Indian Military Veterans
Dear Veterans,
The attachement consisting RDOA letter and Supreme Court Judgement which emphsizes that when there is no note of any disease recorded in the documents offrs/PBOR at the time comissioning and enrolement, such diseases are deemed to be occured during Service and attributable/aggravated by Mil Service.
I am one of the sufferer when three med boards given aggravated by Service, including the Recat Med Bd(held at MH Sec'bad on 31 May 2006) given 30% Disability But the Release Med Bd which held on 03-2-2007 made it Not Aggravated to Mil Service but at 30% Disability. Strange is that the composition of the Bd Members of Release Med Bd are all
most the same of Recat Med Bd of 31 May 2006. My two appeals were rejected by the Integrated HQ of Min of Def(Army). But after a gap of 7 years I knocked the AFT, Chennai and the verdict is in my favor in Feb this year giving 3 months time for implementation.
Of course I have to yet to get Sanction from Govt of India through AG's Branch PS4/5 unless the G of I appeal to Hon'ble Suprement Court.But I am doubtful that they may not appeal in the Light of Hon'ble Supreme Courts Judgement.Some of you may anxiety to know my disability. It is Primary Hypertension.
Earlier I thought to put my case for the information to applicable veterans who have left hope.
As Brought out by Col Annam Prabhakar Gupta, I am sharing my case in support of his advice that we must go to AFT chennai , if any injustice done.
Jai Jawan Jai Veterans Jai IESM
Regards
Lt col SS Rao Namana(retd)
==========================================================================================
Dated: 10 Oct 2013
To,
Secretary,
Dept of Ex Servicemen Welfare,
South Block, New Delhi.
Controller General of Defence Accounts (CGDA)
PCDA Pensions
Draupadi Ghat,
Allahabad
PAYMENT OF DISABILITY PENSION : NEITHER ATTRIBUTED NOR AGGRAVATED (NANA) BY MILITARY SERVICE
Dear Sir,
1. It is intimated that the Hon’ble Supreme Court vide its Judgment in the case no Civil Appeal 4949 of 2013 arising out of SLP (C) No 2940 of 2010 (Dharamvir Singh vs UOI) upheld the judgment passed by the Single judge dated 20 May 2004. As elaborated in Para 28 and 29 of the said judgment, the court has made it absolutely clear that ‘if a person at the time of entry into service was in sound physical and mental health and no entry of any disability exists in his record; then any disability occurring to the individual would be deemed to have occurred in service and would be attributed to and aggravated to military service’ and therefore such a person would be entitled to disability pension if it is 20 % or more. E-copy of Judgment attached.
2. There are a large number of Officers/JCOs/ORs who have been denied disability pension due to the remark ‘Neither attributed nor aggravated due to Military Service’ endorsed in their release medical board proceedings although such disabilities occurred during their service tenure and they had disability of 20% or more.
3. In view of facts as stated above, it is requested that the cases of such individuals who have proceeded on retirement without getting disability pension should be reviewed and the disability pension on account of ‘NANA’ which has been denied to them should be paid retrospectively.
4. It is not expected of every affected person to approach the ‘Courts’ individually or collectively to seek redressal for admissibility of the said disability pension, once the ratio has been established by the Hon’ble Supreme Court in the instant case. It will only increase the work load of the courts.
5. Retired Defence Officers Association (RDOA) will be constrained to claim interest and relief from the Apex Court in case the disability pension benefit is denied as has happened in the IV CPC Rank Pay Case. It is hoped that action would be taken to give disability pension to the affected ‘Veterans’.
Thanking you,
Lt Col Satwant Singh (Retd)
Secretary
For RDOA
Copy to:
The Director,
Addl Dte Gen Pers Services,
PS 5, AG’s Branch, AHQ,
Room No 419, A Wing, Sena Bhawan
DHQ PO, New Delhi 110011
DDG Veterans Cell,
AG’s Branch AHQ
===========================================================================================
* * * * *
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4949 OF 2013
(arising out of SLP(C)No. 6940 of 2010)
DHARAMVIR SINGH .... APPELLANT
VERSUS
UNION OF INDIA & ORS. ....RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. This appeal has been preferred by the appellant against the judgment
dated 31st July, 2009 in LPA No.26 of 2004 passed by the Division Bench of
the High Court of Himachanl Pradesh, Shimla whereby the Division Bench
allowed the appeal preferred by the Union of India and set aside the
judgment dated 20th May, 2004 passed by the learned Single Judge in Civil
Writ Petition No.660 of 2004.
3. The questions involved in this case are:
(i) Whether a member of Armed Forces can be presumed to have been in
sound physical and mental condition upon entering service in absence
of disabilities or disease noted or recorded at the time of entrance.
(ii) Whether the appellant is entitled for disability pension.
4. The factual matrix of the case is as follows:
The appellant was enrolled as Sepoy in the Corps of Signals of the
Indian Army on 15th June, 1985. Having rendered about 9 years of service in
Indian Army he was boarded out of the service with effect from Ist April,
1994 on the ground of 20% permanent disability as he was found suffering
from "Genrealised seizure (Epilepsy)". The Medical Board of Army opined
that the "disability is not related to military service". On the basis of
disability report, no disability pension was granted to him and when the
appellant preferred representation the respondents rejected such prayer by
an order dated 12th December, 1995 on the ground that the disability
suffered by the appellant was neither attributable to nor aggravated by the
military service.
5. The appellant approached the High Court of Himachal Pradesh in Civil
Writ Petition No.660 of 2004 seeking a direction to respondents to grant
disability pension with effect from 1st April, 1994. Learned Single Judge
by judgment dated 20th May, 2004 on observing that there was nothing on
record to show that the appellant was suffering from any disease at the
time of his initial recruitment in the Indian Army held that the disease
would be deemed to be attributable to or aggravated by the Army services.
Therefore, in terms of Regulation 173 of Pension Regulations for the Army,
1961 the appellant is eligible for disability pension. Learned Single
Judge allowed the writ petition and directed the respondents to grant
disability pension to the appellant as per rules with effect from the date
he was invalidated out of service and to pay the entire arrears of pension
within three months else they shall be liable to pay interest on such
arrears at the rate of 9% per annum.
6. The Union of India challenged the decision of the learned Single
Judge before the Division Bench of the High Court of Himachal Pradesh in
LPA No.26 of 2004. On behalf of the Union of India it was contended that
disease"generalized seizure" was constitutional in nature and the same has
not been found by the Re-Survey Medical Board attributable or aggravated by
military service. It was also contended that the learned Single Judge had
not taken into consideration the relevant law while allowing the petition.
The Division Bench referring to a judgment of this Court in Union of India
and others vs. Keshar Singh, (2007) 12 SCC 675, and Rule 7 as noticed in
the said judgment held as follows and set aside the order passed by the
learned Single Judge:
"The respondent was discharged from the military after being
placed in Low Medical Category (CEE). The Re-survey Medical
Board had opined the disability of the respondent neither
attributable nor aggravated military service. He was found
suffering from 'generalised seizure'. The learned Single Judge
has purportedly referred to paragraph 7(b) of Appendix-IIas
referred to in Regulation 48, 173 and 185 while coming to the
conclusion that the respondent was not suffering from the
disease on account of which he was invalidated out of the
service at the time of his initial recruitment in the Indian
Army. However, the learned Single Judge has omitted to take note
of paragraph 7(c) of Appendix-II as referred to in Regulation
48, 173 and 185 of the Pension Regulations for the Army,
1961(Part-I).
The legal position raised in this Letters Patent Appeal is no
more res integra in view of law laid down by their Lordships of
the Hon'ble Supreme Court in Union of India & Ors. Versus Keshar
Singh, 2007 (4) SLR 100. Their Lordships of the Hon'ble Supreme
Court were also seized of the matter wherein the Medical Board
had given a clear opinion that the illness was not attributable
to military service. In this case also the soldier has developed
schizophrenia. Their Lordships of the Hon'ble Supreme Court have
held as under:
"In support of the appeal learned Additional Solicitor
General submitted that both learned Single Judge and the
Division Bench have lost sight of para 7(c). Both 7(b) and
7(c) have to be read together. They read 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 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.
7(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."
A bare reading of the aforesaid provision makes it clear that
ordinarily if a disease has 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 carvd 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 Rule 7
makes the position clear that if a disease is accepted as having
arisen in service it must also be established that the
condition 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.
In view of the legal position referred to above and the fact
that 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 learned Single Judge and the
Division Bench were not justified in their respective
conclusion. The respondent is not entitled to disability
pension. However, on the facts and circumstances of the case,
payment already made to the respondent by way of disability
pension shall not be recovered from him. The appeal is allowed
but in the circumstances without any order as to costs."
The disease developed by the petitioner i.e. 'generalised
seizore' is constitutional in nature and the Re-survey Medical
Board had specifically opined, as noticed above, that the
disability was neither attributable nor aggravated by the
military service. The opinion of the Re-survey Medical Board has
to be given primacy.
Accordingly, the learned Single Judge has erred in law by
allowing the writ petition only on the basis of plain reading of
paragraph 7(b) of Appendix-IIas referred to in Regulation 48,
173 and 185 of the Pension Regulation for the Army, 1961 (Part-
I). He has omitted to see clauses 7(c) of Appendix-IIof the
Pension Regulations for the Army, 1961 (Pat-I).
Consequently, in view of the observation made hereinabove, the
Letters Patent Appeal is allowed. The judgment of learned Single
Judge is set aside. No costs."
7. Learned counsel for the appellant contended that the Entitlement
Rules for Casualty Pensionary Awards, 1982 have been made effective w.e.f.
Ist January, 1982 and the set of rules is required to be read in
conjunction with the Guide to Medical Officers (Military Pension), 1980.
Referring to Rule 423(c) it was submitted that the cause of 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. 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 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. Reliance was placed on Rules 5,6,9 and 14 to show that the appellant
was entitled to the benefit and the respondents ought to have given the
same in consideration of the said rules. It was further contended that it
will be for the service authorities to make all practical investigation to
establish the alleged fact, calling upon the claimant, if necessary to
assist and to show that the employee was suffering from disability or
disease at the time of appointment and such disease is not attributable to
or aggravated by service.
9. Per contra, according to the respondents, the question is no more res
integra having settled by this Court in Keshar Singh (supra).
10. Learned counsel appearing on behalf of the Union of India submitted
that in each case when disability pension is sought for and claim is made
it must be affirmatively established as a matter of fact as to whether the
disease is due to military service or that it was aggravated by military
service which contributed to invalidation from service. According to him,
in the present case, the Medical Board has clearly opined that the
invalidating disease'left partial motor seizure with secondary
generalisation' is not related to military service. The Medical Board
having examined the appellant and having taken into consideration all
evidence before it once submitted its opinion, it is binding on the
parties. It was contended that the opinion of the Board has been given by
the medical experts approved by a superior Medical Officer, Brigadier.
Unless the primary condition in Regulation 173 is satisfied the appellant
cannot derive advantage. He also placed reliance on Rules 6,8 14(c) and 17
of "Entitlement Rules for Casualty Pensionary Awards, 1982" and referred to
decisions of this Court to suggest that the appellant is not entitled to
disability pension in view of the opinion of the Medical Board comprised of
experts in the field.
11. In the impugned judgment dated 31st July, 2009, the Division Bench of
the High Court placed reliance on Rules 7(a), 7(b) and 7(c) which was
noticed by this Court in Keshar Singh (supra). In Keshar Singh(supra), a
judgment of the Division Bench of the Allahabad High Court granting
disability pension was challenged before this Court. In the said matter
paragraph 7(b) of Appendix-II referred to in Regulations 48, 173 and 185 of
the 'Pension Regulations for the Army, 1961'. In support of the appeal
before this Court in Keshar Singh(supra) learned Additional Solicitor
General contended that the Division Bench of the High Court has lost sight
of Para 7(c) and both the paragraphs 7(b) and 7(c) have to be read
together. The relevant portion of the judgment of this Court in Keshar
Singh (supra) is quoted hereunder:
"2. Background facts giving rise to the present dispute is as
follows:
The respondent was enrolled as Rifleman on 15.11.1976 and
was discharged from Army on 18.10.1986. It was found that he was
suffering from Schizophrenia and the Medical Board's report
indicated his non-suitability for continuance in army. Medical
Board opined that the disability did not exist before entering
service and it was not connected with service. An appeal was
preferred before prescribed appellate authority which was
dismissed on 16.4.1989. Respondent filed a writ petition which
was allowed by learned Single Judge and as noted above by the
impugned judgment the special appeal was dismissed. Both learned
Single Judge and the Division Bench held that it was not
mentioned at the time of entering to army service that the
respondent suffered from Schizophrenia and therefore it was
attributable to army service. Both learned Single Judge and the
Division Bench referred to para 7(b) of the Appendix II referred
to in Regulations 48, 173 and 185 of the Pension Regulations,
1961 to hold that if any disease has led to the individuals
discharge it shall be ordinarily deemed to have arisen in the
service if no note of it was made at the time of individual's
acceptance for military service. Accordingly, it was held that
the respondent was entitled to disability pension.
3. In support of the appeal learned Additional Solicitor General
submitted that both learned Single Judge and the Division Bench
have lost sight of para 7(c). Both 7(b) and 7(c) have to be read
together. They read 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 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.
7(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.""
12. In their counter-affidavit filed by the respondents before this Court
in the present case, it is accepted that old Rules 7(a), (b) and 7(c) of
the erstwhile Rules/Regulations were taken into consideration by this Court
in Keshar Singh (supra) which has since been revised by Rule 14 of revised
'Entitlement Rules for Casualty Pensionary Awards, 1982'. For the said
reason, we are not relying on or referring to Rule 7(b) and 7(c) of the
erstwhile Rules. According to the respondents, Rule 14(a), 14(b), 14(c) and
14(d) of the "Entitlement Rules for Casualty Pensionary Awards to Armed
Forces Personnel, 1982" as amended vide Government of India, Ministry of
Defence letter No.1(1)/81/D(Pen-C) dated 20th June, 1996 needs to be taken
into consideration along with the other provisions of Entitlement Rules,
1982.
13. Per contra, according to the learned counsel for the appellant, the
"Entitlement Rules for Casualty Pensionary Awards, 1982" contained in
Appendix-II of the Pension Regulations for the Army, 1961 is applicable and
not the Rules referred to and quoted in the counter-affidavit by the
respondents.
14. There being difference in the two sets of the Entitlement Rules for
Casualty Pensionary Awards referred to by the counsel for the respondents
and the appellant, on the direction of the Court photostat copy of the
'Pension Regulations for the Army, 1961(Part-I)' along with Appendix (ii),
(referred to in Regulations 1948, 1973 and 1985), 'Guide to Medical
Officers (Military Pensions) 2002' published by the Ministry of Defence,
Government of India, New Delhi has been produced. We also called for the
Pension Regulations for the Army, 1961 from Library which contains Appendix-
II- 'Entitlement Rules for Casualty Pensionary Awards, 1982' for our
perusal, and we find that it is similar to the photostat copy of the
Pension Regulations for the Army, 1961(Part-I) published by the Ministry of
Defence, Government of India, New Delhi. The respondents in their counter-
affidavit has not made clear as to when the Government of India, Ministry
of Defence letter No.1(1)/81/D(Pen-C) dated 20th June, 1996 was notified in
Gazette amending the Rules and why no such amendment has been shown in the
published Entitlement Rules for Casualty Pensionary Awards, 1982. In their
counter-affidavit they have not mentioned that the rules extracted in their
counter-affidavit is true copy of its original.
15. For the said reason, we will rely on the "Pension Regulations for the
Army, 1961" and Appendix-II- 'Entitlement Rules for Casualty Pensionary
Awards, 1982' published by the Government of India, we will also discuss
the Rules 14(a), 14(b), 14 (c) and 14(d) as quoted and relied on by the
respondents.
16. Regulation 173 of Pension Regulations for the Army, 1961 relates to
the primary conditions for the grant of disability pension and reads as
follows:
"Regulation 173. Unless otherwise specifically provided a
disability pension consisting of service element and disability
element may be granted to an individual who is invalidated out
of service on account of a disability which is attributable to
or aggravated by military service in non-battle casualty and is
assessed 20 per cent or over
The question whether a disability is attributable to or
aggravated by military service shall be determined under the
rule in Appendix II."
17. From a bare perusal of the Regulation aforesaid, it is clear that
disability pension in normal course is to be granted to an individual (i)
who is invalidated out of service on account of a disability which is
attributable to or aggravated by military service and (ii) who is assessed
at 20% or over disability unless otherwise it is specifically provided.
18. A disability is 'attributable to or aggravated by military service'
to be determined under the "Entitlement Rules for Casualty Pensionary
Awards, 1982', as shown in Appendix-II. Rule 5 relates to approach to the
Entitlement Rules for Casualty Pensionary Awards, 1982 based on presumption
as shown hereunder:
"Rule5 . The approach to the question of entitlement to
casualty pensionary awards and evaluation of disabilities
shall be based on the following presumptions:
PRIOR TO AND DURING SERVICE
a) member is presumed to have been in sound physical and mental condition
upon entering except as to physical disabilities noted or recorded at
the time of entrance.
b) In the event of his subsequently being discharged from service on
medical grounds any deterioration in his health which has taken place
is due to service."
From Rule 5 we find that a general presumption is to be drawn that a
member is presumed to have been in sound physical and mental condition upon
entering service except as to physical disabilities noted or recorded at
the time of entrance. If a person is discharged from service on medical
ground for deterioration in his health it is to be presumed that the
deterioration in the health has taken place due to service.
19. "Onus of proof" is not on claimant as apparent from Rule 9, which
reads as follows:
"Rule 9. ONUS OF PROOF- The claimant shall not be called
upon to prove the conditions of entitlements. He/she will
receive the benefit of any reasonable doubt. This benefit
will be given more liberally to the claimants in
field/afloat service cases."
From a bare perusal of Rule 9 it is clear that a member, who is
declared disabled from service, is not required to prove his entitlement of
pension and such pensionary benefits to be given more liberally to the
claimants.
20. With respect to disability due to diseases Rule 14 shall be
applicable which as per the Government of India publication reads as
follows:
"Rule 14. DISEASE- In respect of diseases, the following rule
will be observed:-
(a)Cases in which it is established that conditions of
Military Service did not determine or contribute to the
onset of the disease but influenced the subsequent courses
of the disease will fall for acceptance on the basis of
aggravation.
(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."
As per clause (b) of Rule 14 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.
As per clause(c) of Rule 14 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.
21. If we notice Rule 14(a), 14(b), 14(c) and 14(d) as quoted by the
respondents in their counter-affidavit, it makes no much difference for
determination of issue. According to the respondents, Rule 14(a), 14(b),
14(c) and 14(d) as amended vide Government of India, Ministry of Defence
letter No.1(1)/81/D(Pen-C) dated 20th June, 1996 reads as follows:
"Rule 14(a)- For acceptance of a disease as attributable to
military service, the following two conditions must be satisfied
simultaneously:
i) That the disease has arisen during the period of military service, and
ii) That the disease has been caused by the conditions of employment in
military service.
Rule 14(b)- If medical authority holds, for reasons to be
stated, that the disease although present at the time of
enrolment could not have been detected on medical examination
prior to acceptance for service, the disease, will not be deemed
to have arisen during service. In case where it is established
that the military service did not contribute to the onset or
adversely affect the course disease, entitlement for casualty
pensionary award will not be conceded even if the disease has
arisen during service.
Rule 14(c)- Cases in which it is established that conditions of
military service did not determine or contribute to the onset of
the disease but, influenced the subsequent course of the
disease, will fall for acceptance on the basis of aggravation.
Rule 14(d)- In case of congenital, hereditary, degenerative and
constitutional diseases which are detected after the individual
has joined service, entitlement to disability pension shall not
be conceded unless it is clearly established that the course of
such disease was adversely affected due to factors related to
conditions of military services."
22. As per Rule 14(a) we notice that for acceptance of a disease as
attributable to military service, conditions are to be satisfied that the
disease has been arisen during the military service, and caused by the
conditions of employment in military service which is similar to Rule 14(c)
of the printed version as relied on by the appellant. Rule 14(b) cited by
the respondents is also similar to published Rule 14.
Rule 14(c) cited by the respondents relates to the cases in which it
is established that conditions of military service did not determine or
contribute to the onset of the disease but, influenced the subsequent
course of the disease, will fall for acceptance on the basis of
aggravation.
Rule 14(d) cited by the respondents relates to diseases which are
detected after the individual has joined the service, which entails
disability pension but it is to be established that the course of such
disease was adversely affected due to factors related to conditions of
military service.
23. If the amended version of Rule 14 as cited by the respondents is
accepted to be the Rule applicable in the present case, even then the onus
of proof shall lie on the employer-respondents in terms of Rule 9 and not
the claimant and in case of any reasonable doubt the benefit will go more
liberally to the claimants.
24. The Rules to be followed by Medical Board in disposal of special cases have been shown under Chapter VIII of the” General Rules of Guide to
Medical Officers (Military Pensions) 2002. Rule 423 deals with
"Attributability to service" relevant of which reads as follows:
"423(a)For the purpose of determining 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. 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/her
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 tobe 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.
(d).The question, whether a disability or death resulting from
disease 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 Officers,in so
far as it relates to the actual cause of the disability or death
and the circumstances in which it originated will be regarded as
final. The question whether the cause and the attendant
circumstances can be accepted as attributable to/aggravated by
service for the purpose of pensionary benefits will, however, be
decided by the pension sanctioning authority."
25. Therefore, as per Rule 423 following procedures to be followed by the
Medical Board:
(i) Evidence both direct and circumstantial to be taken into account
by the Board and benefit of reasonable doubt, if any would go to the
individual;
(ii) a disease which has led to an individual's discharge or death
will ordinarily be treated to have been arisen in service, if no note
of it was made at the time of individual's acceptance for service in
Armed Forces.
(iii) If the medical opinion holds that the disease could not have
been detected on medical examination prior to acceptance for service
and the disease will not be deemed to have been arisen during military
service the Board is required to state the reason for the same.
26. 'Chapter II' of the Guide to Medical Officers (Military Pensions) 2002
relates to "Entitlement : General Principles". In the opening paragraph 1,
it is made clear that the Medical Board should examine cases in the light
of the etiology of the particular disease and after considering all the
relevant particulars of a case, record their conclusions with reasons in
support, in clear terms and in a language which the Pension Sanctioning
Authority would be able to appreciate fully in determining the question of
entitlement according to the rules. Medical officers should comment on the
evidence both for and against the concession of entitlement; the aforesaid
paragraph reads as follows:
"1. Although the certificate of a properly constituted medical
authority vis-Ã -vis the invaliding disability, or death, forms
the basis of compensation payable by the government, the
decision to admit or refuse entitlement is not solely a matter
which can be determined finally by the medical authorities
alone. It may require also the consideration of other
circumstances e.g. service conditions, pre-and post-service
history, verification of wound or injury, corroboration of
statements, collecting and weighing the value of evidence, and
in some instances, matters of military law and discipline.
Accordingly, Medical Boards should examine cases in the light of
the etiology of the particular disease and after considering all
the relevant particulars of a case, record their conclusions
with reasons in support, in clear terms and in a language which
the Pension Sanctioning Authority, a lay body, would be able to
appreciate fully in determining the question of entitlement
according to the rules. In expressing their opinion Medical
Officers should comment on the evidence both for and against the
concession of entitlement. In this connection, it is as well to
remember that a bare medical opinion without reasons in support
will be of no value to the Pension Sanctioning Authority."
Paragraph 6 suggests the procedure to be followed by service
authorities if there is no note, or adequate note, in the service records
on which the claim is based.
Paragraph 7 talks of evidentiary value attached to the record of a
member's condition at the commencement of service, .e.g. pre-enrolment
history of an injury, or disease like epilepsy, mental disorder etc.
Further, guidelines have been laid down at paragraphs 8 and 9, as quoted
below:
7. Evidentiary value is attached to the record of a member's
condition at the commencement of service, and such record has,
therefore, to be accepted unless any different conclusion has
been reached due to the inaccuracy of the record in a particular
case or otherwise. Accordingly, if the disease leading to
member's invalidation out of service or death while in service,
was not noted in a medical report at the commencement of
service, the inference would be that the disease arose during
the period of member's military service. It may be that the
inaccuracy or incompleteness of service record on entry in
service was due to a non-disclosure of the essential facts by
the member, e.g., pre-enrolment history of an injury or disease
like epilepsy, mental disorder etc. It may also be that owing to
latency or obscurity of the symptoms, a disability escaped
detection on enrolment. Such lack of recognition may affect the
medical categorization of the member on enrolment and/or cause
him to perform duties harmful to his condition. Again, there may
occasionally be direct evidence of the contraction of a
disability, otherwise than by service. In all such cases, though
the disease cannot be considered to have been caused by service,
the question of aggravation by subsequent service conditions
will need examination.
The following are some of the diseases which ordinarily
escape detection on enrolment:-
(a)Certain congenital abnormalities which are latent and
only discoverable on full investigations, e.g. CONGENITAL
DEFECT OF SPINE, SPINA BIFIDA, SACRALIZATION,
(b)Certain familial and hereditary diseases, e.g.,
HAEMOPHILIA, CONGENTIAL SYPHILIS, HAEMOGIOBINOPATHY.
(C)Certain diseases of the heart and blood vessels, e.g.,
CORONORY ATHEROSCLEROSIS, RHEUMATIC FEVER.
(d)Diseases which may be undetectable by physical
examination on enrolment, unless adequate history is given
at the time by the member, e.g., GASTRIC AND DUODENAL
ULCERS, EPILEPSY, MENTAL DISORDERS, HIV INFECTIONS.
(e) Relapsing forms of mental disorders which have
intervals of normality.
(f) Diseases which have periodic attacks e.g., BRONCHIAL
ASTHMA, EPILEPSY, CSOM ETC.
8. The question whether the invalidation or death of a member
has resulted from service conditions, has to be judged in the
light of the record of the member's condition on enrolment as
noted in service documents and of all other available evidence
both direct and indirect.
In addition to any documentary evidence relative to the
member's condition to entering the service and during service,
the member must carefully and closely questioned on the
circumstances which led to the advent of his disease, the
duration, the family history, his pre-service history, etc. so
that all evidence in support or against the claim is elucidated.
Presidents of Medical Boards should make this their personal
responsibility and ensure that opinions on attributability,
aggravation or otherwise are supported by cogent reasons; the
approving authority should also be satisfied that this question
has been death with in such a way as to leave no reasonable
doubt.
9. On the question whether any persisting deterioration has
occurred, it is to be remembered that invalidation from service
does not necessarily imply that the member's health has
deteriorated during service. The disability may have been
discovered soon after joining and the member discharged in his
own interest in order to prevent deterioration. In such cases,
there may even have been a temporary worsening during service,
but if the treatment given before discharge was on grounds of
expediency to prevent a recurrence, no lasting damage was
inflicted by service and there would be no ground for admitting
entitlement. Again a member may have been invalided from service
because he is found so weak mentally that it is impossible to
make him an efficient soldier. This would not mean that his
condition has worsened during service, but only that it is worse
than was realized on enrolment in the army. To sum up, in each
case the question whether any persisting deterioration on the
available evidence which will vary according to the type of the
disability, the consensus of medical opinion relating to the
particular condition and the clinical history."
27. Learned counsel for the respondent-Union of India relied on decisions
of this Court in Om Prakash Singh vs. Union of India and others,(2010) 12
SCC 667;(2009) 9 SCC 140; (2010) 11 SCC 220, etc. and submitted that this
Court has already considered the effect of Rule 5, 14a and 14(a) and 14(b)
and held that the same cannot be read in isolation. After perusal of the
aforesaid decision we find that Rule 14(a), 14(b) and 14(c) as noticed and
quoted therein are similar to Rule 14 as published by the Government of
India and not Rule 14 as quoted by the respondents in their counter-
affidavit. Further, we find that the question as raised in the present case
that in case no note of disease or disability was made at the time of
individual's acceptance for military service, the Medical Board is required
to give reasons in writing for coming to the finding that the disease could
not have been detected on a medical examination prior to the acceptance for
service was neither raised nor answered by this Court in those cases. Those
were the cases which were decided on the facts of the individual case based
on the opinion of the Medical Board.
28. A conjoint reading of various provisions, reproduced above, makes it
clear that:
(i) Disability pension to be granted to an individual who is
invalidated from service on account of a disability which is
attributable to or aggravated by military service in non-battle
casualty and is assessed at 20% or over. The question whether a
disability is attributable or aggravated by military service to be
determined under "Entitlement Rules for Casualty Pensionary Awards,
1982" of Appendix-II (Regulation 173).
(ii) A member is to be presumed in sound physical and mental
condition upon entering service if there is no note or record at the
time of entrance. In the event of his subsequently being discharged
from service on medical grounds any deterioration in his health is to
be presumed due to service. [Rule 5 r/w Rule 14(b)].
(iii) Onus of proof is not on the claimant (employee), the corollary
is that onus of proof that the condition for non-entitlement is with
the employer. A claimant has a right to derive benefit of any
reasonable doubt and is entitled for pensionary benefit more
liberally. (Rule 9).
(iv) If a disease is accepted to have been 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. [Rule 14(c)].
(v) If no note of any disability or disease was made at the time of
individual's acceptance for military service, a disease which has led
to an individual's discharge or death will be deemed to have arisen
in service. [14(b)].
(vi) If medical opinion holds that the disease could not have been
detected on medical examination prior to the acceptance for service
and that disease will not be deemed to have arisen during service, the
Medical Board is required to state the reasons. [14(b)]; and
(vii) It is mandatory for the Medical Board to follow the guidelines
laid down in Chapter-II of the "Guide to Medical (Military Pension),
2002 - "Entitledment : General Principles", including paragraph 7,8
and 9 as referred to above.
29. We, accordingly, answer both the questions in affirmative in favour
of the appellant and against the respondents.
30. In the present case it is undisputed that no note of any disease has
been recorded at the time of appellant's acceptance for military service.
The respondents have failed to bring on record any document to suggest that
the appellant was under treatment for such a disease or by hereditary he is
suffering from such disease. In absence of any note in the service record
at the time of acceptance of joining of appellant it was incumbent on the
part of the Medical Board to call for records and look into the same before
coming to an opinion that the disease could not have been detected on
medical examination prior to the acceptance for military service, but
nothing is on the record to suggest that any such record was called for by
the Medical Board or looked into it and no reasons have been recorded in
writing to come to the conclusion that the disability is not due to
military service. In fact, non-application of mind of Medical Board is
apparent from Clause (d) of paragraph 2 of the opinion of the Medical
Board, which is as follows:
____________________________________________________
" (d) In the case of a disability under C the board should state
what exactly in their opinion is the cause thereof.
YES
Disability is not related to mil service"
________________________________________________________
31. Paragraph 1 of 'Chapter II' - "Entitlement : General Principles"
specifically stipulates that certificate of a constituted medical authority
vis-`-vis invalidating disability, or death, forms the basis of
compensation payable by the Government, the decision to admit or refuse
entitlement is not solely a matter which can be determined finally by the
medical authorities alone. It may require also the consideration of other
circumstances e.g. service conditions, pre-and post-service history,
verification of wound or injury, corroboration of statements, collecting
and weighing the value of evidence, and in some instances, matters of
military law and dispute. For the said reasons the Medical Board was
required to examine the cases in the light of etiology of the particular
disease and after considering all the relevant particulars of a case, it
was required to record its conclusion with reasons in support, in clear
terms and language which the Pension Sanctioning Authority would be able to
appreciate.
32. In spite of the aforesaid provisions, the Pension Sanctioning
Authority failed to notice that the Medical Board had not given any reason
in support of its opinion, particularly when there is no note of such
disease or disability available in the service record of the appellant at
the time of acceptance for military service. Without going through the
aforesaid facts the Pension Sanctioning Authority mechanically passed the
impugned order of rejection based on the report of the Medical Board. As
per Rules 5 and 9 of 'Entitlement Rules for Casualty Pensionary Awards,
1982', the appellant is entitled for presumption and benefit of presumption
in his favour. In absence of any evidence on record to show that the
appellant was suffering from "Genrealised seizure (Epilepsy)" at the time
of acceptance of his service, it will be presumed that the appellant was in
sound physical and mental condition at the time of entering the service and
deterioration in his health has taken place due to service.
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.
34. In view of the finding as recorded above, we have no option but to
set aside the impugned order passed by the Division Bench dated 31st July,
2009 in LPA No.26 of 2004 and uphold the decision of the learned Single
Judge dated 20th May, 2004. The impugned order is set aside and accordingly
the appeal is allowed. The respondents are directed to pay the appellant
the benefit in terms of the order passed by the learned Single Judge in
accordance with law within three months if not yet paid, else they shall be
liable to pay interest as per order passed by the learned Single Judge. No
costs.
..................................................................J.
(A.K. PATNAIK)
...............................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 2, 2013.
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(SOURCE- VIA E-MAIL)
SIR WHAT IS THE REPLY FROM
ReplyDeleteSecretary,
Dept of Ex Servicemen Welfare,
South Block, New Delhi.
Controller General of Defence Accounts (CGDA)
PCDA Pensions
Draupadi Ghat,
Allahabad
OF THIS LATTER BY RDOA CAN YOU TELL ME I AM ALSO A NANA CASE PERSON. SIR PLEASE HELP. SIR WHAT TO DO FOR OUR RIGHTS OF DISABILITY PENSION.