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CASE NO.: Appeal (civil)  1646 of 1999

PETITIONER: Controller of Defence Accounts(Pension) and Ors.                                 

RESPONDENT: S. Balachandran Nair                                             

DATE OF JUDGMENT: 21/10/2005

BENCH: ARIJIT PASAYAT & Dr. AR LAKSHMANAN

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Challenge in this appeal is to the judgment rendered by  a Division Bench of the Kerala High Court holding that the  respondent was entitled to disability pension.

       Factual background is essentially as follows:

       Respondent joined the Indian Army on 7.2.1972 in the  Signal Corps. He was selected to the regular Army through  the selection process prescribed by the Army authorities and  had undergone a thorough medical examination. Thereafter, he  had undergone military training at 3 M.T.R. Goa for a period  of two years. After completion of training he was posted in  the Signal Company at Jabalpur for a period of three years.  Thereafter, he was posted to the border area in Punjab.  However, he was not involved in actual combat operations or  in combat area.  He was working in the office of Radio  machine. He developed certain medical problems and was  admitted in the Command Hospital at Chandigarh on 10.8.1977.  He was not completely cured and had some kidney  complications and the medical authorities found his illness  as ’anxiety neurosis’. He was again admitted in the  Chandigarh Military Hospital in December 1979 and after  prolonged treatment was boarded out and the medical  authorities were of the opinion that he became unfit for  continuing in service and was put under the category of  ’EEE’ meaning ’unfit and useless’ with effect from 18.3.1980  and was finally discharged from service.  

       Respondent made an application for disability pension.  Same was rejected by the authorities on the ground that the  disability of the respondent was not attributable to  military service. It was also stated that there was no proof  that the disability had existed before or developed during  military service and/or had aggravated thereby and military  disability pension was accordingly denied. As his various  representations did not bring any positive result he filed  writ petition before the Kerala High Court. A learned Single  Judge held that the respondent had been working in sensitive  and turbulent areas and this must have aggravated his  disease and the stress and stains of military service were  the sole cause of his illness and it was clearly  attributable to the stress and strain of military service.

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The present appellants were therefore, directed to disburse  disability pension.  

       Challenging the order passed by learned Single Judge, a  Writ Appeal was filed before the Kerala High Court. The  Division Bench by the impugned judgment dismissed the Writ  Appeal.

       The stand of the appellants before the High Court was  that the writ petition was filed belatedly and on account of  laches alone the writ petition should have been dismissed.  The request for disability pension was rejected in 1980 and  he was told that he could file an appeal within a period of  six months. The appeal was disposed of much before filing of  the writ petition.  In addition, it was submitted that the  Medical Board itself has found that the illness suffered by  the respondent cannot be attributed to military service and  when an expert body like the Medical Board gave the opinion  the authorities were in fact bound by such decision and the  learned Single Judge was not justified in his view. The  Division Bench dismissed the appeal on the ground that no  psychic disability was noticed when the respondent joined  the military service. The fact that the illness occurred  while he was in the border area clearly established that the  ailment was attributable to military service.  The fact that  the respondent was working in the border area must have  caused some stress and strain and, therefore, learned Single  Judge was right in his conclusions.  

       Learned counsel for the appellants submitted that  Regulations for the Medical Service of Armed Forces, 1983  (in short the ’Regulations’) provide the ailments which are  attributable to such service. Specific reference is made to  Regulation 423. Further, the view of an expert body like the  Medical Board should not have been lightly brushed aside by  the High Court. On medical check up, the opinions recorded  in the Medical Board Proceedings are as follows:

       "Part I \026 Personal Statement         Anxiety Neurosis 300 (a) (V 67)         Part II \026 Statement of case         Anxiety Neurosis 300(a) (V 67)         Opinion of Lt. Col. B.N. Majumdar, AMC  classified Specialist (Psychiatry) Command  Hospital (C) Chandigarh dated 11.2.1980.         A case of Anxiety Neurosis in a young  sepoy whose response to therapy is poor and  he shows no desire nor makes any efforts to  overcome his disability. He is unlikely to  benefit by further therapy and make a fit and  stable soldier in future. He is therefore  considered unfit for further military service  and is recommended medical category REE  (Psychological)".  

Confidential         "A constitutional disease in nature  unconnected with service condition."

                  Reference was also made to Pension Regulations for the  Army (in short the ’Pension Regulations’).  Rule 173 of such  Regulations read as follows:

Primary conditions for the grant of

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disability pension:

"173. Unless otherwise specifically provided  a disability pension may be granted to an  individual who is invalided from service on  account of a disability which is attributable  to or aggravated by military service and is  assessed at 20 percent or above.         The question whether a disability is  attributable to or aggravated by military  service shall be determined under rule in  Appendix II.         Relevant portion in Appendix II reads as  follows: "2. Disablement or death shall be accepted  as due to military service provided it is  certified that \026  (a)     The disablement is due to wound, injury  or disease which \026  (i)     is attributable to military  service; or (ii) existed before or arose during  military service and has been and  remains aggravated thereby;      (b) the death was due to or hastened by-

(i)  a wound, injury or disease which  was attributable to military  service, or (ii) the aggravation by military service  of a wound, injury or disease which  existed before or arose during  military service. Note: The Rule also covers cases of death  after discharge/invaliding from service.

3.      There must be a casual connection  between disablement or death and military  service for attributability or aggravation to  be conceded.

4.      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."  

       Learned counsel for the respondent on the other hand  submitted that the learned Single Judge and the Division  Bench have clearly taken note of the ground realities that  in view of the fact that the respondent was posted at  sensitive border area, his illness is clearly attributable  to military service.  

       In order to appreciate rival submissions Regulation 423  needs to be extracted. The same reads as follows:

"423. Attributability to Service:  

(a)     For the purpose of determining whether

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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 carry  the 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 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 doubt could be given more  liberally to the individual, in cases  occurring in Field Service/Active  Service areas.  

(b)     The cause of a disability or death  resulting from wound or injury, will be  regarded as attributable to service if  the wound/injury was sustained during  the actual performance of "duty" in  armed forces.  In case of injuries which  were self inflicted or duty to an  individual’s own serious negligence or  misconduct, the Board will also comment  how far the disability resulted from  self-infliction, negligence or  misconduct.  

(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

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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.

(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, 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  attributed to service will, however, be  decided by the pension sanctioning  authority.

(e) To assist the medical officer who signs  the death certificate or the medical  board in the case of an invalid, the  C.O. unit will furnish a report on:-

(i)     AFMS F-81 in all cases other than  those due to injuries. (i)     IAFY-2006 in all cases of injuries  other than battle injuries.

(f) In cases where award of disability  pension or reassessment of disabilities  is concerned, a medical board is always  necessary and the certificate of a  single medical officer will not be  accepted except in case of stations  where it s not possible or feasible to  assemble a regular medical board for  such purposes. The certificate of a  single medical officer in the latter  case will be furnished on a medical  board form and countersigned by the ADMS  (Army)/DMS (Navy)/DMS (Air).             

       In Union of India and Anr. v. Baljit Singh (1996 (11)  SCC 315) this Court had taken note of Rule 173 of the  Pension Regulations. It was observed that where the Medical  Board found that there was absence of proof of the  injury/illness having been sustained due to military service  or being attributable thereto, the High Court’s direction to  the Government to pay disability pension was not correct. It  was inter alia observed as follows:

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                "6......It is seen that various criteria  have been prescribed in the guidelines under  the Rules as to when the disease or injury is  attributable to the military service. It is  seen that under Rule 173 disability pension  would be computed only when disability has  occurred due to wound, injury or disease  which is attributable to military service or  existed before or arose during military  service and has been and remains aggravated  during the military service. If these  conditions are satisfied, necessarily the  incumbent is entitled to the disability  pension. This is made ample clear from clause  (a) to (d) of para 7 which contemplates that  in respect of a disease the Rules enumerated  thereunder required to be observed. Clause  (c) provides 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  were due to the circumstances of duty in  military service. Unless these conditions  satisfied, it cannot be said that the  sustenance of injury per se is on account of  military service. In view of the report of  the Medical Board of Doctors, it is not due  to military service. The conclusion may not  have been satisfactorily reached that the  injury though sustained while in service, it  was not on account of military service. In  each case, when a disability pension is  sought for made a claim, it must be  affirmatively established, as a fact, as to  whether the injury sustained was due to  military service or was aggravated which  contributed to invalidation for the military  service".  

       The position was again re-iterated in Union of India  and Ors. v. Dhir Singh China, Colonel (Retd.) (2003(2) SCC  382). In para 7 it was observed as follows:

"7. That leaves for consideration Regulation  53. The said Regulation provides that on an  officer being compulsorily retired on account  of age or on completion of tenure, if  suffering on retirement from a disability  attributable to or aggravated by military  service and recorded by service medical  authority, he may be granted, in addition to  retiring pension, a disability element as if  he had been retired on account of disability.  It is not in dispute that the respondent was  compulsorily retired on attaining the age of  superannuation. The question, therefore,  which arises for consideration is whether he  was suffering, on retirement, from a  disability attributable to or aggravated by  military service and recorded by service  medical authority. We have already referred  to the opinion of the Medical Board which  found that the two disabilities from which

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the respondent was suffering were not  attributable to or aggravated by military  service. Clearly therefore, the opinion of  the Medical Board ruled out the applicability  of Regulation 53 to the case of the  respondent. The diseases from which he was  suffering were not found to be attributable  to or aggravated by military service, and  were in the nature of constitutional  diseases. Such being the opinion of the  Medical Board, in our view the respondent can  derive no benefit from Regulation 53. The  opinion of the Medical Board has not been  assailed in this proceeding and, therefore,  must be accepted."

       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 made 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.