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Wednesday, May 13, 2015

True to the import of the provisions, it was held that a soldier cannot be asked to prove that the disease was contracted by him on account of Army service or had been aggravated by the same and the presumption continues in his favour till it is proved by the employer that the disease is neither attributable to nor aggravated by Army service. = the provision for payment of disability pension is a beneficial one and ought to be interpreted liberally so as to benefit those who have been boarded out from service, even if they have not completed their tenure. It was observed that there may indeed be cases where the disease is wholly unrelated to Army service but to deny disability pension, it must affirmatively be proved that the same had nothing to do with such service. It was underlined that the burden to establish disability would lie heavily upon the employer, for otherwise the Rules raise a presumption that the deterioration in the health of the member of the service was on account of Army service or had been aggravated by it. True to the import of the provisions, it was held that a soldier cannot be asked to prove that the disease was contracted by him on account of Army service or had been aggravated by the same and the presumption continues in his favour till it is proved by the employer that the disease is neither attributable to nor aggravated by Army service. That to discharge this burden, a statement of reasons supporting the view of the employer is the essence of the rules which would continue to be the guiding canon in dealing with cases of disability pension was emphatically stated. As we respectfully, subscribe to the views proclaimed on the issues involved in Dharamvir Singh (supra) and Rajbir Singh(supra) as alluded hereinabove, for the sake of brevity, we refrain from referring to the details. Suffice it to state that these decisions do authoritatively address the issues seeking adjudication in the present appeals and endorse the view taken by us.


{REPORTABLE}

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS .4357-4358 OF 2015

              (arising out of SLP(Civil) Nos.13732-13733/2014)

UNION OF INDIA & ORS                        ..….APPELLANTS

                                   Vs.

           MANJEET    SINGH                                    …..RESPONDENT


                               J U D G M E N T

AMITAVA ROY, J.

Leave granted.

2.    The instant appeals witness a challenge  to  the  judgment  and  order
dated 22nd May, 2012 rendered in LPA(SW) No. 157/2009 and CMA  No.  211/2009
affirming the determination made  in SWP No.  1439/2004  thereby  sustaining
the claim of the respondent herein to disability pension  on  being  boarded
out of the Army  service  on  the  ground  of  disabilities  identified   as
“Generalised Tonic Clonic Seizure” and  “Neurotic Depression”.

3.    The  Union  of  India  being  aggrieved  by  the  concurrent  verdicts
requiring it to grant disability pension to the respondent herein  from  the
date of his discharge from service, seeks  redress in the instant appeals.

4.    We have heard the learned counsel for the  parties  and  have  perused
the records.

5.    The foundational  facts  as  offered  by  the  rival  pleadings  would
provide the back-drop of the lingering debate.  The  respondent  had  joined
the Army service under  the  Union  of  India  on  06.4.1999  being  awarded
medical category of “AYE” and according to  him  after  undergoing  rigorous
medical  examinations  as  prescribed.  He,  thereafter,  underwent  initial
military training at JAK Rifles Centre, Jabalpur whereafter  he  was  posted
at No. 5 JAK Rifles at Amritsar on 5.3.2000. One day he fell unconscious  in
the course of cross country practice in the unit  premises  and  had  to  be
shifted to  Military  Hospital,  Amritsar  where  he  was  treated  for  his
ailment.  The Medical Board that was set up for his examination lowered  his
category from “AYE” to “CEE” temporary w.e.f. April, 2000.   The  respondent
has pleaded that subsequent to  his  discharge  from  the  hospital  he  was
detained for duties at Kargil.  He availed leave as was granted  thereafter,
to join later at his transit Camp at Chandigarh.  As admitted by him,  while
on duty, he again fell to the same illness and had to be hospitalized.   The
Review Medical Board, after examining him,  placed  him  in  category  “BEE”
permanent for the first disability and  category  “CEE”  temporary  for  the
second  disability  as  mentioned  therein.   On  his  discharge  from   the
hospital, the respondent was  sent  to  JAK  Rifles,  Jabalpur.   Though  he
applied for sheltered appointment, the same was not entertained.     It  was
soon thereafter that  he  was  invalided  from  service  on  being  adjudged
unsuitable, by the invaliding Medical Board  which assessed  his  disability
percentage as 20% qua   the  first  disability;   and  20%  for  the  second
disability;  summing upto  40%  for  both  the  diseases.   The  Board  thus
recommended that he be invalided out of Army service  which,  in  fact,  was
given effect to on  01.1.2002.   He  unsuccessfully  appealed  against  this
decision before the higher authorities.  His claim  for  disability  pension
was also rejected on the ground that the disabilities detected in  him  were
neither  attributable  to  the  Army  service  nor  could   get   aggravated
therefrom.    Contending that the decision to board him out of  service  and
the denial  of  disability  pension  otherwise  payable  to  him  under  the
relevant rules, was illegal and arbitrary, the respondent invoked  the  writ
jurisdiction of the High Court  of  Jammu  and  Kashmir  at  Jammu  for  its
remedial intervention.

6.    The appellants in their reply apart from the preliminary objection  to
the maintainability of  the  assailment,  in  essence  pleaded  that  having
regard to the respondent’s short service  profile  which  demonstrated  that
for a major part thereof he had remained hospitalized  during  the  training
and thereafter,  the diseases diagnosed  could neither  to  be  attributable
to the Army  service  nor  comprehended  to  be  aggravated  thereby.  While
admitting that the respondent had joined the Army service on 06.04.1999  and
that on the completion of the basic military training he was  posted  at  5,
JAK Riffles on 04.03.2000, the Union  of  India  set  out  in  details,  the
particulars  of  the  periods  during  which  the  respondent  had  remained
hospitalized for treatment.   According  to  it,  the  official  record  did
reveal that he remained under medical treatment being hospitalized  for  the
periods as hereunder:

|S.    |Period of         |Name of the Hospital   |Diagnosed disease          |
|No.   |Hospitalization   |                       |                           |
|a.    |24.03.2000 to     |Military Hospital,     |Generalised Tonic-Clonic   |
|      |29.03.2000        |Amritsar               |Seizure                    |
|b.    |30.03.2000 to     |Command Hospital       |Generalised Tonic-Clonic   |
|      |12.04.2000        |(Western Command)      |Seizure                    |
|      |                  |Chandimandir           |                           |
|      |                  |Military Hospital,     |                           |
|      |                  |Amritsar               |                           |
|c.    |12.12.2001 to     |Military Hospital,     |Neurotic Depression        |
|      |5.02.2001         |Amritsar               |Generalised Tonic-Clonic   |
|      |                  |                       |Seizure(old)               |
|d.    |20.3.2001 to      |Military Hospital,     |Generalised Tonic-Clonic   |
|      |29.3.2001         |Jabalpur               |Seizure                    |
|      |                  |                       |                           |
|      |                  |                       |Neurotic Depression (ICD)  |
|      |                  |                       |300 (Relapse)              |
|e.    |30.7.2001 to      |Military Hospital,     |Generalised Tonic-Clonic   |
|      |31.8.2001         |Jabalpur               |Seizure                    |
|      |                  |                       |                           |
|      |                  |                       |Neurotic Depression (ICD)  |
|      |                  |                       |300                        |


That based on such state of health of the respondent, he was placed  in  low
medical category “CEE” (temporary)  w.e.f.  11.4.2000  to  10.10.2000    and
thereafter in the low medical category “BEE” (permanent) w.e.f.  11.10.2000,
was mentioned as well.  It  was  stated  further  that  the  respondent  was
eventually lowered to  the  medical  category  S-3(T-24)  “CEE”  (temporary)
w.e.f. 3.02.2001.

7.    The Union  authorities  reiterated  that  this  down  grading  of  the
medical category was in view  of  the  diagnosed  disease  i.e.  Generalised
Tonic Clonic Seizure-345 and Neurotic Depression (ICD)300.  It was  admitted
that  though  the  respondent  was  willing   to   continue   in   sheltered
appointment, the same being not available qua his medical category,  he  was
discharged  from  Army  service  on  medical  grounds  under  the   relevant
provisions of the Army Rules 1954 w.e.f. 31.12.2001 and was  finally  struck
off from the strength of the Army service w.e.f.1.1.2002.

8.    Prior thereto,  the  Release  Medical  Board  held   on  30.8.2001  at
Military Hospital,   Jabalpur  assessed  the  disability  Generalised  Tonic
Clonic Seizure-345 at 20%  for  2  years,   disability  Neurotic  Depression
(ICD)300  at 11-14%  for 2 years and the composite assessment of  disability
at 20%.  The Union of India in its reply did categorically  state  that  the
Medical Board was of the opinion that the  disabilities  of  the  respondent
were neither attributable to nor aggravated by the  Army  service  and  were
instead  constitutional  in  nature.   According  to  it,  though   monetary
benefits as  allowable  under  the  relevant  rules  were  released  to  the
respondent,  his  claim  for   disability   pension   was   rejected   being
impermissible.

9.    That the  departmental  appeals  filed  by  the  respondent  had  been
rightly rejected as his constitutional disorder was neither attributable  to
nor aggravated by Army service, disentitling him thereto as per para 173  of
the Pension Regulations for the Army, 1961 (part-1) (for  short  hereinafter
also referred to as “Regulations”)  was  emphatically  underlined.   It  was
clarified as well that at the time of entry in service, it was not  possible
to  conduct  complete  medical  examination  in  order  to  detect   dormant
diseases and that the tests undertaken were factually clinical in nature  to
ascertain physical fitness.  Thus according to the  Union,  any  disease  of
genetic or hereditary origin was likely to go  undetected  at  the  time  of
recruitment.

10.   The learned  Single Judge  on  an  appraisal  of  the  contemporaneous
facts and the documents available on record alongwith Regulation 173 of  the
Regulations and paragraphs 2, 3, 4 and 7(b) of Appendix 11 thereto  returned
a finding that the invaliding Medical Board having failed to record  reasons
that the disease could not be detected on medical examination  at  the  time
of entry in service and that the same could not have aggravated  during  the
course  of  his  employment,   its   bare   conclusion   that   those   were
constitutional in nature,  was not in compliance  of  the  Regulations.  The
learned Single Judge held that as  the  disability  of  the  respondent  was
assessed  at  20%,  he  was  entitled  to  disability  pension  and   as   a
consequence, quashed the orders to the contrary and directed  the  Union  of
India and its authorities to grant disability pension to him from  the  date
he was discharged from  service.    Time  limit  of  four  months  was  also
outlined for the completion of the exercise, failing which  it  was  ordered
that the respondent would be entitled to interest @ 7.5% p.a.

11.   The Intra-Court appeal did also  meet  the  same  fate,  the  Division
Bench having wholly endorsed the determination made by  the  learned  Single
Judge. It did further base its eventual decision on  the  judgment  of  that
Court in LPA (SW) 212/2006, Union of India and Others vs. Ravinder Kumar.

12.   Mr. Patwalia, learned Addl. Solicitor General appearing on  behalf  of
Union of India has insistently argued that the conclusions recorded  by  the
High Court at both the   levels are  patently  erroneous  being  dehors  the
recorded facts and the  supporting  documents,  besides  being  incompatible
with the relevant rules and regulations governing the  issue  of  disability
pension payable to a member  of  the  Army  service  on  being  boarded  out
therefrom on the ground of disability.    Apart  from  contending  that  the
decision in Union of India & Others vs Ravinder Kumar (Supra), on which  the
Division Bench of the High Court had placed reliance  had  been  overturned,
the learned Addl.  Solicitor  General  maintained  that  as  the  respondent
during his short tenure was mostly lodged in the hospital for his  treatment
for the disease for which he was invalided from service,  it is patent  that
the  same could not either be attributable to Army service or  construed  to
have been aggravated thereby.

13.   Mr. Patwalia has urged that the essential pre-requisites for grant  of
disability pension i.e. attributability of the respondent’s disease  to  the
Army service or aggravation thereof being non-existent in the case in  hand,
he was not entitled thereto and therefore, the finding to  the  contrary  is
repugnant to the relevant rules and regulations. Drawing  the  attention  of
this  Court,  inter  alia,  to  paragraph  7(b)  of  Appendix  II   to   the
Regulations, the learned Addl. Solicitor General  has  maintained  that  the
Medical Board having unequivocally opined  that  the  respondent’s  diseases
“Gerenalised  Tonic   Clonic   Seizure   and   Neurotic   Depression”   were
constitutional in nature and thus he was disentitled to disability  pension,
the impugned decision is clearly  not  sustainable  in  law  and  on  facts.
Without prejudice to this plea, Mr. Patwalia has urged  that  in  case  this
finding of the Medical Board does not find favour with this Court  for  want
of adequate reasons. It is a fit case for remand to it (Medical  Board)  for
an appropriate speaking opinion.  To buttress  his  contentions,  he  placed
reliance on the following decisions of this Court:

(1) Secretary, Ministry  of  Defence  &  Others  vs.   A.V.  Damodaran(Dead)
through LRs. &  Others -reported in   (2009)9 SCC 140

(2)  Union of India & Others vs.  Jujhar Singh -reported in (2011)7 SCC 735

(3) Dharamvir Singh vs. Union of India & Others -reported in  (2013)  7  SCC
316

(4) Veer Pal Singh vs. Secretary, Ministry of Defence -reported in (2013)  8
SCC 83 and

(5)   Civil Appeal No. 1837/2009 (d/o/d 23.5.2012). Union of  India  &  Anr.
Vs Ravinder Kumar



14.   Per Contra, Mr. Chib has assiduously asserted that as  the  concurrent
determinations  made  successively  by  the  High  Court  are  based  on   a
threadbare scrutiny of the relevant facts and  the  provisions  of  the  law
involved, no interference therewith is  warranted.  Emphatically  contending
that the diseases diagnosed on the eve of the  respondent’s  discharge  from
Army service had been acquired by him in the course  of  his  tenure,  short
though, and was thus clearly attributable thereto, the denial of  disability
pension  to  him  was  clearly   illegal,   high   handed,   arbitrary   and
discriminatory. According to Mr. Chib on a  combined  consideration  of  the
relevant provisions of the  Regulations  and  the  Appendix  II,  containing
“Entitlement  Rules  for  Casualty  Pensioners  Awards  1982”   (hereinafter
referred to as the “Rules”)  and the “Guide to  Medical  Officers  (Military
Pension), 2002”, (hereinafter referred to as the “General  Principles”),  it
being irrefutable that the respondent was  entitled  to  disability  pension
thereunder,  the High Court was perfectly justified in affirming  the  same.
Pleading in particular that the Medical  Board  had  failed  to  record  any
reason whatsoever in support of  its  conclusion  that  either  the  disease
detected or the disability consequent thereupon was neither attributable  to
Army service nor aggravated thereby, he urged that the respondent could  not
have been denied disability pension  on  the  vague  remark  that  the  said
diseases were constitutional in nature.  According to Mr. Chib, the  Medical
Board having failed, without any justification  to  record  the  reasons  in
support of its conclusion that the diseases were constitutional  in  nature,
the very basis of denial of disability pension to the  respondent  had  been
rendered non est. According to  learned  counsel,  the  relevant  rules  and
regulations are to be essentially construed and  interpreted  liberally  and
in  the  realistic  perspectives  and   not   pedantically   to   facilitate
effectuation of the purpose thereof.  Mr. Chib has drawn sustenance for  his
pleas from the decision of this Court in  Civil  Appeal  No:  2904  of  2011
Union of India & Anr. Vs. Rajbir Singh & Ors. disposed of  on 13.2.2015.

15.   The pleaded assertions and the arguments based thereon  have  received
our due consideration.   It is undisputed that  soon  after  the  respondent
had joined the service on 6.4.1999 having been  adjudged  to  be  fully  fit
therefor, following a rigorous medical test, he  fell  ill  and  had  to  be
hospitalized where he was diagnosed in due course, to be  afflicted  by  (1)
“Generalised Tonic Clonic Seizure” and (2) “Neurotic Depression”.  It  is  a
matter of record that the respondent had to be  hospitalized  on  more  than
one occasion during his short tenure ranging from 8.4.1999 to 1.1.2002  when
he was invalided from service.  Intermittently, as the chart of his  medical
treatment as set out  in  the  reply  of  the  appellants  reveals,  he  had
actively served in all, for a period of about one year.  That  he  was  thus
mostly under treatment for the above two disabilities during his stint  with
the appellants, is undeniable. Be that as it may, the sustainability of  the
denial of disability pension to him has to  be  essentially  tested  on  the
touch-stone of the compliance of the relevant Rules  and  Regulations.  Apt,
it would thus be to  advert  to  the  relevant  provisions  thereof  at  the
threshold.   Undoubtedly  the  guiding  course  in  this  regard  have  been
outlined in Regulation 173, Rule 5, 9 and 14 in particular of the  Rules  as
well as paras 7,8 and 9 of the “General Principles”.  Expedient it would  be
thus to set out these provisions for ready reference.

Regulation 173 which deals with primary conditions for the grant of  pension
reads as under:

      "173.      Primary conditions for the  grant  of  disability  pension;
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 Army service and  is  assessed  at
20 per cent or over.  The question whether a disability is  attributable  to
or aggravated by  Army  service  shall  be  determined  under  the  rule  in
Appendix II."

Rule 5, 9 and 14 of the Entitlement Rules for  Casualty  Pensionary  Awards,
1982 reads as under:

"5.   The approach to the question of  entitlement  to  casualty  pensionary
awards and evaluation of  disabilities  shall  be  based  on  the  following
presumptions:

Prior to and during service

      (a)   A member is presumed to have been in sound physical  and  mental
condition upon entering service except as to physical disabilities noted  or
recorded at the time of      entrance.

      (b)   In the event of his subsequently being discharged  from  service
on medical grounds any determination in his health, which  has  taken  place
is due to service."

      "9.   Onus of proof: - The claimant shall 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 service cases."

      "14.  Diseases.- In respect of diseases, the following  rule  will  be
observed -

      (a)   Cases in  which  it  is  established  that  conditions  of  Army
service did not determine or contribute to the  onset  of  the  disease  but
influenced the subsequent courses of the disease will  fall  for  acceptance
on the basis of aggravation.

      (b)   A disease which has led 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  Army  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  Army  service  determined  or
contributed to the onset of the disease and that the conditions were due  to
the circumstances of duty in Army service."

                             (emphasis supplied)

Chapter – II of the Guide  to  Medical  Officers  (Military  Pension),  2002
which sets out the “Entitlement: General Principles”, Paras, 7, 8 and  9  of
the guidelines read as under:

"7.   Evidentiary value is attached to the record of  a  member's  condition
at the commencement of service,  and  such  record  has,  therefore,  to  be
accepted unless any  different  conclusion  has  been  reached  due  to  the
inaccuracy of the record in a particular case  or  otherwise.   Accordingly,
if the disease leading to member's invalidation  out  of  service  or  death
while in service, was not noted in a medical report at the  commencement  of
service, the inference would be that the disease arose during the period  of
member's Army service.  It may be that the inaccuracy or  incompleteness  of
service record on entry in service  was  due  to  a  non-disclosure  of  the
essential facts by the member e.g. pre-enrolment history  of  an  injury  or
disease like epilepsy, mental disorder, etc. It may also be  that  owing  to
latency or obscurity of the symptoms,  a  disability  escaped  detection  on
enrolment.  Such lack of recognition may affect the  medical  categorisation
of the member on enrolment and/or cause him to  perform  duties  harmful  to
his condition. Again, there may  occasionally  be  direct  evidence  of  the
contraction of a disability, otherwise than by service.  In all such  cases,
though the disease cannot be considered to have been caused by service,  the
question  of  aggravation  by  subsequent  service  conditions   will   need
examination.

The following are some of the diseases which ordinarily escape detection  on
enrolment:
(a) Certain congenital abnormalities which are latent and only  discoverable
on full investigation e.g.
Congential defect of Spine, Spina bifida, Sacralistaion,
(b) Certain familial and hereditary diseases  e.g.  Haemophilia,  Congential
Syphilis, Haemoglobinopathy.
(c)  Certain  diseases  of  the  heart  and  blood  vessels  e.g.   Coronary
Atherosclerosis, Rheumatic Fever.
(d)  Diseases  which  may  be  undetectable  by  physical   examination   on
enrolment, unless adequate history is given at the time by the  member  e.g.
Gastric and Duodenal Ulcers, Epilepsy, Mental Disorders, HIV Infections.
(e) Relapsing forms of mental disorders which have intervals of normality.
(f) Diseases which have periodic attacks e.g.  Bronchial  Asthma,  Epilepsy,
Csom, etc.

8.    The question whether  the  invalidation  or  death  of  a  member  has
resulted from service conditions, has to be  judged  in  the  light  of  the
record of the member's condition on enrolment as noted in service  documents
and of all other available evidence both direct and indirect.

In addition to any documentary evidence relative to the  member's  condition
to entering the service and during service, the  member  must  be  carefully
and closely questioned on the circumstances which led to the advent  of  his
disease, the duration, the family history, his pre-service history, etc.  so
that  all  evidence  in  support  or  against  the  claim   is   elucidated.
Presidents of Medical Boards should make this their personal  responsibility
and ensure that opinions on attributability, aggravation  or  otherwise  are
supported  by  cogent  reasons;  the  approving  authority  should  also  be
satisfied that this question has been dealt with in such a way as  to  leave
no reasonable doubt.

9.    On the question whether any persisting deterioration has occurred,  it
is to be remembered that invalidation  from  service  does  not  necessarily
imply that  the  member's  health  has  deteriorated  during  service.   The
disability may have been  discovered  soon  after  joining  and  the  member
discharged in his own interest in order to prevent  deterioration.  In  such
cases, there may even have been a temporary worsening  during  service,  but
if the treatment given before discharge was  on  grounds  of  expediency  to
prevent a recurrence, no lasting damage was inflicted by service  and  there
would be no ground for admitting entitlement,.   Again  a  member  may  have
been invalided from service because he is found so weak mentally that it  is
impossible to make him an efficient soldier.  This would not mean  that  his
condition has worsened during service, but only that it is  worse  than  was
realised on enrolment in the army. To sum up,  in  each  case  the  question
whether any persisting deterioration on the available  evidence  which  will
vary according to the type of  the  disability,  the  consensus  of  medical
opinion relating to the particular condition and the clinical history."


      The Regulation, Rules and General Principles concededly are  statutory
in nature and thus uncompromisingly binding on the parties.

16.   A conjoint reading of these provisions,  unassailably  brings  to  the
fore, a statutory presumption that a member of the service governed  thereby
is presumed to have been in  sound medical condition at  the  entry,  except
as to the physical disability as recorded  at  that point of time  and  that
if he is subsequently discharged from service on the ground  of  disability,
any deterioration in his health has to be  construed  to  be  attachable  to
his service.  Not only the member in  such  an  eventuality,  could  not  be
called upon to prove the conditions of his entitlements,  he  would  instead
be entitled to the any reasonable doubt with regard thereto. Regulation  173
in clear terms not only mandates that disability pension may be  granted  to
an individual invalided from service  on  account  of  disability  which  is
attributable to and aggravated by Army service and is assessed  as  20%,  it
specifically  provides  as  well  that  the  question  as  to  whether  such
disability is attributable to  or  aggravated  by  Army  service  is  to  be
determined by the Rules.  Rule  14(b)  in  specific  terms  enjoins  that  a
disease which has led 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 his acceptance for Army service.   The exception to  this  deduction  is,
only in the event of a medical opinion, supported by reasons to  the  effect
that the disease could not have been detected on medical  examination  prior
to acceptance for service whereupon it would be deemed that the disease  had
not  arisen during service.  The underlying  ordainment  of  these  salutary
provisions   is   patently   supportive   of   the   inference   that    the
disease/disability for which a member of a Army service is boarded  out  had
been contracted by him during his tenure unless the  same  is  displaced  by
cogent,  coherent and persuasive reasons  to  be  recorded  by  the  Medical
Board  as  contemplated.   Absence  of  such  a  presumption  in  favour  of
attributability to the Army service  or  aggravation  thereby,  displaceable
though,  cannot  be  readily  assumed  unless  endorsed  by  contemporaneous
records and overwhelming reasons recorded by the  invaliding  Medical  Board
to the contrary. The acknowledged primacy extended to  the  opinion  of  the
Medical Board, and its views and recommendations thus assuredly  would  have
to be subject to the hallowed objectives of the relevant provisions  of  the
Rules, Regulations and the General Principles  laden  with  the  affirmative
presumption in favour of the member of the service. Not  only  the  manifest
statutory intendment and the avowed purpose of these  provisions  cannot  be
disregarded, a  realistic  approach  in  deciphering  the  same  has  to  be
adopted.  The incident of invaliding a member of the  Army  service  entails
curtailment of the normal tenure for his recorded disability to  the  extent
of 20%  or  more  and  thus  in  our  own  comprehension,  the  disentitling
requisites  would  have  to  be   stringently   construed.    The   decisive
determinant as per the relevant provisions of  the  Regulations,  Rules  and
the General Principles, is the attributability of  the  disability  involved
or aggravation thereof to Army service.  It  cannot  be  gainsaid,  however,
that there ought to be at least a casual and perceptible nexus  between  the
two, but denial of disability pension  would  be  approvable,  only  if  the
disability by no means can be related to the Army service.   The  burden  to
disprove the correlation of the disability with the Army  service  has  been
cast on the authorities by the Regulation, Rules and the General  Principles
and thus, any  inchoate,  casual,  perfunctory  or  vague  approach  of  the
authorities would tantamount to non-conformance of  the  letter  and  spirit
thereof, consequently invalidating  the  decision  of  denial.   Though  the
causative factors for the disability have to be the rigor  of  the  military
conditions, no insensitive and unpragmatic analysis of  the  relevant  facts
is envisaged so as to render any of  the  imperatives  in  the  Regulations,
Rules and  General  Principles  otiose  or  nugatory.  To  the  contrary,  a
realistic, logical, rational and  purposive  scrutiny  of  the  service  and
medical profile of the member concerned is peremptory to sub-serve the  true
purport and purpose of these provisions. To reiterate, invaliding  a  member
from the service presupposes truncation of his normal  service  tenure  thus
adjudging him to be unsuitable therefor.  The  disability  as  well  has  to
exceed a particular percentage. The  bearing  of  the  Army  service  as  an
aggravating factor qua even a dormant and elusive constitutional or  genetic
disability in all fact situations thus cannot be readily  ruled  out.  Hence
the predominant significance  of  the  requirement  of  the  reasons  to  be
recorded by the Medical Board and  the  recommendations  based  thereon  for
boarding out a member from service. As a corollary, in  absence  of  reasons
to reinforce the opinion that the disability  is  not  attributable  to  the
Army service or  is  not  aggravated  thereby,  denial  of  the  benefit  of
disability    pension     would     be     illegal     and     indefensible.


17.   The medical opinion in the instant  case,  as  the  precursor  of  the
invalidment of  the  respondent  therefore  needs  to  be  assayed  in  this
presiding statutory backdrop.

18.   The opinion of  the  attending  doctor  on  09.08.2001  prior  to  the
assessment made by the Medical Board discloses that his was an old  case  of
Neurotic Depression which came to be noticed first in  December,  2000  when
he complained of tension, weakness and inability to do  work.   It  recorded
further  that  his  psychiatric  evaluation  revealed  depression,   somatic
preoccupation and depressive cognition. Though it noted that he was keen  to
serve further, his release  was  due  to  low  medical  category.    It  was
mentioned as well  that  there  was  no  clear  features  of  psychosis  and
sensorium as he ate and slept well. He was  recommended  to  be  fit  to  be
released from service.  A few excerpts of the  proceedings  of  the  Medical
Board would be of some advantage and are extracted hereinbelow.

                                   “PART I

                             PERSONAL STATEMENT

………



2.    Give particulars of any diseases, wounds or injuries from which you
are suffering


|Illness,      |First Started |Where treated |Approximate dates and period |
|Wound,        |              |              |treated                      |
|Injury        |              |              |                             |
|              |Date          |Place         |              |              |
|GENERALISED   |22.03.2000    |AMRITSAR      |MH AMRITSAR   |22.03.2000 to |
|TONIC CLONIC  |              |              |              |27.03.2000    |
|SEIZURE-345   |              |              |              |              |
|NEUROTIC      |18.12.2000    |CHANDIMANDIR  |CH(WC)        |12.12.2001    |
|DEPRESSION-300|              |              |CHANDIMANDIR  |              |


3.    Did you suffer from any disability mentioned in question 2 or
anything like it before joining   the Armed Forces? If so give details and
dates.                                  -No”


      Part III which deals with opinion of the Medical Board reads as
under:

                                 “ PART III

                        OPINOIN OF THE MEDICAL BOARD

1.    Did the disability/ies exist before entering serviced? – No.

2.    (a) In respect of each disability the Medical Board on the evidence
before it will express its views as to whether:-

(i)  it is attributable to service during peace or under filed service
conditions; or

                 (ii) It has been aggravated thereby and remains so: or

                 (iii) It is not connected with service.

The board should state fully the reasons in regard to each disability on
which its opinion is based.


|Disability                  |A        |B       |C    |
|GENERALISED TONIC CLONIC    |NO       |NO      |YES  |
|SEIZURE - 345               |         |        |     |
|NEUROTIC DEPRESSION - 300   |NO       |NO      |YES  |


(b) In respect of each disability  shown  as  attributable  under  'A',  the
Board should state fully, the  specific  condition  and  period  in  service
which caused the disability  182 = NA

(c) In respect of each disability shown as aggravated under B the Board
should state fully:-

(i) The specific condition and period in service which aggravated the
disability.
                             182 = NA

                 (ii) Whether the effects of such aggravation still
persist.

                             182 = NA

(iii) If the answer to (ii) is in the affirmative, whether effect of
aggravation will persist for a material period.

                             182 = NA

(d)  In the case of a disability under C, the Board should state what
exactly in their opinion is  the caused thereof.

182 = Both disabilities are constitutional in nature hence unconnected with
Army service.”



19.    Eventually,  the  Board  on  the  basis  of  the   disabilities   (1)
“Generalised Tonic Clonic Seizure-345”  and  (2)  “Neurotic  Depression-300”
did compute the composite disability of the respondent to be 20%.

20.   Significantly, as would be evident from  the  above  quoted  extracts,
the respondent had on being queried during his examination, denied  to  have
been suffering from any of the disabilities at the time of joining the  Army
service.

21.   Though as per  Clause  2(a)  of  Part  III,   the  Medical  Board  was
required  to  express  its  views  on  the  aspects  as   to   whether   the
disabilities;

 were attributable to service during peace or under



field service conditions;



 were aggravated thereby and remained to be so;

 were not connected with service;



and was required to state reasons with regard to each  of  the  disabilities
of which its opinion was based, it merely recorded in  the  negative  vis-a-
vis the first two  and  in  the  affirmative  qua  the  third  and  abruptly
concluded that both the  disabilities  were  constitutional  in  nature  and
hence unconnected with Army service. No reason whatsoever was cited  by  the
Medical  Board  in  support  of  this  conclusion.   On  the  contrary,  its
deduction that the disabilities were  unrelated  to  the  Army  service  was
founded only on the fact that those were constitutional  in  nature  and  no
other consideration or reason whatsoever. That the opinion  of  the  Medical
Board lacks in reasons, has been conceded too by  the  learned  counsel  for
the appellants.

22.   Be that as it may, adverting inter alia to Rule 14(b)  of  the  Rules,
we are of the unhesitant opinion that reasons, that the diseases  could  not
be detected on medical examination prior to acceptance in service, ought  to
have been obligatorily recorded by  the  Medical  Board  sans  whereof,  the
respondent would be entitled to the benefit of the statutory inference  that
the same  had  been  contracted  during  service  or  have  been  aggravated
thereby.  There is no reason forthcoming in the proceedings of  the  Medical
Board, as to why his disabilities eventually adjudged to  be  constitutional
or genetic in nature had escaped the notice of the authorities concerned  at
the  time  of  his  acceptance  for  Army  service.   On   a   comprehensive
consideration of  the  Regulation,  Rules  and  the  General  Principles  as
applicable, the service profile of the respondent  and  the  proceedings  of
the Medical Board, we are constrained to  hold  that  he  had  been  wrongly
denied the benefit of  disability pension. His tenure albeit  short,  during
which he had to be frequently hospitalized does  not  irrefutably  rule  out
the possibility, in absence of any reason recorded  by  the   Medical  Board
that the disability even assumed to be constitutional or  genetic,  had  not
been  induced  or  aggravated  by  the  arduous  military  conditions.   The
requirement of recording reasons is not contingent on the  duration  of  the
Army service of the member thereof and  is  instead  of  peremptory  nature,
failing which the decision  to  board  him  out  would  be  vitiated  by  an
inexcusable infraction of the relevant statutory provisions.  Having  regard
to  the  letter  and  spirit  of  the  Regulation,  Rules  and  the  General
Principles, the prevailing presumption in favour of a  member  of  the  Army
service boarded out on account of  disability  and  the  onus  cast  on  the
authorities to displace the same, we are of the unhesitant opinion that  the
denial  of  disability  pension  to  the  respondent  in   the   facts   and
circumstances of the case, have been repugnant  to  the  relevant  statutory
provisions and thus cannot be sustained in law.  The determination  made  by
the High Court of Jammu and Kashmir at Jammu  is  thus  upheld  on  its  own
merit.

23.   The authorities cited at the Bar though underline the primacy  of  the
opinion of the Medical Board on the issue, however, do  not  relieve  it  of
its statutory obligation to record reasons as  required.   Necessarily,  the
decisions turn on their own  facts.   With  the  provisions  involved  being
common in view of the uniformity in the exposition thereof,  a  dilation  of
the adjudications is considered inessential.

24.   Though noticeably, the decision rendered in  LPA(SW)  212/2006;  Union
of India and Others vs. Ravinder Kumar,  as  referred  to  in  the  impugned
judgment,  was reversed by this Court in Civil Appeal No.1837/2009,  we  are
of the respectful view that the same cannot be  construed  to  be  a  ruling
relating to the essentiality of recording of reasons by  the  Medical  Board
as mandated by the Regulations, Rules  and  the  Guiding  Principles.   This
decision  thus  is  of  no  determinative  relevance  vis-a-vis  the  issues
involved in the present appeal.

25.   The last in the line  of  the  rulings  qua  the  dissensus  has  been
pronounced in a batch of Civil Appeals led by  Civil  Appeal  No.   2904  of
2011; Union of India & Others vs. Rajbir Singh in which  this  Court  on  an
exhaustive  and  insightful  exposition  of  the  aforementioned   statutory
provisions had observed with  reference  as  well  to  the  enunciations  in
Dharamvir Singh vs. Union of India 2013(7) SCC 316, that the  provision  for
payment  of  disability  pension  is  a  beneficial  one  and  ought  to  be
interpreted liberally so as to benefit those who have been boarded out  from
service, even if they have not completed their tenure. It was observed  that
there may indeed be cases where the disease  is  wholly  unrelated  to  Army
service but to deny disability pension,  it  must  affirmatively  be  proved
that the same had nothing to do with such service.  It was  underlined  that
the burden to establish disability would lie heavily upon the employer,  for
otherwise the Rules raise  a  presumption  that  the  deterioration  in  the
health of the member of the service was on account of Army  service  or  had
been aggravated by it.  True to the import of the provisions,  it  was  held
that a soldier cannot be asked to prove that the disease was  contracted  by
him on account of Army service or had been aggravated by the  same  and  the
presumption continues in his favour till it is proved by the  employer  that
the disease is neither attributable  to  nor  aggravated  by  Army  service.
That to discharge this burden,  a statement of reasons supporting  the  view
of the employer is the essence of the  rules which would continue to be  the
guiding canon in dealing with cases of disability pension  was  emphatically
stated. As we respectfully, subscribe to the views proclaimed on the  issues
involved in Dharamvir Singh (supra)  and  Rajbir  Singh(supra)   as  alluded
hereinabove,  for the sake of brevity, we refrain   from  referring  to  the
details.   Suffice it to  state  that  these  decisions  do  authoritatively
address the issues seeking adjudication in the present appeals  and  endorse
the view taken by us.

26.   In the wake of the above, we hereby sustain the impugned judgment  and
order.  The appeals are dismissed.  No costs.

                                                                ……………………..J.
                                                                (M.Y. Eqbal)


                                                                ……………………..J.
   (Amitava Roy)
       New Delhi

       Dated: May12, 2015

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