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2012 DIGILAW 9 (JK)

Union of India & Ors. v. Habans Singh

2012-01-30

FAKKIR MOHAMED IBRAHIM KALIFULLA, VIRENDER SINGH

body2012
1. This appeal is directed against the order of the learned Single Judge dated 27-07-2009 passed in SWP No. 449/2002. 2. To narrate the brief facts, the contesting respondent herein came to be enrolled in the Army on 23-09-1976. He was invalidated from service due to disability which was noted as "Non-organic Psychosis 298". The said invalidation and discharge was carried out based on the opinion of the Medical Board dated 05-10-1982. By virtue of said invalidation and discharge the contesting respondent was not even granted the disability pension. Aggrieved against the same, the respondent herein came forward with the present writ petition seeking for issuance of Writ of Mandamus for release of disability pension in his favour w.e.f the date he was invalidated from Army service on medical grounds. 3. The claim of the respondent was resisted by the appellants by contending that, by virtue of para 173 (I) of Pension Regulation for the Army 1961 unless the disability was attributed to the Military service rendered by the respondent and as such disability was more than 20%, he was not entitled for grant of disability pension. It was contended by the appellants that the Medical Board in its opinion categorically stated that the disease suffered by the respondent was a constitutional disease unconnected with service condition and that in column 2 (a) of part-3 of the opinion of the Medical Board, it was specifically noted that it was not attributable to service during peace or under field service conditions, nor it was aggravated thereby and remains so and therefore the said medical opinion was duly acted upon. In these circumstances though the disability was in the order of 40%, the respondent was not granted for disability pension. 4. The learned Single Judge, however, rejecting the contentions of the appellants (respondents therein), noted that the Medical Board itself specifically found that, at the time of enrolment, the respondent was not found suffering from the said disease, that there was-no past history of the said disease and that the summary of the case Specialist (Psychiatric) clearly showed that even there was no symptoms of such a disease during the childhood of the petitioner (respondent herfein) and no one in the family of the petitioner was having neurotic traits. 5. The learned Judge, therefore, held that the non grant of disability pension was not justified. 5. The learned Judge, therefore, held that the non grant of disability pension was not justified. Ultimately, the appellants herein were directed to pay the disability pension in favour of the respondent herein (petitioner therein) along with arrears by specifying a time limit. In the event, the appellants not paying the disability pension, the learned Judge directed that the respondent herein shall be entitled to interest on the arrears of disability pension at the rate of 9% per annum. 6. We heard Mr. Chandel learned Standing counsel for the appellants. Learned counsel drew our attention to the opinion of the Medical Board placed before the Court and contended that though there was ho past history' of the respondent of having suffered the psychiatric illness, the medical Board found that such disease was not attributable to the service rendered by him during peace or under the field service conditions nor it was aggravated due to the said disease and also finally rendered its opinion that the said disease was a constitutional disease unconnected with the service condition. 7. Learned counsel, therefore, contended that having regard to the fact that such opinion was rendered by the Medical Board who are experts in the said field, the same cannot be interfered with. The order of the learned Judge is, therefore, liable to be set aside. He relied upon the decision of the Hon'ble Supreme Court reported in AIR 2010 Supreme Court 3557 titled Om Parkash Singh v. Union of India and ors as well as 1996 (11) Supreme Court Cases 315 titled Union of India and anr v. Baljit Singh in support of his submissions. 8. By referring to Regulation 173, the learned Standing counsel for the appellants contended that it is in the realm of the Medical Board to render its opinion as to the attributability of the disease viz-a-viz the Military service and that such an opinion is final and conclusive and in the absence of any challenge made to the said opinion, the learned Judge was not justified in ignoring the said opinion while granting the relief prayed for by the respondent herein. 9. Having heard learned Standing counsel for the appellants and having perused the order of the learned Single Judge as well as the medical opinion placed before us along with the other material papers, we do not find any merit to entertain this appeal. 10. 9. Having heard learned Standing counsel for the appellants and having perused the order of the learned Single Judge as well as the medical opinion placed before us along with the other material papers, we do not find any merit to entertain this appeal. 10. In order to appreciate the plea raised before us, we feel it appropriate to refer to Regulation 423(c) which reads as under; "the cause of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armecl forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. 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 service in the armed forces. 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, (underlining is ours). 11. As per Regulation 173 attributability of the deceased to the Military service is to be examined and cleared by the Medical Board. However, a reading of Regulations 173 and 423 (c) together, we find that under Regulation 423(c) a rebuttable presumption is created to the effect that the cause of a disability resulting from a disease would be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. However last part of Regulation 423(c) makes the said position clear in as much as it is stated that the said presumption is rebutable if the medical opinion holds for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance of service, in which event the presumption will stand automacally rebutted. However last part of Regulation 423(c) makes the said position clear in as much as it is stated that the said presumption is rebutable if the medical opinion holds for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance of service, in which event the presumption will stand automacally rebutted. Therefore, by reading of Regulations 423(c) and 173 together the onus is on the appellants to have established based on the opinion of the Medical Board for reasons to be stated that the disease could not have been detected on medical examination at the time of enrolment and in the absence of such opinion by the Medical Board, the presumption would go unrebutted. 12. In the case on hand, we find that indisputably at the time of enrolment no such disease was certified for invalidation, namely, non-organic psychosis 298 was noted. When we perused the opinion of Medical Board dated 05-10-1982 based on which the invalidation of the respondent herein came to be ordered, we find that in column 2(d), it is stated that the disease was a constitutional disease unconnected with service condition. There is no opinion stated as to what was the reason for which the said disease could not have been detected on medical examination prior to the enrolment of the respondent into the armed service, That apart except the ipsi-dixit to the effect that the disease was a constitutional disease unconnected with service condition, there is no other reason mentioned as to how it was not attributable or aggravated by the Military service. 13. We find, in the decision relied upon by the learned counsel reported in AIR 2010 Supreme Court 3557, the Hon'ble Supreme Court extracted the medical opinion in paragraph 7 which is to the following effect: "As per medical consensus, unspecified psychosis, like schizophrenia is caused by interaction of multiple genetic vulnerabilities coupled with environmental, biological, psychological and psychosocial stressors during early childhood development or structural and neuron-chemical damage to the brain in infancy manifesting in adult life as psychosis, hence it cannot be considered as attributable to military service. However, despite being a constitutional psychiatric disease benefit of doubt is given to an individual on possibility of stress and strain of service in war like situations, threat to life by enemy action in C1OPs or extreme environmental conditions of prolonged field/high altitude service, hastening the onset or aggravating it (as specified in Annexure-1 to Encirclement Rules — Classification of Diseases). However, no such stress/strain of military service as defined in Para 54 of Chapter VI of Guide to Medical Officers (Military Pensions) 2002, which is considered stressful enough to hasten onset or aggravate the invaliding disease (ID), is evident in this instant case as individual did not serve in any field/CIOPs/High altitude areas or extreme environmental conditions and servent only in peace stations (Cannanore and Delh). In view of the above, as per the principles of military medicine, invaliding disease (ID) is considered neither attributable to nor aggravated by military service. Sd/- Col. A.T.Kalghargi Sd/- Brig. V.K. Kataria Director (Pension) Dy. DGAFMS (Pens) Dir (AFMS (Pension) Office of DGAFMS Office of DGAFMS Min of Defence Min. of Defence, New Delhi. New Delhf Sd/- Neatu Narang U. Col. AMCf Classified Spl. (Psychiatry) Base Hospital Delhi Cantt." 14. While referring to the said opinion of the Medical Board the Hon’ble Supreme Court even after referring to Regulation 423 (c) ultimately held that the opinion of the Medical Board is entitled to be given due weightage, credence and value which does not call for interference. Therefore, it is settled legal position that the opinion of the Medical Board merits due weightage and acceptance. In the case on hand, when we find that there is no compliance of Regulation 173 read with 423(c), it would be travesty of justice if the truncated opinion of the Medical Board should be relied upon in order to reject the valuable right of the respondent for payment of disability pension. In this context, it would be appropriate to refer to Division Bench decision of this Court reported in 2008 (1) JKJ HC-579 titled Union of India v. Ravinder Kumar to which one of us was a party where while referring to a decision of Hon'ble Supreme Court where implication of Regulation 173 was set out, namely, the decision reported in 2005 AIR SCW 5296. The Division Bench by making the full reference to Regulation 423 (c) has held as under in paragraph 14; "In terms of clause (c) of the above rule a disease which led to an individual's discharge wM,ordinarily be deemed to have arisen during service if no note of it was made at the time of the individual's induction into the military service. But in such a case if medical opinion holds for reasons to be recorded that the disease could not have been detected on medical examination prior to acceptance for service such disease would not be deemed to have arisen during service. Thus even if the release Medical Board has opined that the disease is constitutional, therefore, could not have arisen during military service, still it shall in view of clause ) which creates a statutory presumption be deemed to have arisen during military service, if no note of it was made at the time of the induction of the individual into army and there is no medical opinion, available for holding that it could not have been detected on medical examination prior to his acceptance into the army. Clause (c) read with Rule 7 and 8 of the Entitlement Rules makes the position further clear that for such a disease which is to be accepted as having arisen in service it must also be established that the conditions of military service determined or contributed to the aggravation thereof and that aggravation shall be conceded if casual connection between the disablement and military service is certified by appropriate medical authority. Thus, even in regard to a constitutional disease, if presumption of its having arisen during service is available if medical authority certifies that it bears a casual connection with the military duty then its aggravation by service conditions is to be accepted." 15. In fact the Divisipn Bench in the said decision has noted the opinion of the Medical Board in paragaraph 2 which, can be usefully referred to and which reads as under; (a) Neither attributable to nor aggravated by military service. Condition could be genetic/familial in original; (b) Not connected with service; (c) and same was assessed at 20% for two years. 16. Condition could be genetic/familial in original; (b) Not connected with service; (c) and same was assessed at 20% for two years. 16. After noting the said opinion of the Medical Board the Division Bench has found that the medical opinion failed to comply with the requirement of Regulation 423 (c) and thereby rebuttable presumption was not discharged. Applying the ratio of the above Division Bench decision to the facts of this case and as stated earlier in the case on hand, there was no trace of the said disease at the time of the respondent's induction into the Military service which was the cause for his ultimate discharge on 05-10-1982. The final medical Board's opinion also noted that there was no pasit history of the contact of the said disease by the respondent herein nor was any family history of the said disease. At the risk of repetition, it will have to be stated that the medical opinion did not specifically stated as to how the said disease was noted on medical examination at the time of respondent's invalidation into Military service. 17. Having regard to the above factors, in the absence of acceptable medical opinion duly complying with the Regulation 173 read with Regulation 423 (c) we find no fault in the conclusion of the learned Judge in having directed the appellants to pay disability pension from the date of discharge of the respondent from the Military service. The appeal, therefore, fails and the same is dismissed along with connected application. 18. The appellants are directed to comply with the directions of the learned Single Judge within four weeks from the date of receipt of copy of this order. 19. No costs.