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CASE NO.: Appeal (civil)  1960 of 2008

PETITIONER: Union of India & Ors

RESPONDENT: Surinder Singh Rathore

DATE OF JUDGMENT: 13/03/2008

BENCH: Dr. ARIJIT PASAYAT & J.M. PANCHAL

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.   1960 OF 2008 (Arising out of SLP(C) No 18728 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of a Division  Bench of the Rajasthan High Court, Jodhpur Bench,  dismissing the Civil Special Appeal (writ)        filed by the  appellants.

3.      Background facts in a nutshell are as follows: Respondent was employed as a Signal Man in the army  on 5.1.1985. Sometime in October, 1991, he was admitted to  the Military Hospital, Jodhpur for treatment of a disease  called ’Maculopathy (RT) Eye’.  Subsequently he was referred  to the Command Hospital in Pune for treatment and was  later reverted back to the unit for normal duties with  employability restrictions.  The respondent continued to  complain of diminished vision and was re-admitted to the  Military Hospital, Jodhpur.  Since he was not responding to  the treatment, he was referred to the Release Medical Board.   

On 1.5.1993, said Board completed the said investigation  and recommended that the respondent be released from  service in medical category and CEE (permanent) which is  lower than the category "AYE" due to the aforesaid disease.   The disability of the respondent was assessed as 30% for two  years and considered as neither attributable to nor  aggravated by military service.  The Board’s proceedings were  also approved by the competent authority on 17th May, 1993.   The respondent was discharged from service with effect from  31.7.1993 in terms of Rule 13 of Army Rules, 1954 (in short  the ’Rules’). Thereafter he was granted a sum of Rs.9,350/-  and Rs.7,425/-on account of invalid gratuity and death cum  retirement gratuity respectively.  But prayer of the  respondent for grant of disability pension was rejected on the  ground that the disease from which the respondent suffered  was neither attributable to nor aggravated by the military  service.  This information was based on the information of  the Release Medical Board as per the provisions of Rule 173  of the Pension Regulations for the Army (in short ’Pension

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Regulations’) read with Rule 2 of Appendix II and Regulation  423 of Medical Service of Armed Force Regulation 1983.

 An appeal was preferred by the respondent which was  forwarded to the Ministry of Defence. The appeal was rejected  upholding the view of CCDA (Pension) as communicated to the  respondent.  Thereafter a writ petition was filed before the  High Court which was numbered as Writ Petition No. 2597 of  1996.  By order dated 16th February, 2005, the said Writ  Petition was decided directing the present appellants to grant  the respondent disability pension on the ground that the  controversy was squarely covered by an earlier decision  rendered by the High Court in SB Civil Writ No. 1083 of 2001.   Order of learned Single Judge was challenged by filing a Civil  Special appeal.  By order dated 2.1.2006, the appeal was  rejected.  The present appeal by special leave has been filed by  the appellants.

Learned counsel for the appellants submitted that the  factual scenario has not been appreciated by the learned  Single Judge and the Division Bench in the proper  perspective. The report of the Medical Board clearly indicates  that the disability was not attributable to military service and  also it was not aggravated by service.

Learned counsel for the respondent on the other hand  supported the orders of the High Court.

4.      Reference was also made to Pension Regulations.  Rule  173 of such Regulations reads 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 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

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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."  

5.      Regulation 423 has also relevance and 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 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

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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 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

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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).             

6.      In Union of India and Anr. v. Baljit Singh (1996 (11) SCC  315) this Court had analysed 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. 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".  

7.      The position was again re-iterated in Union of India and

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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."

8.      The above position was again highlighted in Union of  India & Ors.v. Keshar Singh ( 2007(5) SCR 408).

9.      The Medical Board’s opinion was clearly to the effect that  the ailment suffered by the appellant was not attributable to  the military service and also not aggravated due to it.  Learned  Single Judge and the Division Bench were not justified in  holding that the same was attributable to Military service  and/or was aggravated because of service. The respondent is  not entitled to disability pension. However, on the facts and in  the circumstances of the case payment, if any, already made  to the respondent by way of disability pension, shall not be  recovered.

10.     The appeal is allowed without any order as to costs.