Col. S.R. Kalkal, Advocate v. UNION OF INDIA AND ORS. ...

Delhi High Court · 27 Nov 2014 · 2014:DHC:6506-DB

HON'BLE MR. JUSTICE KAILASH GAMBHIR; HON'BLE MR. JUSTICE NAJMI WAZIRI O R D E R KAILASH GAMBHIR, J. (ORAL)

2014:DHC:6506-DB

administrative appeal_allowed Significant

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The Delhi High Court allowed the writ petition directing grant of disability pension to an ex-serviceman whose neurosis was held attributable to military service due to lack of cogent medical reasons denying the claim.

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W.P. (C) No. 3525/2011 HIGH COURT OF DELHI
Date of hearing & Order: 27th November, 2014 W.P. (C) No. 3525/2011
EX. CFN MAHA SINGH DAGAR ... Petitioner
Through: Col. S.R. Kalkal, Advocate

VERSUS

UNION OF INDIA AND ORS. ... Respondents
Through: Mr. Ankur Chhibber, Advocate

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI O R D E R KAILASH GAMBHIR, J. (ORAL)

JUDGMENT

1. This Writ Petition has been filed by the petitioner under Articles 226/227 of the Constitution of India seeking quashing of the order dated 09.04.2010 passed by the learned Armed Forces Tribunal (Principal Bench), New Delhi (AFT), which rejected his claim for disability pension and further direction to the respondents to release 40% disability pension in his favour w.e.f the date of his discharge till 31st December 1995 and 50% disability pension with effect from 1.1.1996 alongwith interest @ 12% per annum on the arrears of the amount due. 2014:DHC:6506-DB

2. The petitioner’s case is that he was enrolled in the Indian Army on 23.03.1984, after he was found medically fit. No note of any disease or ailment was made at the time of his entering into the Army services since he was not suffering from any medical affliction in the year 1992, he suffered from some health problems for which he was treated at the Military Hospital. He was found to be suffering from a disease called ‘neurosis’. Since he could not be cured completely, he was first placed in a low medical category CEE (T x 24 weeks) and subsequently in BEE (Perm) w.e.f. November 1992. He was thereafter permanently discharged from service with 20% disability assessed by the Release Medical Board. The medical opinion was that the disease of the petitioner was neither attributable to nor aggravated by the military services and that the said disease was constitutional in nature. Consequently, disability pension was denied to the petitioner. Aggrieved by the said decision, the petitioner impugned it in C.W.P No.6718/2002 before this High Court seeking the relief of grant of disability pension. By order of 30.4.2008, the said Writ Petition was disposed off with a direction to the respondents to hold an Appeal Medical Board, to reassess the medical condition of the petitioner. It was further directed that if the Appeal Medical Board finds the disability of the petitioner attributable to or aggravated by military services then the respondents shall grant the disability pension to the petitioner within a period of three months and in case the finding was otherwise, then they shall supply a copy of their finding to the petitioner, so as to enable him to take appropriate remedial measures.

3. In compliance of the directions given by this Court, the petitioner was examined by the Appeal Medical Board, which opined that the said disease of neurosis, from which the petitioner was suffering, was neither attributable to nor aggravated by military service and assessed the same at NIL percentage for disability pension.

4. Aggrieved by the said opinion of the Appeal Medical Board, the petitioner had preferred O.A.No. 64/2009 before the learned ‘AFT’ for the grant of disability pension, Army Group Insurance Benefits and invalid pension alongwith 9% interest thereon. By its judgment and order dated 9th April 2010, the claim of the petitioner was partially allowed but was rejected his request for the disability pension. The petitioner now impugned the said order of the learned AFT.

5. Col. S.R. Kalkal, the learned counsel for the petitioner appears and at the outset submits that the petitioner is not pressing his relief against the Army Group Insurance Fund (AGIF). His main contention is that the case of the petitioner is squarely covered by the judgment of the Supreme Court in the case of Dharamvir Singh v. Union of India and Ors. (2013) 7 SCC 316 wherein the legal position on the said subject of grant of disability pension stands crystallised. He also submits that like Dharamvir Singh (supra), in the present case the petitioner too, was not found suffering from any disease or ailment at the time of entering into his service in the Indian Army and this is evident from the opinion of the Release Medical Board which clearly record that the petitioner was not suffering from ‘neurosis’ at the time of entering into the service. He also placed reliance on the decision of the Division Bench of this Court in the case of Ex. W.O.S.S. Gautam v. Union of India & Ors., 2007 (2) SCT 808 where also, in similar circumstances, the Court took the view that medical conditions such as ‘hypertension, schizophrenia, neurosis and epilepsy etc. are attributable to and aggravated on account of or caused by military service and merely because the cause of the disease is not known, the same cannot be declared as ‘constitutional’ and disentitle the person from disability pension. He has also placed reliance on a recent decision of the Supreme Court passed in Civil Appeal No.5140/2011 titled as K. Srinivasa Reddy vs. Union of India & Ors., decided on 9.10.2014.

6. We have heard the learned counsel for the parties and also perused the documents placed on record as well as the judgments cited by them.

7. The Release Medical Board at the time of discharge of the petitioner clearly opined that the petitioner was not suffering from neurosis before entering into the services. It also opined that the said disability was neither attributable to nor aggravated by the military service, and the disease was of ‘constitutional’ in nature, however it failed to accord any reason for the same. After the examination by the Release Medical Board in the year 1993, the petitioner was examined by the Appeal Medical Board in the year 2008 i.e. after a gap of about 15 years after directions to this effect were given by this Court in CWP No.6718/2002 preferred by him.

8. In the case of K. Srinivasa Reddy (supra) the Hon’ble Supreme Court observed that it was incumbent upon the Medical Board, to call for the medical records to look into the complete facts regarding medical treatment which the appellant was undergoing for any disability/disease before reaching to the conclusion that the disease subsequently detected could not have been detected on medical examination prior to the appellant entering military services. In the case of K. Srinivasa Reddy (supra), the Division Bench had also placed reliance on the legal principles laid down in Dharamvir Singh (supra), where the appellant was found to be in a sound medical condition when he was recruited as Spy. Driver and his subsequent affliction with schizophrenia was held to be attributable to military service. We would refer, with benefit, to the following paras of the judgment of the Supreme Court in Dharamvir’s case (supra):-

“28. A conjoint reading of various provisions,

reproduced above, makes it clear that:

(i) Disability pension to be granted to an individual who is invalidated 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 or aggravated by military service to be determined under "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).

(ii) 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 r/w Rule 14(b)].

(iii) 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).

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(iv) 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)].

(v) 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. [14(b)].

(vi) 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. [14(b)]; and

(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter- II of the "Guide to Medical (Military Pension), 2002-"Entitlement: General Principles", including paragraph 7, 8 and 9 as referred to above.

29. We, accordingly, answer both the questions in affirmative in favour of the Appellant and against the Respondents.

30. In the present case it is undisputed that no note of any disease has been recorded at the time of Appellant's acceptance for military service. The Respondents have failed to bring on record any document to suggest that the Appellant was under treatment for such a disease or by hereditary he is suffering from such disease. In absence of any note in the service record at the time of acceptance of joining of Appellant it was incumbent on the part of the Medical Board to call for records and look into the same before coming to an opinion that the disease could not have been detected on medical examination prior to the acceptance for military service, but nothing is on the record to suggest that any such record was called for by the Medical Board or looked into it and no reasons have been recorded in writing to come to the conclusion that the disability is not due to military service. In fact, non-application of mind of Medical Board is apparent from Clause (d) of paragraph 2 of the opinion of the Medical Board, which is as follows:

(d) In the case of a disability under C the board should state what exactly in their opinion is the cause thereof. YES Disability is not related to mil service”

9. We may also usefully refer to the decision of the Supreme Court in the case of Veer Pal Singh v. Secretary, Ministry of Defence, (2013) 8 SCC 83, wherein it was held that the opinion of the Medical Board deserves respect but need not always be worshipped. Relevant para of the same is reproduced as under:-

“11. Although, the Courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. What needs to be emphasized is that the opinion of the experts deserves respect and not worship and the Courts and other judicial / quasi- judicial forums entrusted with the task of deciding the disputes relating to premature release / discharge from the Army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable.”

10. Adverting back to the facts of the present case, we find from the records that the petitioner was not found to be suffering from ‘neurosis’ at the time of entering into service as is evident from the findings of the Release Medical Board in 1984. It is also noted that neither the Medical Board give any cogent reason for its findings nor was any reference made to the previous medical history or record of the petitioner. In the light of these circumstances and the settled legal position, it can be logically concluded that the later medical affliction of the petitioner was attributable to and aggravated by Army service and the opinion of Appeal Medical Board which came after a gap of more than 15 years, cannot be taken as a ground for denying the disability pension to the petitioner.

11. In the result we allow these appeals, set aside the impugned order dated 09.04.2010, passed by the learned Armed Forces Tribunal and direct the respondents to grant the petitioner the disability pension in terms of the applicable relevant rules and regulations and release the entire arrears along with the interest at 9% per annum, expeditiously but not later than the period of eight weeks from the date of this order.

12. With aforesaid directions, the present petition stands disposed off.

KAILASH GAMBHIR, J NAJMI WAZIRI, J NOVEMBER 27, 2014 pkb

Col. S.R. Kalkal, Advocate v. UNION OF INDIA AND ORS. ...

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