Union of India & Ors. v. Ex SEA-1 (GE) Sandeep Kumar

13. Per contra, the learned counsel for the respondent vehemently opposed the present petition contending to the effect that his disability was incurred while in service and was attributable to the service conditions. It is averred that the respondent’s condition of ACL and PCL Tear in the knee ligaments arose during the tenure of service and, by its very nature, is attributable to physical and strenuous activities performed during service. Hereinafter “ER-1982”

14. It is submitted that the disability manifested when he was actively serving and was required to undergo duties involving physical exertion, thereby, establishing a clear causal nexus. He further argued that the absence of such injuries at the time of entry into service and the onset of symptoms during active duty should entitle him to the benefit of doubt in line with settled precedents. Accordingly, the respondent prays that the instant petition may be dismissed. Analysis

15. This Court has heard the learned counsel for the parties and considered the record in its entirety.

16. The principal issue arising for adjudication in the present writ petition is whether the learned Tribunal was justified in directing the grant of disability pension to the respondent, in the face of a contrary opinion rendered by the RMB, which had declared the injury as NANA.

17. The gravamen of the petitioners’ case is that the respondent sustained the injury to his left knee on 09.07.2009 while playing football in his village while he was on leave, and hence the same, not having occurred in the course of or arising out of military service, cannot be termed as attributable or aggravated by service.

18. This Court is unable to accept the aforesaid contentious proposition in the rigid terms as canvassed by the petitioner.

19. To address the issue in its proper legal perspective, it is necessary to examine the governing principles of law, the interpretation of the applicable rules, and the judicial pronouncements bearing on the subject, particularly the judgments rendered in Dharamvir Singh v. Union of India12 and Union of India v. Gawas Anil Madso13, the latter having been delivered by this very Bench.

20. The entitlement to disability pension in the present case Armed Forces is governed by Regulation 101 of the PRN-1964 read with the ER – 2008. Regulation 101 mandates that for disability pension to be admissible, two cumulative conditions must be satisfied: (i) the individual must have been invalided from service; and (ii) the disability must be attributable to or aggravated by military service and assessed at 20% or more. Appendix V to the PRN-1964 incorporates the ER-2008, which form the bedrock of determining attributability and aggravation. Among these, the following rules are relevant for present purposes: a. Rule 6 lays down the guiding principles for determining causal connection. b. Rule 11 provides the specific parameters to determine if a disease or injury has been aggravated by service conditions.

21. Of particular significance is Rule 11of the ER-2008, which

“A disability shall be conceded aggravated by service if its onset is hastened or the subsequent course is worsened by specific conditions of military service, such as posted in places of extreme climatic conditions, environmental factors related to service conditions e.g, Fields, Operations, High Altitudes etc.”

22. This Rule, read conjointly with Rule 6, admits a disability to be aggravated where there exists a reasonable nexus between the worsening of the condition and the duties performed in the course of military service. This provision recognizes that direct evidence may not always be available and creates a presumptive standard, as long as a reasonable inference of service connection can be drawn from the evidence, the benefit of doubt ought to be extended to the claimant. This rule makes it clear that aggravation does not require that the injury be caused by service, but rather that it worsens or deteriorates due to service. The causal connection, in such cases, is between the deterioration of the pre-existing condition and the nature of service duties performed.

23. In Dharamvir Singh (supra), the Hon’ble Supreme Court laid down the foundational principles for adjudicating disability pension claims, clarifying that a liberal and purposive interpretation ought to be adopted in cases of service-related injuries or diseases. It was held that where there is no evidence of the disease at the time of enrolment, a presumption must be drawn that the disease arose in service, and the onus is on the employer to rebut this presumption. The Court further held that the opinion of the Medical Board is not sacrosanct or beyond judicial scrutiny, especially where it lacks cogent reasoning or fails to consider service-related aggravating circumstances. Moreover, while dealing with the issue of disability pension, it has to be presumed that the disability bore a causal connection with the service conditions and disability pension can be claimed if the claimant suffers disability from an injury while on casual leave even if it arises from some negligence, so far as it has some connection and nexus to the nature of the force. This position was extensively relied upon and elaborated in Gawas Anil Madso (supra), where this very Bench was called upon to examine a similar claim for disability pension. The relevant extracts of Gawas Anil Madso (supra) where this Bench had noted the aforesaid legal propositions along with the reliance on Dharamvir Singh (supra) is reproduced hereunder for convenience: “16.10 The following paragraphs from the judgment in Dharamvir Singh set out the legal position: “17. From a bare perusal of the Regulation aforesaid, it is clear that disability pension in normal course is to be 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 otherwise it is specifically provided.

18. A disability “attributable to or aggravated by military service” is to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982, as shown in Appendix II. Rule 5 relates to approach to the Entitlement Rules for Casualty Pensionary Awards, 1982 based on presumption as shown hereunder: “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.

19. “Onus of proof” is not on the claimant as is apparent from Rule 9, which reads as follows: “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.” From a bare perusal of Rule 9 it is clear that a member, who is declared disabled from service, is not required to prove his entitlement of pension and such pensionary benefits are to be given more liberally to the claimants……… *****

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…….. ***** 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….. ***** *****

32. Para 1 of Chapter II — “Entitlement: General Principles” specifically stipulates that certificate of a constituted medical authority vis-à-vis invalidating 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 dispute. For the said reasons the Medical Board was required to examine the cases in the light of etiology of the particular disease and after considering all the relevant particulars of a case, it was required to record its conclusion with reasons in support, in clear terms and language which the Pension Sanctioning Authority would be able to appreciate.

33. In spite of the aforesaid provisions, the Pension Sanctioning Authority failed to notice that the Medical Board had not given any reason in support of its opinion, particularly when there is no note of such disease or disability available in the service record of the appellant at the time of acceptance for military service. Without going through the aforesaid facts the Pension Sanctioning Authority mechanically passed the impugned order of rejection based on the report of the Medical Board. As per Rules 5 and 9 of the Entitlement Rules for Casualty Pensionary Awards, 1982, the appellant is entitled for presumption and benefit of presumption in his favour. In the absence of any evidence on record to show that the appellant was suffering from “generalised seizure (epilepsy)” at the time of acceptance of his service, it will be presumed that the appellant was in sound physical and mental condition at the time of entering the service and deterioration in his health has taken place due to service…. *****

16.11 Thus, from the judgment in Dharamvir Singh, the following principles emanate:

(i) Whether disability is attributable to or aggravated by military service is to be determined under the 1982 Entitlement Rules. (paras 17-18 and 29.1)

(ii) Under Rule 5, there is a general presumption that the officer was in sound mental and physical condition upon entering service except as regards disabilities recorded at that time. (paras 17-18 and 29.2)

(iii) In such a case, if the officer is discharged on medical ground, it is to be presumed that deterioration in health is due to service. (para 18)

(iv) The onus of proof is not on the claimant. (paras 19 and

29.3)

(v) A liberal approach is to be adopted. (paras 19 and 29.3)

(vi) Disability due to diseases is covered by Rule 14. (para 20)

(vii) Under Rule 14(b), a disease leading to discharge from service would ordinarily be deemed to have arisen in service if no note was made of it at time of acceptance for military service. (paras 20.1, 23, 24.2, 27 and 29.5)

(viii) However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance in service, the disease will not be deemed to have arisen during service. (paras 23, 24.3, 29.5)

(ix) In cases in which (a) inaccuracy or incompleteness of service record at the time of acceptance for service was due to non-disclosure of essential facts by the member, such as preenrolment medical history, (b) owing to latency or obscurity of symptoms, a disability escaped attention at enrolment, or (c) there is direct evidence of contraction of a disability otherwise than by service, then, though the disease cannot be considered as being attributable to service, the question of aggravation by subsequent service conditions would be need to be examined. (para 27)

(x) Certain diseases which ordinarily escape detection on enrolment are

(a) congenital abnormalities which are latent and discoverable only on full investigation such as spina bifida and sacralization, (b) certain familial and hereditary diseases such as haemophilia, congenital syphilis and haemoglobinopathy,

(c) certain cardiac and vascular diseases such as coronorary atherosclerosis and rheumatic fever,

(d) diseases which are undetectable on physical examination at enrolment unless the member gives adequate history, such as gastric ulcers, epilepsy, mental disorders and HIV infections, (e) relapsing forms of mental disorders with intervals of normality and (f) diseases which have periodic attacks such as asthma and epilepsy. (para 27)

(xi) Under Rule 14(c), even if disease is accepted as having arisen while in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that conditions were due to circumstances of military duty. (paras 20.2, 29.4)

(xii) Onus of proof is on the respondent in terms of Rule 9

(xiii) If the evidence is evenly balanced so as to render impracticable a determinate conclusion one way or the other, the benefit of doubt would be given more liberally to the individual, in cases occurring in field/active service areas. (paras 23 and 24.1)

(xiv) If the disease arose during service and conditions and circumstances of military duty determined and contributed to its onset, it will be regarded as attributable to service. (para 23)

(xv) If service conditions did not determine or contribute to the onset of the disease but influenced its subsequent course, the disease will be deemed to have been aggravated by military service. (para 23)

(xvi) The Medical Board would decide on the actual cause of disability or death and the circumstances in which it originated. (para 23)

(xvii) On the other hand, the pension sanctioning authority would decide as to whether the cause and attendant circumstances could be accepted as attributable to/aggravated by service for the purpose of pensionary benefits. (para 23)

(xviii) The Medical Board will specify reasons for its opinion.

(xix) The Medical Board has to follow the guidelines in

Chapter II of the Guide to Medical Officers (Military Pensions) Rules, 2002 - “Entitlement: General Principles”. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance in service, the disease will not be deemed to have arisen during service. (para 29.7)

(xx) Where there is no record of the officer earlier suffering from the disease or being under treatment thereof, and there is no note of disease at the time of the officer's acceptance for service, it is obligatory on the Medical Board to call for records and examine them before coming to an opinion that the disease could not have been detected prior to acceptance in service. If records are not called for or examined, or no reasons are recorded for the conclusion that the disease is not attributable to military service, it is a case of non-application of mind, and the benefit would go to the officer. (para 31). xxx xxx xxx

38. None of these questions, as framed by the Supreme Court, is really relevant to the issue before us. Whereas Questions (i) and

(iii) do not arise in the present case, there can be no dispute that the answer to Question (ii) has to be in the affirmative, i.e., that there has to be a causal connection between the injury or disease and the military service that the claimant is undergoing for a claim to disability pension to sustain.

39. While concluding, the Supreme Court endorsed the following guiding factors to deal with individual cases, in para 36 of the report: (a) The mere fact of a person being on “duty” or otherwise, at the place of posting or on leave, is not the sole criteria for deciding attributability of disability/death. There has to be a relevant and reasonable causal connection, howsoever remote, between the incident resulting in such disability/death and military service for it to be attributable. This conditionality applies even when a person is posted and present in his unit. It should similarly apply when he is on leave; notwithstanding both being considered as “duty”. (b) If the injury suffered by the member of the armed force is the result of an act alien to the sphere of military service or in no way connected to his being on duty as understood in the sense contemplated by Rule 12 of the Entitlement Rules, 1982, it would neither be the legislative intention nor to our mind would it be the permissible approach to generalise the statement that every injury suffered during such period of leave would necessarily be attributable.

(c) The act, omission or commission of which results in injury to the member of the force and consequent disability or fatality must relate to military service in some manner or the other, in other words, the act must flow as a matter of necessity from military service.

(d) A person doing some act at home, which even remotely does not fall within the scope of his duties and functions as a member of the force, nor is remotely connected with the functions of military service, cannot be termed as injury or disability attributable to military service. An accident or injury suffered by a member of the armed force must have some causal connection with military service and at least should arise from such activity of the member of the force as he is expected to maintain or do in his dayto-day life as a member of the force. (e) The hazards of Army service cannot be stretched to the extent of unlawful and entirely unconnected acts or omissions on the part of the member of the force even when he is on leave. A fine line of distinction has to be drawn between the matters connected, aggravated or attributable to military service, and the matter entirely alien to such service. What falls ex facie in the domain of an entirely private act cannot be treated as legitimate basis for claiming the relief under these provisions. At best, the member of the force can claim disability pension if he suffers disability from an injury while on casual leave even if it arises from some negligence or misconduct on the part of the member of the force, so far it has some connection and nexus to the nature of the force. At least remote attributability to service would be the condition precedent to claim under Rule 173. The act of omission and commission on the part of the member of the force must satisfy the test of prudence, reasonableness and expected standards of behaviour. (f) The disability should not be the result of an accident which could be attributed to risk common to human existence in modern conditions in India, unless such risk is enhanced in kind or degree by nature, conditions, obligations or incidents of military service.” (Emphasis supplied) While these guiding factors are clearly more applicable to injuries or accidents, it is significant, however, to note the reiteration, by the Supreme Court, of the position that the distinction that was required to be drawn was between “matters connected, aggravated or attributable to military service, and the matter entirely alien to such service”. Howsoever wide the sweep of executive magnanimity in the matter of grant of disability pension may be, it is legitimate to hold that it cannot encompass injuries, or even ailments or diseases, suffered by the claimant, which is entirely unrelated to his military service. An injury suffered by “an act alien to the sphere of military service or in no way connected to his being on duty” cannot, therefore, sustain a claim to disability pension. However, if there is a causal connect, “howsoever remote”, the claim would sustain. xxx xxx xxx

77. It goes without saying that the mere fact that the officer may have contracted the disease during military service would not suffer to entitle him to disability pension, unless the disease was attributable to the military service. The petitioners are also correct in their submission that, with the removal, in the 2008 Entitlement Rules, of the presumption that, if no note was entered in the record of the officer, at the time of his induction into military service, to the effect that he was suffering from the ailment, the ailment would be deemed to be attributable to military service…”

24. Summarily stated, in light of the catena of judgments present before us, the settled position of law is that even if an injury occurs off-duty or during leave, if the duties thereafter are such that the condition is objectively worsened, the individual is entitled to disability pension under Rule 11 provided a causal connection is established.

25. Coming to the case at hand, it is an admitted position that the respondent suffered an ACL and PCL tear in his left knee during a football match in his village on 09.07.2009 while on sanctioned leave. The petitioners heavily rely on this injury report dated 14.06.2010 to argue that the origin of the disability was entirely unconnected with service and thus, cannot qualify for disability pension. However, this submission overlooks the critical reasoning adopted by the learned Tribunal and the broader principles laid down in Dharamvir Singh (supra) and Gawas Anil Madso (supra).

26. The learned Tribunal, in the impugned order, rightly focused on the fact that post-injury, the respondent continued to render full military service for over a decade, including active shipboard duties involving climbing ladders and performing physically strenuous tasks. In his affidavit and submissions before the learned Tribunal, the respondent herein averred that his condition progressively worsened during his tenure on the ship, owing to continuous strain on the knee joint as well as the fact that the respondent was placed in the Low Medical Category. These assertions were neither controverted by the petitioners before the learned Tribunal nor in the present writ petition.

27. The learned Tribunal took judicial notice of the extreme, exacting, and unforgiving service conditions that naval personnel are subjected to while serving onboard ships, an understanding that cannot be ignored while considering the factor of aggravation.

28. In our opinion, such circumstances fall squarely within the ambit of Rule 11 of the ER-2008, which recognizes aggravation due to service-related conditions even if the origin was external. There is no dispute regarding the nature of the respondent’s duties onboard nor any rebuttal furnished by the petitioners to dislodge the assertion that these duties aggravated his condition.

29. Thus, while the initial cause of the knee injury may not have arisen directly during military duty, there exists clear and reasonable causal connection between the service conditions and the progressive worsening of the respondent’s injury, leading to a final assessment of disability for the knee condition alone. Notably, the Release Medical Board’s declaration of NANA was completely silent on the postinjury service duties, failing to address the impact of 10+ years of strenuous naval work on the injured knee. This omission itself renders the RMB opinion mechanical and unsupported by relevant legal considerations under Rule 11.

30. Hence, the learned Tribunal was justified in invoking Rule 11 to conclude that while the injury may have occurred during leave, its aggravation was due to military service, thereby establishing a legally sustainable causal connection warranting the grant of disability pension. On the RMB opinion

31. The reliance placed by the petitioners on the RMB’s opinion of ‘NANA’ cannot override the operation of Rule 11 and the factual findings of the learned Tribunal. As held in Dharamvir Singh (supra) and reiterated in Gawas Anil Madso (supra), the opinion of the RMB must be reasoned, evidence-based, and aligned with statutory provisions.

32. In the present case, the RMB made a bald assertion of NANA without examining or commenting upon the respondent’s post-injury service conditions, duration of continued military duties, or the progressive deterioration of his condition, all of which are relevant under Rule 11. Thus, the learned Tribunal rightly held that the opinion of the RMB was perverse and mechanically rendered, warranting judicial interference On non-invalidment and appellate remedy

33. The argument that the respondent was not invalided out and hence not entitled to disability pension is also without merit. The Hon’ble Supreme Court in Ram Avtar (supra), has held that disability pension is admissible even in cases of superannuation or completion of terms of engagement, provided the disability is attributable to or aggravated by service.

34. On the issue of not exhausting the appellate remedies under Rule 14 of ER-2008, it is settled law that the Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007 is competent to directly entertain such applications. Procedural remedies cannot curtail substantive rights, particularly when an authoritative judicial forum has been approached.

35. In view of the foregoing analysis, we do not find any infirmity in the impugned order dated 27.07.2023 passed by the learned Tribunal and the same is, hereby, upheld. It is held that the learned Tribunal has correctly appreciated the law laid down, applied the test of aggravation under the ER-2008, and rightly held that the respondent’s disability, though originating during leave, was aggravated due to sustained naval service conditions, warranting disability pension.

36. Accordingly, the writ petition is dismissed. Pending application(s), if any, stands disposed of. No order as to costs.

37. Compliance with the impugned order of the learned Tribunal, if not already ensured, be ensured within a period of four weeks from today. AJAY DIGPAUL, J. C.HARI SHANKAR, J. JULY 14, 2025