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
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
