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2014 DIGILAW 555 (CAL)

Subhashis Ghosh v. Union of India

2014-06-26

NISHITA MHATRE, TAPASH MOOKHERJEE

body2014
JUDGMENT Nishita Mhatre, J.: 1. Aggrieved by the judgment and order of the Armed Forces Tribunal, Regional Bench, Kolkata, in O.A. No.5 of 2012 the petitioner has approached this Court under Article 226 of the Constitution of India. 2. The brief facts pertaining to the present petition are as follows: The petitioner was enrolled with the Indian Air Force on 18th December, 1998. He was referred for psychiatric evaluation in May, 2002. He was prescribed certain medications and while on remission he was retained in the low medical category with maintenance medication. The petitioner’s health was reviewed in January, 2003, April, 2005 and July, 2007, when he was prescribed medication as it was found that he suffered from depression. In February, 2008 when he had a relapse, he was produced before the Invalidment Medical Board which met on 3rd June, 2008 and diagnosed that the petitioner had suffered from “Recurrent Depressive Disorder”. It was found that the petitioner suffered from 30 per cent disablement for life. He was terminated from service on being invalidated on medical grounds, after completing 9 years and 281 days in service. The petitioner applied for Disability Pension, which was refused by the Air Force on 7th November, 2008. He preferred the First Appeal on 24th February, 2009 which was also rejected. The Second Appeal submitted by the petitioner to the Ministry of Defence was also dismissed on 26th April, 2010. 3. Being aggrieved by those orders, the petitioner preferred an application before the Armed Forces Tribunal for redressal of his grievance. The petitioner pleaded in his application that the endorsement in para 5 of the Invalidment Medical Board which indicated that his illness was neither attributable nor aggravated by the service with the Air Force was cryptic. According to the petitioner, the denial of Disability Pension to him was contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The respondents opposed the application filed by the petitioner before the Tribunal by contending that as his illness was not attributable or aggravated by service with the Air Force, he was not entitled to the Disability Pension. The Tribunal by its impugned order has dismissed the application on the ground that it could not sit in appeal over the decision of the Medical Board. 4. Mr. The Tribunal by its impugned order has dismissed the application on the ground that it could not sit in appeal over the decision of the Medical Board. 4. Mr. Phatick Chandra Das, learned Counsel appearing for the petitioner, submitted that the Medical Board had considered the petitioner’s case cursorily and without following the rules and regulations applicable for payment of disability pension. According to him, the Medical Board was bound to consider the Entitlement Rules before pension was refused to the petitioner. He relied on a judgment of the Supreme Court in the case of Dharamvir Singh v. Union of India & Ors. reported in (2013) 7 SCC 316 in support of his contention that since the petitioner was hail and hearty and found medically fit when he joined service in the Air Force in the year 1998, it is obvious that any medical problem which arose after the petitioner joined service would be attributable or aggravated by service with the Air Force. 5. Mr. Bhaskar Prosad Banerjee, the learned Counsel for the respondents, fairly pointed out the judgment of the Supreme Court in the case of Veer Pal Singh v. Secretary, Ministry of Defence reported in (2013) 8 SCC 83 . He submitted that since the Medical Board had directed that no pension was payable to the petitioner, considering the fact that his illness was not attributable or aggravated due to service with the Air Force, the Tribunal had justifiably refused relief to the petitioner. 6. The entitlement to Disability Pension is stipulated under Regulation 153 of the Pension Regulation for the Air Force. This Regulation reads as follows: “153. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by air force service and is assessed at 20 per cent or more. The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II.” 7. The Entitlement Rules which are referred to in Regulation 153 are found in Appendix II to the aforesaid Regulations. The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II.” 7. The Entitlement Rules which are referred to in Regulation 153 are found in Appendix II to the aforesaid Regulations. Rule 7(b) of these Rules provides as follows: “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 air force 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. ” 8. In the records of the proceedings of the Medical Board which are annexed to this petition, we do not find that the Medical Board has considered the aforesaid Entitlement Rules. All that the report shows that the petitioner suffered from Recurrent Depressive Disorder from 21st May, 2002. The Board recommended the invalidation out of service of the petitioner due to low medical category. The Board’s order does not reflect that it has considered the provisions of Appendix II to the Regulation. It only indicates that due to the Recurrent Depressive Disorder the petitioner has suffered a disablement of 30 per cent for his life. In the case of Dharamvir (supra), the Supreme Court has observed that the question whether the invalidation or death of a member of Armed Forces resulted due to the service has to be judged in the light of the record of the employee’s health at the time of enrolment as noted in the documents pertaining to his service. The Supreme Court in Dharamvir’s case (supra) has held that a disease which has led to an individual’s discharge or death will ordinarily be treated to have arisen in service, if no note of it was made at the time of individual’s acceptance for service in the Armed Forces. The onus lies on the Force to prove otherwise. The Medical Board is duty bound to call for records and look into the same before forming an opinion that the disease could not have been detected on medical examination prior to acceptance for military service. The onus lies on the Force to prove otherwise. The Medical Board is duty bound to call for records and look into the same before forming an opinion that the disease could not have been detected on medical examination prior to acceptance for military service. In the present case the Pension Sanctioning Authority has accepted the report of the Medical Board and has refused pension. The claim of the petitioner was rejected by order dated 7th November, 2008 which also does not disclose that the Entitlement Rules were ever considered before denying him the Disability Pension. 9. In the present case, the records of the proceedings of the Medical Board do not reflect that it had, in fact, appraised the state of the health of the petitioner when he joined service, nor is there any consideration of the Entitlement Rules, 7(b) and the other Rules relating to payment of Disability Pension. Even the Pension Disbursing Authority, the first Appellate Authority, and the Second Appellate Authority did not care to consider all aspects of the matter before denying pension to the petitioner. There is no dispute that the petitioner does suffer from a disability for life which has been calculated at 30 per cent. 10. In the case of Veer Pal Singh (supra) the Supreme Court was of the view that the Tribunal ought to have considered the contents of the certificate issued by the Invalidated Medical Board instead of mechanically observing that it could not sit in appeal over the opinion of the Medical Board. The Supreme Court then referred the matter to Review Medical Board for reassessing the medical condition of the appellant in order to ascertain whether he was suffering from a disease which made him unfit to continue in service and whether he was entitled to Disability Pension. 11. Having considered record before us, in our opinion, it would be in the fitness of things to direct the respondents to reconsider and reassess the petitioner’s case by a Review Medical Board. The Board while assessing the petitioner’s case for disability will consider the medical condition of the petitioner when he joined service, the Entitlement Rules as framed in Appendix II to the Pension Regulations for the Air Force and decide whether the petitioner is entitled to Disability Pension. 12. This reconsideration should be carried out within 8 weeks from today. The Board while assessing the petitioner’s case for disability will consider the medical condition of the petitioner when he joined service, the Entitlement Rules as framed in Appendix II to the Pension Regulations for the Air Force and decide whether the petitioner is entitled to Disability Pension. 12. This reconsideration should be carried out within 8 weeks from today. The respondents will then on receipt of the report from the Medical Board decide regarding payment of Disability Pension in accordance with law. 13. The impugned order passed by the Armed Forces Tribunal on 09.12.2013 is quashed and set aside. 14. Petition is allowed accordingly.