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2010 DIGILAW 59 (GAU)

Uadibeer Singh v. Union of India

2010-01-29

TINLIANTHANG VAIPHEI

body2010
JUDGMENT T. Vaiphei, J. 1. The entitlement of the petitioner, who has been discharged from Assam Rifles Service on medical grounds, to invalid pension or disability pension, is the subject-matter of this writ petition. 2. The facts of the case are not in dispute. The petitioner was enrolled as a General Duty recruit in the Assam Rifles on 24.10.1993, and was allotted regimental No. 163840 in the Medical Category of "AAA". On completion of basic training, he was posted to 16 Assam Rifles. The onset of Psychosis has occurred in August 1997 while he was on 30 days' leave. He had consulted a Psychiatrist at Aligarh who diagnosed him as a case of acute psychosis. He further availed of 78 days' of extraordinary leave from 18.8.1997 to 4.12.1997, and was treated at LGB Institute of Mental Health as a case of Schizophrenia where he was managed with Anti-Psychosis medication and was accordingly advised for maintenance therapy in March 1998. Even after this, there was apparently no marked improvement and he continued to display abnormal behaviour. He was thereafter referred to 155 Base Hospital for Psychiatric Evaluation in January 1999 where he was diagnosed with ECT and anti-psychosis. On 5.12.2000, he deserted his Unit and returned on 3.3.2001 on his own accord. It also led to his abstention from medication. He was referred to a Psychiatrist at 155 Base Hospital for abnormal behaviour. Psychiatric Evaluation revealed non-communicative poverty of speech, ideas, derailment of thought and impaired judgment. He was observed to be closing his ears with cotton plugs to stop auditory hallucinations. The response to his treatment with anti-psychotics and ECT was found to be poor and minimal. He was, thus, diagnosed as a case of schizophrenia and his illness had taken a chronic course with progressive deficit causing marked impairment due to which he was unable to discharge his duties as a soldier. He was accordingly advised by a duly constituted Release Medical Board to be released from service in category CEE (Permanent). Consequently, he was discharged from service on medical ground after rendering only nine years, six months and six days of service, which is short of the minimum qualifying service of 10 years for invalid pension. He was earlier awarded 28 days of rigorous imprisonment with effect from 12.8.1996 to 8.9.1996 and another rigorous imprisonment of 28 days from 2.12.1996 to 29.12.1996. 3. The contention of Mr. He was earlier awarded 28 days of rigorous imprisonment with effect from 12.8.1996 to 8.9.1996 and another rigorous imprisonment of 28 days from 2.12.1996 to 29.12.1996. 3. The contention of Mr. R. Jha, the learned Counsel for the petitioner, is that though the petitioner did not complete ten years of service, he is nevertheless entitled to invalid pension as provided for in Rule 38 of the Central Civil Services (Pension) Rules, 1972 ('Pension Rules'), which is applicable to the Assam Rifles personnel. According to the learned Counsel, unlike other pensions, there is no qualifying service in the case of invalid pension: the plain language of the rule rules out an interpretation to the contrary. Alternatively, he submits that the disease of schizophrenia suffered by the petitioner being triggered by the harsh and tough conditions of service in the eastern sectors of the country, there is contributory negligence of the respondent authorities in aggravating the disease during the course of his service: his disability is, thus, attributable to and aggravated by the service conditions. Thus, according to the learned Counsel, the petitioner is entitled to disability pension. Lastly, he contends that the petitioner is entitled to protection under the provisions of Section 47 of the Persons with the Disabilities Act, 1995, and ought to have been shifted to some other post with the same pay scale and service benefits or kept on supernumerary post until a suitable post was available or he attained the age of superannuation, whichever was earlier. On the other hand, Mr. S.C. Shyam, the learned CGC, submits that Rule 38 of the Pension Rules shall have to be read with Rule 49(1)(c) of the Pension Rules and cannot be read in isolation, and so read, it becomes clear that unless the petitioner completes a qualifying service of 10 years, he cannot claim invalid pension. He further contends that once the Release Medical Board, which is an expert body, has opined that the disease of the petitioner was not attributable to or aggravated by the military service, this Court would not be justified in coming to a different conclusion and proceed to hold that the petitioner is entitled to disability pension. He strongly relies on the decision of the Apex Court in Union of India v. Keshar Singh (2007) 12 SCC 675 in support of his contention. He strongly relies on the decision of the Apex Court in Union of India v. Keshar Singh (2007) 12 SCC 675 in support of his contention. He also draws my attention to the Gazette Notification dated 10.9.2002 issued by the Ministry of Social Welfare and Empowerment under the proviso to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and points out that the Central Government has exempted all categories of posts of "combatant personnel" of Assam Rifles from the provisions of the said Act. He, therefore, maintains that the writ petition has no merit and is liable to be dismissed. 4. In my opinion, the question as to whether there is a minimum qualifying service of ten years in order to avail of invalid pension is no longer res Integra. In Union of India v. Bashirbhai R. Khiliji (2007) 6 SCC 16 , a similar question came up for consideration before the Apex Court. The relevant portions of the judgment are found at paras 9 and 10, which are in the following terms: (SCC, pp 20-21, paras 9-10) 9. We are presently concerned with two provisions of the Rules, i.e., Rule 38 and Rule 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein, i.e., in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him from the service, then a medical certificate of incapacity shall be given by the authorities concerned and in particular Form 23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a government servant retiring in accordance with the provisions of these Rules before completing the qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six-monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word "qualifying service" has been defined in Rule 3(1)(q) of the Rules which reads as under: 3. (1)(q) 'qualifying service' means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules." 10. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word "qualifying service" has been defined in Rule 3(1)(q) of the Rules which reads as under: 3. (1)(q) 'qualifying service' means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules." 10. Therefore, the minimum service which is required for the pension as mentioned in Rule 49 is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and, therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity been determined and the same was paid to him. 5. The petitioner is, therefore, not entitled to invalid pension as he, admittedly, did not complete ten years of qualifying service in the Assam Rifles. Insofar as disability pension is concerned, the case of the petitioner is that when he joined the Assam Rifles, he was medically fit in all respects and neither he nor anyone in his family ever suffered from mental illness or schizophrenia either from his father's side or from his mother's and as such the disease was contracted by him due to the harsh and tough conditions of the military service. There is no dispute at the bar that disability pension is admissible to the Assam Rifles personnel and is governed by Pension Regulations for the Army, 1961 ('the Regulations'). Para 7(b) of Appendix referred to in Regulations 48, 173 and 185 of the regulations is important and is reproduced below: 7. (b) 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 military service. Para 7(b) of Appendix referred to in Regulations 48, 173 and 185 of the regulations is important and is reproduced below: 7. (b) 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 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. (c) If a disease is 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. 6. The aforesaid paragraphs have been explained by the Apex Court in Union of India v. Keshar Singh (2007) 12 SCC 675 , in the following manner: 5. A bare reading of the aforesaid provision makes it clear that ordinarily if a disease had led to the discharge of individual it shall 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. An exception, however, is carved out, i.e., if medical opinion holds for reasons to be stated that the disease could not have been detected by Medical Examination Board prior to acceptance for service, the disease would not be deemed to have arisen during service. Similarly, Clause (c) of para 7 makes the position clear that if a disease is 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 are due to the circumstances of duty in military service. There is no material placed by the respondent in this regard. 7. In the aforecited case, the disease of the respondent therein, namely, schizophrenia, admittedly arose during military service, which led to his discharge from the military service. The Medical Board opined that the illness was not attributable to the military service. There is no material placed by the respondent in this regard. 7. In the aforecited case, the disease of the respondent therein, namely, schizophrenia, admittedly arose during military service, which led to his discharge from the military service. The Medical Board opined that the illness was not attributable to the military service. The Division Bench of the Allahabad High Court had affirmed the view taken by the Single Bench that it had not been mentioned at the time of entering army service that the respondent suffered from schizophrenia and, as such, it was attributable to army service. Allowing the appeal, the Apex Court held that no material has been placed by the respondent to establish that the condition of his army service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in army service. According to the Apex Court, as the Medical Board's opinion was clearly to the effect that the illness suffered by the respondent was not attributable to the military service, both the Single Bench and the Division Bench were not justified in their respective conclusions, and the respondent was not entitled to disability pension. In the instant case, however, the petitioner has questioned the opinion of the Release Medical Board that the disease contracted by him was not attributable to military service. Annexure-R/4 is a copy of the Release/Discharge Medical Examination Report. In this report, the petitioner has categorically made a declaration that he did not suffer any disability mentioned in question 2 or anything like it before joining the Armed Forces. Question 2 relates to the nature of illness/injury sustained by the petitioner and "schizophrenia" was the disease mentioned by him. In the report, it is also clear that the Medical Board did not state that the disease could not have been detected by the Medical Examination Board prior to acceptance for service. Clause (c) of para 7 makes it clear that even if the 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 are due to the circumstances of duty in military service. Regulation 173 of the regulations says that there must be a causal connection between disablement or death and military service for attributability or aggravation to be conceded. Regulation 173 of the regulations says that there must be a causal connection between disablement or death and military service for attributability or aggravation to be conceded. The manner of proof is also indicated therein, namely, in deciding on the issue of entitlement all the evidence, both direct and circumstantial, will be taken into account and the benefit or reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service case. At this stage, I may refer to Regulation 423(d) of the regulations, which says: (d) The question, whether a disability or death 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 officer, insofar as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regard as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the pension sanctioning authority. (Italic mine) 8. The provision extracted above will indicate that it is the Medical Board, which shall, as regards the medical aspects, decide as to whether the disability is attributable to or aggravated by service and that it has the obligation to specify reasons for their opinion. The opinion of the Medical Board on the actual cause of the disability and the circumstances in which it originated will be regarded as final. Nevertheless, it is the pension sanctioning authority which will decide the question whether the cause and the attendant circumstances can be attributed to service. In the instant case, since the Release Medical Board admittedly did not state any reason for holding that the disease, of schizophrenia suffered by the petitioner could not have been detected by the Medical Examination Board prior to acceptance for service, it cannot be said that the disease would not be deemed to have arisen during his military service. In the instant case, since the Release Medical Board admittedly did not state any reason for holding that the disease, of schizophrenia suffered by the petitioner could not have been detected by the Medical Examination Board prior to acceptance for service, it cannot be said that the disease would not be deemed to have arisen during his military service. True, in terms of Clause (c) of para 7 of the said Appendix II, even if the disease is accepted as having arisen during service also, it must be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions are due to the circumstances of duty in military service. In my opinion, a combined reading of Clause (c) of para 7 of the said Appendix II and Regulation 423(d) plainly indicates that the Release Medical Board is not absolved of their duty to specify reasons for holding the opinion that the disability of the petitioner, namely, schizophrenia, is attributable to or aggravated by military service. A perusal of the Release/Discharge Medical Board, which is at Annexure-R/4 to the affidavit-in-opposition, will reveal that no reasons were specified by them for coming to the conclusion that the schizophrenia suffered by the petitioner was not attributable to or aggravated by military service. The Release Medical Board is not expected to treat the case of the petitioner lightly or casually, more so, when he is in danger of losing pension benefits for no fault of his after rendering military service for about ten years. In my considered view, the respondent authorities have not properly applied their mind to the facts and the legal positions referred to earlier and have, therefore, acted arbitrarily in denying disability pension to the petitioner. In the case of Ministry of Defense v. A.V. Damodaran (2009) 9 SCC 140 , the procedure, guidelines and principles as to under what circumstances a person could said to be medically unfit and disabled, and is to be boarded out from service, and its attributability to military service were discussed by Dr. M.K. Sharma, J, in his concurring judgment as under: 30. M.K. Sharma, J, in his concurring judgment as under: 30. When an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision a to whether the said personnel is to be placed in a medical category lower than "AYE" (fit category) and whether temporarily or permanently. They also give a medical assessment and advice as to whether the individual is to be brought before the Release/Invalidating Medical Board. 31. The said Release/Invalidating Medical Board generally consists of three doctors and they, keeping in view the clinical profile, the date of onset of invalidating disease/disability and service conditions, draw a conclusion as to whether the disease/injury has a causal connection with military service or not. On the basis of the same they recommend (a) attributability, or (b) aggravation, or (c) whether connection with service. 32. The second aspect which is also examined is the extent to which the functional capacity of the individual is impaired. The same is adjudged and an assessment is made of the percentage of the disability suffered by the said personnel which is recorded sot that the case of the personnel could be considered for grant of disability element of pension. Another aspect which is taken notice of at this stage is the duration for which the disability is likely to continue. The same is assessed/recommended in view of the disease being capable of being improved. 33. All the aforesaid aspects are recorded and recommended in the form of AFMSF 16. The Invalidating Medial Board forms its opinion/recommendation on the basis of the medical report, injury report, court of enquiry proceedings, if any, charter of duties relating to peace or field area and of course, the physical examination of the individual. 34. The aforesaid provisions came to be interpreted by the various decisions rendered by this Court in which it has been consistently held that the opinion given by the doctors or the Medical Board shall be given weightage and primacy in the matter for ascertainment as to whether or not the injuries/illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service. 9. 9. I am not unmindful of the limited power of this Court in exercise of its jurisdiction under Article226 of the Constitution to interfere with the decisions of administrative authorities, especially, in the case of military authorities. "The duty of the court", so held the Apex Court in the celebrated case of Tata Cellular v. Union of India (1994) 6 SCC 651 , "is, thus, confined itself to the question of legality. Its concern should be: 1. whether a decision-making authority exceeded its powers? 2. committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, abused its power. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. It applied to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. Another development is that referred to by Lord Diplock in R. v. Secretary for the Home Deptt., ex Brind, viz. the possible recognition of the principle of proportionality. Two other facets of irrationality may be mentioned: (1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. (2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. (italic mine) 10. I am also conscious of the legal position that the Medical Board is an expert body and its opinion is entitled to be given due weight, value and credence. However, in the instant case, the Release Medical Board did not give any reason for coming to the conclusion that the disability of the petitioner is not attributable to or aggravated by military service. The Pension Sanctioning Authority also blindly accepted the arbitrary conclusion of the Release Medical Board. It is obvious that the respondent authorities did not understand correctly the law regulating their decision-making power. In fact, their decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached. This certainly warrants the interference of this Court. The petitioner has questioned the findings of the Release Medical Board by making necessary pleadings to that effect. The case is, therefore, liable to be remanded to the respondent authorities for fresh decision. As for breach of the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the same is not applicable to the personnel of the Assam Rifles in view of the 10.9.2002 issued by the Central Government. 11. For the afore-mentioned reasons, this writ petition is disposed of with the following directions: (a) The opinion of the Release Medial Board that the disability of the petitioner, namely, schizophrenia, is not attributable to or aggravated by military service is hereby quashed. (b) The respondent No. 2 shall constitute a fresh Release/Discharge Medical Board or a Review Release Medical Board, as the case may be, to re-examine the petitioner to determine as to whether his disability is attributable to or aggravated by military service, etc., in accordance with the procedure laid down by law. (c) On the basis of the opinion of the said Medial Board, the respondent No. 2 shall take a fresh decision or the entitlement of disability pension to the petitioner. (c) On the basis of the opinion of the said Medial Board, the respondent No. 2 shall take a fresh decision or the entitlement of disability pension to the petitioner. (d) The entire exercise shall be completed by the respondent authorities within a period of three months from the date of receipt of this judgment. (e) The parties are, however, directed to bear their respective costs.