Union Of India vs Veteran Naib Subedar Narayanan Kutty N on 19 May, 2025

[Cites 5, Cited by 0]

Kerala High Court

Union Of India vs Veteran Naib Subedar Narayanan Kutty N on 19 May, 2025

The present writ petition is preferred against the judgment of the Armed Forces Tribunal dated 24.2.2023 in OA No.116 of 2019 allowing the claim set up by the respondent for disability pension by rounding it off which was rejected by the Board as well as the appellate authority.

2. The facts in brief for adjudication of the dispute are enumerated herein below:

3. Respondent-applicant was enrolled in the Indian Army on 30.8.1980 and was discharged from service on 30.9.2001, after serving the Army for 21 years. During the service, he was diagnosed with the disability 'Gouty Arthritis'. The Release Medical Board assessed the disability to the extent of 30% for life by observing that it was neither attributable to nor aggravated by military service.

4. On the other hand, the respondent-applicant in support of the case relied upon the judgment of the Supreme Court in Dharamvir Singh v. Union of India and Others. (2013 (7) SCC 316) to contend that the petitioner-respondent was not justified in rejecting the case of the petitioner for disability WP(C) NO. 15761 OF 2025 3 2025:KER:34410 pension by ignoring the applicability of Rule 5 of Entitlement Rules for Casualty Pensionary Awards 1982 extracted in paragraph 7 of the judgment under challenge. As far as the rounding off the disability is concerned, relied upon the judgment in Sukhvinder Singh v. Union of India & Ors (Civil Appeal No.5605 of 2010) and Union of India and another v. Rajbir Singh (Civil Appeal No.2904 of 2011) .

5. Mr.C. Dinesh, learned Central Government Counsel submitted that the department was justified in rejecting the claim of the disability pension on the basis of the release medical board which is a final authority and the findings cannot be tinkered in a judicial proceedings as it is in the domain of a medical expert. The court cannot assume the role of an expert and sit in the armchair of an appellate authority to differ with the same. Therefore the dictum laid down in the judgments referred to by the Tribunal and relied upon by the respondent-applicant would not be applicable to the facts and circumstances of the case.

6. We have heard the learned counsel for the parties and appraised the paper book. In Dharamvir Singh (supra) similar controversy had arisen wherein it was mentioned that a member is presumed to be in sound physical and mental WP(C) NO. 15761 OF 2025 4 2025:KER:34410 condition upon entering in service if there is no note or record at the time of the entrance that he or she was suffering from any medical disability. In the event of the discharge after having rendered number of years on the medical grounds any deterioration in the health can always be attributed in the service as there is a lot of pressure to discharge the duties. Similar was the view in Union of India and another v. Rajbir Singh (supra). The regulations 423(a) and (c) of Chapter VIII of Regulations for Medical Services 1983 extracted herein below leaves no manner of doubt that the findings of fact and law arrived at do not require any interference on the ground of eligibility of the disability pension.

11. The Regulation 423(a) & (c) of Chapter VIII of the Regulations for Medical Services 1983 reads thus:

(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 carries a 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 WP(C) NO. 15761 OF 2025 5 2025:KER:34410 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 the doubt could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas.

(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".

7. The rounding off is also no longer in dispute in view of the ratio of decidendi culled out in Sukhvinder Singh (supra) wherein it has been clearly stated that wherever a member of the Armed force is invalidated out of the service, it perforce has to be assumed that his disability was found to be above 20%. The Government itself had come out with a notification dated 31.1.2001 prescribing that any disability below 20% shall be liable to be reckoned as 50% for the purpose of granting the benefit of rounding off. Paragraph 7.2 of the WP(C) NO. 15761 OF 2025 6 2025:KER:34410 notification is extracted herein below:

"7.2 Where an Armed Forces personnel is invalided out under circumstances mentioned in Para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element.



     Percentage of disability      Percentage     to   be
     reckonedfor
     as assessed by              computing of disability
     invaliding medical board   element

     Less than 50               50
     Between 50 and 75          75
     Between 76 and 100         100

8. Mr.C. Dinesh, learned Senior Central Government counsel appearing for the petitioners relied upon the interim order passed by the Supreme Court against the judgment dated 5.11.2024 in C.W.P 18161 of 2024 rendered by the High Court of Punjab and Haryana in Union of India v. Ex. Sep Hargopind Singh and Another wherein the competent authority rejected the claim for grant of disability pension by relying upon the opinion of the Medical Board in as much as that the medical disability was found to be not related or aggravated on account of the service rendered in the Army. We are of the view that each and every case is based upon the facts and cannot be treated as order in rem for adjudication of the dispute in view of the judgment dated 24.6.2024 in WP(C) WP(C) NO. 15761 OF 2025 7 2025:KER:34410 No.43207 of 2023. In this view of the matter, findings of fact and law arrived at do not require any different opinion for exercising the power of judicial review under Article 226 of the Constitution of India. Writ petition is dismissed.

Sd/-

AMIT RAWAL JUDGE Sd/-

sab                                    MURALEE KRISHNA S.
                                             JUDGE
 WP(C) NO. 15761 OF 2025        8

                                              2025:KER:34410
               APPENDIX OF WP(C) 15761/2025

PETITIONER EXHIBITS

Exhibit P1        A TRUE COPY OF THE O.A 116 OF 2019
                  ALONG WITH ALL ANNEXURES, FILED BY THE
                  APPLICANT, BEFORE THE TRIBUNAL

Exhibit P2        A TRUE COPY OF THE COUNTER STATEMENT IN
                  O.A. NO.116/2019

Exhibit P3        A TRUE COPY OF THE ORDER DATED
                  23.02.2023 IN O.A. NO. 116 OF 2019

Unlock Advanced Research with PRISMAI

Kerala High Court