Army Rules, 1954 – r. 13(3) III(v) – Discharge under – Army Pension Regulation, 1961 – Entitlement Rules for Casualty Pensionary Awards, 1982 – r.14 – Armed Forces Tribunal held that respondent was entitled to disability pension by allowing the application filed by him after 20 years – Held: Tribunal patently erred in law in proceeding on the basis of a misconceived notion that any ailment or disability of a soldier, not noted at the time of recruitment but detected or diagnosed at the time of his discharge or earlier, would entitle the soldier to disability pension on the presumption that the disability was attributable to military service, whether or not the disability led to his discharge, and the onus was on the employer to prove otherwise, which the appellants in this case had failed to do – In the instant case, since the discharge was on administrative grounds and not medical grounds, there was no occasion for the Release Medical Board or for that matter, the Resurvey Medical Board to give any opinion as to cause and nature of the ailment of the Respondent of “Right Partial Seizure with Secondary Generalisation 345” as diagnosed, whether such disability/ailment could reasonably have gone undetected at the time of appointment of the Respondent, in terms of Rule 14(b) of the Entitlement Rules – Also, claim of the respondent for disability pension should not have been entertained and that too, 20 years after its discharge.
Allowing the appeal, the Court
HELD: 1. The Resurvey Medical Board did not opine that the disability, if any, of the Respondent was either caused or aggravated by military service. Even otherwise, the question of entitlement of soldier to disability pension cannot be determined on the basis of medical examination conducted 20 years after his discharge. The Tribunal does not sit in appeal over the expert opinion of a Medical Board holding that the disability suffered by a soldier was not attributable to or aggravated by military service. There was no reason for the Tribunal not to accept the opinion of the Release Medical Board held on 30th January 1997 and no reasons have been disclosed. In the absence of any finding of infirmity in the decision making process adopted by the Release Medical Board, there could be no reason to direct the constitution of a Resurvey Medical Board, and in any case, not after two decades from the date of discharge. [Paras 15 & 16][479-D-F]
2. As provided in Rule 14(c) of the Entitlement Rules, if a disease were accepted 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. Even though, the Tribunal accepted that there might be cases, where an ailment/disease could be wholly unrelated to military service and the denial of disability pension could be justified on that ground, the Tribunal overlooked the mandate of Rule 14(c) of the Entitlement Rules. From the Report of the Resurvey Medical Board, as extracted in the impugned judgment and order, it does not appear that the Review Medical Board gave any opinion as contemplated in Rule 14(b) or 14(c) of the Entitlement Rules. There were no materials before the Tribunal, on the basis of which the Tribunal could have been satisfied that, the conditions of service of the Respondent contributed to his disability and/or ailment. The Review Medical Board only assessed the extent of the disability of the Respondent and the approximate duration of the disability, but not the cause thereof. [Paras 23 & 24][481F-H; 482-A-B]
3. What exactly is the reason for a disability or ailment may not be possible for anyone to establish. Many ailments may not be detectable at the time of medical check-up, particularly where symptoms occur at intervals. Reliance would necessarily have to be placed on expert medical opinion based on an in depth study of the cause and nature of an ailment/disability including the symptoms thereof, the conditions of service to which the soldier was exposed and the connection between the cause/aggravation of the ailment/disability and the conditions and/or requirements of service. The Tribunal patently erred in law in proceeding on the basis of a misconceived notion that any ailment or disability of a soldier, not noted at the time of recruitment but detected or diagnosed at the time of his discharge or earlier, would entitle the soldier to disability pension on the presumption that the disability was attributable to military service, whether or not the disability led to his discharge, and the onus was on the employer to prove otherwise, which the Appellants in this case had failed to do. In this case, since the discharge was on administrative grounds and not medical grounds, there was no occasion for the Release Medical Board or for that matter, the Resurvey Medical Board to give any opinion as to cause and nature of the ailment of the Respondent of “Right Partial Seizure with Secondary Generalisation 345” as diagnosed, whether such disability/ailment could reasonably have gone undetected at the time of appointment of the Respondent, in terms of Rule 14(b) of the Entitlement Rules. The Appellants did not get the opportunity to show that the ailment was not caused or aggravated by military service in terms of Rule 14(b) and 14(c) of the Entitlement Rules referred to above. The claim of the Respondent for disability pension should not have been entertained and that too, 20 years after his discharge. [Paras 25 & 26][482-B-G]
Union of India v. Rajbir Singh (2015) 12 SCC 264 : [2015] 2 SCR 183 17 - held inapplicable.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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