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Late Subedar Udaibhanuu Vs. the Union of India Through Secretary, Ministry of Defence, Govt. of India and Others - Court Judgment

LegalCrystal Citation
CourtArmed forces Tribunal AFT Regional Bench Jaipur
Decided On
Case NumberTransferred Application No.163 of 2010
Judge
AppellantLate Subedar Udaibhanuu
RespondentThe Union of India Through Secretary, Ministry of Defence, Govt. of India and Others
Excerpt:
.....the facts regarding promotion and invaliding out from service are not in dispute. the invaliding medical board of the applicant was held on 23.1.1987 and it found the applicants husband suffering from the disease “schizophrenia”, which was assessed at 30% but was considered as neither attributable to nor aggravated by service. the claim of the applicants husband for grant of disability pension was rejected by the principal controller of defence accounts pension, allahabad. hence this application. 3. the non-applicants in their reply have specifically averred that onset of the invaliding disease arose in april, 1986 while the applicants husband was serving in peace area, as such, it cannot be inferred that the disability from which the applicants husband suffered was neither.....
Judgment:

BY THE COURT: (BHANWAROO KHAN,J.)

1. The applicant, Udaibhan initially filed a writ petition before the Rajasthan High Court, Jodhpur for grant of disability pension from the date he was invalided out of service i.e. from 1.3.1987 and that writ petition came to be transferred to this Tribunal for adjudication. During the pendency of the writ petition, the applicant Udaibhan expired on 17.5.2007 and after his death, his wife was brought on record as his Legal Representative and she has further claimed for grant of family pension to her from the date her husband died, i.e. from 17.5.2007.

2. The brief facts leading to this application are: that applicants husband was enrolled in the Army on 17.5.1968 and he was promoted upto the rank of Subedar. He was invalided out of service on 1.3.1987. The facts regarding promotion and invaliding out from service are not in dispute. The Invaliding Medical Board of the applicant was held on 23.1.1987 and it found the applicants husband suffering from the disease “Schizophrenia”, which was assessed at 30% but was considered as neither attributable to nor aggravated by service. The claim of the applicants husband for grant of disability pension was rejected by the Principal Controller of Defence Accounts Pension, Allahabad. Hence this application.

3. The non-applicants in their reply have specifically averred that onset of the invaliding disease arose in April, 1986 while the applicants husband was serving in peace area, as such, it cannot be inferred that the disability from which the applicants husband suffered was neither attributable to nor aggravated by his military service. Hence, the Invaliding Medical Board has rightly opined that the disability suffered by the applicants husband is neither attributable to nor aggravated by his military service.

4. We have heard learned counsel for the applicant and learned counsel for the non-applicants.

5. Learned counsel for the applicant has argued that Re-categorisation Medical Board held on 11.11.1986 has clearly mentioned that the applicants husband suffered from the disease “Schizophrenia” while serving in the peace area. The Invaliding Medical Board was held in 1987, which also assessed the disability of the applicants husband at 30% for 2 years, neither attributable to nor aggravated by service. The learned counsel has contended that since the onset of the disease arose to the applicants husband while he was posted in field area, as per Rule 9 of the Entitlement Rules 1982, the burden to prove that the disability suffered by the applicant is neither attributable to nor aggravated by his military service but is a constitutional disorder, lies on the non-applicants but they have failed to prove it with cogent and valid reasons. He has submitted that since the applicants husband was invalided out from service on 1st March 1987, his case would be governed by the provisions of the Entitlement Rules, 1982, as such, the applicants husband deserves to be granted disability pension with effect from the date he was invalided out of service i.e. from 1st March, 1987. In support of his contention, he has placed reliance on a recent decision of the Kochhi Bench of Armed Forces Tribunal in Indeevarakshan Nair M.P. Vs. Officer I/c Records, ASC Records and others (T.A.No.17 of 2009, decided on 16th July, 2010).

6. On the other hand, it has been argued by the learned counsel for the non-applicants that Honble Supreme Court has categorically held in Controller of Defence Accounts (Pension) and others Vs. Balachandran Nair (AIR 2005 SC-4391); Union of India Vs. Dhir Singh China, Colonel {Retd.} ({2003} 11 SCC-675); Union of India Vs. Keshar Singh ({2007}12 SCC-675); and Secretary, Ministry of Defence and others Vs. Damodaran A.V. (Civil Appeal No.5678 of 2009) that the opinion expressed by the Medical Board or Medical Expert should be given due weightage and unless it is challenged, the Court is debarred from placing its opinion over and above the opinion of the Medical Board/Expert, as such, whatever opinion expressed by the medical board/expert at the time of discharge of the applicants husband from service will have primacy and this Tribunal cannot replace that opinion.

7. We have considered the rival submissions made on behalf of both the arties at the bar.

8. Admittedly, at the time when the applicants husband was invalided out of service, he was suffering from the disease “Schizophernia” and this disease was detected for the first time in the year 1986, for which, the applicants husband remained hospitalized with effect from 27.4.1986 to 8.7.1986 and from 4.9.1986 to 15.9.1986 and then from 11.1.1986 till the date he was invalided out of service.

9. This Tribunal while deciding Original Application No.97 of 2010 (Idrish Khan Vs. Union of India, decided on 3rd February, 2011) placed reliance on a decision of the Regional Bench of the Armed Forces Tribunal Kochi in Indeevarakshan Nair M.P. Vs. Officer I/c Records, ASC Records and Others (T.A.No.17 of 2009, decided on 16th July, 2010) wherein the decisions of the Supreme Court in Controller of Defence Accounts (Pension) and others Vs. Balachandran Nair (AIR 2005 SC-4391); Union of India Vs. Dhir Singh China, Colonel {Retd.} ({2003} 11 SCC-675); Union of India Vs. Keshar Singh ({2007}12 SCC-675); and Secretary, Ministry of Defence and others Vs. Damodaran A.V. (Civil Appeal No.5678 of 2009) and a full Bench decision of the Kerala High Court in Baby Vs. Union of India (2003{3} KLT-362) were considered, and it was held that at the time of passing of these judgments by the Supreme Court, latest Entitlement Rules and Regulations as amended from time to time were not brought to the notice of the Honble Supreme Court and after elaborate survey of the facts, Regulations, Rules and legal position, Regional Bench of Armed Forces Tribunal, Kochi arrived at the following conclusions:

“(1) Each case has to be decided with reference to the Regulations, Rules and Orders which are in existence at the time of the claim for disability pension arises.

(2) The cases which arose prior to 1.1.1982 are to be decided in accordance with the principles laid down in Vijays case 2000 (2) KLT-509 by the Full Bench of the Kerala High Court and also the dictum laid down in Balachandrans case (2005) 12 SCC-128, Kesharsinghs case (2007) 12 SCC-675, Surinder Singh Rathores case (2008) 5 SCC9 747 and Damodharans case (2009) 9 SCC-14, by the apex court.

(3) The burden of proof is on the petitioners to establish that the disability is attributable to or aggravated by military service in those cases which arose prior to 1.1.1982.

(4) That burden is rebuttable.

(5) While considering a case which arose prior to 1.1.1982, the Medical Board proceedings shall be given due weight. But the petitioner is entitled to adduce evidence to disprove the findings of the Medical Board.

(6) All those cases which arose after 1.1.1982 and prior to 1.1.1996 are to be decided following the principles laid down by the Full Bench in Babys case, 2003 (3) KLT-362.

(7) While considering a case which arose after 1.1.1996, the relevant provisions of Orders issued by the Ministry of Defence dated 31.1.2001, 7.2.2001, 1.9.2005, 31.5.2006 and 20.7.2006 shall also be applied in addition to the principle laid down in Babys case.

(8) The burden to establish that the injury/illness is not attributable to or aggravated by Military Service is on the concerned authorities while deciding cases which arose after 1.1.1982.

(9) The opinion of the experts in the Medical Board proceedings shall be supported by proper reasoning as provided under the relevant provisions of the Regulations for Medical Services for Armed Forces 1983 and Guide to Medical Officers (Military Pension) so that a layman will be able to know why the injury/illness is not attributable or aggravated by military service.

(10) In case, the opinion is not supported by proper reason, the case shall be decided accepting the evidence on record.”

This Tribunal held that the decision of Kochi Bench in Indeevarkshan Nair M.P.s case (supra) is fortified by the decision delivered by the Principal Bench of the Armed Forces Tribunal in T.A. No.48 of 2009, which was considered alongwith T.A.No.5 of 2009, 106 of 2009 and 26 of 2009, wherein while considering the Entitlement Rules, 1982, Regulations 173, 173-A and Regulation 423 of the Regulations for Medical Services for Armed Forces, 1983, it was held that a combined reading of these Rules and Regulations make it obligatory on the part of the medical board to state whether the disability was present at the time of enrolment or not and whether it could not have been detected on medical examination of the individual prior to acceptance of service. It was further held that the authorities had to record reasons as to why the disability which was present at the time of acceptance of service could not be detected and if cogent reasons are not given by the Medical Board in its finding, a presumption has to be drawn that the disability has arisen during service. It was also held that if the medical board has given its reasons, the presumption will stand rebutted. The reasons means a speaking detailed order showing application of mind that why the disease which may be in embryonic stage at the time of induction in service could not have been detected. It was held that the reasons given by the Medical Board like ‘constitutional or ‘phychosomatic is not a sufficient reason to show why the disease could not be detected at the time of induction in service.

10. A combined reading of the decisions of the Kochi Bench in Indeevarakshan Nair M.P.s case (supra) and the Principal Bench of the Armed Forces Tribunal in T.A. No.48 of 2009, which was considered along with T.A.No.5 of 2009, 106 of 2009 and 36 of 2009 makes it clear that presumption in regard to fitness will always be in favour of the individual and he will never be asked to prove the conditions of entitlement and the burden to establish that the injury/illness is not attributable to or aggravated by military service is on the concerned authorities and it is a mandate to Medical Officer or Medical Board to provide cogent reasons for it and not cryptic slipshod or vague reason by covering expression “not applicable” or “constitutional”. The opinion expressed should be reasoned one and explanation while taking due care of Entitlement Rules, Guide to Medical Officers (Military Pension) and circulars issued from time to time.

11. Considering the decision of Kochi Bench in Indeevarakshan Nair M.P.s case (supra), this Tribunal held as under:

“For claim of disability pension, two crucial and important words are ‘attributability and ‘aggravation, which are linked and attached with service and find place in Regulation 173 of the Pension Regulations for the Army, 1961, Rules 5,6,7,8 and 14 of the Rules of 1982 and also in Guide to Medical Officers (Military Pension) 1983 as also 2002 and Rule 423 of the Regulations for the Medical Service. The important point is that attributability and aggravation should be conceded, if the disability has a casual connection with service. With this aspect, Rule 5 (a) and (b) and Rule 6(a) and (b) of the Entitlement Rules provide that a man is presumed to be of sound health and condition upon entering into service and if subsequently, he is discharged from service on medical ground, any deterioration in health will be presumed aggravation due to service, in case the disability arose during service. This presumption of aggravation can only be rebutted by the Medical Officer by giving detailed reason at the time of medical examination because Rule 14 of the Rules of 1982, which stood amended in the year 1996 with retrospective date i.e. 1.1.1982 enumerates that for acceptance of disease as attributable, two conditions must be satisfied i.e. that the disease has arisen during the period of military service and the disease has been caused by condition of employment in service. If these two conditions are not satisfied then the Medical Officer should give detailed reasons to disprove the attributability or aggravation. In absence of detailed reason or explanation, the presumption in favour of the individual cannot be said to be rebutted.”

12. This Tribunal further held that Rule 423 of the Regulations for the Medical Service also tilt in favour of the individual in absence of detailed reasoned opinion of the medical board. Merely by using the word ‘Yes or ‘No or ‘constitutional would not be of any help to the non-applicants. While giving the opinion about non-attributability or non-aggravation, the Medical Board has to be specific so as to allow them to rebut the presumption which is in favour of the applicant. In fact, the Guide to Medical Officers (Military Pension),2002 is very elaborate and discusses at length all types of diseases. The Guide while dealing with so called ‘constitutional diseases spells out the parameters and service conditions under which such diseases also can be attributed to or aggravated by service. Whilst expressing their opinions, the Medical Officers are required to comment on the evidence, both for and against the concession of entitlement. Thus, if the Medical Boards do not give evidence in support of their findings, it is well nigh impossible for the pension sanctioning authorities to admit or refuse an entitlement.

13. The case in hand reveals that applicants husband was invalided out of service on 1st March 1987 with 30% disability for two years, which was considered as neither attributable to nor aggravated by military service. A bare perusal of the proceedings of the Invaliding medical board makes it clear that it no where mentions as to why this disease could not have been detected at the time of the individuals entering into the service. As per Rules and Regulations, the disability arose to the applicants husband while he was in service. Para 35 of the Guide to Medical Officers (Military Pension) 1980 deals with mental (psychiatric) disorders and it clearly provides that the psychiatric disorders are generally classified as neurosis, psychoneurosis, psychosis and personality disorders and this classification does not divide the diseases into watertight compartments. Thus, it is clear that disease schizophrenia has been considered as a mental disorder as per para 35 of the Guide to Medical Officers (Military Pension), 1980 and in the above para 35, conditions for entitlement have also been prescribed. However, this list is not exhaustive and each case should be judged on its own merit. As stated above, since the individual cannot be asked to prove the condition of service, it was the duty of the medical board to have prescribed that neither any of the conditions mentioned in para 35 of the Guide to Medical Officers (Military Pension), 1980 existed so as to rebut the presumption which stood in favour of the applicants husband. In this view of the matter, it can safely be inferred that the disease ‘schizophernia which arose to the applicants husband during service is aggravated by his military service and there is nexus of disability with that of the service and in such circumstances, presumption regarding disability suffered by the applicants husband is aggravated by his military service deserves to be drawn.

14. Regulation 173 of the Pension Regulations for the Army provides that disability pension may be granted to an individual if his disability is assessed at 20% or above and is attributable to or aggravated by military service. Since the disability of the applicants husband was assessed at 30% and we have also held that his disability is aggravated by his military service, the applicants husband is entitled to disability pension on the ground of aggravation from the date he was invalided of service i.e. from 1st March, 1987, till the date of his death i.e. 17.5.2007 and from 17.5.2007, the applicant is entitled to receive the family pension as per Rules. To this extent, this application deserves to be allowed.

15. Resultantly, this application is allowed and the non-applicants are directed to grant disability pension to the applicant on the ground of aggravation from the date he was invalided out from service i.e. from 1st March, 1987 till 17.5.2007 and further to grant family pension to the applicant from 17.5.2007, the date on which her husband died. The arrears of the disability pension and family pension be paid to the applicant within a period of three months from the date of this order with interest at the rate of 8% per annum.

16. In the facts and circumstances of the case, the parties are left to bear their own costs of this application.


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