Research › Search › Judgment

Kerala High Court · body

2000 DIGILAW 179 (KER)

Director General, B. S. F. v. Vijoy

2000-03-22

ARIJIT PASAYAT, K.K.USHA, K.S.RADHAKRISHNAN

body2000
Judgment :- Arijit Pasayat, C.J. Doubting correctness of the views expressed by different Benches on the question as to who has to establish that disablement was occasioned on account of military service or was aggravated therefrom, reference has been made to the Full Bench. 2. Factual aspects need not be noted in detail as the dispute revolves round the question as to on whom the burden lies for establishing the aforesaid aspects, the effect of the conclusion by the Medical Board examining the concerned employee and the scope of judicial review in such matters in an application under Art.226 of the Constitution of India, 1950 (in short'the Constitution'). 3. Under the Pension Regulations, 1961, Regulation 173 deals with the core issue. Primary conditions for the grant of disability pension are dealt with in the said Regulation. Same reads as follows: "173. Unless otherwise specifically provided a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II." 4. According to learned counsel for the Central Government, if a person is making a claim, he has to establish the existence of conditions which would entitle him to get disability pension. On the other hand, learned counsel for the claimants submit that the medical records kept by the authority at different stages including the entry point of service throw considerable light on this controversy and even if the initial burden is on the claimant, it is a rebuttable presumption and the authorities while dealing with the case have to take note of various prescriptions in the Regulations. 5. In one of the decisions of the apex court to which reference has been made by different Benches, it was inter alia, observed as follows . (see Union of India and Ann v. Baljit Singh .1996 (2) SCC 315): "xxxxxx The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. (see Union of India and Ann v. Baljit Singh .1996 (2) SCC 315): "xxxxxx The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. 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 injury sustained was due to military service or was aggravated which contributed to invalidation for the military service." Some of the Hon'ble Judges who have dealt with the matter seem to have proceeded on the basis that what was required to establish was that the disease is not attributable to military service or has not been aggravated by it, and therefore, burden of establishing it was placed on the employer. What the Supreme Court has clearly laid down is that when a claim is made, it has to be affirmatively established. Obviously, the claim is made by a person claiming disability pension. Therefore, the initial burden is on him to establish that the injury sustained while in service was due to military service or was aggravated which contributed to invalidation for military service. 6. At this juncture, it is necessary to take note of the indications in Appendix II referred to in Regulation 173, more particularly R.2 thereof. Same reads as follows: "2. Disablement or death shall be accepted as due to military service provided it is certified that:. (a) the disablement is due to a wound, injury disease which.(i) is attributable to military service; or (ii) existed before or arose during military service and has been at d remains aggravated thereby; (b) the death was due to or hastened by . (i) a wound, injury or disease which was attributable to military service; or (ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service." As a bare reading of the provision shows that disablement or death shall be accepted as due to military service provided certain aspects are certified. This certification has to be done by the Medical Board. But several aspects have to be taken into account by the Medical Board while doing the certification. They are dealt with in R.4 which reads as follows: "4. This certification has to be done by the Medical Board. But several aspects have to be taken into account by the Medical Board while doing the certification. They are dealt with in R.4 which reads as follows: "4. In deciding on the issue of entitlement all the evidence both direct and circumstantial, will be take into account and the benefit of reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service cases." Additionally, R.7 throws also light on the modality to be observed. Same so far as relevant reads follows: "7. In respect of diseases, the following rules will be observed: XXX XXX XXX (b A disease which had let 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 individual's acceptance for military service. 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." We find that the examination by the Medical Board cannot be termed to be an empty formality. This is evident from the fact that the examining body is required to record reasons as contemplated in R.7(b). The purpose of incorporation of such condition seems to be that the benefit is being denied to a person who claims it on account of disease or injury while in military service. 7. We, therefore, answer the reference in the following terms: (a) The burden will be on the claimant to establish that the injury or the disease was on account of the military service or aggravated on account of it. (b) The onus in this regard is of a rebuttable nature. (c) The Medical Board is required to elaborately deal with the matter and record reasons as contemplated in R.7(b) to Appendix II and also to take note of various aspects highlighted in Appendix II itself. (d) Unless the requisite formalities which are to be observed have been so done, the appellate body or for that matter the High Court while exercising powers under Art.226 of the Constitution can examine the matter. (d) Unless the requisite formalities which are to be observed have been so done, the appellate body or for that matter the High Court while exercising powers under Art.226 of the Constitution can examine the matter. But the scope of judicial review in such matter is rather limited as the High Court does not act as the appellate authority. Only when the conclusions are perverse, without any material to support it or where irrelevant materials have been taken into consideration for arriving at a conclusion, the High Court can interfere while adjudicating the petition under Art.226 of the Constitution. (See Mohan Amba Prasad Agnihotri & Ors. v. Bhaskar Balwant Aher (d) through LRs. 2000(2) SCALE 186). The matter be placed before the concerned Bench for hearing on merits.