of India, Note-19 under section 84, the learned author described types of mental illness thus:—

“19. Types of mental illness.— Psychiatric clinical entities are as discreet as other disorders. Mental illness may be classified in various ways. The following list is not intended to be schematic, but merely tabulates the most commonly recognised forms of disorder:

A. The psychosis—

(1) Manio-depressive

(2) Schizophrenia,

B. *********

C. *********

D. *********

E. *********

At page 635, the learned author deals with SCHIZOPHRENIA as follows:—

“Schizophrenia, — The term schizophrenia, indicating a splitting of the mind, today has largely replaced the older term “dementia praecox.” The concept embraces sufficiently diverse clinical entities so that it might be better to refer to the schizophrenias or the schizophrenic-reaction types. They have in common the bizarre thought content and odd behaviour of the patient his seeming detachment from the world of reality, the presence of delusions (false belief), illusions (false interpretations of stimuli), and hallucination (perception of non-existent external stimuli). The patient also lacks awareness and understanding of his illness and is disorganised in his social relationship to others.

The causes of schizophrenia are not known. Perhaps Adolf Meyer's view is as sound as any that the schizophrenic process is the progressive maladaptation of the individual to his environment. There is also evidence that the disorder has its source in the early, years of infancy, perhaps in a lack of warm and genuine mother love.”

10. Therefore, from the above, it is clear that SCHIZOPHRENIA is a type of mental illness and is a form of Psychosis disease, which is more serious than other types of mental illness. Hence, the contention of the learned counsel for the respondents that the disease is not in the category of classified diseases enumerated in the Annexure, cannot be accepted.

11. In case of the petitioner, petitioner's medical history shows that after 14th July, 1984, when the petitioner was sent on sick leave, he felt excessive heat in the brain and felt confused. He was seen behaving odd and was trying to jump out of train. Fellow passengers caught him and handed over to NCO, Sagar, who got him admitted to M.H, Sagar. From M.H, Sagar, he was transferred to M.H, Jabalpur and subsequently to the Military Hospital, Jhansi. In the hospital, he was found to be aloof and did not show any interest in the ward activities. He would suddenly become excited and would start shouting. Patient complained that his mind was not working and he was not getting proper sleep. In the caption “History of past illness”, no past history of V.D fit or mental illness is given. In the caption “Family History”, it is written “both parents are alive, brothers-7, sister-1, Birth Order-2. One of his paternal uncles has suffered from mental illness.” In the caption ‘Treatment’, it is written — “he has been treated with ECT (9), Phenothiszine group of drugs and Psychotheraphy to which he has shown improvement.” After the treatment, the petitioner was discharged with a certificate that the petitioner is unfit for further service. The petitioner was examined by the Medical Board, which opined that the disease is not due to stress and strain and is not attributable to military service or aggravated by the military service. The cause of the disease is constitutional unconnected with the service conditions.

12. The opinion of the Medical Board is the opinion of experts in the field, which has been arrived at after examining the petitioner and his past history, which cannot be substituted by a contrary opinion without any material, as the law is well-settled that in the absence of cogent material the Court cannot act as expert body. It is not the case of the petitioner that the report of the Medical Board is biased or mala fide. The petitioner has also not placed any expert opinion contrary to the opinion of the Medical Board. Besides, the petitioner has also not placed any material to demonstrate that other military personnel, like the petitioner, also suffered with the same disease while working in the field area of high altitude of 5000 ft. Hence, in the absence of cogent material, this Court is of the opinion that no interference can be made in the order of refusal to grant disability pension to the petitioner.

13. In the result, the petition is dismissed with no order as to costs.

Petition dismissed.