{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
