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Sunday, February 26, 2017

disability pension=we hold that the Tribunal did not examine the case at hand in the light of the Army Pension Regulations, 1961, the Entitlement Rules for Casualty Pensionary Awards, 1982 and General Rules of Guide to Medical Officers (Military Pensions) 2002 and, therefore, the impugned order cannot be sustained. Applying the principles of Dharamvir Singh’s case and Rajbir Singh’s case, it has to be presumed that the disability of the appellant bore a casual connection with the service conditions. The appellant was diagnosed to be suffering from medical disability at 60% for life on 09.09.2009 and he was discharged from service on 7.10.2009. After invalidation from the service, the appellant passed away on 01.06.2015. By order dated 13.02.2017 in I.A. No. 3/2016, the legal heirs have been ordered to be substituted. Hence wife of the appellant and other legal heirs shall be entitled to disability pension as per the Rules.

                                                                  REPORTABLE
                          IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 2633 OF 2017

EX. GNR. LAXMANRAM POONIA (DEAD)
THROUGH    LRS.                                                  ….Appellant

                                              Versus

UNION OF INDIA AND ORS.
…Respondents

                               J U D G M E N T
R. BANUMATHI J.

This appeal arises out of the order dated 21.03.2014  passed  by  the  Armed
Forces Tribunal, Regional Bench, Jaipur, Rajasthan in O.A. No. 200 of  2010,
thereby declining  award  of  disability  pension  to  the  appellant.   The
Tribunal vide order dated 23.02.2016 also dismissed M.A.  No.  390  of  2015
filed by the appellant seeking leave to  appeal  under  Section  31  of  the
Armed Forces Tribunal Act.



2.    The facts relevant for disposal of this appeal are  as  follows:-  The
appellant was  enrolled  in  the  Indian  Army  on  14.09.2005.   His  basic
military training was convened at Army Air Defence Centre Nasik  Road  Camp,
commencing from 16.09.2005 and after completion of training, he  was  posted
at 27 AD Regiment for further service. It is the case of the appellant  that
on the eve of Diwali Festival in November, 2007, he  was  overburdened  with
work due to scarcity of staff.   Due to continuous restless duty  hours  for
several days, he suffered  hypertension  resulting  in  lack  of  sleep  and
hunger.   Ultimately, he requested the Commanding Officer  of  his  Unit  to
sanction him leave considering his critical condition. However,  instead  of
granting leave, the Commanding Officer got  him  admitted  in  174  Military
Hospital  on  11.11.2007,  acknowledging  the  critical  condition  of   the
appellant.   The Doctor diagnosed the appellant to be suffering  from  acute
schizophrenia like psychotic disorder. The  appellant  was  discharged  from
174 Military Hospital on 14.03.2008. Thereafter, he was shifted to  Military
Hospital Chandimandir and was admitted to psychiatric  ward  on  28.08.2008.
He was subjected to a Military Board held at 174 Military Hospital  for  his
recategorisation.  After some time, he was granted  sick  leave  for  a  few
days.   However,  he  was  again  admitted  to  174  Military  Hospital   on
15.02.2009, and was also subjected to a Medical  Board  and  thereafter,  he
was discharged from the hospital and was sent to his Unit.



3.    As per the appellant,  he  was  again  entrusted  with  hard  duty  on
02.05.2009 and was also compelled to work at night hours, because  of  which
the disease so detected  again  aggravated.     Ultimately,  he  had  to  be
admitted to Command Hospital Chandimandir on 05.05.2009, from where  he  got
discharged on  12.06.2009.   He  was  again  admitted  to  Command  Hospital
Chandimandir on 10.07.2009, from where he was discharged on 06.10.2009.   He
was  brought  before  a  duly  constituted  Invaliding  Medical   Board   on
09.09.2009 to assess the cause and degree of  disablement.   The  Invaliding
Medical Board opined that he was suffering from  ‘acute  Schizophrenia  like
psychotic disorder’. Medical Board further opined that the disability  being
constitutional in  nature  is  not  connected  with  Military  Service.  His
disability  was  assessed  at  60%  for  life  but  was  viewed  as  neither
attributable to nor aggravated by  Military  Service.   Ultimately,  he  was
invalided out of service with effect from 07.10.2009 under  Rule  13(3)(iii)
of the Army Rules, 1954.   His claim for grant  of  disability  pension  was
forwarded  to  the  Principal  Controller  of  Defence  Accounts   (Pension)
Allahabad, which was rejected vide order  dated  02.07.2010  on  the  ground
that the disability suffered by the applicant  is  neither  attributable  to
nor aggravated by Military Service.



4.    The appellant challenged the  order  dated  02.07.2010  by  filing  an
application before the Tribunal seeking  disability  pension.  The  Tribunal
dismissed  the  application  filed  by  the  appellant  holding   that   the
disability being ‘constitutional’ in nature is not connected  with  Military
Service. His disability was assessed at 60% for  life;  but  was  viewed  as
neither attributable to nor aggravated by  Military  Service.  The  Tribunal
specifically held that though the  Invaliding  Medical  Board  categorically
opined that he  was  suffering  from  ‘Acute  Schizophrenia  like  psychotic
disorder’, the disability of the applicant being  constitutional  in  nature
cannot be considered to be connected with Military Service.   Thus,  holding
that there was no casual connection between  disablement  and  the  Military
Service for attributability or aggravation  to  be  conceded,  the  Tribunal
dismissed the application.



5.     The Appellant Laxman Ram Poonia expired  on  01.06.2015  at  Maulsar.
The wife of the appellant filed application being M.A.  No.  390/2015  under
Section 31 of Armed Forces Tribunal Act, 2007 before  the  Tribunal  seeking
leave to file appeal  before  this  Court  against  the  final  order  dated
21.03.2014 passed by Armed Forces Tribunal in  O.A.  No.  200/2010  and  the
same  was  dismissed  by  the  Tribunal   vide   order   dated   23.02.2016.
Challenging the order passed by the Tribunal, wife of Laxman Ram Poonia  has
filed the present  Civil  Appeal  under  Section  30  of  the  Armed  Forces
Tribunal Act, 2007.

6.    Learned counsel for the appellant submitted that the Tribunal was  not
justified in dismissing the application filed by the appellant ignoring  the
settled position of law that if the disability for  which  a  personnel  was
invalided out of service was not there at the time of  recruitment,  as  per
the decision in Dharamvir Singh v. Union of India and Ors.         (2013)  7
SCC 316, then it must be  presumed  that  the  disability  occurred  due  to
Military Service. The counsel contended that relying solely on  the  opinion
of Medical Board, it could not  have  been  said  that  the  disability  was
neither attributable to nor aggravated by  the  Military  Service.   Drawing
our attention to Rule 14 of the Entitlement Rules  for  Casualty  Pensionary
Awards, 1982, the appellant contended that the Tribunal ought to  have  held
that Laxman Ram Poonia developed Schizophrenia due to Military  Service  and
the conditions for awarding disability pension are  satisfied  and  Tribunal
should have awarded the disability pension.



7.     Learned Additional Solicitor General contended that  the  opinion  of
the Medical Board that the disease  is  held  neither  attributable  to  nor
aggravated by Military Service  is  unimpeachable  so  far,  and  thus,  the
appellant was rightly denied disability pension.  It was  further  contended
that psychiatric disorder of the person cannot be detected  by  the  Medical
Board conducting medical examination at the time of enrollment  in  service,
in the absence of previous history or overt manifestation and it was on  the
appellant to specifically prove  that  he  was  not  suffering  from  ‘Acute
Schizophrenia like psychotic disorder’ at the time of his enrollment,  which
he  failed  to  so.  The  Additional  Solicitor   General   contended   that
application filed by the appellant seeking disability  pension  was  rightly
dismissed by the Tribunal and no reason warranting interference.



8.     We have heard the  parties  before  us  and  have  also  perused  the
impugned order and materials available on record.



9.    When the appellant was enrolled in  the  Indian  Army  on  14.09.2005,
nothing was recorded in his service record that he was  suffering  from  any
disease or disability.  Likewise, during the entire period of  training  and
while he was performing his service at 27 AD Regiment till 2007,  there  was
no sign of any abnormal behaviour or disability.   For the  first  time,  in
or about  2007,  the  appellant  is  alleged  to  have  shown  his  agitated
behaviour.  It is the case of the respondent that on the expiry of his  sick
leave  on  11.12.2008,  the  appellant  was  admitted  to  Command  Hospital
(Western Command) Chandimandir where he was downgraded to  medical  category
S3(T-24)  H1A1P1E1  for  six  months  with  effect  from  13.03.2008.    The
appellant was again admitted to the  Military  Hospital  on  10.02.2009  for
review  of  his  medical  category  where  his  medical  categorization  was
upgraded  to  S2  (T-24)  HIAIPIEI  with  effect  from  11.02.2009  and  was
discharged from  the  hospital  on  18.02.2009.   The  appellant  was  again
admitted to the Command Hospital  Chandimandir  on  05.05.2009  and  he  was
finally discharged from the service on 26.06.2009.  Considering  appellant’s
disability and percentage of disability, as assessed by the  Medical  Board,
the respondents found it apposite to invalidate  appellant’s  service  under
the provisions of Rule 13(3)(iii) of the Army Rules, 1954.



10.   The point falling for consideration is whether the schizophrenia  like
psychotic disorder  disability  of  the  appellant  Laxman  Ram  Poonia  was
attributable  or  aggravated  due  to  Military  Service  and  whether   the
appellant is entitled to disability pension.



11.   Regulation 173 of Pension Regulations for the Army, 1961  specifically
deals with the primary conditions for the grant of  disability  pension.  It
reads as under:-
“173.  Primary  conditions  for  the  grant  of  disability  pension.—Unless
otherwise specifically provided a disability pension consisting  of  service
element and disability element may  be  granted  to  an  individual  who  is
invalided out of service on account of a disability  which  is  attributable
to or aggravated by military service in non-battle casualty and is  assessed
at 20% or over.

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

By a bare perusal of the aforesaid Regulation, it is clear  that  disability
pension in normal course is granted to an individual: (i) who  is  invalided
out of service on account of  a  disability  which  is  attributable  to  or
aggravated by Military Service, and (ii) who is  assessed  at  20%  or  over
disability, unless specifically provided otherwise.



12.   A disability “attributable to or aggravated by  military  service”  is
determined as per the Entitlement  Rules  for  Casualty  Pensionary  Awards,
1982, as shown in Appendix II.    Rule  5  of  the  said  Rules  relates  to
approach to be adopted while considering  the  question  of  entitlement  to
casualty pension award. It lays down certain presumptions to be  made  while
evaluating the disabilities.  Rule 5 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 deterioration in his health, which has taken  place,  is
due to service.”

From Rule 5 we find that a general presumption is to be drawn that 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. If a person is  discharged  from  service  on  medical
ground for deterioration in his  health  it  is  to  be  presumed  that  the
deterioration in the health has taken place due to service.

13.   Other relevant provisions for our purposes  are  Rules  14(a),  14(b),
14(c) and 14(d) of Entitlement Rules for Casualty  Pensionary  Awards,  1982
as  amended  vide  Government  of  India,   Ministry   of   Defence   Letter
No.1(1)/81/D(Pen-C) dated 20-6-1996, and the same read as follows:-
Diseases:

14. (a) For acceptance of a disease as  attributable  to  military  service,
the following two conditions must be satisfied simultaneously:

(i) That the disease has arisen during the period of military service, and

(ii) That the disease has been caused by the  conditions  of  employment  in
military service.

(b) If medical authority holds, for reasons to be stated, that  the  disease
although present at the time of enrolment could not have  been  detected  on
medical examination prior to acceptance for service, the disease,  will  not
be deemed to have arisen during service. In case  where  it  is  established
that the military service did not  contribute  to  the  onset  or  adversely
affect the course (sic of the) disease, entitlement for casualty  pensionary
award will not be conceded even if the disease has arisen during service.

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

(d) In case  of  congenital,  hereditary,  degenerative  and  constitutional
diseases which  are  detected  after  the  individual  has  joined  service,
entitlement to disability  pension  shall  not  be  conceded  unless  it  is
clearly established that the course of such disease was  adversely  affected
due to factors related to conditions of military services.”

14.   After referring to the above amended Rules  14(a),  14(b),  14(c)  and
14(d)  of  Entitlement  Rules  for  Casualty  Pensionary  Awards,  1982,  in
Dharamvir Singh v. Union of India and Ors. (2013)  7  SCC  316,  this  Court
clarified the law on the point in the following words:-
“21.1. As per Rule 14(a) we notice that  for  acceptance  of  a  disease  as
attributable to military service, conditions are to be  satisfied  that  the
disease has been arisen during the  military  service,  and  caused  by  the
conditions of employment in military service which is similar to Rule  14(c)
of the printed version as relied on by the appellant. Rule  14(b)  cited  by
the respondents is also similar to the published Rule 14.

21.2. Rule 14(c) cited by the respondents relates to the cases in  which  it
is established that conditions of military  service  did  not  determine  or
contribute to the onset  of  the  disease  but,  influenced  the  subsequent
course  of  the  disease,  will  fall  for  acceptance  on  the   basis   of
aggravation.

21.3. Rule 14(d) cited by the respondents  relates  to  diseases  which  are
detected  after  the  individual  has  joined  the  service,  which  entails
disability pension but it is to be  established  that  the  course  of  such
disease was adversely affected due to factors related to the  conditions  of
military service.

22. If the amended version of  Rule  14  as  cited  by  the  respondents  is
accepted to be the Rule applicable in the present case, even then  the  onus
of proof shall lie on the respondent employers in terms of Rule  9  and  not
the claimant and in case of any reasonable doubt the benefit  will  go  more
liberally to the claimants.”

15.   Further, referring to the Pension Regulations for the Army,  1961  and
the General Rules of Guide to Medical Officers (Military Pensions) 2002  and
observing that whether deterioration  of  disability  was  due  to  Military
Service or not will vary according to the nature of  disease/disability,  in
paras (23) to (26) of Dharamvir (supra), this Court held as under:-
“23. The Rules to be followed by the Medical Board in  disposal  of  special
cases have been shown under Chapter VIII of the General Rules  of  Guide  to
Medical  Officers  (Military  Pensions),   2002.   Rule   423   deals   with
“Attributability to service” relevant portion of which reads as follows:

“423. (a) For the purpose of determining whether the cause of  a  disability
or death resulting from disease is or is not attributable to service, it  is
immaterial whether  the  cause  giving  rise  to  the  disability  or  death
occurred in an area declared to be a field service/active  service  area  or
under normal  peace  conditions.  It  is  however,  essential  to  establish
whether the disability or death bore a causal connection  with  the  service
conditions. All evidence both direct and circumstantial will be  taken  into
account and benefit of reasonable doubt,  if  any,  will  be  given  to  the
individual. The evidence to be accepted as reasonable doubt for the  purpose
of these instructions should be of a degree of  cogency,  which  though  not
reaching certainty, nevertheless carries a high degree  of  probability.  In
this connection, it will be remembered that proof  beyond  reasonable  doubt
does not mean proof beyond a shadow of doubt. If the evidence is  so  strong
against an individual as to leave  only  a  remote  possibility  in  his/her
favour, which can be dismissed with the sentence ‘of course it  is  possible
but not in the least probable’ the case is proved beyond  reasonable  doubt.
If on the other hand, the evidence  be  so  evenly  balanced  as  to  render
impracticable a determinate conclusion one way or the other, then  the  case
would be one in  which  the  benefit  of  the  doubt  could  be  given  more
liberally to the individual, in  cases  occurring  in  field  service/active
service areas.
*     *     *
(c) The cause of a disability or death resulting  from  a  disease  will  be
regarded as attributable to service when it is established that the  disease
arose during service and the conditions and circumstances  of  duty  in  the
Armed Forces determined and contributed to the onset of the disease.  Cases,
in which it is established that service  conditions  did  not  determine  or
contribute to the onset of the disease but influenced the subsequent  course
of the disease, will be regarded as aggravated by  the  service.  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 service in the  Armed  Forces.  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.

(d) The question, whether a disability or death resulting  from  disease  is
attributable to or aggravated by service or not, will be decided as  regards
its medical aspects by a Medical Board or by the medical officer  who  signs
the Death  Certificate.  The  Medical  Board/Medical  Officer  will  specify
reasons for their/his opinion. The  opinion  of  the  Medical  Board/Medical
Officers, insofar as it relates to the actual cause  of  the  disability  or
death and the circumstances in which  it  originated  will  be  regarded  as
final. The question whether the cause and the  attendant  circumstances  can
be accepted as attributable to/aggravated by  service  for  the  purpose  of
pensionary benefits will, however, be decided  by  the  pension  sanctioning
authority.”

24. Therefore, as per Rule 423 the following procedures are to  be  followed
by the Medical Board:

24.1. Evidence both direct and circumstantial to be taken  into  account  by
the Board  and  benefit  of  reasonable  doubt,  if  any  would  go  to  the
individual;

24.2. A disease which has led to an individual’s  discharge  or  death  will
ordinarily be treated to have been arisen in service, if no note of  it  was
made at the time of the individual’s acceptance for  service  in  the  Armed
Forces.

24.3. If the medical opinion holds that the  disease  could  not  have  been
detected on medical examination prior to  acceptance  for  service  and  the
disease will not be deemed to have been arisen during military  service  the
Board is required to state the reason for the same.

25. Chapter II of the Guide to Medical Officers  (Military  Pensions),  2002
relates to “Entitlement: General Principles”. In the opening Para 1,  it  is
made clear that the Medical Board should examine cases in the light  of  the
etiology of the particular disease and after considering  all  the  relevant
particulars of a case, record their conclusions with reasons in support,  in
clear terms and in a language which the Pension Sanctioning Authority  would
be able to appreciate fully  in  determining  the  question  of  entitlement
according to the Rules. Medical officers  should  comment  on  the  evidence
both for and against the concession of entitlement; the aforesaid  paragraph
reads as follows:
“1. Although the certificate of a  properly  constituted  medical  authority
vis-à-vis  the  invaliding  disability,  or  death,  forms  the   basis   of
compensation payable by the Government, the  decision  to  admit  or  refuse
entitlement is not solely a matter which can be determined  finally  by  the
medical authorities alone. It may require also the  consideration  of  other
circumstances  e.g.  service  conditions,  pre-  and  post-service  history,
verification of wound or injury,  corroboration  of  statements,  collecting
and weighing the value of  evidence,  and  in  some  instances,  matters  of
military law and discipline.  Accordingly,  Medical  Boards  should  examine
cases in the light of the etiology  of  the  particular  disease  and  after
considering  all  the  relevant  particulars  of  a   case,   record   their
conclusions with reasons in support, in clear terms and in a language  which
the Pension Sanctioning Authority, a lay body, would be able  to  appreciate
fully in determining the question of entitlement according to the Rules.  In
expressing their opinion Medical Officers should  comment  on  the  evidence
both for and against the concession of entitlement. In this  connection,  it
is as well to remember that  a  bare  medical  opinion  without  reasons  in
support will be of no value to the Pension Sanctioning Authority.”

26. Para 6 suggests the procedure to be followed by service  authorities  if
there is no note, or adequate note, in the  service  records  on  which  the
claim is based.”


16.   We have extensively quoted the judgment from  Dharamvir  Singh’s  case
as it has referred and quoted  almost  all  the  governing  regulations  and
rules like Pension Regulations for the Army,  1961,  the  Entitlement  Rules
for Casualty Pensionary Awards, 1982 and General Rules of Guide  to  Medical
Officers (Military Pensions) 2002. After referring to the above  Regulations
and Rules in Dharamvir Singh (supra) in para  (29),  this  Court  summarized
the legal position as under:-
“29. A conjoint reading of various provisions, reproduced  above,  makes  it
clear that:

29.1. Disability pension to be granted to an  individual  who  is  invalided
from service on  account  of  a  disability  which  is  attributable  to  or
aggravated by military service in non-battle casualty  and  is  assessed  at
20% or over. The  question  whether  a  disability  is  attributable  to  or
aggravated by military service to be determined under the Entitlement  Rules
for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).

29.2. A member is to be presumed in  sound  physical  and  mental  condition
upon entering service if  there  is  no  note  or  record  at  the  time  of
entrance. In the event of his subsequently being discharged from service  on
medical grounds any deterioration in his health is to  be  presumed  due  to
service [Rule 5 read with Rule 14(b)].

29.3. The onus of proof is not on the claimant (employee), the corollary  is
that onus of proof that  the  condition  for  non-entitlement  is  with  the
employer. A claimant has a right to derive benefit of any  reasonable  doubt
and is entitled for pensionary benefit more liberally (Rule 9).

29.4. If a disease is accepted to have been as having arisen in service,  it
must also be established that the conditions of military service  determined
or contributed to the onset of the disease and that the conditions were  due
to the circumstances of duty in military service [Rule 14(c)].

29.5. If no note of any disability or  disease  was  made  at  the  time  of
individual’s acceptance for military service, a disease which has led to  an
individual’s discharge or death will be deemed to  have  arisen  in  service
[Rule 14(b)].

29.6. If medical  opinion  holds  that  the  disease  could  not  have  been
detected on medical examination prior to  the  acceptance  for  service  and
that disease will not be deemed to have arisen during service,  the  Medical
Board is required to state the reasons [Rule 14(b)]; and

29.7. It is mandatory for the Medical Board to follow  the  guidelines  laid
down in Chapter II of the Guide to  Medical  Officers  (Military  Pensions),
2002 — “Entitlement: General Principles”, including Paras  7,  8  and  9  as
referred to above (para 27).”

17.   The law laid down in Dharamvir (supra) was  re-affirmed  in      Union
of India and Anr. v. Rajbir Singh  (2015)  12  SCC  264,  where  this  Court
observed that the legal position laid down in Dharamvir Singh’s case  is  in
tune with the Pension Regulations,  the  Entitlement  Rules  and  Guidelines
issued to the Medical Officers. Relevant excerpt from the said  judgment  is
contained in paras (14) and (15), which read as under:-
“14. The legal position as stated in Dharamvir Singh case (2013) 7  SCC  316
is, in our opinion, in tune with the Pension  Regulations,  the  Entitlement
Rules and the Guidelines issued to the Medical Officers. The essence of  the
rules, as seen earlier, is that a member of the armed forces is presumed  to
be in sound physical and mental condition at the  time  of  his  entry  into
service if there is no note or record to the contrary made at  the  time  of
such entry. More importantly, in the event of his subsequent discharge  from
service on medical ground, any deterioration in his health  is  presumed  to
be due to military service.  This  necessarily  implies  that  no  sooner  a
member of the force is discharged  on  medical  ground  his  entitlement  to
claim disability pension will arise unless of course the employer  is  in  a
position to rebut the presumption that the disability which he suffered  was
neither attributable to nor aggravated by military service.

15. From Rule 14(b) of the Entitlement Rules it is  further  clear  that  if
the medical opinion were to hold that the disease suffered by the member  of
the armed forces could not  have  been  detected  prior  to  acceptance  for
service, the Medical Board must state the reasons for saying  so.  Last  but
not the least is the fact that  the  provision  for  payment  of  disability
pension is a beneficial provision which ought to  be  interpreted  liberally
so as to benefit those who have been sent home with a  disability  at  times
even before they completed their tenure  in  the  armed  forces.  There  may
indeed be  cases,  where  the  disease  was  wholly  unrelated  to  military
service, but, in order that denial of disability pension  can  be  justified
on that ground, it  must  be  affirmatively  proved  that  the  disease  had
nothing to do with such service. The burden to establish such  a  disconnect
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 is on account of military service or aggravated  by  it.  A  soldier
cannot be asked to prove that the disease was contracted by him  on  account
of military service or was aggravated by the same. The  very  fact  that  he
was upon proper physical and other tests found fit  to  serve  in  the  army
should rise as indeed the rules do provide for a  presumption  that  he  was
disease-free at the  time  of  his  entry  into  service.  That  presumption
continues till it is proved by the employer that  the  disease  was  neither
attributable to nor aggravated by military service. For the employer to  say
so, the least that is required is a statement  of  reasons  supporting  that
view. That we feel is the true essence of the rules which ought to  be  kept
in view all the time while dealing with cases of disability pension.”

18.   In the present  case,  as  per  the  opinion  of  the  Medical  Board,
disability attending the appellant is  acute  schizophrenia  like  psychotic
disorder and assessed percentage of the disablement is  60%  for  life.  The
Medical Board in its report  dated  09.09.2009  has  also  opined  that  the
disability is neither attributable to nor aggravated  by  Military  Service.
The relevant portion of Medical Board’s opinion is as under:-
“1.  Though the disablement has been mentioned in percentage in  para  6  of
Part V, this does not mean eligibility  for  disability  pension  since  the
Disability/Disabilities is/are neither attributable  to  nor  aggravated  by
service”

2.  Opinion of assessment by the Board is recommendatory in  nature  and  is
subject to acceptance by Pension Sanctioning Authority.
                                     Or
1.  Individual  is   not   entitled   for   disability   pension   for   the
disability/disabilities   since   the   same   is/are    not    attributable
to/aggravated by service.

2.  Opinion of assessment by the Board is recommendatory in  nature  and  is
subject to acceptance by Pension Sanctioning Authority.”

Notably, the Medical Board has not  given  any  reason  in  support  of  its
opinion, particularly, in reference to the fact that there was  no  note  of
such disease or disability available in the service record of the  appellant
at the time of entering Military Service.

19.   Learned Additional Solicitor General  appearing  for  respondent-Union
of India has submitted that when  the  Medical  Board  recorded  a  specific
finding that the disability was neither attributable to  nor  aggravated  by
the Military Service, the same must be given due weight and  credence.    In
support of his contention, the learned counsel placed reliance on dictum  of
this Court in Union of India v. Ravinder Kumar (2015) 12  SCC  291,  wherein
it was held as under:-
“4.  This Court recently decided an identical case  in  Union  of  India  v.
Jujhar Singh (2011) 7 SCC 735 and after  reconsidering  a  large  number  of
earlier judgments including Ministry of Defence v. A.V. Damodaran  (2009)  9
SCC 140, Union of India v. Baljit Singh (1996) 11 SCC 315   and  ESI  Corpn.
v. Francis De Costa (1996) 6 SCC 1, came to the conclusion that in  view  of
Regulation 179, a discharged person can be granted disability  pension  only
if the disability is attributable to or aggravated by Military  Service  and
such a finding has been recorded by Service  Medical  Authorities.  In  case
the Medical Authorities record the  specific  finding  to  the  effect  that
disability was neither  attributable  to  nor  aggravated  by  the  Military
Service, the court should not ignore such a  finding  for  the  reason  that
Medical Board is specialised authority composed of  expert  medical  doctors
and it is a final authority to give opinion  regarding  attributability  and
aggravation  of  the  disability  due  to  the  Military  Service  and   the
conditions of service resulting in the  disablement  of  the  individual.  A
person claiming disability pension must be able to show a  reasonable  nexus
between the act, omission or commission resulting in  an  injury/ailment  to
the person and the normal expected  standard  of  duties  and  way  of  life
expected from such person. [See also Govt. of India  (Ministry  of  Defence)
v. Ajit Singh (2009) 7 SCC 328.]”

20.   There is no gainsaying that the opinion of the  Medical  Board,  which
is an expert body has to be given due weight and credence.  But the  opinion
of the Medical Board cannot be read in isolation;  it  has  to  be  read  in
consonance with the Entitlement Rules for Casualty Pensionary  Awards,  1982
and General Rules of Guide to Medical  Officers  (Military  Pensions)  1982.
As per Chapter II of the Guide  to  Medical  Officers  (Military  Pensions),
2002, which relates to “Entitlement: General Principles”, it is  made  clear
that the Medical Board should examine cases in the light of the etiology  of
the  particular  disease  and  only  after  considering  all  the   relevant
particulars of a case, the board should record its conclusions with  reasons
so as to enable the Pension Sanctioning Authority to  examine  the  question
of entitlement of pension as per Rules.



21.   As referred to above, in Dharamvir Singh’s case, it was observed  that
it is mandatory for the Medical Board to follow the guidelines laid down  in
Chapter II of the General Rules  of  Guide  to  Medical  Officers  (Military
Pensions), 2002 ? “Entitlement:  General  Principles”,  relevant  extract  in
this behalf reads as under:-
“27. Para 7 talks of evidentiary value attached to the record of a  member’s
condition at the commencement of service e.g. pre-enrolment  history  of  an
injury, or disease like epilepsy, mental disorder, etc. Further,  guidelines
have been laid down at Paras 8 and 9, as quoted below:
“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
Military 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 investigations  e.g.  Congenital  Defect  of  Spine,  Spina  bifida,
Sacralisation,
(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.”


22.   In the present case, it is  undisputed  that  the  appellant  was  not
suffering from any disease/disability at the time of entering into  Military
Service.  It was on the respondent to show that the appellant was  suffering
from schizophrenia at the time of entering into  service  by  producing  any
document viz. medical prescription etc.  In the absence of any note  in  the
service record in this regard at the time of joining the  Military  Service,
the Medical Board should have called for  the  service  records  and  looked
into the same; but nothing is on record to suggest that any such record  was
called for by the Medical  Board  to  arrive  at  the  conclusion  that  the
disability was not due  to  Military  Service.   The  Medical  Board  simply
stated that the disability is neither  attributable  to  nor  aggravated  by
Military Service.  The relevant portion reads as under:
“1.   Though the disablement has been mentioned in percentage in para  6  of
Part V, this does not mean eligibility  for  disability  pension  since  the
Disability/Disabilities is/are neither attributable  to  nor  aggravated  by
service”

2.    Opinion of assessment by the Board is recommendatory in nature and  is
subject to acceptance by Pension Sanctioning Authority.”


In the absence of any evidence on record to  show  that  the  appellant  was
suffering from any such disease like schizophrenia at the time  of  entering
into the Military Service, it will be presumed that the appellant was  in  a
sound mental condition at the time of entering  into  the  Military  Service
and the deterioration of health has taken place due to Military Service.



23.   Based on the above discussion, we  hold  that  the  Tribunal  did  not
examine the case at hand in the  light  of  the  Army  Pension  Regulations,
1961, the  Entitlement  Rules  for  Casualty  Pensionary  Awards,  1982  and
General Rules of Guide to Medical Officers  (Military  Pensions)  2002  and,
therefore,  the  impugned  order  cannot  be   sustained.     Applying   the
principles of Dharamvir Singh’s case and Rajbir Singh’s case, it has  to  be
presumed that the disability of the appellant bore a casual connection  with
the service conditions.  The appellant was diagnosed to  be  suffering  from
medical disability at 60% for life on 09.09.2009 and he was discharged  from
service on 7.10.2009.  After invalidation from the  service,  the  appellant
passed away on 01.06.2015. By order dated 13.02.2017  in  I.A.  No.  3/2016,
the legal heirs have been ordered to be  substituted.   Hence  wife  of  the
appellant and other legal heirs shall be entitled to disability  pension  as
per the Rules.



24.   In the result, the impugned order is  set  aside  and  the  appeal  is
allowed.  The respondents are directed to pay the disability pension to  the
wife and other substituted legal heirs of Laxmanram Poonia as per the  Rules
and the same shall be complied within eight weeks from today.  No costs.


                                                   …….…………...………J.
                                                   [DIPAK MISRA]


                                                               …………….……………J.
                                                   [R. BANUMATHI]
      New Delhi;
      February 22, 2017

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