Punjab-Haryana High Court
Krishna Nandan Mishra vs Union Of India And Others on 17 December, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:168527-DB
CWP-4065-2015 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-4065-2015
Reserved on: 25.11.2024
Pronounced on: 17.12.2024
Krishna Nandan Mishra .....Petitioner
Versus
Union of India and Others .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Navdeep Singh, Advocate and
Ms. Roopan Atwal, Advocate
Ms. Srishti Sharma, Advocate
for the petitioner.
Mr. Narender Kumar Vashist, Sr. Panel Counsel
for respondent-UOI.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioner herein prays for the setting aside of the order dated 29.04.2014 (Annexure P-1) as passed by the learned Armed Forces Tribunal, Chandigarh, wherebys the claim of the petitioner for grant of disability pension became declined.
Factual Background
2. The petitioner was enrolled in the Defence Security Corps (DSC) on 13.08.1997 and was discharged from DSC service w.e.f. 31.08.2007 post rendering 10 years and 19 days of service. The petitioner being in low medical category was brought before the 1 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -2- Release Medical Board, which assessed his disability "CAD IWMI- SVD 1-24" @ 30%.
3. The disability element claim of the petitioner was rejected by the Competent Authority, thus on the ground that the supra disability was neither attributable to nor being aggravated by rendition of military service.
4. The first and second appeal filed by the present petitioner against the rejection of his disability pension claim, were rejected by the authorities concerned respectively, vide order dated 12.03.2009 and vide order dated 08.12.2010.
5. Feeling aggrieved, the petitioner filed O.A., before the Tribunal concerned, wherebys he cast a challenge to the afore said rejection order(s). The said O.A. became dismissed vide order dated 29.04.2014. The operative part of the said verdict is extracted hereinafter.
"14. Considering the entire facts and circumstances of the case, we are satisfied that the disability of the petitioner is neither attributable to nor aggravated by Military Service and that he is not entitled for any disability pension....."
6. Feeling dis-satisfied from the afore dis-affirmative order, the petitioner has filed the instant writ petition before this Court.
Inferences of this Court.
7. Before proceeding to make an effective adjudication upon the present writ petition, it is necessary to dwell upon the Guide to Medical Officers (2002) (Amended) 2008. The relevant portion of the 2 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -3- said speaks about the necessity of existence of a causal connection inter-se the respective entailments of disability or death, upon the defence personnel, rather with the service rendered by him, as a defence personnel. The said relevant portion thereof, becomes extracted hereinafter.
" Death or disability may be due to wounds, injury or disease. Evidence of causal connection or otherwise, in cases of disease, can be obtained in various ways. For instance, the man may have admitted when he was enrolled, that he suffered from the disease previously; or in statements made before or on admission to hospital, he may have explained when he began feeling unwell or out of sorts, adding how his time shortly prior to that was spent, thereby giving an indication or clue to the proximate time and circumstances of possible source of exposure. It may be that the consensus of medical opinion is against the acceptance of the particular disability as due to service. That will constitute evidence that it is not attributable to service, but then the disease may have been worsened by service and therefore aggravated by it. ...
8. Moreover, in the further therein paragraph, it is spoken that where the available evidence is not conclusive, the pros and cons should be carefully weighed with a view to decide whether, on the whole, the preponderence of probability as opposite to balance of probabilities against the claimant is such as to exclude all reasonable doubt.
9. Furthermore, the further thereins speakings are also extracted hereinafter, the apt portions whereofs become underlined.
Chapter - II Entitlement : General Principles
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1. Although the certificate of a properly constituted medical authority vis-à-vis the invaliding disability, or death, forms the basis of compensation payable by the government, the decision to admit or refuse entitlement is not solely a matter which can be determined finally by the medical authorities alone. It may require also the consideration of other circumstances e.g. service conditions, pre-and post-service history, verification of wound or injury, corroboration of statements, collecting and weighing the value of evidence, and in some instances, matters of military law and discipline. Accordingly, Medical Boards should examine cases in the light of the etiology of the particular disease and after considering all the relevant particulars of a case, record their conclusions with reasons in support, in clear terms and in a language which the Pension Sanctioning Authority, a lay body, would be able to appreciate fully in determining the question of entitlement according to the rules. In expressing their opinion medical officers should comment on the evidence both for and against the concession of entitlement. In this connection, it is as well to remember that a bare medical opinion without reasons in support will be of no value to the Pension Sanctioning Authority.
2. xxxxx
3. If it is established on evidence that the disease was brought about by service conditions, then attributability is clearly indicated. If on the other hand, a disease not attributable to service--having been of pre-enrolment origin or having its origin in other than service conditions, has been influenced in its subsequent course by conditions of service, the claim would stand for acceptance on the basis of aggravation.
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4. Opinion on entitlement must be impartially given in accordance with the evidence, the benefit of any reasonable doubt being given to the claimant.
5. xxxx
6. xxxx
7. Evidentiary value is attached to the record of a member's condition at the commencement of service, and such record has, therefore, to be accepted unless any different conclusion has been reached due to the inaccuracy of the record in a particular case or otherwise. xxxxx
8. The question whether the invalidation or death of a member has resulted from service conditions, has to be judged in the light of the record of the member's condition on enrolment as noted in service documents and of all other available evidence both direct and indirect.
In addition to any documentary evidence relative to the member's condition on entering the service and during service, the member must be carefully and closely questioned on the circumstances which led to the advent of his disease, the duration, the family history, his pre-service history, etc. so that all evidence in support or against the claim is elucidated. Presidents of Medical Boards should make this their personal responsibility and ensure that opinions on attributability, aggravation or otherwise are supported by cogent reasons; the approving authority should also be satisfied that this question has been dealt with in such a way as to leave no reasonable doubt.
9. xxxx 5 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -6-
10. Now, from the supra extracted underlined relevant portions of Guide to Medical Officers (2002) (Amended) 2008, it has to be determined whether the declaration made by the Medical Board, inasmuch as, the disease "CAD IWMI-SVD 1-24", rather being a congenital disease, thus requires the same becoming accepted.
11. Initially for determining the above, an allusion is required to be made to medical examination report, which became prepared at the time of the present petitioner becoming enrolled in military service, whereins, candid speakings occur, that at that time, the petitioner being declared to be fit and/or being declared to be disease free and/or the said disease remaining undetected.
12. Though in view of the supra, the counsel for the respondent, thus may not prima facie, well contend that the declaration made by the Medical Board (Annexure R-2), wherebys the said disease was declared to be congenital in nature thus being a well made declaration nor also prima facie, the counsel for the respondent may also not further well contend, that as such the denial of disability pension to the present petitioner, rather was apt, thus on the purported premise qua the disease (supra) becoming neither aggravated by nor being attributable to military service.
13. Be that as it may, though the entailment of the said disease on a defence personnel, may be post his enrolment as a member of the combatant defence establishment. Moreover though at the stage of happening qua enrolment of the defence personnel either in the navy, 6 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -7- army or the air force, thus the medical examination, as then made upon him, rather may not unravel the disease which may become subsequently detected. Moreover, though thereby prima facie, the subsequent entailment of a disease upon any personnel serving in any of the wings of the defence establishment, may prima facie, thus become construable to arise from rendition of military service and/or the eruption thereof, may become construable to become aggravated by or being attributable to military service.
14. In other words, the subsequent eruption besides detection of a disease, may be an ill event which may thus arise, as the same may be, earlier was in a state of dormancy, especially at the time of the apposite enlistment taking place. Resultantly, when then the apposite disease may have remained undiscoverable, reiteratedly at the stage of the apposite preliminary medical examinations becoming made upon the defence personnel. In consequence, if the eruption of any disease takes place but post the enrolment of the defence personnel concerned, and, which may require the same being declared to be congenital, yet the said declaration requires that a deep incisive research becomes made by the medical board relating to :
a) the advent of the disease;
b) the duration thereof ;
c) the family history and his pre service history;
15. In other words, the genetic origin of the disease, thus has to be imperatively discovered through employments of the State of Art 7 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -8- medical techniques by the members of the Medical Board, rather both at the time of the apposite enlistment taking place besides subsequently also. If the said is done and ultimately a well reasoned decision is recorded vis-à-vis the disease, which befell any defence personnel, but post his enrolment, thus being congenital. Resultantly the said made reasoned decision may render the relevant ill event, which befalls a defence personnel, to be construable to be neither attributable to nor becoming aggravated by military service. In sequel, therebys there would be a well denial of disability pension to the concerned.
16. Moreover, in case the entailment of the disease, occurs during the performance of service by the Army Personnel, thereupon but naturally, it may be a sequel of the defence personnel concerned, thus rendering service or the same being a sequel of his facing hostile service conditions. Contrarily, its origin may be on account of factors other than service conditions. For instance, the said entailment may arise when the defence personnel concerned, thus evidently but for a prolonged duration of time, rather remaining away from rendering active military service or may be during his staying in a foreign land, and that too, without his becoming deployed there to render service as a combatant on behalf of the country.
17. Significantly, the above instances, wherebys, there may be a denial of disability pension to the present petitioner, when neither become averred nor become proven by the respondent, thus thereons 8 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -9- there may not be any denial of disability pension to the present petitioner.
18. Be that as it may, a useful assistance for determining whether the befallment of any disease vis-à-vis any member of the defence personnel, but post his being enrolled in the army, despite at the initial stage, upon his becoming enlisted, as a member of the combatant defence establishment, rather the same remaining undetected, yet the apposite eruption thus post enlistment hence being construable to be either congenital or being construable to become aggravated or being attributable to military service, thus is acquired, from, the principles set forth in the judgment rendered by the Hon'ble Apex Court, in case titled as Dharamvir Singh Vs. Union of India, reported in (2013) 7 SCC 316. The relevant paragraphs of the said verdict are extracted hereinafter.
29. A conjoint reading of various provisions, reproduced above, makes it clear that:
(i) Disability pension to be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable or aggravated by military service to be determined under "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).
(ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)].
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(iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally. (Rule 9).
(iv) If a disease is accepted to have been 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. [Rule 14(c)].
(v) If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service. [14(b)].
(vi) If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons. [14(b)]; and
(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitlement : General Principles", including paragraph 7,8 and 9 as referred to above.
30. We, accordingly, answer both the questions in affirmative in favour of the appellant and against the respondents.
19. An incisive reading(s) of the above extracted principles, though pointedly declare, that when a disability becomes entailed upon any member of the combatant defence establishment, and which is to the extent of 20 % or over, thereupon, though any such disabled member is required to be invalided from the Army, but yet he is required to be assigned the benefit of disability pension.
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20. Nonetheless, the assignment of disability pension to any member of the combatant defence establishment, who becomes entailed with a disability in a quantum of 20 % or more, but imperatively requires a declaration from the Medical Board, rather candidly pronouncing that the said attained disability being attributable to or becoming aggravated by military service. The said declaration becomes enjoined by the "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).
21. Furthermore, though thereins a presumption is assigned vis-à-vis the sound physical and mental health of any member of the defence establishment concerned, especially when at the stage of his becoming enrolled, there is no note or record about his becoming beset with any disease. Moreover, though thereins there is also a further presumption, that when any deterioration theretos, thus occurs subsequently, therebys the said happening of deterioration(s) or onsettings of any disease, rather is to be presumed to be a sequel of his rendering service as a member of the defence establishment. Imperatively, the onus for proving the non endowments qua benefits (supra) vis-à-vis the concerned, but is rested on the employer, and in case, the said onus remains un-discharged, thereupon, the claimant becomes entitled to receive disability pension. Moreover, all the facts and circumstances attendant to the rendition of service by the concerned, are to be closely scrutinized, thus for declaring whether the onset of any disease vis-à-vis the concerned, is a sequel qua renditions 11 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -12- of military service and/or the same being aggravated by or being attributable to military service.
22. Be that as it may, thereins becomes also set forth a further principle(s) that yet there can be denial of disability pension to the concerned, but only upon :
a) At the time of acceptance of the concerned in military service, some notings becoming recorded by the Medical Board vis-a-vis his being beset with a disease which however, becomes concluded to be yet not rendering him unfit to become enlisted.
b) Any further deterioration thereofs, may also subsequently become concluded by the Medical Board, to not arise from rendition of military service nor being attributable to military service, rather the same being a congenital disease.
23. Further, if the medical opinion holds that the disease could not have been detected on medical examination of the concerned being made, thus prior to his becoming enlisted in service, thereupons, the same will not be deemed to have arisen during service, yet in the situation (supra), the Medical Board is required to state the reasons for so concluding.
24. Moreover, it is also declared in supra, that it is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II 12 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -13- of the "Guide to Medical (Military Pension), 2002 - "Entitlement :
General Principles".
25. Therefore, it has to be now determined whether in terms of the above principles, whether at the time of enlistment of the present petitioner in the Army, thus after a preliminary medical examination being made vis-a-vis his health, thus a note became recorded about some disease besetting him and/or whether some note became appended that the said disease was in a dormant stage. Moreover, it is also required to be determined, from the facts at hand, whether there is a causal nexus inter-se the eruption of the disease, and/or the onsettings thereofs, on to his person, thus post the enrollment of the present petitioner taking place, vis-a-vis the active renditions by him of military service, wherebys, this Court may conclude that the onset of the disease but rather was a sequel of his rendering service in the Army and as such was attributable or became aggravated by his rendering military service.
26. In addition, it is also required to be gathered from the records, whether the Medical Board, did initially proceed to make a detailed incisive antecedental check, particularly appertaining to the advent of the disease, through employments of State of Art medical techniques, thus unveiling the block chain genetic connection, wherefroms, rather the disease became sourced. Moreover, if the said employment fails. Resultantly, therebys it may become concluded qua eruptions thereof, thus subsequent to the apposite enlistment taking place, rather was not congenital but owed its origin to rendition of
13 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -14- military service besides it being attributable to or becoming aggravated by performance of military service. Contrarily, if the supra employed techniques at the stage of apposite enlistment taking place, thus by the Medical Board concerned, leads to a conclusion, that there are rather dormant incidences of any disease, but yet the said dormant disease not prohibiting the enlistment of any personnel in the army, navy or air force. Resultantly the subsequent active detection/eruption thereofs, during the course of rendition of military service, but would naturally lead to a well conclusion by the Medical Board, that its active eruption but became sourced from an effective causal genetic connection wherebys there would be denial of disability pension.
27. However, now in the said endeavour, this Court is required to be extracting the contents of the opinion (Annexure R-2), as became recorded by the Release Medical Board.
Part-V
Opinion of Medical Board
Disability Disability Disability Conditions Reasons
Attributable Aggravated to otherwise
to Yes/No Yes/No connected
with service
Yes/No
CAD-IWM1 No No Yes Not related to
service as per
SVD I-24
charter of
duties
28. A reading of the records, discloses that at the time of the apposite enlistment taking place rather no note became made in terms of the principles (supra) declared by the Hon'ble Apex Court in case 14 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -15- titled as Dharamvir Singh Vs. Union of India (supra) by the Medical Board, that some disease which however, did not forbid the present petitioner, to become enlisted in the Army, did make its preliminary onsettings. If so, the declaration of law in judgment (supra) that therebys there is a presumption that the incurring of the said disease was a sequel of rendition of service, is required to be favourably endowed vis-a-vis the petitioner. Though the said presumption is rebuttable but the onus to lead evidence to rebut the said presumption became cast upon the respondents. However, the said cast evidence adducing discharging onus vis-a-vis the respondents, rather for cogently rebutting the said presumption, but naturally also did cast an onerous duty also upon the Medical Board, to engage itself in the endeavour of unearthing, through employments of the State of Art block chain genetic causal connection technique(s), wherebys it may became unraveled that the onsetting of the disease onto the army personnel, became sourced from antecedental genetic family history. Moreover, therebys it was also required to be stated in the medical opinion, that the disease but for a well formed reason rather was a congenital disease and became neither aggravated by nor became attributable to military service.
29. However, a reading of Annexure R-2, discloses that it has been recorded in a stereo typed form and no reasons have been recorded to the extent (supra). Reiteratedly, since no evidence to rebut the presumption (supra) has been led by the respondents, therebys, this 15 of 17 ::: Downloaded on - 18-12-2024 12:49:18 ::: Neutral Citation No:=2024:PHHC:168527-DB CWP-4065-2015 -16- Court is constrained to give no weightage to the opinion of the medical board, as enclosed in Annexure R-2. Conspicuously, no credence can be assigned to the supra ill informed reason, besides therebys the onsetting of the disease cannot be said to be a sequel of antecedental genetic family history. Contrarily, it is required to be declared to arise from rendition of military service. In addition, it is required to be declared to be attributable or becoming aggravated by rendition of military service by the present petitioner.
30. Moreover, though it is stated thereins that the disease occurred while service became performed by the defence personnel rather in a peace area, but since there is no express mandate in the relevant regulations, which makes the onsettings of the disease in a peace area, to not beget a further sequel that as such, it's onsettings did not arise from the rendition of military service nor it became aggravated by rendition of the military service. In consequence, the lack of the said express mandate in the regulations, does constrain this Court to conclude, that even if the onsettings of the said disease upon the present respondent thus occurred in a peace area, thereby, the said onsettings are to be declared to become aggravated by or being attributable to rendition of military service.
Final Order of this Court.
31. In aftermath, this Court finds merit in the writ petition and with observations above, the same is allowed.
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32. The impugned order (Annexure P-1) is quashed and set aside but with a direction to the respondents concerned, to process the disability pension case of the petitioner besides grant him the benefits of roundings off as pronounced in judgment rendered by the Hon'ble Apex Court in case titled as 'Union of India Vs. Ram Avtar', reported in 2014 SCC Online 1761.
33. The above exercise may be done within a period of three months from today.
34. Since the main case itself has been decided, thus, all the pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR) JUDGE (SUDEEPTI SHARMA) 17.12.2024 JUDGE kavneet singh Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 17 of 17 ::: Downloaded on - 18-12-2024 12:49:18 :::