Maj Prince Jose v Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 WP(C).No. 17966 of 2006(L) -------------------------- PETITIONER: ------------ MAJ PRINCE JOSE, SM IC.55574M, ODE-79, MCEME, SECUNDERABAD. PERMANENT ADDRESS: KANDENKERIL HOUSE, PARAL, CHENGANACHERRI, KOTTAYAM. BY ADV. SRI.PROMY KAPRAKKATT SRI.K.N.ABHILASH SMT.P.K.BEENA RESPONDENT: ------------- UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF DEFENCE, DHQ P.O. NEW DELHI. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 17966/06. ## APPENDIX PETITIONER'S EXHIBITS: - P1. COPY OF THE NOTIFICATION DTD.3.9.99. P2. COPY OF THE UNIT PART II ORDER DTD.1.7.99. P3. COPY OF THE BATTLE PERFORMANCE REPORT DTD.15.11.99. P4. COPY OF THE UNIT WAR DIARY. P5. COPY OF THE MEDICAL BOARD PROCEEDINGS DTD.18.10.00. P6. COPY OF THE LETTER DTD.7.1.2001. P7. COPY OF THE LETTER DTD.6.12.01. - P8. COPY OF THE STATEMENT OF CASE DTD.9.4.2001. - P9. COPY OF THE PROCEEDINGS OF COURT OF ENQUIRY DTD.2.3.2002. - P10 COPY OF THE ORDER DTD.1.6.02. - P11. COPY OF THE LETTER DTD.29.6.01. - P12. COPY OF THE LETTER DTD.17.8.02. - P13. COPY OF THE MEDICAL BOARD PROCEEDINGS DTD.31.10.03. - P14. COPY OF THE SUMMARY AND OPINION DTD.21.10.03. - P15. COPY OF THE SCALE OF ASSESSMENT FOR SPECIFIC INJURIES. - P16. COPY OF THE MRI REPORT DTD.16.10.2003. - P17. COPY OF THE COMPLAINT DTD.NIL. - P18. COPY OF THE ORDER DTD.2.6.05. - P19. COPY OF THE MEDICAL CASE SHEET DTD.9.10.00. - P20. COPY OF THE MOVEMENT ORDER DTD.6.9.05. - P21. COPY OF THE RECEIPT DTD.8.9.05. - P22. COPY OF THE DISABILITY CERTIFICATE DTD.1.1.2004. - P23. COPY OF THE DISABILITY CERTIFICATE DTD.30.6.2004. - P24. COPY OF THE JUDGMENT IN W.P.C.NO.26950/04 DTD.22.5.06. - P25. COPY OF THE MEDICAL BOARD PROCEEDINGS DTD.17.5.05. - P26. COPY OF THE MEDICAL CASE SHEET OF ARMY HOSPITAL R&R DELHI, CANTONMENT DTD.25.1.07. ## RESPONDENTS” EXHIBITS: R1(A) COPY OF THE COMPLAINT BY THE PETITIONER BEFORE THE RESPONDENTDTD.29.7.04. R1(B) COPY OF THE ORDER DTD.2.6.05 BY GOVT. OF INDIA. ## Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.17966 of 2006 ================== Dated this the 11[th] day of July, 2008 J U D G M E N T The petitioner is a commissioned officer in the Army in the Electrical and Mechanical Engineering Corps. He participated in the Kargil War. In that war, the petitioner suffered a fall causing injury to his head. He was unconscious for half-an-hour and on regaining consciousness, he had loss of memory for 10 minutes. Thereafter, he recovered. Subsequently, after one year, he developed a very rare disease named _'stroke in the young'._ Initially he was 100 per cent disabled. Later on, by constant care and treatment, he regained his health to the extent of 70 per cent leaving a disability of 30 per cent. According to the petitioner, taking into account his service and disability the petitioner was awarded a medal and was granted permanent commission. The petitioner is continuing in the service even now. While so, the Ministry of Defence, Government of India declared a scheme whereby persons who suffered causalities in “Operation Vijay” of Kargil war were to be given certain benefits. The petitioner claimed those benefits. According to the petitioner, the fact that the petitioner suffered head injury in the fall during 2 w.p.c.17966/06 “Operation Vijay” in the Kargil war was accepted by the Medical Board who examined him, which was also confirmed by a Court of Enquiry. However, for reasons best known to him, one officer referred the matter to the opinion of the Senior Consultant of the Army Medical Wing, who opined that the petitioner's contracting disease _'stroke in the young'_ cannot be attributed to Kargil war. Pursuant thereto, the petitioner's claim was rejected by Ext.P18 order. The petitioner is challenging Ext.P18 order in this writ petition. The petitioner seeks the following reliefs in this writ petition: - “i) Issue a writ of certiorari, any other writ order or direction, quashing Exhibit P18 as illegal; - ii) Issue a writ of Mandamus, any other writ, order or direction, directing the Respondents to disperse [sic] the benefits as per the Ext.P1 scheme, forthwith, and relieve the petitioner from service. - iii) To declare that the petitioner is eligible for the benefits of the Ext.P1 scheme as per the Ext.P10 order. - iv) Issue a writ of Mandamus, or any other writ, order or direction, directing the Respondent to assess the percentage of disability as per the Ext.P15 Schedule.” 2. The respondent has filed a counter affidavit in which, while admitting the report of the Medical Board, as also that of the Court of Enquiry specifically finding that the petitioner contracted the said disease on account of the fall during Kargil war, it is stated that the final opinion on this question is that of w.p.c.17966/06 3 the Senior Consultant who opined that it is not because of the fall in the Kargil war that the petitioner has contracted this disease and therefore, the petitioner is not entitled to the reliefs prayed for. 3. I have considered the rival contentions in detail. 4. Certain facts are not disputed. They are:- The petitioner took part in the Kargil war. “Operation Vijay” was part of Kargil war. In the course of the operation, the petitioner had suffered a fall from 100 feet. He had a head injury. He lost consciousness for half an hour. After regaining consciousness, he had loss of memory for 10 minutes. Thereafter, he recovered. After a period of one year, he was detected with the very rare disease called _'stroke in the young'_ which initially completely incapacitated him. Subsequently, after constant care and treatment, he recovered, which according to the petitioner, is to the extent of only 70 per cent, whereas the respondent would contend that he recovered to the extent of 90 per cent. The Medical Board consisting of doctors who treated the petitioner gave the opinion that the petitioner contracted the disease because of the head injury caused to him during the fall in the Kargil War, while taking part in the “Operation Vijay”. The Court 4 w.p.c.17966/06 of Enquiry constituted specifically for considering this issue also came to the very same conclusion. 5. The difference in opinion starts thereafter. Apparently despite the opinion of the Medical Board and the Court of Enquiry, one Col.SK.Handa, a Junior Consultant, entertained a doubt as to whether the _'stroke in the young'_ occurred after one year of the fall can be due to that fall which occurred one year ago. Accordingly, he referred the question for the opinion of the Senior Consultant who after examining the records, rendered an opinion that it cannot be due to fall during Kargil War. 6. Ext.P1 is the welfare package declared by the respondent for those who participated in the “Operation Vijay” and suffered fatal causality. The same specifically states thus: - “3. For implementation of both these packages, relevant data of the following category of battle casualties will be required duly authenticated and support by DO Part II Orders:-” Therefore, what is relevant for the purpose of this welfare package is DO Part II Order which is produced as Ext.P10, which specifically states that the _'stroke in the young'_ suffered by the petitioner on 24.5.2002 is attributable to military service in the operation area. Ext.P5 is the opinion of the Medical Board which consisted of the Doctors who treated the petitioner. It specifically 5 w.p.c.17966/06 says thus regarding cause of the disease _'stroke in the young'_ suffered by the petitioner: “Due to fall during OP. Vijay Officer lost consciousness due to this. Present episode appears to be aftereffect of same (Refer Co. unit war report).” Therefore, the Medical Board who examined the petitioner was of opinion that this disease, _'stroke in the young'_ was contracted by the petitioner as a result of the fall during “Operation Vijay”. Thereafter, a Court of Enquiry was constituted to examine this question. The Court of Enquiry after examining the whole issue in the light of the records came to the following findings in Ext.P9: “1. (SS 36622M) now IC 5557 4M Capl Prince Jose, SM was posted to 9 PARA (SF) after the completion of Young Officers Course in FEB 98. The unit was deployed in Cl Opn and he was appointed as the 21C of an assault team in CI Opn (O.P. RAKSHAK) and in OP. VIJAY. For his performance in CI Opn (OPRakash) he was awarded Sena Medal. 2. During the assault on Sando feature during O.P.VIJAY (Kargil) he was leading a route opening party and while fixing the ropes on a 70-degree ice gradient was hit by an enemy Arly splinter. He slipped and fell approx 100 mtr along the slope, which made him unconscious for half an hour and further resulted in a loss of memory for about 10 minutes, one he regained consciousness. For the injury inflicted on him by the enemy Arly splinter he was awarded Wound Medal. 3. He came on posting 188(1)Fd Wksp on 06 Dec 98 and was appointed as Wksp Offr. On 24 Jul 2000 while on his journey had from MH Ahmedabad where he had undergone a medical examination (ENT) which is a pre-requisite for the grant of permanent commission in Indian Army he suffered a stroke diagnosed as STROKE IN THE YOUNG. He was admitted in MH Jaipur on 24 Jul 2000 and was transferred to BR Hospital Delhi on 25 Jul 2000. He was placed Low Medical Classification SIHIAIP (T8) E1 (sick leave for 56 days) wef 10 August 2000. 6 w.p.c.17966/06 4. The initial medical board conducted in MH Jaipur placed him in Low Medical Classification SIHIAIP4 (P24) E1 and opined that the disability he suffered is due to the fall he had during OP. Vijay on Sando feature on 01 Jul 99 and is attributable to Mil Service in OP. Vijay. The Re-categorisation Medical Board held at MH Jaipur on 01 Oct 2001 placed the officer in Low Medical clarification SIHIAIP2 (Perm) E1 w.e.f 07 Sep 2001 and attributed the disability to Mil service in OP. Vijay. 5. On being placed in permanent Low Medical classification which is attributable to Mil service in OP Vijay the officer was granted permanent commission in Indian Army vide letter No.05512/SSC 16/PC/MS78 dated 06 Dec 2001. 6. The STROKE IN THE YOUNG suffered by the officer on 24 JUL 2002 is not a self inflicted injury.” 7. It is not known why after the opinion of the Medical Board and the Court of Enquiry, Col. S.K.Handa thought it necessary to refer it to a senior consultant. Notwithstanding the fact that the senior consultant may have more experience than the Doctors who actually treated the petitioner who constituted the Medical Board, I am of opinion that the opinion of that Senior Consultant who appears to have given the opinion on the basis of the physical examination and medical records long after the petitioner recovered from the disease could not have been given more importance than the opinion of the Medical Board and the Court of Enquiry, especially since under Ext.P1 the relevant data acceptable for the purpose of the welfare package declared was DO Part II Orders, which certainly subscribed to the view that the petitioner contracted the disease as a result of the fall during the w.p.c.17966/06 7 Operation Vijay in Kargil war. 8. Further, all along that officer was in the defence service. He was actually working in the war front itself. Nobody had any case that prior to his fall he had any disease, accident or infirmity or other symptoms which may have led to the contracting of the disease _'stroke in the young'_ . The respondent has also no case that subsequent to the fall in the Kargil war, the petitioner had suffered any injury which may have contributed to the disease _'stroke in the young'_ . Going by the Full Bench decision in _**Baby v. Union of India**_ [2003 (3) KLT 362] as also my decision in _**Murukesan v. Union of India**_ [2005 (3) KLT Short Note 39 case No.47], once the initial burden of showing that the disability was attributed during service is discharged by the petitioner, then the burden shifts back to the respondent to show that it cannot be attributed to military service. Those principles squarely apply in this case also. Here prima facie the petitioner has shown that the petitioner contracted the disease _'stroke in the young'_ on account of fall in the Kargil war. The respondent has not been able to rebut the same by producing any sort of evidence whatsoever. I am of opinion that the opinion of a senior consultant who did not even treat the 8 w.p.c.17966/06 petitioner cannot override the medical Board's opinion as also the conclusion of the Court of Enquiry. Further, in Ext.P1 which is the welfare package, what is relevant is the DO Part II order. DO Part II order also supports the case of the petitioner. I am satisfied that the respondent has not discharged their burden of showing that the petitioner has not contracted the disease _'stroke in the young'_ because of the fall during Kargil war. Therefore, I am satisfied that Ext.P18 order, solely based on the opinion of the Senior Consultant, is unsustainable. Accordingly, Ext.P18 is quashed and the writ petition is allowed. The respondent is directed to give the petitioner the benefit of the welfare package as evidenced by Ext.P1. Orders in this regard shall be passed and benefits disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.17966/06 9