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2025 DIGILAW 1348 (KER)

Union of India v. EX -701477 H WO RAJEEVAN NAIR V

2025-05-22

AMIT RAWAL, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. This writ petition is filed under Article 226 of the Constitution of India by the respondents in O.A.No.154 of 2020 before the Armed Forces Tribunal, Regional Bench, Kochi (‘the Tribunal’ for short), challenging the order dated 13.02.2023 passed by the Tribunal, whereby the Tribunal allowed the claim set up by the respondent for disability pension, by rounding it off to 50% for life. 2. The facts in brief which led to the filing of this writ petition are as follows: The respondent was recruited in the Indian Air Force on 26.11.1985 and was discharged on 30.11.2017, being assessed with the disability of 30% for life due to ‘Primary Hypertension’ by the Release Medical Board. Being aggrieved by the non-granting of disability pension, he approached the Tribunal by filing the original application invoking the jurisdiction under Section 14 of the Armed Forces Tribunal Act, 2007. 3. Though, before the Tribunal, the writ petitioners/respondents raised various contentions to justify the denial of the disability pension on the ground that the disability ‘Primary Hypertension’ was neither attributable to nor aggravated by service in Armed Force and the respondent is having a family history of hypertension, the Tribunal after a detailed analysis of the contentions of both sides, by relying on the relevant provisions and regulations binding the field and also the judgments of the Apex Court ruled in favour of the respondent. 4. Heard Sri.Kiran M.S, the learned Central Government Counsel (CGC) for the petitioners and Sri.Ratheesh B, the learned counsel for the respondent. 5. The learned CGC submitted that the Department was justified in rejecting the claim of the disability pension raised by the respondent on the basis of the report of the Release Medical Board which is a final authority and the findings cannot be tinkered in a judicial proceedings, as it is in the domain of the Medical Expert. The Court cannot assume the role of an expert and sit in the armchair of an Appellate Authority to differ with the same. Therefore, the order of the Tribunal is liable to be reversed. 6. The Court cannot assume the role of an expert and sit in the armchair of an Appellate Authority to differ with the same. Therefore, the order of the Tribunal is liable to be reversed. 6. On the other hand the learned counsel for the respondent/applicant supported the order of the Tribunal by relying on the judgments of the Apex Court in Dharamvir Singh v. Union of India and Others [ (2013) 7 SCC 316 ], Sukhvinder Singh v. Union of India & Ors [(2014) 14 SCC 364] and Union of India and another v. Rajbir Singh [(2015) 12 SCC 264] . The learned counsel submitted that the authorities concerned were not justified in rejecting the claim of the respondent for disability pension by ignoring the applicability of the aforementioned judgments and the Regulations for Medical Services, 1983, relied on by the Tribunal. 7. It is worth to extract Regulations 423(a) and (c) of Chapter VIII of Regulations for Medical Services 1983 to appreciate the findings of fact and law arrived at by the Tribunal. The said Regulations read thus: “(a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is Immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a Field Service/Active Service area or under normal peace conditions. It is however, essential to establish whether the disability or death bore a casual connection with the service conditions. All evidence both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt, for the purpose of these instructions, should be of a degree of cogency, which though not reaching certainty, nevertheless carries a high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible but not in the least probable" the case is proved beyond reasonable doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible but not in the least probable" the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of the doubt could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas. (c) 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 Armed 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". 8. In Dharamvir Singh [ (2013) 7 SCC 316 ] , wherein a similar controversy arose, it was held by the Apex Court that a member of Armed Forces is presumed to be in sound physical and mental condition upon entering service, if there is no note or entry to the contrary in his records. In the event, he is subsequently discharged from service on medical grounds, the onus of proof that the deterioration in his health was not due to service conditions lies on the employer. At paragraph 33 of the said judgment the Apex Court held thus: “33. In the event, he is subsequently discharged from service on medical grounds, the onus of proof that the deterioration in his health was not due to service conditions lies on the employer. At paragraph 33 of the said judgment the Apex Court held thus: “33. As per Rule 423(a) of General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. “Classification of diseases” have been prescribed at Chapter IV of Annexure I; under paragraph 4 post traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing etc. Therefore, the presumption would be that the disability of the appellant bore a casual connection with the service conditions.” This view is reiterated in Rajbir Singh [ (2015) 12 SCC 264 ] wherein it was further held that provision for payment for disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with disability at times even before they completed their tenure in the Armed Forces. 9. It is trite that the opinion of the Medical Board, if found erroneous due to non-appreciation of facts and circumstances, the court exercising power of judicial review under Article 226 of the Constitution of India can very well interfere with the same and correct the error. In Veer Pal Singh v. Secretary, Ministry of Defence [ (2013) 8 SCC 83 ] the Apex Court held that although, the Courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. What needs to be emphasized is that the opinion of the experts deserves respect and not worship and the Courts and other judicial / quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release / discharge from the Army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable. 10. 10. The rounding off is also not a matter res integra in view of the ratio culled out in Sukhvinder Singh [(2014) 14 SCC 364] , wherein it has been stated that wherever a member of Armed Force is invalided out of the service, it has to be assumed that his disability was found to be above 20%. Admittedly, the Government itself had come out with a notification dated 31.01.2001 prescribing that any disability below 20% shall be liable to be reckoned as 50% for the purpose of granting the benefit of rounding off. Paragraph 7.2 in the said notification is extracted herein below for clarity: “7.2 Where an Armed Forces Personnel is invalided out under circumstances mentioned in Para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element: Percentage of disability as assessed by invaliding medical board Percentage to be reckoned for computing of disability element Less than 50 50 Between 50 and 75 75 Between 76 and 100 100” 11. Admittedly, the respondent had more than 32 years of service in the Indian Air Force. There is no record with the petitioners to say that at the time of entering the service on 26.11.1985 the respondent had any disability or illness. It was after a long period of service, he was diagnosed with ‘Primary Hypertension’ and the Release Medical Board assessed it as 30%. In the light of the judgments referred to supra, we are of the view that the Tribunal has correctly analysed the claim of the respondent and reached to the right conclusion. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no sufficient circumstances to interfere with the findings of fact and law arrived at by the Tribunal by exercising the power of judicial review under Article 226 of the Constitution of India. Accordingly, the writ petition stands dismissed.