No.2550494 Ex Nk.Chandrasekharan ... vs The Union Of India on 29 May, 2025

[Cites 9, Cited by 0]

Kerala High Court

No.2550494 Ex Nk.Chandrasekharan ... vs The Union Of India on 29 May, 2025

The petitioner is the applicant in O.A No.268 of 2022 on the file of the Armed Forces Tribunal, Regional Bench, Kochi ('the Tribunal' for short). He filed this writ petition under Article 226 of the Constitution of India, challenging the order dated 19.12.2023, by which the Tribunal rejected his claim for disability pension, which, according to him, should be rounded off to 50% for life.

2. The petitioner was discharged from military service on 04.09.1977 after completing 15 years and 347 days of service. At the time of discharge, his medical condition was noted as 'Essential Hypertension' with a disability at 40% for two years and the Release Medical Board noted it as not connected with service. In the absence of a medical opinion favouring the petitioner, the 3rd respondent declined disability pension to him. The petitioner challenged the denial of disability pension before the Tribunal by filing O.A. No. 255 of 2016, which was disposed of, granting the relief of revision of pension alone. Later, the petitioner filed the present OA No.268 of 2022 claiming disability pension. The 3 WPC NO.35292 OF 2024 2025:KER:37853 respondents raised objections regarding the maintainability of the original application in view of the earlier application filed by the petitioner for the very same relief. It was contended that the Tribunal did not condone the delay with respect to the claim for disability/war injury pension in the earlier Original Application filed by the petitioner. The Tribunal, after considering the rival contentions raised by the parties, dismissed the O.A., holding that the claim for disability pension raised by the petitioner was already considered in the previous round of litigation.

3. Heard Sri.R Rajasekharan Pillai, the learned counsel for the petitioner, and Sri. S. Biju, the learned Senior Central Government Counsel for the respondents.

4. The learned counsel for the petitioner would submit that the entitlement of the petitioner for disability pension was not considered by the Tribunal on merits in the previous round of litigation, and that portion of the relief was dismissed on the issue of limitation. However, now the position is settled in view of the judgment of the Apex Court in Union of India v. Tarsem Singh [(2008) 8 SCC 648]. The entitlement of the petitioner for 4 WPC NO.35292 OF 2024 2025:KER:37853 disability pension was not considered by the Tribunal on merits in the impugned order also. The learned counsel for the petitioner relied on the judgment of the Apex Court in Dharamvir Singh v. Union of India and Others [(2013) 7 SCC 316], Sukhvinder Singh v. Union of India & Ors [(2014) 14 SCC 364] and Union of India and another v. Rajbir Singh [(2015) 12 SCC 264] in support of his arguments.

5. On the other hand, the learned SCGC would submit that the Tribunal has properly analysed the claim of the petitioner and hence no interference of this Court is warranted.

6. It is worth to extract Regulations 423(a) and (c) of Chapter VIII of Regulations for Medical Services 1983 to appreciate the findings of fact and law arrived at by the Tribunal. The said Regulations read 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 5 WPC NO.35292 OF 2024 2025:KER:37853 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 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 6 WPC NO.35292 OF 2024 2025:KER:37853 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. In Dharamvir Singh [(2013) 7 SCC 316], wherein a similar controversy arose, it was held by the Apex Court that a member of Armed Forces is presumed to be in sound physical and mental condition upon entering service, if there is no note or entry to the contrary in his records. In the event, he is subsequently discharged from service on medical grounds, the onus of proof that the deterioration in his health was not due to service conditions lies on the employer. At paragraph 33 of the said judgment the Apex Court held thus:

"33. As per Rule 423(a) of General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease 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. "Classification of diseases" have been prescribed 7 WPC NO.35292 OF 2024 2025:KER:37853 at Chapter IV of Annexure I; under paragraph 4 post traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing etc. Therefore, the presumption would be that the disability of the appellant bore a casual connection with the service conditions."

This view is reiterated in Rajbir Singh [(2015) 12 SCC 264], wherein it was further held that provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with disability at times even before they completed their tenure in the Armed Forces.

8. It is trite that the opinion of the Medical Board, if found erroneous due to non-appreciation of facts and circumstances, the court exercising power of judicial review under Article 226 of the Constitution of India can very well interfere with the same and correct the error. In Veer Pal Singh v. Secretary, Ministry of Defence [(2013) 8 SCC 83] the Apex Court held that although, the Courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the 8 WPC NO.35292 OF 2024 2025:KER:37853 decision taken on the basis of such opinion. What needs to be emphasized is that the opinion of the experts deserves respect and not worship and the Courts and other judicial/quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release/discharge from the Army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable.

9. The rounding off is also not a matter res integra in view of the ratio culled out in Sukhvinder Singh [(2014) 14 SCC 364], wherein it has been stated that wherever a member of Armed Force is invalided out of the service, it has to be assumed that his disability was found to be above 20%. Admittedly, the Government itself had come out with a notification dated 31.01.2001 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 in the said notification is extracted herein below for clarity:

"7.2 Where an Armed Forces Personnel is invalided out under circumstances mentioned in Para 4.1 above, the 9 WPC NO.35292 OF 2024 2025:KER:37853 extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element:

Percentage of disability as Percentage to be reckoned assessed by invaliding for computing of medical board disability element Less than 50 50 Between 50 and 75 75 Between 76 and 100 100"

10. The petitioner herein was discharged from military service on 04.09.1977 after completing the qualifying period for claiming pension. The Release Medical Board assessed his disability 'Essential hypertension' at 40% for two years. The respondents have no case that at the time of entering the service, the petitioner was suffering from any medical disability. Therefore, we hold that the disability suffered by the petitioner has to be treated as one connected with his service. As noticed above, the claim of disability pension raised by the petitioner was not considered on merits by the Tribunal in the earlier round of litigation. Being a recurring cause of action, it cannot be said that the petitioner is restrained from agitating the very same claim 10 WPC NO.35292 OF 2024 2025:KER:37853 again.

11. It is worth to note that in the judgment dated 28.11.2019 in Civil Appeal No.5970 of 2019 in the matter of Commander Rakesh Pande v. Union of India and others, the Apex Court by noting paragraph 7 of the letter dated 07.02.2001 of Government of India which dealt with the modalities for implementation of the recommendations of the 5 th Central Pay Commission which recommends that no periodical review by the Resurvey Medical Board shall be held for reassessment of disabilities, held that in the case of disabilities adjudicated as being of permanent nature, the decision once arrived at will be for life unless the individual himself requests for a review. In that case, the Apex Court took the disability of Diabetes Mellitus (NIDDM) and Hyperlipidaemia as a disability of 20% for 5 years assessed by the Release Medical Board as one for life. But in the instant case, the disability assessed by the Release Medical Board cannot be adjudicated as of permanent nature, without further review, in view of the nature of the illness.

12. As far as payment of arrears of pension is concerned, 11 WPC NO.35292 OF 2024 2025:KER:37853 in Union of India v. Tarsem Singh [(2008) 8 SCC 648] the Apex Court held thus:

"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles 12 WPC NO.35292 OF 2024 2025:KER:37853 relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition".

[Emphasis supplied]

13. The dictum in Tarsem Singh [(2008) 8 SCC 648] is reiterated by the Apex Court in the order dated 06.08.2024 in Civil Appeal Nos. 1320-1321 of 2019 in the matter of Ex.CPL.Ranganathan Nair v. Union of India & Ors and in the judgment dated 07.05.2025 in Civil Appeal No.998 of 2025 in the matter of Rajumon T.M v. Union of India & Ors.

14. On analysing the submissions made at the Bar and the materials placed on record in the light of the judgments and provisions referred supra, we find that the present disability of the petitioner, if any, has to be assessed by the respondents by constituting a reassessment Medical Board. In view of the dictum laid down by the Apex Court of Tarsem Singh [(2008) 8 SCC 648] and subsequent pronouncements referred supra, the petitioner is entitled for arrears of disability pension for a period of three years prior to the filing of the present original application 13 WPC NO.35292 OF 2024 2025:KER:37853 before the Tribunal.

In the result, the writ petition is allowed in part as under:

(i) The respondents are directed to convene a reassessment Medical Board to assess the percentage of disability, if any, suffered by the petitioner at present.

(ii) If the petitioner is found suffering from disability, the competent among the respondents is directed to issue a corrigendum PPO granting entitled percentage of disability element of pension also to the petitioner with arrears for a period of three years prior to the filing of O.A. No.268 of 2022.

(iii) The entire exercise directed above shall be completed at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this judgment, failing which the unpaid arrears would carry interest at 7% per annum.

Sd/-

AMIT RAWAL, JUDGE Sd/-

sks                              MURALEE KRISHNA S., JUDGE
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WPC NO.35292 OF 2024
                                                    2025:KER:37853

                   APPENDIX OF WP(C) 35292/2024

PETITIONER EXHIBITS

Exhibit -P1            TRUE COPY OF OA NO.268/2022 FILED BY THE

PETITIONER BEFORE THE HON'BLE ARMED FORCES TRIBUNAL ERNAKULAM BENCH Exhibit -P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA NO.268/2022.

Exhibit -P3 TRUE COPY OF THE ORDER DATED 19.12.2023 IN OA NO.268/2022 OF THE ARMED FORCE TRIBUNAL ERNAKULAM RESPONDENT EXHIBITS Exhibit R2(a) A true copy of the order dated 27.01.2017 in OA No. 255 of 2016 passed by the Armed Forces Tribunal, Kochi Exhibit R2(b) A true copy of the PPO No. S/Corr/6th CPC/050244/2018 issued by PCDA (P) Allahabad dated 12.07.2018 Exhibit R2(c) A true copy of the PPO Release Medical Board proceedings dated 28.03.1977

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