REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4887           OF 2010 (Arising out of S.L.P. (C) No. 6825 of 2006)

Union of India & Ors. …. Appellants

Versus

Ram Prakash    …. Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The present appeal is directed against the judgment and  

order dated 4.7.2005 passed by the learned Single Judge of  

the  Punjab  and  Haryana  High  Court  whereby  the  learned  

Single  Judge  has  allowed  the  Second  Appeal  filed  by  the

respondent and thereby setting aside the findings recorded by  

the Civil Judge (Junior Division) in his judgment and decree  

dated  27.9.1996  dismissing  the  suit  of  the  

respondent/plaintiff  for  the  grant  of  disability  pension  and  

also the judgment and decree dated 27.8.1998 passed by the  

Additional District Judge, Jalandhar whereby the appeal filed  

by the respondent was dismissed.

3. The respondent was enrolled in the Indian Air Force in  

the month of May, 1970.   After he rendered service for  

15 years in the Air  Force,  the Respondent  was unwell  

and consequently he was examined by a Medical Board  

which  was  constituted  to  consider  the  case  of  the  

respondent.  After such medical examination, the Release  

Medical Board found that the respondent suffered from  

Retinal  detachment  to the  extent  of  60% and that  the  

degree of disablement was permanent.     He was also  

found to be suffering from Immature Cataract of both the  

eyes and his disablement was assessed at 40% by the  

Release Medical Board.    

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4. The  Release  Medical  Board  assessed  the  composite  

disability  at  90%  and  gave  an  opinion  that  the  said  

disability suffered by the respondent during his service  

was neither attributable to nor aggravated by Air Force  

Service  and  that  the  diseases  were  constitutional  in  

nature.

5.  The  respondent  on  being  discharged  from  service  in  

terms  of  the  opinion  of  the  Release  Medical  Board  

claimed for payment of disability pension.  The Appellate  

authority,   however,   informed  the  respondent  that  

disability  for  which  the  respondent  was  released  from  

service were constitutional in nature.   The authorities  

namely  Chief  Controller  of  Defence  Accounts  (Pension)  

and the appellate medical authority examined the case of  

the respondent and thereafter both the authorities held  

that  the  disability  suffered by  the  respondent  was not  

due  to  injury  suffered  during  the  course  of  duty  or  

because of nature of duties performed by the respondent.  

The  appellate  authority  also  gave  an  opinion  that  the  

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disease of the respondent was neither attributable to nor  

aggravated by Air Force service.

6.  Being aggrieved by the aforesaid order, the respondent  

herein filed a suit claiming payment of disability pension  

on the ground that at the time of  his entry to the Air  

Force  service,  no  such  disease  was  recorded  in  his  

records  and  therefore,  onset  of  the  aforesaid  disease  

during  the  course  of  service  should  be  considered  as  

attributable  to  service,  particularly  due  to  the  adverse  

service conditions which caused the disease.

7.  The aforesaid suit was contested by the appellant herein  

by filing a detailed written statement.  On the basis of the  

pleadings of the parties, several issues were framed and  

the parties led their evidence in support of their cases,  

and finally by judgment and decree dated 27.9.1996, the  

learned Trial Court dismissed the suit.

8.  Being aggrieved by the aforesaid judgment and decree,  

the respondent filed an appeal before the first appellate  

court which was heard and was dismissed.   

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9.  The  respondent  being  aggrieved  by  the  aforesaid  

concurrent findings of fact arrived at by the two courts  

below filed a second appeal in the Punjab and Haryana  

High Court which, however, after hearing the parties was  

allowed by the learned Single Judge, on account of which  

the  present  appeal  was  filed  by  the  appellant  herein.  

The  appeal  was  listed  before  us  and  the  counsel  

appearing for the parties were heard at length.    

10.  The  counsel  appearing  for  the  appellants  submitted  

before  us  that  the  High  Court  was  not  justified  in  

interfering  with  the  concurrent  findings  of  fact  of  two  

courts below and therefore, the said judgment is required  

to be set aside and quashed.   It was also submitted that  

the medical report having a primacy, should have been  

given due weightage and primary consideration and the  

learned Single Judge was not justified in substituting the  

said  findings  and  opinion  of  the  Medical  Board  by  

substituting its own opinion.    

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11.  The aforesaid submissions of the counsel appearing for  

the appellant were refuted by the counsel appearing for  

the respondent who submitted that the High Court was  

justified in holding that since at the time of his entry in  

the Air Force on 1.5.1970, no such disease was found  

despite  a  thorough medical  check up,  it  must  be held  

that  the  adverse  service  conditions  of  the  Respondent  

was the cause for onset of the diseases in question.

12.   In the light of the aforesaid submissions of the counsel  

appearing for the parties, the question that falls for our  

consideration is whether or not the disability suffered by  

the  respondent  court  be  attributed  to  the  service  

conditions of the Air Force service.

13.   The Pension Regulations was enacted for the Air Force,  

the  provisions  of  which  are  made  applicable  to  the  

personnel of the Air Force and all claims of pension are to  

be regulated by the provisions made in the Regulations at  

the time of individual’s retirement or release or discharge  

as the case may be.

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14.  Section  III  of  the  said  Air  Force  Pension  Regulations  

deals with the Disability Pensioner Awards.  Regulation  

37 provides the manner and method of entertaining the  

claim of  disability  pension and also  the  circumstances  

under which such pension becomes admissible.

Regulation 37 reads as follows:-

“37(a)   An  officer  who  is  retired  from air  force  service  on  account  of  a  disability  which  is   attributable to or aggravated by such service and  is  assessed  at  20  per  cent  or  over  may,  on  retirement,  be  awarded  a  disability  pension  consisting  of  a  service  element  and  a  disability   element in accordance with the regulations in this   section.

(b)   The  question  whether  a  disability  is  attributable  to or aggravated by air  force service  shall  be  determined  under  the  regulations  in  Appendix II.”

15. Section IV of the said Pension Regulations deals with the  

primary  conditions  for  the  grant  of  disability  pension.    In  

Regulation 153, it is stated thus;

“153.   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  

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air force service and is assessed at 20 per cent or   over.

154. The  question  whether  a  disability  is  attributable  to  or  aggravated  by  air  force  service  shall  be  determined  under  the   regulations in Appendix II.”

16. In the light of the aforesaid provisions, what is laid down  

in Appendix 2 becomes relevant.  The said Appendix 2 deals  

with the  Entitlement  Rules.   It  is  provided therein that  the  

aforesaid Entitlement Rules would apply in cases where the  

disablement  or  death,  on  which  the  claim  to  casualty  

pensioner award is based.   Rule 1, 2, 3 and 4 read as follows:-

“1.   With  effect  from  1st April,  1948,  in  supersession  of  all  previous  orders  on  the  subject,  the entitlement to disability  and family  pension,  children’s  allowance  and  death   gratuities will be governed by the following rules.   Invaliding from service at the time of his release  under  the  Release  Regulations  is  in  a  lower   medical  category  than  that  in  which  he  was   recruited  will  be  treated  as  invalided  from  service.   Airmen who are placed permanently in  a  medical  category  other  than  ‘A’  and  are  discharged  because  no  alternative  employment  suitable  to  their  low  medical  category  can  be  provided  as  well  as  those  who  having  been  retained  in  alternative  employment  but  are  discharged  before  the  completion  of  their   engagement  will  be  deemed  to  have  been  invalided out of service.

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2. Disablement or death shall be accepted as due  to air force service provided it is certified that :-

(a) the disablement is due to a wound, injury  or disease which –   

(i) is attributable to air force service ; or  (ii)  existed  before  or  arose  during  air  force  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 air force service; (ii)  the  aggravation  by  air  force  service  of  a  wound, injury or disease which existed before  or arose during air force service.

3.  There must be a casual connection between   disablement  and  air  force  service  for  attributability or aggravation to be conceded”

17. There is no dispute with regard to the fact that when the  

respondent was initially appointed as an Air Force Personnel  

in the Indian Air Force, there was a medical examination held  

in which he was found to be fit  to be appointed to the Air  

Force.    After  he  had rendered service  in  the  Air  Force  for  

about 15 years, the respondent was examined by the Release  

Medical  Board  and  he  was  diagnosed  as  a  case  of  retinal  

detachment and immature cataract of both the eyes.

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18. A Medical Board assessed composite disability at 90%,  

and in view of the opinion of the said Release Medical Board  

and as recommended by them, the respondent was released  

from service.  The aforesaid Regulations which are referred to  

and extracted hereinbefore give primacy to the Report of the  

Medical Board.  The Report of the Medical Board is annexed  

with the records.    Part 3 of the said Report deals with the  

opinion  of  the  Medical  Board.    In  the  said  opinion  of  the  

Medical Board, it is stated that the aforesaid disabilities did  

not exist before entering the service.   The Medical Board has  

further  given  an  opinion  that  the  aforesaid  diseases  from  

which the respondent was suffering were not attributable to  

service  during  peace  or  under  field  service  conditions  nor  

aggravated thereby.   The Medical Board has given a specific  

and definite opinion that the said diseases were in no manner  

connected with service.

19. The respondent filed an appeal as against the aforesaid  

opinion of the Medical Board and his case was considered by  

the Appellate Medical Board who upheld the aforesaid opinion  

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of the Medical Board and held that the diseases from which  

the respondent was suffering at the time of his release from  

Air  Force  Service,  were  neither  attributable  to  service  nor  

aggravated  thereby.    Despite  the  aforesaid  opinion  of  the  

Medical  Board,  the  learned  Single  Judge  took  pains  to  re-

appreciate  the  records,  and on such appreciation held  that  

there could be presumption drawn that the respondent was  

subjected to perform arduous nature of duties during his span  

of service with the Indian Air Force inasmuch as it is general  

knowledge that a person in defence services is always required  

to perform arduous nature of duties.   The aforesaid findings  

recorded by the Trial Court and Single Judge was presumptive  

in  nature  and are  based  on  surmises  and  conjectures  and  

there is no factual foundation for arriving at such a decision.  

The learned Single  Judge totally ignored the applicability  of  

the  aforesaid  Regulations  to  the  case  of  the  Respondent.  

Unless  and  until  it  is  proved  and  established  that  an  

individual  has  become disabled  to  the  extent  of  more  than  

20% during his service career and released from service due to  

such disability which is attributable to or aggravated by air  

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force  service,  he  is  not  entitled  to  receive  such  disability  

pension.    Rules  are  also  clear  on  the  issue  that  such  

entitlement should be considered and decided giving emphasis  

and primacy on the opinion of the Medical Board constituted  

for the purpose.

20. The scope and limit of interfering with the finding of fact  

in a case under Section 100 of the Code of Civil Procedure  has  

been reiterated by this Court  time and again.     Instead of  

going  into  the  ratio  of  all  the  aforesaid  decisions,  we  may  

summarise the legal principles enunciated by this Court in the  

decision  of  Sheel  Chand  v.  Prakash  Chand  reported  in  

(1998) 6 SCC 683.   In this case, this Court while dealing  

with question of  existence of  a  substantial  question  of  law,  

held as follows:-

“7. …… The existence of a “substantial question of   law”  is  the  sine  qua  non  for  the  exercise  of  jurisdiction by the High Court under the amended  provisions of Section 100 CPC. It appears that the   learned  Single  Judge  overlooked  the  change  brought  about  to  Section  100  CPC  by  the   amendment  made  in  1976.  The  High  Court  unjustifiably interfered with pure questions of fact   while  exercising  jurisdiction  under  Section  100  CPC.  It  was  not  proper  for  the  learned  Single  Judge to have reversed the concurrent findings of   

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fact  while  exercising  jurisdiction  under  Section   100  CPC.  That  apart,  we  find  that  the  learned  Single Judge did not even notice, let alone answer   the question of law which had been formulated by  it at the time of admission of the second appeal.   There is no reference to the question of law in the   impugned  order  and  it  appears  that  the  High  Court  thought  that  it  was  dealing  with  a  first  appeal  and  not  a  second  appeal  under  Section   100 CPC. The findings of fact recorded by the two   courts below were based on proper appreciation of   evidence  and  the  material  on  the  record.  There  was no perversity, illegality or irregularity in those  findings. None has been brought to our notice by  the learned counsel for the respondent either. The  findings, therefore, did not require to be upset in a  second  appeal  under  Section  100  CPC.  The  judgment of the learned Single Judge, under the  circumstances, cannot be sustained…….”

21. Several decisions of this Court like  Secretary, Ministry  

of Defence and Ors. Vs. A.V. Damodaran (D) through LRs.  

and Ors.   reported in  2009 (9) SCC 140,  Union of India &  

Ors.  Vs.  Keshar  Singh reported  in  2007  (12)  SCC  675,  

Controller of Defence Accounts (Pension) and Others Vs. S.  

Balachandran Nair reported in 2005 (13) SCC 128, Union of  

India  and  Ors.  Vs.  Dhir  Singh  China  (Colonel)  Retd.  

reported in  2003 (2) SCC 382 and Union of India and Anr.  

Vs. Baljit Singh  reported in 1996 (11) SCC 315, this Court  

had the occasion to deal with a similar issue and in all the  

aforesaid  decisions,  it  was  held  that  the  Medical  Board  

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consists of an expert body and that its opinion is entitled to be  

given due weight  and value.     The consistent  view of  this  

Court  is  that  such opinion  of  the  Medical  Board  would  be  

given a primacy and a Court should be slow in interfering with  

and  substituting  its  own  opinion  with  the  opinion  of  the  

Medical Board.

22.  The Medical Board has given a categorical opinion that  

the diseases for which the respondent has been released from  

service  were  neither  attributable  to  nor  aggravated  by  Air  

Force service.    The aforesaid Pension Regulations when read  

with  the  Entitlement  Rules,  make  it  clear  that  the  

determination  of  attributable  or  aggravation  is  as  per  the  

Entitlement  Rules.   As  the  Medial  Board  has  given  a  

categorical  opinion  that  the  ailment  of  the  respondent  was  

constitutional  and  the  same  is  not  attributable  to  or  

aggravated  by  Air  Force  Service,  it  was  unjustified  for  the  

learned  Single  Judge  to  set  aside  the  aforesaid  concurrent  

opinions of the appellate Board and Released Medical Board  

and also the findings recorded by the trial court and also by  

the First  Appellate Court merely because the learned Single  

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Judge  felt  that  there  could  be  a  presumption  that  the  

respondent was undergoing arduous nature of job as he was  

appointed as a Air Force personnel.

23. We, therefore,  set aside the judgment and order of the  

learned  Single  Judge,  and  allow  the  appeal  filed  by  the  

appellant.    As  a  result  of  this  order,  the  suit  filed  by  the  

respondent should be held to be dismissed.

.................................……J.                      [Dr. Mukundakam Sharma]

  ..................………………..J

     [Dr. B.S. Chauhan]

New Delhi, July 5, 2010.

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