Controller of Defence Accounts v. Sadanandan — 1999 DIGILAW 659 (KER)

Judgment :- AR. Lakshmanan, J. W.A.1784/1997 is filed by the Controller of Defence Accounts (Pension) and others against the judgment in O.P. No. 11597/1994 on the file of this Court. The petitioner in the Original Petition, i.e., the respondent herein, applied for disability pension, which was rejected by the 2nd appellant as per Ext. P3. The appeal filed before the third appellant was also rejected. The prayer in the Original Petition was for a mandamus directing the appellants to sanction disability pension to the respondent- writ petitioner and to quash Exts. P3 and P8 orders. 2. The appellants, as respondents in the Original Petition, contended that the disability was not attributable to or aggravated by military service. The respondent-writ petitioner averred that the Medical Board held that the disabilities of the respondent are not related with service duties of the respondent. It is the case of the Department that the army life of the respondent was not a reason for the mental strain caused to him. Therefore, the appellants prayed for the dismissal of the Writ Petition. 3. The learned Single Judge by judgment dated 14.3.97 directed the appellants to pass orders sanctioning disability pension to the respondent and disburse the same within a specified time. The learned judge had also quashed Exts. P3 and P8. Being aggrieved by the above judgment, the respondents in the Writ Petition have preferred the above appeal. 4. W. A. No.1054/1999is also filed by the Director General, Border Security Force and two others against one K. A. Vijoy. The Original Petition was filed by the respondent for a mandamus to disburse the diability pension and other benefits to him from 30.9.1992. His request for disability pension was rejected by Ext. PI. According to the respondent herein, the disabilities are attributable to service. According to the appellants, the respondent became afflicted with a disease "Psoriasis Vulguris, which disease, however, has been shown as not attributable to Government service by the Medical Board and, therefore, according to the statutory rules the respondent was not entitled to disability pension. C.S. Rajan, J. following the ruling reported in Ravi v. Union of India, 1998 (1) KLT 56, quashed Ext. PI and directed the appellants to grant disability pension to the respondent in accordance with the Rules. 5. When the matter came up for hearing Mr. C.S. Rajan, J. following the ruling reported in Ravi v. Union of India, 1998 (1) KLT 56, quashed Ext. PI and directed the appellants to grant disability pension to the respondent in accordance with the Rules. 5. When the matter came up for hearing Mr. K. Ramakumar, learned Senior Central Government Standing Counsel argued that the learned Single Judge went wrong in directing the appellants to prove negative aspects of the attributability and aggravation and that the learned Single Judge has not taken into consideration the provision of R.14(c) of Entitlement Rules in its correct perspective and that as per R.8 of the Entitlement Rules, 1982, attributability/aggravation shall be conceded if casual connection between death/ disablement and military service is certified by appropriate medical authority. According to Mr. Ramakumar, in the case in W. A. 1784/1997 neither release medical board nor the appropriate appellate medical authority has opined the invalidity disease of the respondent as either attributable to or aggravated by military service. 6. Mr. Ramakumar cited the following decisions in support of his contentions: (i) In Civil Appeal No. 164/1993, the apex court has held that the recommendation of the Medical Board should be respected. (ii) In Union of India & Ors. v. Shri Bal it Singh, Civil Appeal No. 13272/1996, the Supreme Court held that if a disease is accepted as having arisen in service, it must be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to circumstances of duty in service. The Supreme Court further held that unless these conditions are satisfied, it cannot be said that the sustenance is on account of military service. (iii) Petition for Special Leave to Appeal (Civil) No. 4862/98 filed against the judgment and Order in W. A. 1740/1997 dated 20.11.1991 (Union of India & Ors. v. K. Sudhir) the Bench comprising of Dr. Justice A.S. an and & Mr. Justice D.P. Wadhwa, held as follows: "Delay condoned. Though we do find that there is substance in the submission made by the learned Additional Solicitor General regarding the erroneous finding of the High Court with regard to the onus but, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the impugned order. Justice D.P. Wadhwa, held as follows: "Delay condoned. Though we do find that there is substance in the submission made by the learned Additional Solicitor General regarding the erroneous finding of the High Court with regard to the onus but, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the impugned order. The special leave petition is dismissed." (iv) In the decision reported in union of India v. Baljit Singh,(1996) 11 SCC 315, a regular appointee in the Army, while in service, sustained moderately severe injury. The Medical Board, on examination found him physically incapacitated and recommended to be invalidated out of service. He was discharged from service by consent. In the absence of proof of the injury being sustained due to military service or being aggravated thereby, the Supreme Court held that the direction of the High Court to the Government to pay him disability pension was not totally correct. However, in the peculiar facts and circumstances of the case, interference therewith was refused. The Supreme Court held that in each case, when a disability pension is sought for and made a claim, it must be affirmatively established, as a fact, as to whether the disability was due to military service or was aggravated, which contributed to invalidation for the military service. Accordingly, the Supreme Court was of the view that the High Court was not totally correct in reaching the conclusion. Having regard to the facts and circumstances of the case, the Supreme Court thought that it was not an appropriate case for interference. (v) In an unreported decision of K. Narayana Kurup & T.M. Hassan Pillai, JJ. in W.A.1071/1997 dated June 23,1999,theDivisionBenchwasofthe view that the reasoning of the learned Single Judge while granting disability pension to the respondent- writ petitioner cannot legally be sustained. It is useful to reproduce a portion of paragraph 4 of the judgment: - "According to learned Single Judge, the illness of the respondent/ petitioner may be due to the "condition under which he was working or due to various other circumstances under which he was working". We are afraid, we cannot subscribe to the aforesaid view of the learned Single Judge. Had it been the case of the respondent/ petitioner that his affliction could be specifically attributable to or aggravated by military service would have been inclined to take a lenient view. We are afraid, we cannot subscribe to the aforesaid view of the learned Single Judge. Had it been the case of the respondent/ petitioner that his affliction could be specifically attributable to or aggravated by military service would have been inclined to take a lenient view. On the contrary, what we find is that the disability on account of which the respondent/ petitioner was invalidated out of service is a constitutional disease. The appellate medical authority has found that onset of ID- Affective Psychosis (Depression) was in October 1990 while serving in a peace area. It has also been found that there is no evidence of undue stress and strain due to service prior to onset of ID. Therefore, the authorities cannot be faulted in treating the disability of the respondent/ petitioner as neither attributable to nor aggravated by duties of military service. Once the expert body like the Medical Board expresses an opinion, it is entitled to great weight. Unless the medical findings are utterly perverse, this Court exercising jurisdiction under Art.226 of the Constitution cannot go behind the said opinion and substitute it own opinion for that of the expert body. There is no material before this Court, much less medical, to hold that the disability of the respondent/ petitioner is attributable to or aggravated by duties of military service. On the contrary, we find that the origin of affective disorder (depression) is a genetic and of biological predisposition with psycho social factors playing a contributory role, neither of which has any casual connection with military service. Reported studies are most consistent with the hypothesis that mood disorders are associated with heterogeneous dis-regulations of the biogenic amines (Synopsis of Psychiatry By Harold I. Kaplan & Benjamin J. Sadock, Eighth Edn., P. 524 & 539). At the risk of repetition we would observe that the respondent/ petitioner was not working in any forward area/battle front and that the nature of the work also did not involve any stress and strain triggering a psychiatric event. Therefore, it will be reasonable to hold that he will not be entitled to disability pension as the disease was genetic, biological and constitutional in nature and the disability was neither attributable to nor aggravated by the stress and strain in the military service. Therefore, it will be reasonable to hold that he will not be entitled to disability pension as the disease was genetic, biological and constitutional in nature and the disability was neither attributable to nor aggravated by the stress and strain in the military service. That apart, the disability has been assessed by a competent expert body like the medical board whose conclusions are to be accepted as correct unless contradicted by any other medical board by cogent evidence." (vi) Judgment in O.P. 9932/1994 dated 12.11.1999 (s. sankarasubbanj.) in that case, when the petitioner was invalidated out of service, he did not have ten years or more service and invalidating disability "Psychoneurosis-300" from which the writ petitioner had suffered during his military service was viewed as neither attributable to nor aggravated by the military service by the duly constituted Invalidating Medical Board. Hence, it was held that the petitioner was not entitled to any disability pension. The learned judge has followed the view taken by the Division Bench in W.A.1071/1997. 7. Mr. Ramakumar has also cited the following decisions which are against him. They are: (i) 1998 (1) KLT 56 (Ravi v. Union of India) - The Division Bench held that the burden of establishing that the disease is not attributable to military service or has not been aggravated by it lies on the military authorities. (ii) 1998 (2) KLT 891- Union of India v. Alex Varghese - The Bench, comprising of AR. Lakshmanan & D. Sreedevi, JJ. has also taken the view that the Government has to establish that the disability of a Government servant is not attributable to military service. The Bench has followed the dictum laid down in 1998 (1) KLT 56. 8. Mr. K. Ramakumar submitted that in the light of the view taken by the Supreme Court of India that the burden of proving that the disability is attributable to service is on the person claiming benefit out of it, the view taken by this Court in different cases, viz., 1998 (1) KLT 56 and 1998 (2) KLT 891, requires reconsideration and does not represent the correct legal position. It is true that the Supreme Court has taken the view that the view of the Kerala High Court is not correct in one particular case. It is true that the Supreme Court has taken the view that the view of the Kerala High Court is not correct in one particular case. It has also been declared that the view of the Medical Board cannot be lightly brushed aside and the views of the Court substituted in its place. 9. In the decision reported in New India Assurance Co. Ltd. v. Sreedharan, 1995 (1) KLT 275, a Full Bench of this Court comprising of M.M. Pareed Pillay, ag. C.J., T.V. Ramakrishnan & P. Shanmugam, JJ. held that a report of the qualified medical practitioner certifying loss of earning capacity cannot be ignored while fixing the compensation and that the said document which has been produced has to be relied on in the absence of any other evidence made available. 10. By citing all the above decisions, both for and against, Mr. Ramakumar submitted that the view taken by the Kerala High Court in the above cases does not represent the correct legal position in view of the decisions of the Supreme Court and, therefore, the matter requires re-investigation at the hands of a Larger Bench. 11. Per contra, Mr. M.P. Ashok Kumar and Mr. S. Subhash Chand submitted that the views were taken by the Division Bench considering the facts and circumstances of each case, evidence and documentary proof adduced and that therefore there is no need" to refer the matter for consideration by a Larger Bench. Both the learned counsel requested us to consider their case separately in the light of the above decisions. 12. As already noticed, the Supreme Court in the judgment referred to above, though is not a reasoned judgment, has taken the view that the burden of proving disability attributable to service is on the person claiming benefit out of it, whereas the two Division Benches, in the decisions reported in 1998 (1) KLT56 and 1998 (2) KLT 891, have taken the view that the duty is on the Government to establish that the disability of a Government servant is not attributable to military service. Another Division Bench, comprising of K. Narayana Kurup & T.M. Hassan Pillai, JJ. has taken a contrary view, of course on the facts and circumstances of that case. Another Division Bench, comprising of K. Narayana Kurup & T.M. Hassan Pillai, JJ. has taken a contrary view, of course on the facts and circumstances of that case. We, as a Division Bench, can only, therefore, refer the matter to a Larger Bench for an authoritative pronouncement in regard to the question whether it is the duty of the military authorities to affirmatively establish that the disease is not attributable to the service or has not been aggravated by it. 13. We may also add that the burden of proving that the disability is attributable to the service is on the military authorities or on the person claiming benefit out it depends upon the disease and ailment which the military servant suffer and also depend upon many other circumstances. The disability may also occur by irregular and intemperate habits. In some other cases, the disabilities of the persons are not related with service duties. It may also be stated that when the petitioners allege that the diseases are attributed to and aggravated by military service the same should be proved by him only. Thus, the initial burden will be on the petitioner and once the initial burden is discharged, the onus shift to the military authorities to disprove the same by military, medical and service records. We, therefore, direct the Registry to place these two appeals and all other connected appeals filed by the Union of India as well as by the persons claiming disability pension before the Honourable the Chief justice for listing the same before a Full Bench for an authoritative opinion on the subject. The Full Bench may also consider whether under Art.226 of the Constitution of India disputed questions of fact can be resolved, particularly when they involve the opinion of experts, and as to whether the recommendations of the Medical Board that in a given case the disease of the petitioner is not attributable to service can be easily brushed aside.