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CASE NO.: Appeal (civil)  762 of 2001

PETITIONER: Union of India & Ors

RESPONDENT: Keshar Singh

DATE OF JUDGMENT: 20/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

Challenge in this appeal is to the judgment rendered  by a Division Bench of the Allahabad High Court  dismissing the special appeal filed by the appellant against  the order of learned Single Judge. The controversy lies  within a very narrow compass i.e. whether the respondent  is eligible to disability pension.

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.

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

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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."

There is no appearance on behalf of the respondent.

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  carved 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 conditions 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. Reference was also made by learned ASG to Pension  Regulations for the Army.  Rule 173 of such Regulations  read as follows:

Primary conditions for the grant of  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

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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."  

Regulation 423 also needs to be extracted. The same  reads as follows:

"423. Attributability to Service:  

(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 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

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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  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

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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.

(ii)    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:                  "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.

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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  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."

       The above position was highlighted in Controller of  Defence Accounts (Pension) and Others v. S. Balachandran  Nair (2005 (13) SCC 128).

       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

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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.