Disablitiy Pension Claim = not entitled - mental disorder at the time of recruitment cannot normally be detected when a person behaves normally. Since there is a possibility of non-detection of mental disorder, therefore, it cannot be said that Schizophrenia is presumed to be attributed to or aggravated by military service.=
The appellant was enrolled in the Indian Army on December 2, 2003. The invaliding Medical Board found the appellant to be suffering from Schizophrenia, which disability was assessed at 20% for a period of five years. The opinion of the Board was that disability was neither attributable to nor aggravated by military service and consequently, the appellant was discharged from army service on May 8, 2007. The claim of the appellant for disability for short, ‘Tribunal’ 1 pension was rejected departmentally and later by the Tribunal and still aggrieved, the appellant is before this Court.= Apex court held that In the present case, clause 14(d), as amended in the year 1996 and reproduced above, would be applicable as entitlement to disability pension shall not be considered unless it is clearly established that the cause of such disease was adversely affected due to factors related to conditions of military service. Though, the provision of grant of disability pension is a beneficial provision but, mental disorder at the time of recruitment cannot normally be detected when a person behaves normally. Since there is a possibility of non-detection of mental disorder, therefore, it cannot be said that Schizophrenia is presumed to be attributed to or aggravated by military service.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7672 OF 2019
(DIARY NO. 27850 OF 2017)
NO. 14666828M EX CFN NARSINGH YADAV .....APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1) The challenge in the present appeal is to an order passed by the
Armed Forces Tribunal, Lucknow1
on September 23, 2011 whereby,
the claim of the appellant for grant of disability pension was not
accepted.
2) The appellant was enrolled in the Indian Army on December 2,
2003. The invaliding Medical Board found the appellant to be
suffering from Schizophrenia, which disability was assessed at 20%
for a period of five years. The opinion of the Board was that
disability was neither attributable to nor aggravated by military
service and consequently, the appellant was discharged from army
service on May 8, 2007. The claim of the appellant for disability
1 for short, ‘Tribunal’
1
pension was rejected departmentally and later by the Tribunal and
still aggrieved, the appellant is before this Court.
3) The appellant was appointed as CFN - Craftsman (Military Rank). In
Annexure RP1 which includes the signed Personal Statement of the
appellant, he was posted at 3 EME Centre, Bhopal from December
2, 2003 to August 23, 2005 and thereafter at AD Static Workshop
from August 24, 2005 till the time, he was produced before the
invaliding Medical Board. Both the places of posting of the
appellant were the peace stations. In respect of disease, the
appellant declared that he was treated, firstly, at INHS, Nivarini
Chilka on September 7 and 8, 2006, then, at Command Hospital,
Kolkata from September 9, 2006 to December 23, 2006.
Thereafter, he was treated at Military Hospital, Allahabad from
January 21, 2007 to February 21, 2007 and finally, at Command
Hospital, Kolkata from February 23, 2007 till the time, he was
examined by the invaliding Medical Board. In Part I of the Personal
Statement, the Question asked was to “Give details of any
incidents during your service which you think caused or made your
disability worse”. The answer given by the appellant was ‘NIL’. In
Part II of the Report, the Commanding Officer answered ‘No’ to the
question – “Did the Duties involve Severe/exceptional stress and
strain?”
4) The summary and opinion of the Specialist in Psychiatry of
Command Hospital (Eastern Command), Kolkata dated April 10,
2
2007 read as under:
“Summary
Period of Hospitalization:
Sec Hospital, Gopalpur 07 Sep 06 to 07 Sep 06
INHS Kaiyani, Vizag 07 Sep 06 to 15 Sep 06
CH (EC), Kolkata 16 Sep 06 to 23 Dec 06
Sick Leave 24 Dec 06 to 21 Jan 07
MH Allahabad 21 Jan 07 to 22 Feb 07
CH (EC), Kolkata 23 Feb 07 onwards till date
AFMSF-10 dated 07 Sep 06 mentions “punctual,
disciplines, dedicated, social drinker, above average
competence, cheerful, active and outgoing,
retention recommended, developed fever and
headache on 06 Sep 06 following which he was
noted to be behaving abnormally.
History of Present Illness:
Individual was brought to psychiatric attention in
mid Sep at the behest of unit authorities as he was
talking irrelevantly, laughing and crying for no
apparent reason, in the background of febrile
episode. Apparently functioning well until Sep 06
when he was noted to be aloof, lacked interest in
his work, not taking self care nor reporting for duty
in time. Found to be wandering aimlessly in the
unit. Felt that others were planning to harm him;
could hear them talking about him. Further when
onboard the train to Vizag felt he was being
followed and things happening around him was in
reference to him. When offered fruits by copassenger felt it had a special meaning often noted
to be taking irrelevantly, crying for his mother who
had died about 12 years back. Felt that others
came to know what he was thinking. Become
violent when others tried to stop him or gave
instructions to follow.”
“Opinion
21½ years old EME/Veh Mech with nearly 3½ years
service, no past or family h/o psychiatric illness.
Had a psychotic breakdown of schizophrenic nature
in Sep 06 Managed as a case of Schizophrenia F 20
3
and treated with antipsychotics, ECT and other
supportive measures. Poor response to treatment.
Presently asymptomatic, residual negative features
persist.
In view of the above, onset of his psychotic
breakdown at the start of the career, and
persistence of residual negative features, he is
unlikely to be a fit soldier for further service. Hence
recommend to be invalided from service in category
S5 of SHAPE classification as a case of
Schizophrenia F20.”
5) The Medical Board concluded that the disability is neither
attributed to army service nor aggravated by military service
though it assessed the disability at 20% for five years. Such
opinion of the Medical Board dated April 20, 2007 is the basis of
the discharge of the appellant. The opinion of the Medical Board is
as under:
“CERTIFICATE
1. Certified that the IMB held in respect of
No.14666828m CFN NS Yadav of AD State Wk Sp
C/o 99 APO to a case of SCHIZOPHRENIA F. 20.0.
2. Individual is found fit for civil job.
Date: 20 Apr. 2007 Lt. Col.
(Rajiv Kamra)”
6) The appellant relies upon an order passed by this Court in Ex. Gnr.
Laxmanram Poonia (Dead) through Legal Representatives v.
Union of India & Ors.
2
as also the judgments in Dharamvir
Singh v. Union of India & Ors.
3
and Union of India & Anr. v.
2 (2017) 4 SCC 697
3 (2013) 7 SCC 316
4
Rajbir Singh
4
to contend that since no note was given at the time
of enrolment of the said disease in the Army, therefore, such
disability is to be attributed to military service.
7) In Laxmanram Poonia, there was a positive finding that appellant
was overburdened with work due to scarcity of staff and he
suffered hypertension resulting in lack of sleep and hunger due to
continuous restless duty hours for several days. This Court allowed
the appeal of the appellant and granted disability pension.
8) In Dharamvir Singh, the appellant was sepoy in the Corps of
Signals of the Indian Army and was boarded out of service after
nine years of service when he was suffering from schizophrenia.
This Court relied upon Guide to Medical Officers (Military Pension),
1980 and the Entitlement Rules for Casualty Pensionary Awards,
19825
to hold that since no note was given at the time of enrolment
of the person, therefore, such disease is presumed to be attributed
to or aggravated by military service. The Guide to Medical Officers
(Military Pensions), 2002 — “Entitlement: General Principles” has
mentioned following diseases in para 27 of the judgment, which
ordinarily escape detection at the time of 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,
4 (2015) 12 SCC 264
5 for short, ‘1982 Rules’
5
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.”
(Emphasis Supplied)
9) This Court also extracted the relevant provisions from the 1982
Rules in the order, which read 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.
xx xx xx
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.
6
xx xx xx
14. Diseases.—In respect of diseases, the
following rules will be observed—
(a) 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 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 military
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 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.”
10) The Rule 14, as reproduced above, was amended vide Government
of India, Ministry of Defence letter No. 1(1)/81/D(Pen-C) dated 20th
June, 1996. The amended Clauses read as follows:
"Rule 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
7
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 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."
11) In Rajbir Singh, this Court held that the respondents having been
discharged from service on account of medical disease/disability,
the disability must be presumed to have been arisen in the course
of service which must, in the absence of any reason recorded by
the Medical Board, be presumed to have been attributable to or
aggravated by military service. There is initial presumption that
the respondents were all physically fit and free from any disease
and in sound physical and mental condition at the time of their
entry into service. The Court held as under:
“9. As regards diseases Rule 14 of the Entitlement
Rules stipulates that in the case of a disease which
has led to an individual's discharge or death, the
disease shall be deemed to have arisen in service, if
no note of it was made at the time of individual's
acceptance for military service, subject to the
8
condition that 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 same will not be
deemed to have so arisen”. ……
xx xx xx
14. The legal position as stated in Dharamvir Singh
case [Dharamvir Singh v. Union of India, (2013) 7
SCC 316 : (2013) 2 SCC (L&S) 706] 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.
xx xx xx
16. Applying the above parameters to the cases at
hand, we are of the view that each one of the
respondents having been discharged from service
on account of medical disease/disability, the
disability must be presumed to have been arisen in
the course of service which must, in the absence of
any reason recorded by the Medical Board, be
presumed to have been attributable to or
aggravated by military service. There is admittedly
neither any note in the service records of the
respondents at the time of their entry into service
nor have any reasons been recorded by the Medical
Board to suggest that the disease which the
member concerned was found to be suffering from
could not have been detected at the time of his
entry into service. The initial presumption that the
respondents were all physically fit and free from any
9
disease and in sound physical and mental condition
at the time of their entry into service thus remains
unrebutted. Since the disability has in each case
been assessed at more than 20%, their claim to
disability pension could not have been repudiated
by the appellants.”
12) A three Judge Bench of this Court in Veer Pal Singh v. Secretary,
Ministry of Defence
6
rejected the opinion of invaliding Medical
Board but directed the respondents to refer the case to Review
Medical Board to reassess the medical condition of the appellant
and to find out whether at the time of discharge from service, he
was suffering from disease which made him unfit to continue in
service. In the said case, the appellant was appointed in the year
1972 and was discharged in view of the opinion of the invaliding
Medical Board dated November 14, 1977. The appellant has
prayed for constitution of a fresh Medical Board to assess his
disease and disability in a writ petition filed before the Allahabad
High Court. This Court held as under:
“10. Although, the courts are extremely loath to
interfere with the opinion of the experts, there is
nothing like exclusion of judicial review of the
decision taken on the basis of such opinion. What
needs to be emphasised is that the opinion of the
experts deserves respect and not worship and the
courts and other judicial/quasi-judicial forums
entrusted with the task of deciding the disputes
relating to premature release/discharge from the
army cannot, in each and every case, refuse to
examine the record of the Medical Board for
determining whether or not the conclusion reached
by it is legally sustainable.
xx xx xx
6 (2013) 8 SCC 83
10
16. F.C. Redlich and Daniel X. Freedman in their
book titled The Theory and Practice of
Psychiatry (1966 Edn.) observed:
“Some schizophrenic reactions, which we call
psychoses, may be relatively mild and
transient; others may not interfere too
seriously with many aspects of everyday
living…. (p. 252)
Are the characteristic remissions and relapses
expressions of endogenous processes, or are
they responses to psychosocial variables, or
both? Some patients recover, apparently
completely, when such recovery occurs
without treatment we speak of spontaneous
remission. The term need not imply an
independent endogenous process; it is just as
likely that the spontaneous remission is a
response to non-deliberate but nonetheless
favourable psychosocial stimuli other than
specific therapeutic activity….” (p. 465)
(emphasis supplied)
18. In Controller of Defence Accounts
(Pension) v. S. Balachandran Nair [(2005) 13 SCC
128 : 2006 SCC (L&S) 734] on which reliance has
been placed by the Tribunal, this Court referred to
Regulations 173 and 423 of the Pension Regulations
and held that the definite opinion formed by the
Medical Board that the disease suffered by the
respondent was constitutional and was not
attributable to military service was binding and the
High Court was not justified in directing payment of
disability pension to the respondent. The same view
was reiterated in Ministry of Defence v. A.V.
Damodaran [(2009) 9 SCC 140: (2009) 2 SCC (L&S)
586] . However, in neither of those cases, this Court
was called upon to consider a situation where the
Medical Board had entirely relied upon an inchoate
opinion expressed by the psychiatrist and no effort
was made to consider the improvement made in the
degree of illness after the treatment.
19. As a corollary to the above discussion, we hold
that the impugned order as also the orders dated
14-7-2011 and 16-9-2011 passed by the Tribunal
11
are legally unsustainable. In the result, the appeal is
allowed. The orders passed by the Tribunal are set
aside and the respondents are directed to refer the
case to the Review Medical Board for reassessing
the medical condition of the appellant and find out
whether at the time of discharge from service he
was suffering from a disease which made him unfit
to continue in service and whether he would be
entitled to disability pension.”
13) In the aforesaid case, the Court referred the matter to the Review
Medical Board in view of the fact that Psychiatrist has noted that
the appellant has improved with treatment. The Court referred to
Merriam Webster Dictionary; Report of National Institute of Mental
Health, USA; Modi's Medical Jurisprudence and Toxicology; and the
book titled ‘The Theory and Practice of Psychiatry’ authored by F.C.
Redlich and Daniel X. Freedman, to hold that the observations
made by Psychiatrist was substantially incompatible with the
existing literature on the subject.
14) However, in the present case, we find that there is no such infirmity
in the report of the Medical Board which may warrant
reconsideration of the physical condition and the extent of
disability by the Review Medical Board.
15) We find that it is not mechanical application of the principle that
any disorder not mentioned at the time of enrolment is presumed
to be attributed to or aggravated by military service. The question
is as to whether the person was posted in harsh and adverse
conditions which led to mental imbalance.
12
16) Annexure I to Chapter IV of the Guide to Medical Officers (Military
Pensions), 2002 — “Entitlement: General Principles” points out that
certain diseases which may be undetectable by physical
examination on enrolment including the Mental Disorders; Epilepsy
and Relapsing forms of mental disorders which have intervals of
normality, unless adequate history is given at the time by the
member. The Entitlement Rules itself provide that certain diseases
ordinarily escape detection including Epilepsy and Mental Disorder,
therefore, we are unable to agree that mere fact that
Schizophrenia, a mental disorder was not noticed at the time of
enrolment will lead to presumption that the disease was
aggravated or attributable to military service.
17) The 1982 Rules classify the diseases which are affected by climatic
conditions, stress and strain and dietary complications. The stress
and strain cause the following injuries as per the said classification
of diseases:
“(a) Psychosis and psychoneurosis.
(b) Bronchial Asthma.
(c) Myocardial infarction, and other forms of IHD.
(d) Peptic ulcer.”
18) Therefore, each case has to be examined whether the duties
assigned to the individual may have led to stress and strain leading
to Psychosis and psychoneurosis. Relapsing forms of mental
disorders which have intervals of normality and Epilepsy are
13
undetectable diseases while carrying out physical examination on
enrolment, unless adequate history is given at the time by the
member.
19) The appellant was a young boy of 18 years at the time of
enrolment and had been boarded within 3½ years of his service.
Even if he was suffering from any mental disorder prior to
enrolment, the same could not be detected as there were intervals
of normality. The appellant was posted in peace station as a
Vehicle Mechanic. Neither the nature of job nor the place of
posting was such which could have caused stress and strain
leading to disability as attributed to or aggravated by military
service.
20) In the present case, clause 14(d), as amended in the year 1996 and
reproduced above, would be applicable as entitlement to disability
pension shall not be considered unless it is clearly established that
the cause of such disease was adversely affected due to factors
related to conditions of military service. Though, the provision of
grant of disability pension is a beneficial provision but, mental
disorder at the time of recruitment cannot normally be detected
when a person behaves normally. Since there is a possibility of
non-detection of mental disorder, therefore, it cannot be said that
Schizophrenia is presumed to be attributed to or aggravated by
military service.
21) Though, the opinion of the Medical Board is subject to judicial
14
review but the Courts are not possessed of expertise to dispute
such report unless there is strong medical evidence on record to
dispute the opinion of the Medical Board which may warrant the
constitution of the Review Medical Board. The invaliding Medical
Board has categorically held that the appellant is not fit for further
service and there is no material on record to doubt the correctness
of the Report of the invaliding Medical Board.
22) Thus, we do not find any merit in the present appeal, accordingly,
the same is dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
OCTOBER 03, 2019.
15
The appellant was enrolled in the Indian Army on December 2, 2003. The invaliding Medical Board found the appellant to be suffering from Schizophrenia, which disability was assessed at 20% for a period of five years. The opinion of the Board was that disability was neither attributable to nor aggravated by military service and consequently, the appellant was discharged from army service on May 8, 2007. The claim of the appellant for disability for short, ‘Tribunal’ 1 pension was rejected departmentally and later by the Tribunal and still aggrieved, the appellant is before this Court.= Apex court held that In the present case, clause 14(d), as amended in the year 1996 and reproduced above, would be applicable as entitlement to disability pension shall not be considered unless it is clearly established that the cause of such disease was adversely affected due to factors related to conditions of military service. Though, the provision of grant of disability pension is a beneficial provision but, mental disorder at the time of recruitment cannot normally be detected when a person behaves normally. Since there is a possibility of non-detection of mental disorder, therefore, it cannot be said that Schizophrenia is presumed to be attributed to or aggravated by military service.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7672 OF 2019
(DIARY NO. 27850 OF 2017)
NO. 14666828M EX CFN NARSINGH YADAV .....APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1) The challenge in the present appeal is to an order passed by the
Armed Forces Tribunal, Lucknow1
on September 23, 2011 whereby,
the claim of the appellant for grant of disability pension was not
accepted.
2) The appellant was enrolled in the Indian Army on December 2,
2003. The invaliding Medical Board found the appellant to be
suffering from Schizophrenia, which disability was assessed at 20%
for a period of five years. The opinion of the Board was that
disability was neither attributable to nor aggravated by military
service and consequently, the appellant was discharged from army
service on May 8, 2007. The claim of the appellant for disability
1 for short, ‘Tribunal’
1
pension was rejected departmentally and later by the Tribunal and
still aggrieved, the appellant is before this Court.
3) The appellant was appointed as CFN - Craftsman (Military Rank). In
Annexure RP1 which includes the signed Personal Statement of the
appellant, he was posted at 3 EME Centre, Bhopal from December
2, 2003 to August 23, 2005 and thereafter at AD Static Workshop
from August 24, 2005 till the time, he was produced before the
invaliding Medical Board. Both the places of posting of the
appellant were the peace stations. In respect of disease, the
appellant declared that he was treated, firstly, at INHS, Nivarini
Chilka on September 7 and 8, 2006, then, at Command Hospital,
Kolkata from September 9, 2006 to December 23, 2006.
Thereafter, he was treated at Military Hospital, Allahabad from
January 21, 2007 to February 21, 2007 and finally, at Command
Hospital, Kolkata from February 23, 2007 till the time, he was
examined by the invaliding Medical Board. In Part I of the Personal
Statement, the Question asked was to “Give details of any
incidents during your service which you think caused or made your
disability worse”. The answer given by the appellant was ‘NIL’. In
Part II of the Report, the Commanding Officer answered ‘No’ to the
question – “Did the Duties involve Severe/exceptional stress and
strain?”
4) The summary and opinion of the Specialist in Psychiatry of
Command Hospital (Eastern Command), Kolkata dated April 10,
2
2007 read as under:
“Summary
Period of Hospitalization:
Sec Hospital, Gopalpur 07 Sep 06 to 07 Sep 06
INHS Kaiyani, Vizag 07 Sep 06 to 15 Sep 06
CH (EC), Kolkata 16 Sep 06 to 23 Dec 06
Sick Leave 24 Dec 06 to 21 Jan 07
MH Allahabad 21 Jan 07 to 22 Feb 07
CH (EC), Kolkata 23 Feb 07 onwards till date
AFMSF-10 dated 07 Sep 06 mentions “punctual,
disciplines, dedicated, social drinker, above average
competence, cheerful, active and outgoing,
retention recommended, developed fever and
headache on 06 Sep 06 following which he was
noted to be behaving abnormally.
History of Present Illness:
Individual was brought to psychiatric attention in
mid Sep at the behest of unit authorities as he was
talking irrelevantly, laughing and crying for no
apparent reason, in the background of febrile
episode. Apparently functioning well until Sep 06
when he was noted to be aloof, lacked interest in
his work, not taking self care nor reporting for duty
in time. Found to be wandering aimlessly in the
unit. Felt that others were planning to harm him;
could hear them talking about him. Further when
onboard the train to Vizag felt he was being
followed and things happening around him was in
reference to him. When offered fruits by copassenger felt it had a special meaning often noted
to be taking irrelevantly, crying for his mother who
had died about 12 years back. Felt that others
came to know what he was thinking. Become
violent when others tried to stop him or gave
instructions to follow.”
“Opinion
21½ years old EME/Veh Mech with nearly 3½ years
service, no past or family h/o psychiatric illness.
Had a psychotic breakdown of schizophrenic nature
in Sep 06 Managed as a case of Schizophrenia F 20
3
and treated with antipsychotics, ECT and other
supportive measures. Poor response to treatment.
Presently asymptomatic, residual negative features
persist.
In view of the above, onset of his psychotic
breakdown at the start of the career, and
persistence of residual negative features, he is
unlikely to be a fit soldier for further service. Hence
recommend to be invalided from service in category
S5 of SHAPE classification as a case of
Schizophrenia F20.”
5) The Medical Board concluded that the disability is neither
attributed to army service nor aggravated by military service
though it assessed the disability at 20% for five years. Such
opinion of the Medical Board dated April 20, 2007 is the basis of
the discharge of the appellant. The opinion of the Medical Board is
as under:
“CERTIFICATE
1. Certified that the IMB held in respect of
No.14666828m CFN NS Yadav of AD State Wk Sp
C/o 99 APO to a case of SCHIZOPHRENIA F. 20.0.
2. Individual is found fit for civil job.
Date: 20 Apr. 2007 Lt. Col.
(Rajiv Kamra)”
6) The appellant relies upon an order passed by this Court in Ex. Gnr.
Laxmanram Poonia (Dead) through Legal Representatives v.
Union of India & Ors.
2
as also the judgments in Dharamvir
Singh v. Union of India & Ors.
3
and Union of India & Anr. v.
2 (2017) 4 SCC 697
3 (2013) 7 SCC 316
4
Rajbir Singh
4
to contend that since no note was given at the time
of enrolment of the said disease in the Army, therefore, such
disability is to be attributed to military service.
7) In Laxmanram Poonia, there was a positive finding that appellant
was overburdened with work due to scarcity of staff and he
suffered hypertension resulting in lack of sleep and hunger due to
continuous restless duty hours for several days. This Court allowed
the appeal of the appellant and granted disability pension.
8) In Dharamvir Singh, the appellant was sepoy in the Corps of
Signals of the Indian Army and was boarded out of service after
nine years of service when he was suffering from schizophrenia.
This Court relied upon Guide to Medical Officers (Military Pension),
1980 and the Entitlement Rules for Casualty Pensionary Awards,
19825
to hold that since no note was given at the time of enrolment
of the person, therefore, such disease is presumed to be attributed
to or aggravated by military service. The Guide to Medical Officers
(Military Pensions), 2002 — “Entitlement: General Principles” has
mentioned following diseases in para 27 of the judgment, which
ordinarily escape detection at the time of 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,
4 (2015) 12 SCC 264
5 for short, ‘1982 Rules’
5
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.”
(Emphasis Supplied)
9) This Court also extracted the relevant provisions from the 1982
Rules in the order, which read 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.
xx xx xx
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.
6
xx xx xx
14. Diseases.—In respect of diseases, the
following rules will be observed—
(a) 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 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 military
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 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.”
10) The Rule 14, as reproduced above, was amended vide Government
of India, Ministry of Defence letter No. 1(1)/81/D(Pen-C) dated 20th
June, 1996. The amended Clauses read as follows:
"Rule 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
7
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 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."
11) In Rajbir Singh, this Court held that the respondents having been
discharged from service on account of medical disease/disability,
the disability must be presumed to have been arisen in the course
of service which must, in the absence of any reason recorded by
the Medical Board, be presumed to have been attributable to or
aggravated by military service. There is initial presumption that
the respondents were all physically fit and free from any disease
and in sound physical and mental condition at the time of their
entry into service. The Court held as under:
“9. As regards diseases Rule 14 of the Entitlement
Rules stipulates that in the case of a disease which
has led to an individual's discharge or death, the
disease shall be deemed to have arisen in service, if
no note of it was made at the time of individual's
acceptance for military service, subject to the
8
condition that 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 same will not be
deemed to have so arisen”. ……
xx xx xx
14. The legal position as stated in Dharamvir Singh
case [Dharamvir Singh v. Union of India, (2013) 7
SCC 316 : (2013) 2 SCC (L&S) 706] 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.
xx xx xx
16. Applying the above parameters to the cases at
hand, we are of the view that each one of the
respondents having been discharged from service
on account of medical disease/disability, the
disability must be presumed to have been arisen in
the course of service which must, in the absence of
any reason recorded by the Medical Board, be
presumed to have been attributable to or
aggravated by military service. There is admittedly
neither any note in the service records of the
respondents at the time of their entry into service
nor have any reasons been recorded by the Medical
Board to suggest that the disease which the
member concerned was found to be suffering from
could not have been detected at the time of his
entry into service. The initial presumption that the
respondents were all physically fit and free from any
9
disease and in sound physical and mental condition
at the time of their entry into service thus remains
unrebutted. Since the disability has in each case
been assessed at more than 20%, their claim to
disability pension could not have been repudiated
by the appellants.”
12) A three Judge Bench of this Court in Veer Pal Singh v. Secretary,
Ministry of Defence
6
rejected the opinion of invaliding Medical
Board but directed the respondents to refer the case to Review
Medical Board to reassess the medical condition of the appellant
and to find out whether at the time of discharge from service, he
was suffering from disease which made him unfit to continue in
service. In the said case, the appellant was appointed in the year
1972 and was discharged in view of the opinion of the invaliding
Medical Board dated November 14, 1977. The appellant has
prayed for constitution of a fresh Medical Board to assess his
disease and disability in a writ petition filed before the Allahabad
High Court. This Court held as under:
“10. Although, the courts are extremely loath to
interfere with the opinion of the experts, there is
nothing like exclusion of judicial review of the
decision taken on the basis of such opinion. What
needs to be emphasised is that the opinion of the
experts deserves respect and not worship and the
courts and other judicial/quasi-judicial forums
entrusted with the task of deciding the disputes
relating to premature release/discharge from the
army cannot, in each and every case, refuse to
examine the record of the Medical Board for
determining whether or not the conclusion reached
by it is legally sustainable.
xx xx xx
6 (2013) 8 SCC 83
10
16. F.C. Redlich and Daniel X. Freedman in their
book titled The Theory and Practice of
Psychiatry (1966 Edn.) observed:
“Some schizophrenic reactions, which we call
psychoses, may be relatively mild and
transient; others may not interfere too
seriously with many aspects of everyday
living…. (p. 252)
Are the characteristic remissions and relapses
expressions of endogenous processes, or are
they responses to psychosocial variables, or
both? Some patients recover, apparently
completely, when such recovery occurs
without treatment we speak of spontaneous
remission. The term need not imply an
independent endogenous process; it is just as
likely that the spontaneous remission is a
response to non-deliberate but nonetheless
favourable psychosocial stimuli other than
specific therapeutic activity….” (p. 465)
(emphasis supplied)
18. In Controller of Defence Accounts
(Pension) v. S. Balachandran Nair [(2005) 13 SCC
128 : 2006 SCC (L&S) 734] on which reliance has
been placed by the Tribunal, this Court referred to
Regulations 173 and 423 of the Pension Regulations
and held that the definite opinion formed by the
Medical Board that the disease suffered by the
respondent was constitutional and was not
attributable to military service was binding and the
High Court was not justified in directing payment of
disability pension to the respondent. The same view
was reiterated in Ministry of Defence v. A.V.
Damodaran [(2009) 9 SCC 140: (2009) 2 SCC (L&S)
586] . However, in neither of those cases, this Court
was called upon to consider a situation where the
Medical Board had entirely relied upon an inchoate
opinion expressed by the psychiatrist and no effort
was made to consider the improvement made in the
degree of illness after the treatment.
19. As a corollary to the above discussion, we hold
that the impugned order as also the orders dated
14-7-2011 and 16-9-2011 passed by the Tribunal
11
are legally unsustainable. In the result, the appeal is
allowed. The orders passed by the Tribunal are set
aside and the respondents are directed to refer the
case to the Review Medical Board for reassessing
the medical condition of the appellant and find out
whether at the time of discharge from service he
was suffering from a disease which made him unfit
to continue in service and whether he would be
entitled to disability pension.”
13) In the aforesaid case, the Court referred the matter to the Review
Medical Board in view of the fact that Psychiatrist has noted that
the appellant has improved with treatment. The Court referred to
Merriam Webster Dictionary; Report of National Institute of Mental
Health, USA; Modi's Medical Jurisprudence and Toxicology; and the
book titled ‘The Theory and Practice of Psychiatry’ authored by F.C.
Redlich and Daniel X. Freedman, to hold that the observations
made by Psychiatrist was substantially incompatible with the
existing literature on the subject.
14) However, in the present case, we find that there is no such infirmity
in the report of the Medical Board which may warrant
reconsideration of the physical condition and the extent of
disability by the Review Medical Board.
15) We find that it is not mechanical application of the principle that
any disorder not mentioned at the time of enrolment is presumed
to be attributed to or aggravated by military service. The question
is as to whether the person was posted in harsh and adverse
conditions which led to mental imbalance.
12
16) Annexure I to Chapter IV of the Guide to Medical Officers (Military
Pensions), 2002 — “Entitlement: General Principles” points out that
certain diseases which may be undetectable by physical
examination on enrolment including the Mental Disorders; Epilepsy
and Relapsing forms of mental disorders which have intervals of
normality, unless adequate history is given at the time by the
member. The Entitlement Rules itself provide that certain diseases
ordinarily escape detection including Epilepsy and Mental Disorder,
therefore, we are unable to agree that mere fact that
Schizophrenia, a mental disorder was not noticed at the time of
enrolment will lead to presumption that the disease was
aggravated or attributable to military service.
17) The 1982 Rules classify the diseases which are affected by climatic
conditions, stress and strain and dietary complications. The stress
and strain cause the following injuries as per the said classification
of diseases:
“(a) Psychosis and psychoneurosis.
(b) Bronchial Asthma.
(c) Myocardial infarction, and other forms of IHD.
(d) Peptic ulcer.”
18) Therefore, each case has to be examined whether the duties
assigned to the individual may have led to stress and strain leading
to Psychosis and psychoneurosis. Relapsing forms of mental
disorders which have intervals of normality and Epilepsy are
13
undetectable diseases while carrying out physical examination on
enrolment, unless adequate history is given at the time by the
member.
19) The appellant was a young boy of 18 years at the time of
enrolment and had been boarded within 3½ years of his service.
Even if he was suffering from any mental disorder prior to
enrolment, the same could not be detected as there were intervals
of normality. The appellant was posted in peace station as a
Vehicle Mechanic. Neither the nature of job nor the place of
posting was such which could have caused stress and strain
leading to disability as attributed to or aggravated by military
service.
20) In the present case, clause 14(d), as amended in the year 1996 and
reproduced above, would be applicable as entitlement to disability
pension shall not be considered unless it is clearly established that
the cause of such disease was adversely affected due to factors
related to conditions of military service. Though, the provision of
grant of disability pension is a beneficial provision but, mental
disorder at the time of recruitment cannot normally be detected
when a person behaves normally. Since there is a possibility of
non-detection of mental disorder, therefore, it cannot be said that
Schizophrenia is presumed to be attributed to or aggravated by
military service.
21) Though, the opinion of the Medical Board is subject to judicial
14
review but the Courts are not possessed of expertise to dispute
such report unless there is strong medical evidence on record to
dispute the opinion of the Medical Board which may warrant the
constitution of the Review Medical Board. The invaliding Medical
Board has categorically held that the appellant is not fit for further
service and there is no material on record to doubt the correctness
of the Report of the invaliding Medical Board.
22) Thus, we do not find any merit in the present appeal, accordingly,
the same is dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
OCTOBER 03, 2019.
15
