Supreme Court - Daily Orders
Ex. Hav. Mani Ram Bhaira vs Union Of India . on 11 February, 2016
Author: Chief Justice
Bench: Chief Justice, R. Banumathi
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4409 OF 2011
EX. HAV MANI RAM BHAIRA ... Appellant(s)
Versus
UNION OF INDIA AND ORS. ... Respondent(s)
O R D E R
This appeal arises out of an Order dated 11.01.2011 passed by the Armed Forces Tribunal, Regional Bench, Jaipur whereby Original Application No. 59 of 2010 filed by the appellant for grant of disability pension has been rejected.
The appellant was enrolled in the corps of EMI of the Indian Army on 22nd February, 1984. It is not in dispute that at the time of his enrolment, he was medically examined and found fit with no disability or deformity whatsoever. He was in due course promoted as Havaldar and eventually discharged from service under Rule 13(3)III(i) of the Army Rules in Medical Category SIHIA3 P1E1 on account of his being a case of Bilateral PVD (Lower Limb) with a disability assessed at 30% for life. The relevant Medical Board Signature Not Verified before whom the appellant was brought up for medical examination Digitally signed by SHASHI SAREEN Date: 2016.02.26 08:34:32 IST Reason: however opined that the disability suffered by the appellant was not attributable to or aggravated by military service. A first 2 appeal filed by the appellant against the said decision was rejected by the Appellate Authority by an Order dated 08.04.2008. A second appeal also met with the same fate.
Dissatisfied with the view taken by the authorities, the appellant filed Original Application No. 59 of 2010 before the Armed Forces Tribunal, Jaipur. The Tribunal has, as noticed earlier, dismissed the application filed by the appellant primarily on the ground that the Medical Board, which is an expert body, has held that since the disability suffered by the appellant during the course of his service was not attributable to or aggravated by such service, there was no question of granting any disability pension to him. The present appeal, as noticed earlier, calls in question the correctness of the said appeal.
No one has appeared on behalf of the appellant. Learned counsel for the respondent has all the same taken us through the order passed by the Tribunal. The legal position as regards the approach to be adopted while dealing with the claim of disability pension has been the subject matter of a long line of decisions of this Court. Reference to each one of those decisions is unnecessary as the case law on the subject has been reviewed by this Court in Union of India Vs. Rajbir Singh 2015 (12) SCC 264 (Civil Appeal No. 2904 of 2011). This Court has in the said decision taken note of the relevant Pension Regulations for the 3 Army as also the Entitlement Rules for casualty, Pensionary Awards, 1982 and the decisions rendered by this Court from time to time wherein the said Rules have been interpreted. In para 11 of the said judgment, this Court has summarised the following governing principles:
i) a member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance;
ii) in the event of his being discharged from service on medical grounds at any subsequent stage it must be presumed that any such deterioration in his health which has taken place is due to such military service;
iii) the 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 military service; and
iv) if medical opinion holds that the disease, because of which the individual was discharged, could not have been detected on medical examination prior to acceptance of service, reasons for the same shall be stated.” This Court has then referred to Dharam Vir Singh Vs. UOI 2013 (7) SCC 316 and observed:
“15. The legal position as stated in Dharamvir Singh’s case (supra) is, in our opinion, in tune with the Pension Regulations, the Entitlement Rules and the Guidelines issued to the Medical Officers. The essence of the rules, as seen earlier, is that a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into service 4 if there is no note or record to the contrary made at the time of such entry. More importantly, in the event of his subsequent discharge from service on medical ground, any deterioration in his health is presumed to be due to military service. This necessarily implies that no sooner a member of the force is discharged on medical ground his entitlement to claim disability pension will arise unless of course the employer is in a position to rebut the presumption that the disability which he suffered was neither attributable to nor aggravated by military service. From Rule 14(b) of the Entitlement Rules it is further clear that if the medical opinion were to hold that the disease suffered by the member of the armed forces could not have been detected prior to acceptance for service, the Medical Board must state the reasons for saying so. Last but not the least is the fact that the 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 a disability at times even before they completed their tenure in the armed forces. There may indeed be cases, where the disease was wholly unrelated to military service, but, in order that denial of disability pension can be justified on that ground, it must be affirmatively proved that the disease had nothing to do with such service. The burden to establish such a disconnect would lie heavily upon the employer for otherwise the rules raise a presumption that the deterioration in the health of the member of the service is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. The very fact that he was upon proper physical and other tests found fit to serve in the army should rise 5 as indeed the rules do provide for a presumption that he was disease-free at the time of his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service. For the employer to say so, the least that is required is a statement of reasons supporting that view. That we feel is the true essence of the rules which ought to be kept in view all the time while dealing with cases of disability pension.” Applying the above parameters to the case at hand, we are of the view that the claim made by the appellant for payment of disability pension has been wrongly declined by the authorities. We say so because apart from stating that the disability suffered by the appellant which was admittedly suffered during the course of his service was not attributable to the military service or aggravated by such service, there is nothing on record to suggest as to how the Board has come to that conclusion. As observed in Rajbir Singh's case (supra), in cases where the Medical Board has not taken note of any pre-existing disease or disability with the recruit, at the time of enrollment, there is a presumption that disability detected at the time of his discharge from service was attributable to military service. That presumption is no doubt rebuttable but the burden to do so lies on the respondent-UOI. This Court has in more than clear terms stated that the burden to establish a disconnect between the disease and military service 6 lies upon the employer. The soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. That is because the scheme of the Rules gives rise to a presumption that in the case of soldiers who are found physically fit and recruited into the Army any disability subsequently noticed shall be presumed to be on account of military service unless the Medical Board had made a note of any such disease at the time of recruitment. There is no such note on record in the present case suggesting any disease or disability like the one suffered by the appellant at the time of his recruitment. There is also no reason given by the Medical Board for describing the disease to be not attributable to or aggravated by military service. In that view, we find it difficult to sustain the order passed by the Tribunal and those passed by the authorities below.
We accordingly allow this appeal, set-aside the order passed by the Tribunal and allow O.A. No. 59/2010 with a direction that the appellant shall be entitled to disability pension at the rate prescribed under the Rules w.e.f. the date he was released from service. We further direct that the rounding off benefit in terms of this Court's decision in Union of India and Ors. Vs. Ram Avtar (Civil Appeal No. 418 of 2012 and connected matters) shall also be 7 admissible to the appellant. Since the appellant has remain unrepresented, there shall be no order as to costs.
................CJI.
(T.S.THAKUR) .................J. (R.BANUMATHI) New Delhi, Dated: 11th February, 2016.
8
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1695 OF 2016
(Arising out of SLP(C) No. 22765 of 2011)
SATWINDER SINGH ... Appellant(s)
Versus
UNION OF INDIA AND ORS. ... Respondent(s)
O R D E R
Leave granted.
This appeal arises out of a judgment and Order dated
06.04.2011 passed by the Armed Forces Tribunal, Chandigarh whereby
TA No. 986 of 2010 filed by the appellant for grant of disability pension has been dismissed.
The appellant was enrolled in the Sikh regiment of the Indian Army in October, 1995. At the time of his enrolment, he was as per the practice and prevalent procedure medically examined and found fit in all respects for service in the Army. In due course he successfully completed the prescribed training at the Sikh Regiment Centre and got posted at Siddar on the Indo Pak International Border when he claims to have fallen sick due to stressful nature of his duties. The appellant's case is that on the advice of his Company Commander, he proceeded on annual leave but while at home his condition deteriorated leading to his admission to military hospital, Pathankot from where he was transferred to Military Hospital at Udhampur. A Medical Board held at Military Hospital, Pathankot awarded permanent medical 9 category “EEE” to the appellant as he was diagnosed to be suffering from 'schizophrenia'. This eventually led to the appellant's discharge from service on 31.08.1997 on the ground of his being in low medical category “EEE”. The appellant's claim for disability pension was examined and rejected by the CCDA (P) Allahabad on the ground that the disease contracted by him was neither attributable to nor aggravated by military service. Statutory appeals filed by the appellant also having failed, the appellant filed Civil Suit No. 21 of 2001 before the Civil Judge, Gurdaspur, Punjab inter alia praying for grant of disability pension to him. The suit was contested by the respondent but eventually decreed by the Trial Court in terms of its judgment and order dated 16.05.2002. Respondent-UOI preferred Civil Appeal No. 236-A of 2006 to challenge the said decree which appeal was allowed by the Appellate Court resulting in the dismissal of the suit filed by the appellant. The Appellate Court held that the disease with which the appellant suffered was constitutional and not on account of military service. A regular second appeal was then preferred by the appellant before the High Court of Punjab and Haryana at Chandigarh which was transferred to the Armed Forces Tribunal at Chandigarh and registered as TA No. 986 of 2010. The Tribunal has, as noticed earlier, dismissed the transferred appeal in terms of the judgment and order impugned before us.
We have heard learned counsel for the parties at some length 10 who have taken us through the orders passed by the First Appellate Tribunal as also the Tribunal. The material facts are not in dispute. It is not in dispute that on the date of the recruitment of the appellant in the Army, he was subjected to medical tests and found fit. It is also not disputed that the Medical Board who conducted such medical check up did not make note of any disability or disease whether related to the disease of schizophrenia or otherwise. That the appellant under went and successfully completed the prescribed military training which is by all means rigorous, is also not in dispute. That he was posted for regular duty on Indo-Pak border is also common ground. The appellant's case in the above backdrop is that he got the first bout of illness while he was serving at the Indo-Pak Border under stressful conditions and was advised to take annual leave by his Company Commander. While on leave his condition worsened because of which he was admitted to the military hospital for treatment eventually leading to his being diagnosed as a case of schizophrenia. The discharge order that followed is according to the appellant relateable to the said disease only.
The only question that falls for consideration in the above backdrop is whether the disease with which the appellant was diagnosed was attributable to military service. On behalf of the appellant, it was contended that there is a presumption that the disease was attributable to military service or atleast aggravated by it. On the contrary learned counsel for the 11 respondent-UOI argued that the medical opinion does not support any such presumption. The medical opinion according to the learned counsel suggests that the disease suffered by the appellant is constitutional. The question then is as to what is the true legal position and what is the correct approach to be adopted in dealing with such a situation. The question is no longer res integra in the light of decision of this Court in UOI Vs. Rajbir Singh 2015 (12) SCC 264 where this Court has upon a review of the case law on the subject summed up governing principles as under:
i) a member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance;
ii) in the event of his being discharged from service on medical grounds at any subsequent stage it must be presumed that any such deterioration in his health which has taken place is due to such military service;
iii) the 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 military service; and
iv) if medical opinion holds that the disease, because of which the individual was discharged, could not have been detected on medical examination prior to acceptance of service, reasons for the same shall be stated.” This Court while dealing with an earlier decision in Dharam Vir Singh Vs. UOI 2013 (7) SCC 316 observed :12
“15. The legal position as stated in Dharamvir Singh’s case (supra) is, in our opinion, in tune with the Pension Regulations, the Entitlement Rules and the Guidelines issued to the Medical Officers. The essence of the Rules, as seen earlier, is that a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into service if there is no note or record to the contrary made at the time of such entry. More importantly, in the event of his subsequent discharge from service on medical ground, any deterioration in his health is presumed to be due to military service. This necessarily implies that no sooner a member of the force is discharged on medical ground, his entitlement to claim disability pension will arise unless the employer is in a position to rebut the presumption that the disability which he suffered was neither attributable to nor aggravated by military service. From Rule 14(b) of the Entitlement Rules it is further clear that if the medical opinion were to hold that the disease suffered by the member of the armed forces could not have been detected prior to acceptance for service, the Medical Board must state the reasons for saying so. Last but not the least is the fact that the 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 a disability at times even before they completed their tenure in the armed forces. There may indeed be cases, where the disease was wholly unrelated to military service, but, in order that denial of disability pension can be justified on that ground, it must be affirmatively proved that the disease had nothing to do with such service. The burden to establish such a disconnect would lie heavily upon the employer for otherwise the rules raise a presumption 13 that the deterioration in the health of the member of the service is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. The very fact that he was upon proper physical and other tests found fit to serve in the army should rise as indeed the rules do provide for a presumption that he was disease-free at the time of his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service. For the employer to say so, the least that is required is a statement of reasons supporting that view. That we feel is the true essence of the rules which ought to be kept in view all the time while dealing with cases of disability pension.” In the light of the above, there is no gainsaying that a presumption arises in favour of the appellant being fit on the date of his recruitment and the disease subsequently detected being attributable to military service. That presumption is no doubt rebuttable. The question is whether the respondent have been able to rebut the same. Reliance by learned counsel for the respondent upon the report of the Medical Board to the effect that the disease is constitutional does not in our view constitute sufficient rebuttal of the presumption. That is because schizophrenia is one of the scheduled diseases which can within the comprehension of the Rules be contracted by those serving in the Army on account of the conditions of their service. The Rules do not exclude the possibility of a person who is fit on the date of 14 recruitment becoming schizophrenic on account of the stressful and difficult conditions of his service.
Learned counsel for the respondent does not dispute that there may be several circumstances leading to stressful conditions and such conditions may indeed lead to an individual contracting schizophrenia if posted in such conditions. Posting on the Indo-Pak border was not according to the learned counsel such a stressful condition where the appellant could possibly have been exposed to the hazard of contracting such a disease. Be that as it may the Medical Board has simply opined that the disease is constitutional. There is no explanation or justification leave alone any cogent analysis of the cause or the basis on which the said opinion is recorded. Simply declaring that the disease is constitutional would not in the facts and circumstances of the case suffice.
In the result, we allow this appeal, set-aside the order passed by the Tribunal and allow T.A. No. 986 of 2010 with the direction that the appellant shall be entitled to claim disability pension w.e.f. the date of his discharge from service with the benefit of rounding off as admissible under the prevalent rules and regulations. No costs.
................CJI.
(T.S.THAKUR) .................J. (R.BANUMATHI) New Delhi, Dated: 11th February, 2016.15
ITEM NO.106 COURT NO.1 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 4409/2011
EX. HAV. MANI RAM BHAIRA Appellant(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
WITH
SLP(C) No. 22765/2011
(With Office Report)
Date : 11/02/2016 These appeals were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MRS. JUSTICE R. BANUMATHI For Appellant(s) Mr. Prasang Shukla, Adv.
Ms. Asha Upadhayay, Adv.
Mr. R. D. Upadhyay,Adv.
Mr. Anand Mishra, Adv.
Mr. A.Kumar Singh, Adv.
Dr. Charuwali Khanna, Adv.
Dr. (Mrs. ) Vipin Gupta,Adv.
For Respondent(s) Mr. P.S.Narasimha, ASG, Ms. B.Sunita Rao, Adv.
Mr. Anurag, Adv.
Mr. Ram Babu, Adav.
Mr. B. V. Balaram Das,Adv.
UPON hearing the counsel the Court made the following O R D E R These appeals are allowed in terms of the signed order.
(Shashi Sareen) (Veena Khera) AR-cum-PS Court Master
(Two separate Signed orders are placed on the file)