Punjab-Haryana High Court
Union Of India And Others vs Ex-Sep (Gnr) Ravinder Kumar on 28 July, 2011
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
LPA No. 1278 of 2011 (O&M)
Date of Decision: July 28, 2011
Union of India and others
...Appellants
Versus
Ex-Sep (Gnr) Ravinder Kumar
...Respondent
CORAM: HON'BLE MR. JUSTICE M.M.KUMAR
HON'BLE MR. JUSTICE GURDEV SINGH
Present: Ms. Anjali Kukar, Standing Counsel for UOI,
for the appellants.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR, J.
1. The Union of India along with its officers have filed the instant appeal under Clause X of the Letters Patent against the judgment dated 5.11.2009 rendered by the learned Single Judge holding that the issue with regard to entitlement of disability pension was covered by a Division Bench judgment of this Court rendered in the case of Bhola Ram v. Union of India and others (CWP No. 10451 of 2007, decided on 27.3.2008.
27.3.2008
2. The undisputed facts are that the writ petitioner- respondent was enrolled in Army on 7.3.2005 and he was invalidated out with effect from 24.9.2006 under clauses (i) and (iii) of the table annexed to Army Rule 13(3). His disease was diagnosed as 'Conversion Disorder'. The appellants have claimed LPA No. 1278 of 2011 2011 (O&M) 2 that it was neither attributed to nor aggravated by the military service. Accordingly, he was not entitled for grant of disability pension in terms of Regulation 173 of the Pension Regulation for the Army, 1961.
2. Ms. Anjali Kukar, learned counsel for the appellants has argued that the case of the writ petitioner-respondent for grant of disability pension was rejected because the Medical Board declared the 'Conversion Disorder' neither attributable to nor aggravated by military service with percentage of disablement at 20% for life.
3. The aforesaid argument would not be sustainable because a perusal of Annexure A-1 at page 117, would show that no disability existed before writ petitioner-respondent entered into service. The aforesaid order has been signed by the Medical Officer and it has been recorded as a finding of fact that on account of 'Conversion Disorder (CF44)' the writ petitioner-respondent suffered 20% disablement for life. It is further pertinent to notice at page 115 that the opinion expressed by the Medical Officer concerning 'Conversion Disorder (CF44)' does not disclose any reason. In the column 'Attributable to service' and 'Aggravated by service', simple expression 'No' has been written twice and in the column 'Not connected with service', the expression 'Yes' has been written. In the last column under the heading 'Reason/Cause/Specific condition and period in service', the opinion of the Medical Board expresses that the disease was 'Constitutional Disorder'. If that was so then it was bound to be entered in the performa of the writ petitioner- respondent when he joined service. We have already noted that there was no entry with regard to any disease. It is in these LPA No. 1278 of 2011 2011 (O&M) 3 circumstances that a Division Bench of Delhi High Court in the case of Navin Chandra and others v. Union of India and others, others, 2006 (4) SCT 626, 626 has held that the opinion given by the doctors of the Medical Board shall be given due weightage and primacy in the matter for ascertaining as to whether or not the injury/illness sustained by an ex-serviceman was due to or was aggravated by the military service, which contributed to his invalidation from the military service. However, the Division Bench went on to opine in para 20 that if the disease has not been detected at the time of entry into service then the Medical Board by expressing cryptic and conjectural opinion cannot be permitted to cause prejudice to the rights of the petitioner. The view of the Division Bench is discernible in para 20, which reads thus:
"20. In light of the above principles, now we may examine the case of each of the petitioner. In CWP 5720/06, the petitioner was enrolled in the Indian Army on 21.12.94 and was found medically fit in all respects. Indisputably, he performed his duties and withstood the conditions of service of Army at various places of posting including high altitude. He fell sick of the disease psychosis (Depression) and was invalided out of Army service on 6.10.2000 nearly six years after the date of his enrollment and his claim for disability was rejected as not attributable or aggravated being a constitutional disorder. The disability of the petitioner was assessed at 50%. No record has been produced before the Court to show that the petitioner suffered from the disease of LPA No. 1278 of 2011 2011 (O&M) 4 Affective Psychosis or any other related disease prior to his joining the Army in the year 1994. It is also not the case of the respondents that upon proper investigations it could even be reasonably said that the onset of the disease or related symptoms existed in the body or mind of the petitioner prior to March, 2002 when he had already served for a period of more than six years. If Affective Psychosis was a constitutional disorder, as understood in its correct perspective, then by proper Investigations the cause and onset of the disease can safely be stated. The petitioner had served the Army till onset of the disease in March, 2000 without any complaint from any quarters. In the absence of any plausible reasoning from the side of the respondents they cannot be permitted to cause prejudice to the petitioner. ........" (Emphasis added)
4. It is further pertinent to notice from the grounds of appeal presented by the appellants that under Regulation 173 of the Pension Regulations, it has been made absolutely clear that the question regarding disability has to be decided under Regulation 173 by making reference to Appendix II, which include whether the disability is attributable to or aggravated by military service. Appendix II, clause (e) refers to Regulation 423, which directly deals with attributability to service and the same reads as under:-
"423: Attributability to service (a) For the purpose of determining whether the cause of a disability or death is not attributable to service, it is immaterial whether the LPA No. 1278 of 2011 2011 (O&M) 5 cause giving rise to the disability or death occurred in an area declared to be field service action 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 the evidence both direct and circumstances, 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 degree of cogency, which though nor reaching certainty, nevertheless carried a high degree of probability. If this evidence be so evenly balanced as to render impracticable a determination conclusion one way or 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 area.
(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 due 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 LPA No. 1278 of 2011 2011 (O&M) 6 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, LPA No. 1278 of 2011 2011 (O&M) 7 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 AFMS F-81 and IAFY- 2006.
(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) etc." (Emphasis added)
5. A perusal of the aforesaid clause would show that if any doubt arises then it has to be extended to the individual concerned. There would, thus, be presumption in favour of the writ petitioner- respondent that he was hale and hearty at the time of entry into service. Even reasons are required to be recorded by the Medical Board, which are missing in the present case. To a pointed question, Ms. Kukar, learned counsel for the appellants has stated that there are no advance instruments to detect a constitutional disease a person might be suffering from at the time of entry into service. Such an argument would be self-defeating and the benefit of doubt in any case would extend to the writ petitioner- respondent. Moreover, before the learned Single Judge it was LPA No. 1278 of 2011 2011 (O&M) 8 conceded that the matter is covered in favour of the writ petitioner- respondent and once he has disability to the extent of 20% for life then it has to be regarded as 50% as per the instructions dated 3.2.2000 issued by the appellants. The Division Bench in Bhola Ram's case (supra) has placed reliance on instructions dated 3.2.2000 in that regard.
6. In view of the above we are not inclined to admit the appeal and the same is dismissed.
(M.M. KUMAR) JUDGE (GURDEV SINGH) SINGH) July 28, 2011 2011 JUDGE Pkapoor